CODE OF CRIMINAL PROCE-DURE AMENDED

07/01/2003

---

On 15 January 2003, the Legislative Yuan gave its third and final reading of amendments to the Code of Criminal Procedure (Code), which were promulgated by the President on 6 February 2003. The amendments affect 133 Articles, and focus mainly on the evidentiary rules. Except for those articles named in Article 7-2 of the En-forcement Law for the Code of Criminal Pro-cedure, which took effect on 6 February 2003, the remainder will come into force on 1 Sep-tember 2003. We introduce the highlights of the amendments below.

I. Appointment of defense advocate at de-fendant's request:

Under the old Code, there are three types of cases in which the court can appoint a defense advo-cate:

In a case in which representation is mandatory, the presiding judge must appoint an advocate if the defendant has not appointed one.

In a case in which representation is not man-datory, the presiding judge may appoint an advocate if deemed necessary.

In a case in which representation is mandatory and the defendant has appointed an advocate, the presiding judge may appoint a new advo-cate if the one appointed by the defendant fails to appear at the trial without cause.

To prevent discrimination among defendants of different economic backgrounds, the new Code allows a low-income defendant in a case in which representation is not mandatory to request the presiding judge to appoint a defense advo-cate.

II.Complete audio and video recording of trial proceedings:

To ensure that court proceedings are conducted lawfully and appropriately, the new Code re-quires full audio (and, where necessary, video) recordings for trial proceedings. A party who believes that the written record is inaccurate or incomplete may, before the next hearing, request the court to review the recordings.

However, the requirement for full audio and video recording applies only to trial proceedings in court. During an investigation proceeding, audio and video recording is required only when interviewing a suspect.

III. Burden of proof of voluntary confession:

The new Code in principle adopts the adversarial system, and places on prosecutors the burden of proving that any confession was made voluntar-ily. The prosecution must show that a confession was made out of a defendant's free will and not as a result of coercion or other improper means. The prosecutors can present audio and video recordings of their questioning of the defendant as evidence of whether a confession was made of the defendant's own free will.

IV. New rules for exclusion of evidence:

Evidence gathered under the following circum-stances is not admissible:

If questioning is maliciously conducted during the times or under the circumstances prohib-ited by the Code, or at night, the statements obtained are not admissible.

If a law enforcement officer questioning a suspect maliciously fails to inform him of his right to silence and right to counsel, the state-ments obtained are not admissible.

If a witness or expert witness fails to make a written declaration when required by law to do so, the testimony or expert opinion is not ad-missible.

If evidence gathered by public servants in the course of a criminal prosecution is acquired by procedures other than those defined by law, it shall not be admitted as evidence if the court, weighing the protection of human rights against the public interest, decides that it should be excluded.

Under points 1 and 2 above, if the law enforce-ment officer did not act maliciously, and the statements concerned were given voluntarily, then the "good faith exception" principle applies, and the evidence can be admitted.

Point 4 above is a general provision. In "weigh-ing the protection of human rights against the public interest," the court must consider circum-stances such as the gravity of the violation of statutory procedures by the law enforcement of-ficer, whether the violation was deliberate, the nature and severity of the violation of the de-fendant's or suspect's human rights, the degree of danger or real harm arising out of the crime in which the defendant or suspect is implicated, the effect of excluding the evidence of this occasion on deterring illegal evidence-gathering in the future, whether the personnel involved in the investigation and trial would necessarily have discovered the evidence concerned if they had not violated the statutory procedures, and the degree to which the illegally gathered evidence is disadvantageous to the defense.

V. Exclusion of hearsay evidence, and excep-tions:

As a general rule, hearsay evidence should be excluded from court proceedings. "Hearsay evidence" means the testimony of someone who is not present in court, and therefore cannot be cross-examined by the opposing side.

Hearsay can be admitted as evidence under cer-tain exceptional circumstances as follows:

Statements made by a witness to the judge outside the trial.

Statements made by a witness to a prosecutor during an investigation, unless obviously not credible.

Statements made by a witness to a law en-forcement officer during an investigation that do not reconcile with statements made in court, where the earlier statements are more credible.

Statements made by a witness to a law en-forcement officer during an investigation for which there is special evidence of their credi-bility, and where at the time of the trial the witness is dead, has lost his memory due to physical or mental disability, is overseas or his whereabouts are unknown so that he cannot be summoned, or on appearing in court refuses to give evidence without good cause.

Documents made by public servants in the course of their duties.

Documents made by businesspersons in the course of business.

Other documents of credible veracity.

Evidence given with the consent of the parties, or where the parties are aware that the evi-dence introduced is hearsay and they raise no objection before the end of oral proceedings.

VI. Cross-examination:

The new code introduces the cross-examination system of the Anglo-American law to ensure that a defendant has the right to confront a witness who is unfavorable to his case. Through the process of direct examination, cross-examination and re-direct or re-cross examination of the witness by both sides, the points of dispute in a case may be clarified. If a party conducting a cross-examination wishes to examine the witness on new matters not raised in the direct examina-tion, in support of his own position, he must first obtain the permission of the presiding judge. The examination on new matters is then regarded as a direct examination rather than a cross-examination.

During a direct examination, in principle no leading questions may be asked. A leading question is a mode of questioning whereby the questioner prompts the witness to give the an-swer that the questioner wishes to receive, by asking a question that contains its own answer. But this prohibition does not apply to cross-examinations.

The right to examine witnesses is the right of the parties and their defense advocates and not their obligation. The court may not restrict or prohibit a party from exercising his right of examination, except where the court believes the party is act-ing improperly.

VII.Mandatory mental and physical health assessment

The old Code already provides that a defendant may be transferred to a hospital or other appro-priate facilities in order to assess the defendant's mental or physical condition. This represents a major restriction of personal freedom, yet the old Code contains no provisions defining associated procedures. To protect human rights, the new Code imposes a seven-day time limit for such assessment, and requires a written "assessment detention order" to be issued before a defendant can be forcibly taken to a hospital or other fa-cilities for assessment.

It should be noted that prosecutors no longer have powers to restrict personal freedom. If more than 24 hours have elapsed since the de-fendant was arrested, a prosecutor must apply with a judge for an assessment detention order; prosecutors cannot issue such orders themselves.

VIII.Criminal complaint may be filed by agent:

The old Code contains no explicit provision as to whether a complainant can appoint an agent to file a criminal complaint on his behalf, although in practice the courts have always accepted such arrangement. The new Code explicitly provides that a criminal complaint may be filed by an agent upon the production of a power of attorney. The agent may speak in court on the complain-ant's behalf during trial proceedings, but an agent who is not a lawyer may not consult the case files and physical evidence during the trial.

IX.Judges to sit in panels in first-instance trials:

Under the old Code, first-instance proceedings are tried by a single judge, rather than a panel of judges. Considering that the first-instance trial is a trial of facts, and is closest in time to an offense, the new Code instead requires a trial by a panel of three judges, except in simplified and sum-mary proceedings.

X.Mandatory legal representation for pri-vate prosecutions:

The current Code involves a two-track system, i.e., public prosecutions and private prosecutions. However, in view of the fact that some private plaintiffs either have been unable to properly prosecute cases due to their lack of specialized legal knowledge, or have engaged in harassment by lawsuit by bringing frivolous prosecutions, thus unnecessarily wasting judicial resources, the new Code makes it mandatory to conduct private prosecution through legal counsel.

From September 2003, the cross-examination system will be used in all criminal trials. As described above, this is a highly specialized and technical form of court proceedings, and may be beyond the skills of non-lawyers. Thus the in-troduction of mandatory legal representation for private prosecutions is a necessary step.

One result of the change to mandatory repre-sentation under the new Code is that in principle, only the legal counsel needs to appear in court at the trial, with the plaintiff only being called as a witness if necessary. A legal counsel repre-senting a private plaintiff will be able to under-take all actions related to the prosecution that a public prosecutor is able to undertake during trial proceedings.

The old Code provides that if a private plaintiff fails to appear in court without cause, either a judgment will be given in default or the prose-cution will be taken over by the public prosecu-tor. Because the new Code makes legal repre-sentation mandatory, the above provisions, which were intended to protect the interests of private plaintiffs and the public interest, are both abolished. Instead, if the legal counsel fails to appear in court twice without cause, the case will be dismissed.

The latest major overhaul of the Code witnesses a shift from the inquisitorial system of civil-law jurisdictions toward an adapted adversarial sys-tem, the most important feature being the intro-duction of the cross-examination system and the evidentiary rules from Anglo-American law. The Judicial Yuan had originally also hoped to introduce plea bargaining in summary proceed-ings, but the Legislative Yuan did not pass the relevant amendment on this occasion for fear that such a system would not be accepted in Taiwan at present. Following the amendments, major changes in court practice can be expected, and parties would be well advised to gain a full un-derstanding of the relevant statutory provisions in order to protect their own interests.