What Did the "Modified Single-Copy Indictment" System Actually Improve?

Recently, media reported that the Criminal Procedure Law Amendment Committee of the Judicial Yuan approved the adoption of a "modified single-copy indictment" system. If passed by the Legislative Yuan, in future trials only the judge-in-charge and the defendant will have access to the case files and evidence submitted by the prosecutor, while the presiding judge and associate judges will have no access at all. The Judicial Yuan stated that this system is primarily intended to prevent judges' mental impressions from being biased by the evidence presented by the prosecution.

Currently, there are two primary systems of criminal procedure in the world. The United States adopts an adversarial model, where a jury generally decides the defendant's guilt or innocence, and the judge plays a passive role in listening to the proceedings, with the power—but not the obligation—to proactively investigate evidence favorable or unfavorable to the defendant; hence, it is paired with the single-copy indictment system. Continental European countries, on the other hand, believe that in order to ascertain the truth of the facts alleged in the indictment, the court has the ex officio duty to supplement investigations once it learns of the existence of evidence that may affect fact-finding, regardless of whether the evidence is favorable or unfavorable to the defendant; consequently, this is paired with the dossier-transfer system. The primary rationale for the U.S. system is respect for the two opposing parties and the prevention of judges from overestimating the evidence they have gathered while ignoring other evidence. The primary rationale for the Continental supplementary investigation system is that both prosecutors and judges have the duty to investigate evidence, which is more conducive to discovering the truth; the court independently investigates evidence to prevent biases in the prosecutor's fact-finding, and the judicial power and prosecutorial power exist in a relationship of checks and balances, rather than a relay race between the court and the prosecutor.

Both of the aforementioned systems have their own rationales, yet many renowned U.S. scholars favor the Continental system. For instance, Rollin M. Perkins observed in his seminal work The Abnormal Criminal Procedure: "The adversary system allows lawyers to fight with various tricks and stratagems, presuming that as long as the rules of the game are carefully observed, justice will prevail in the end through this battle of wits." Franklin D. Strier conducted a research study in 1988 involving the largest number of jurors in U.S. history, concluding that: in court, at least one party's litigation purpose is not to pursue the truth, but to distort it, and the remedy is for judges to conduct more supplementary investigations and questioning in court. Evidence from reality shows that the U.S. judicial system and social security are actually far inferior to those of Western European nations, which is why several scholars and the author—despite knowing that the adversarial system holds sway in Taiwan—still choose to fight tirelessly for the Continental system.

Taiwan's criminal procedure system is currently facing the issue of choosing the judge's role. Which system better aligns with our nation's concept of judicial justice and social needs? Opinions vary among the court, prosecutors, defense counsel, and scholars, while the general public largely remains uninformed. We should engage in deep dialogue so that policymakers can genuinely understand the pros and cons of different systems before the legislature makes a choice. However, Taiwanese media often misconstrue this merely as a turf war among the court, prosecution, and defense, and certain legislators—mistakenly believing the U.S. system is more advanced—passed a supplementary resolution during the third reading of the criminal procedure law amendments in March 2007, requesting the Judicial Yuan to fully adopt the single-copy indictment system within six years.

Taiwan's current dossier-transfer system is a continuation of the European supplementary investigation system. After a prosecutor indicts a defendant, case files and evidence are transferred to the court, allowing all three judges on the collegiate panel and the defendant to review the dossier before the trial. Its advantage is that it enables the adjudicators to quickly grasp the disputed issues of the case and accelerates the trial proceedings; if judges enter a trial with a completely blank slate, they would be subjected to lengthy performances by the parties, thereby prolonging the litigation process. Conversely, some scholars and attorneys criticize the dossier-transfer system for causing judges to be prejudiced and to judge before hearing.

Nevertheless, Taiwan does not adopt a jury system, and professional judges should adjudicate independently based on their conscience and capacity. Although judges may be influenced by the prosecutor's dossier to form partial mental impressions in advance, this does not compromise the impartiality of the trial. Prosecutors in Taiwan have no stake in the defendant or the victim; although they prosecute nearly half of all cases from an objective standpoint, close to 5 percent of prosecuted cases still result in acquittals, and this is the reason why. If "judges forming partial mental impressions before trial" is deemed a serious flaw, the system should be amended toward a genuine single-copy indictment system—following the U.S. model to allow mutual discovery between the prosecution and defense to prevent either party from being ambushed during trial, while also introducing a jury to find the facts. This is an expensive path. If Taiwanese society understands the pros and cons of the U.S. system and makes this decision, we will accept it regardless of whether we agree with it.

Instead of taking this path, the Judicial Yuan passed the "modified single-copy indictment" system: the judge-in-charge still sees the dossier, which may in turn influence the mental impressions of the other judges on the collegiate panel; the defendant can view the prosecutor's dossier prior to trial, threatening, intimidating, or bribing witnesses in advance, while the prosecutor remains completely unaware of what moves the defendant will make. If this amendment passes, it will retain all the disadvantages of the single-copy indictment system while enjoying none of its benefits. May I ask what exactly has been improved?

※ This article was published in the China Times