The Principle of a Single Copy of the Indictment Aims to Expect Prosecutors to Stop "Taking Pay Without Doing the Work"

Prosecutor Wu Hsun-lung, who sat in protest in front of the Judicial Yuan on June 4 last year, published an article again on April 2 criticizing the Judicial Yuan's plan to adopt a "modified principle of a single copy of the indictment." This, he argued, pushes Taiwan further toward an adversarial system (commonly known as party-managed proceedings), which "even most well-known American scholars do not support."

I admire Prosecutor Wu's dedication to justice, but I disagree with some of the arguments in his article. I would like to offer a few points in response here:

First, by citing only the views of two American scholars to claim that "a majority of well-known American scholars favor the continental system," is Prosecutor Wu being too hasty? Combining my reading of past literature with my previous coursework experience in the United States, the vast majority of American scholars and practitioners still champion their own system. Their reason is not necessarily that the adversarial system is the best (though some certainly think so), but rather that the adversarial system is best suited to the American tradition of distrusting the government—a tradition that has existed since the American Revolution. Broadly speaking, Americans like to take their destiny into their own hands, rather than trusting some wise and mighty "pure official" (paing-thian-to-lâi) to clear their names. Therefore, they adopt an adversarial system where two opposing parties contend with each other to investigate the truth of a crime. In contrast, the criminal trial system adopted in continental Europe centers on judges, with prosecutors assisting, where the two work together to investigate the truth of the crime. Under such a system, whether the truth of a crime can be discovered depends on the impartiality and goodwill of government offices. Americans simply do not buy into this system of appealing to a public official. To them, a judge is also an official and remains part of the government apparatus. Under this culture of government distrust, one can generally understand why the decision of guilt or innocence is made by a jury; serving as a juror is a civic duty in the United States. Lacking any culture of a "wise and mighty official," the people would rather have their peers decide guilt or innocence. Moreover, when laws are problematic, juries can exercise jury nullification—even if there is evidence that the defendant has violated state laws, the jury can still acquit the defendant. Incidentally, the U.S. grand jury system reflects this same spirit. Although the practical result of its design is that the contemporary grand jury has largely become a rubber stamp for prosecutors, the original purpose of establishing the grand jury was to prevent prosecutorial overreach.

Based on the above explanation, legal culture is actually a key factor in determining what kind of criminal trial system a country should adopt, though one must be careful not to treat culture as an immutable and homogeneous entity. The culture of the "pure official" still exists in Taiwan today, yet public trust in the judiciary is quite low; Taiwan has many expectations of the government, but has also become disillusioned with it. Therefore, what kind of system Taiwan should adopt to meet the public's expectations of the judiciary and align with people's views on how to fight for their rights is a matter that requires in-depth discussion. When discussing this, I also agree with Prosecutor Wu that the costs of institutional changes must be taken into consideration, especially the legal aid system, after all, justice does not come without cost. But during the discussion, please let Prosecutor Wu not forget that the reason Taiwan began moving toward the American system in 1999 was because many public prosecutors "took pay without doing the work," particularly in the second instance courts; the 2003 amendments were related to this. However, years later, lawyers and scholars discovered that while there are policies from above, there are countermeasures from below. Under the practiced modified adversarial system, prosecutors still found ways to "take pay without doing the work." Consequently, under public pressure, the Supreme Court issued a ruling last year stating that judges do not need to conduct evidence investigations, and this year the Judicial Yuan plans to adopt the principle of a single copy of the indictment. Although the former is legally questionable and the latter is still a half-baked reform, these reform measures are nevertheless supported by the legal profession and judicial reform groups. The reason is that Taiwan's previously adopted "inquisitorial system" or the later "modified party-managed proceedings" both placed defendants at a disadvantage, which is why lawyers and social movement groups welcome more radical reforms.

Secondly, Prosecutor Wu uses the data of a 5% public prosecution acquittal rate to illustrate that judicial bias is not severe, pointing out that even when prosecutors prosecute based on objective evidence, defendants still obtain acquittals, which shows that defendants' rights are not affected by judges' prejudgment. My question is: can the data of a 5% public prosecution acquittal rate really be used to show that judges are completely free of bias? Why not argue that this 5% acquittal rate is because prosecutors' prosecution and presentation of evidence were so outrageous that even the judges could not bring themselves to convict? Is every prosecutor's evidence presentation as objective and rigorous as Prosecutor Wu claims—since they do not know the parties involved—and do judges always adjudicate based on their conscience and innate ability? In fact, in current judicial practice, there are still cases where critical evidence has long been lost, yet prosecutors rely on appraisal reports with crude techniques from twenty years ago, defendants' and accomplices' confessions suspected of being obtained through torture, and some circumstantial evidence to prove a defendant's guilt, and the courts still sanction sentencing a person to death. Therefore, what I want to ask is: what exactly can a 5% acquittal rate prove? Are court judgments rigorous, or are the courts far too lax?

Finally, I also agree that if Taiwan is to adopt an adversarial system, it should concurrently adopt a pre-trial evidence mutual disclosure system, allowing both sides to fairly attack and defend during the trial. However, if the Judicial Yuan does not adopt this system at the same time, should prosecutors worry that "defendants might threaten, intimidate, or bribe witnesses in advance, while prosecutors have no idea what moves the defendants will make"? This worry leaves me rather puzzled—puzzled as to whether prosecutors are severely underestimating their own capabilities. Even under an adversarial system, prosecutors' resources and status remain superior to those of defendants. People like O.J. Simpson, who can assemble their own dream defense teams, are extremely rare. Yet these cases are infinitely magnified, as if adopting party-managed proceedings would cause the judicial system to be ravaged by money. In contrast, prosecutors are state agencies equipped with various compulsory disposition powers such as search, seizure, wiretapping, and physical examinations, and they can mobilize judicial police. Our Code of Criminal Procedure even contains a hearsay exception provision that is quite favorable to prosecutors. Therefore, please rest assured, Prosecutor Wu.