Questionnaire Survey on the Pilot Program of Prosecutors' Full Attendance at Hearings in Shihlin and Miaoli District Courts

Following the consensus of the 1999 National Judicial Reform Conference to steer the litigation system toward an adversarial system, the Shihlin and Miaoli District Courts were selected as pilot sites for prosecutors' full attendance at hearings. Six months into the trial period since June 1, 1999, despite the arduous implementation process, this pilot has opened up new hope for the sound development of future courtroom proceedings in Taiwan. It has not only materialized the role of prosecutors in the courtroom, but also fostered a sound tripartite relationship among judges, prosecutors, and defense counsel, making it possible to get closer to the truth.

This survey targeted members of the Taipei Bar Association, collecting a total of 201 valid questionnaires. In addition to releasing the findings to the public, the survey results and all suggestions will be provided to the Judicial Yuan and the Ministry of Justice as a basis and reference for continuing to promote the systems of prosecutors' full attendance at hearings and cross-examination in the future.

From this questionnaire survey jointly conducted by the Taipei Bar Association and the Judicial Reform Foundation, several key opinions can be summarized: 

1. Universal Affirmation of the Prosecutor Hearing Attendance System

   Including the beliefs that this measure will be of greater help in uncovering the truth of cases (91%), will allow witnesses and expert witnesses to make more thorough statements (82%), and will help judges approach trials from a more objective standpoint (85%), an almost absolute majority of the surveyed attorneys expressed extremely high affirmation for this pilot system.

   It is noteworthy that not only did a high proportion of 85% of the surveyed attorneys believe that the system of prosecutors' full attendance at hearings and cross-examination should be implemented nationwide, but 75% of the surveyed attorneys also believed that a timetable for nationwide implementation should be completed within three years (Question 18). This indicates that attorneys not only support this system, but also believe that the Judicial Yuan and the Ministry of Justice should actively plan and promote it, so that ideal courtroom proceedings can be extended nationwide as soon as possible.

2. Clarifying the Truth and Enhancing Litigation Efficiency

   A very significant impact of the pilot of prosecutors' full attendance at hearings and cross-examination is its effect on the appeal rate. Because healthier courtroom proceedings allow the truth to be clarified in court, it has led to a decrease in prosecutors' appeal rates (59% of respondents felt there was an impact), while also affecting more than half (51%) of the parties involved. This result will make litigation more efficient, preventing final judgments from being delayed due to appeals and avoiding the waste of judicial resources.

3. Protocol and Transcript Issues Urgently Need Improvement

   In the questionnaire, the issue of court clerks producing transcripts appears to be a major hidden concern in the pilot system. Nearly half of the surveyed attorneys (47%) believed that the current production of court transcripts cannot accommodate the recording needs of cross-examination systems, and as high as 76% of attorneys stated that they frequently have to wait for court clerks to produce transcripts. When asked which transcript production method could best accommodate the system of prosecutors' full attendance at hearings and cross-examination, only 8% felt that maintaining current restrictions was sufficient, while 50% of the surveyed attorneys believed shorthand recording should be used, and 41% believed that audio recording followed by full-text compilation could be used to produce transcripts. This clearly shows that if transcript issues continue to be handled through the current practice of court clerks recording alongside court sessions, not only will it fail to meet demands, but it is likely to become a major reason delaying courtroom cross-examination procedures in the future.

4. Mandatory Representation and Legal Aid Systems are Imminent

   Under the system where prosecutors fully attend hearings and cross-examination is adopted, because prosecutors must attend hearings, whether a defendant has retained defense counsel becomes a crucial key to whether they can maintain equality of arms with the prosecutor. Otherwise, it easily creates the impression of "judges and prosecutors joining forces against the defendant." Therefore, a mandatory attorney system has become almost an essential condition for maintaining courtroom fairness, leading to 84% of surveyed attorneys in the survey believing that a mandatory attorney system should be adopted simultaneously.

   On the other hand, once the system of prosecutors' full attendance at hearings and cross-examination is fully implemented, the total time spent on cases will inevitably increase (91% of respondents believe it will increase), and attorney fees are very likely to rise accordingly (83% of surveyed attorneys believe fees should increase). This indicates that the economic threshold for defendants who have the ability to hire attorneys is likely to rise. When those who could already scarcely afford attorney fees face rising fees due to systemic changes, the implementation of "legal aid," previously resolved at the National Judicial Reform Conference, becomes even more urgent. Otherwise, once the new system is fully implemented, it would be tantamount to a disguised relative deprivation of people's equal right to litigation based on economic capability.

5. Institutionalizing the Duty Representation System for Attorneys

   The questionnaire also addressed whether respondents are willing to serve as "uncompensated duty counsel." The survey results were evenly split, with exactly half of the attorneys willing to provide uncompensated duty defense. Among those willing to serve as duty counsel, the highest proportion (63%) were willing to take on 3 cases per year. This shows that attorneys willing to provide uncompensated services fall far short of the case volume demand, and for those willing to be paid for defense, NT$50,000 serves as the dividing line, with roughly half willing to provide legal aid funded by the state under a mandatory attorney system. Therefore, establishing an institutionalized legal aid system and requiring attorneys to provide legal services under certain conditions can effectively resolve litigation demands.

6. Prosecutors Lead in Performance, Attorneys Need to Step Up!

   Finally, when surveyed attorneys were asked to grade the three parties—judges, prosecutors, and defense counsel—under the pilot system, attorneys gave prosecutors the highest score of 74, narrowly leading judges' performance score of 70 by four points, while attorneys themselves barely passing with a score of 66, trailing judges by another four points. Therefore, it is clear that even the attorneys themselves believe that after the implementation of the prosecutors' full attendance at hearings and cross-examination system, the ones who need to step up the most are the attorneys themselves!