Court Observation on the Anti-CSSTA Movement: An Asymmetrical War

Yesterday (March 10), I went to the district court to observe the respective preliminary proceedings for Hsu Li and Ch'en T'ing-hao regarding the March 24 Executive Yuan case. Both hearings were initial preparatory proceedings. According to Wikipedia, a preparatory proceeding, or preparatory hearing, is a court session convened by a commissioned judge

designated by the presiding judge. Its main tasks are to clarify the issues in dispute, determine whether summary proceedings or simplified proceedings are applicable, address evidentiary admissibility, and conduct procedural reviews to facilitate the smooth progress of future trial proceedings.

Hearing Shorthand

At the very beginning of both hearings, the judge informed the defendants of their rights: the right to remain silent, the right to retain defense counsel, and the right to apply for the investigation of exculpatory evidence. Next, the prosecutor read out (strictly speaking, not reading aloud, but rather murmuring softly) roughly what the defendants were alleged to have done and the statutory provisions violated. Since both hearings concerned the March 23 Executive Yuan case, the alleged crimes were "intrusion upon a building" and "inciting others to commit offenses." Immediately following, the judge asked the defendants whether there were discrepancies in the criminal facts and whether they confessed. Here, Hsu Li pleaded not guilty, stating that he merely followed the crowd and did not incite others to commit offenses. Ch'en T'ing-hao, on the other hand, appeared well-prepared, stating in court that he went to the scene to stop Chang Ch'ing-chung from destroying the legal system and attempting to pass the CSSTA. He said that when he arrived, the host had already asked the crowd to move toward the Executive Yuan, and that he merely held a microphone at the scene to maintain order, asking the crowd to sit in quietly and avoid conflicts with the police. He even made a statement in court regarding his act of "civil disobedience."

Next, the prosecutor looked at the case files and continued to murmur the relevant evidence inaudibly. However, because his reading was extremely brief, one only knew that there were "evidence optical discs such as TVBS video tapes," with no idea what else was actually included. The judge asked the defense whether they agreed to these evidence items. In both hearings, defense counsel stated that they needed to apply for file review before submitting a written response. Finally, the judge asked the defendants whether they needed to apply for the investigation of exculpatory evidence, and both defense counsels similarly answered that they would notify the court in writing after reviewing the files. As for how long it would take to submit a written response, the judge and defense counsel bargained to set a deadline. In Ch'en T'ing-hao's hearing, the defense counsel told the judge that there were many case files and it would take a long time. Yet, the judge picked up the stack of files in hand (about the volume of two issues of Youth Daily, densely packed with text) and told the counsel, "It won't take long." Finally, both sides agreed on a two-week response window, after which the court recessed, concluding that day's proceedings.

Unequal Parties

Something strange happened in both of these preparatory hearings. From beginning to end, the prosecutor seemed to slump in his seat, only murmuring a few words when his procedural turn came. Sitting very close to the prosecutor, I could barely hear him, and it is hard to imagine how defense counsel and the defendants could hear him clearly. The judge sat further away (further than me, but closer than the defendants and counsel), yet somehow seemed to know what the prosecutor was saying. Moreover, when confirming the criminal facts, the judge interrogated the defendants incessantly, much like an interrogator questioning a prisoner, while the prosecutor sat motionless. I was very puzzled—shouldn't proving the defendant's guilt be the prosecutor's job? It wasn't until Ch'en T'ing-hao's hearing, upon seeing that thick stack of case files in the judge's hands, that I realized the judge had already read the relevant materials. Conversely, looking at the statements of the defense counsel and defendants, it was painfully obvious that they had never seen these case files.

This is a major problem in Taiwan's judicial system. Taiwan's judiciary lacks the "principle of a single copy of the indictment"; prosecutors transfer these thick investigative documents to the court at the time of indictment. Consequently, before the trial even begins, the judges and prosecutors have already reviewed this thick stack of materials. Meanwhile, the defendants and defense counsel face the prosecutor and judge—who have already read the materials—in a state of near-total ignorance.

Taiwanese lawyers and prosecutors hold vastly asymmetrical information. Prosecutors possess investigative powers conferred by the state; Taiwanese prosecutors can even hold investigative hearings, command the police and forensic experts to help build their cases, and obtain a massive volume of related evidence. However, defendants only learn they have been indicted upon receiving the indictment, leaving them just a week or two to find a lawyer and discuss their situation, with zero idea of what the facts uncovered by the prosecutor look like. Furthermore, lawyers can only figure out how to "request the court to investigate exculpatory evidence" after reviewing the files. As for what exculpatory evidence might exist (for example, which police cameras at the Executive Yuan scene captured the defendant?), it is exceedingly difficult to ascertain.

Do all pieces of evidence investigated by the prosecutor get placed into the case files? That is also difficult to know. Some countries have laws stipulating that prosecutors and police must not conceal evidence, subject to penalties upon violation; yet Taiwan has no such statutory provisions. If a prosecutor deliberately cherry-picks inculpatory evidence and omits evidence favorable to the accused from the files, there is no way of knowing. Even if evidence favorable to the defendant is omitted, the prosecutor faces no penalty.

Consequently, the judge's questioning is fundamentally predicated on the assumption that "the defendant must be guilty." The judge effectively incarnates as a prosecutor interrogating the defendant, while the prosecutor sits motionless like an idol, only murmuring when speech is required. Naturally, the presumption of innocence is hard to discern in such a judge.

Conclusion

In a normal court, the judge should start with a clean slate, allowing the prosecutor and defense counsel to respectively present their relevant evidence and arguments, and then decide whether the accused is guilty based on both arguments in order to make a fair decision. Therefore, when filing an indictment, a prosecutor should not simultaneously transfer a massive volume of files; they should only provide a brief indictment. Systemically, mechanisms should also be designed to enable defense counsel to learn of the evidence held by the prosecutor at an early stage, and to grant adequate time to obtain other evidence favorable to the defendant. Only then can both sides possess symmetrical information during trial and persuade the judge of their respective arguments.

Clearly, Taiwan's courts do not possess such conditions. Prosecutors armed with massive amounts of data and judges who have already reviewed the data and formed a preconception join forces to confront defendants they presume to be guilty. Defendants and defense counsel, having only seen the indictment and lacking even the time to investigate evidence, face pre-biased judges and prosecutors empty-handed.

This is an asymmetrical war, yet it is played out in our courtrooms every single day.