Whose Experience? Whose Logic?

Today, I read an op-ed by Attorney Lai Fang-yü in Apple Daily sharing a case regarding aiding and abetting fraud. Unfortunately, such cases are countless in judicial practice. It seems that as long as the defendant received money—regardless of whether the person who provided the money was a fraud syndicate or not—the probability of being identified as an accomplice is extremely high. In practice, the courts' review of the intent to complete an aiding offense is loose and sweeping, even adopting something close to a 'presumption of guilt,' with opportunities for vindication being rare exceptions in certain individual cases. Although scholars have continuously written articles in recent years to criticize this, the courts' views remain unchanged, which is unbearable.

Writing up to this point, although it is disheartening, I would like to share a story with everyone. Around the year before last, I had my mother participate in a mock jury trial experiment conducted by Academia Sinica. Because there was a transportation allowance to be collected and an opportunity to get in touch with some legal matters, as a legal professional, I was also curious about what the experimental setup of the nation's highest academic institution would be like. Moreover, the judgments of legal laypersons also affect the level of trust in judicial verdicts. Having this opportunity to try it out served two purposes at once—why not?

The process went roughly like this. A group of people were shut in a conference room, and through slide projections, a bunch of evidence and videos were first shown. Eleven people from all directions and with different backgrounds were left to discuss whether the defendant's testimony was credible or not, and they had to reach a unanimous conclusion as a whole group before they could leave.

The course of events was very simple. The defendant was an older woman (auntie) who argued that at the time, she had parked her scooter in front of a convenience store to run an errand (such as paying utility bills or buying something), and placed her Chunghwa Post passbook and personal seal inside the scooter's under-seat compartment. During the time she was running the errand, her passbook and seal were stolen by a thief, who used the seal to withdraw all the deposits in that postal account. However, the defendant had never discovered that her passbook and seal had been stolen. It was not until one day when she went to the post office intending to withdraw deposits using her debit card that she found her account had been cleaned out, and she immediately reported to the police that the deposits in her account had been stolen.

However, the post office believed the defendant's statement was untrustworthy, considering that it is impossible for ordinary people to put a passbook and seal inside a scooter's under-seat storage, and for them to be stolen so quickly, which was inconsistent with the empirical rule. Therefore, they believed the defendant wanted to use this method to defraud the post office to obtain gains, and thus filed a complaint of fraud against the defendant.

Next, the scene shifted to a conference room at Academia Sinica, where people from all over Taiwan began to discussion. Before the discussion, everyone was informed of the meaning of the "presumption of innocence" and that the mental state of a guilty verdict must reach the threshold of "beyond reasonable doubt" in order to find the defendant guilty. Afterwards, the group of eleven people was asked to discuss, according to their empirical rules and logical rules, whether the defendant's statement was credible and whether the defendant constituted the crime of fraud.

I still remember my mother telling me that during the discussion, her opinion conflicted with that of another participant. My mother was in favor of accepting the defendant's statement as credible. According to an older woman's empirical rule, it is extremely common to put a passbook and seal together for convenience, and to temporarily place them in a scooter's trunk for the convenience of running errands; moreover, forgetting things happens commonly in human affairs, and how could one anticipate that the under-seat storage would be stolen? Therefore, she believed that the defendant lacked the intent to commit fraud and should be innocent.

On the other hand, another citizen believed that how could one possibly not keep one's valuables on one's own body, how could they be stolen within those few short minutes, and how could one fail to discover it immediately after the theft? This was inconsistent with common sense, and thus they concluded that the defendant's statement was insufficient to be adopted, obviously attempting to use this to deceive the post office and profit from it. Therefore, the defendant had the intent to commit fraud and constituted the crime of fraud.

After a round of discussion, my mother and that citizen went to persuade other members respectively to influence their mental states. That citizen still insisted on his view. According to my mother's description during the discussion, it even reached a point where he became somewhat恼羞成怒 (flustered and exasperated) and everywhere displayed the "arrogance of the people of the Heavenly Deaf (Taipei metropolitan elites)," such as biased expressions like "those prosecuted by prosecutors must be guilty" being commonplace in the discussion, which amazed my mother, never expecting that there could still be such citizens in Taiwan who use bias to reason.

In the end, nine people felt that the statement my mother made was more in line with their experience, making a final conclusion for the whole group by an overwhelming advantage of ten to one that the defendant should be innocent.

Seeing this news piece revived this memory of mine. I often wonder, do criminal court judges who have been through numerous battles, tempered by all kinds of guilty people and various types of cases, really not have their mental states slide toward the direction of the presumption of guilt? We all know that the presumption of guilt is human nature, and professional judges are assigned the institutional obligation of the statutory "presumption of innocence." Can this truly ensure that defendants in every individual case can be guaranteed the principle of the presumption of innocence during trial?

Recalling the famous saying in the *Book of Documents*: "When in doubt about a crime, treat it lightly; when in doubt about a merit, treat it heavily. Rather than execute an innocent person, better to err against the rules." Truly, this is not easy. The mindset of treating merit heavily has its utilitarian incentives (such as leaders gaining the trust of subordinates) and is relatively easy; treating crime lightly violates human suspicion and is more difficult—even saints cannot guarantee it, and it is a principle that requires lifelong adherence and pursuit. Perhaps this is why pearls of wisdom remain wisdom and are passed down through the ages by people!