JRF's Comments on the Judicial Yuan's Draft "Lay Participation in Criminal Trials Act"

Image / Sourced from the Judicial Yuan's Lay Participation in Criminal Trials website

Regarding the Judicial Yuan's Draft "Lay Participation in Criminal Trials Act", the Foundation offers the following comments regarding the draft's provisions concerning the "lack of a cause-of-action system," the "discovery system," the "judge's influence on lay judges during pre-trial instructions, intermediate discussions, and final deliberation," the "investigation of evidence and hearsay evidence," the "commissioned judge's prior contact with case files and evidence during preparatory proceedings," "sentencing arguments," and "appeals":

Lack of a Cause-of-Action System

1. Although Article 43 of the Draft adopts the principle of a single indictment copy, it fails to concurrently adopt a "cause-of-action system." Pursuant to Article 5, Paragraph 4 of the Draft, while prosecutors are indeed prohibited from filing supplementary indictments, if the panel of judges determines that the statutory provisions cited in the prosecutor's indictment cannot be established but that there is a possibility of another offense being established, the Draft permits the panel of judges to mutatis mutandis apply Article 300 of the Code of Criminal Procedure to alter the statutory provisions of the indictment pursuant to Article 4.

2. However, the system of altering the statutory provisions of an indictment goes hand-in-hand with the simultaneous transfer of case files and evidence, and is fundamentally irreconcilable with the principle of a single indictment copy. The result of forced integration will inevitably undermine the objective of centralized trials under lay participation. For example, if a prosecutor indicts a defendant for attempted murder, regardless of whether the panel of judges decides—after final deliberation or intermediate discussion—that the case may constitute the offense of injury and thus necessitates the alteration of the statutory provisions of the indictment, the defendant must be notified to facilitate their defense. To this end, it may be necessary to reopen arguments (if the possibility of altering the statutory provisions is discovered during final deliberation), or notification may occur midway through the trial (if discovered during intermediate discussion). Under such circumstances, the subject matter against which the defendant must defend regarding the offense of injury is evidently no longer the criminal facts set forth in the indictment. What specific criminal facts is the defendant supposed to defend against at this point? Must the prosecutor rewrite an indictment? Or should the court itself draft the potentially established criminal facts and demand that the defendant plead to them? Whichever approach is taken, it is manifestly inconsistent with the prohibition against double jeopardy and the ideals of a fair court under the Code of Criminal Procedure.
3. Regardless of which of the above approaches is adopted, the court would clearly have to reopen preparatory proceedings to allow the defense to request relevant evidence discovery from the prosecution regarding the defense against the offense of injury, submit new defense summaries and requests for evidence investigation, and conduct a new clarification of issues. Correspondingly, the prosecution may need to re-introduce new evidentiary methods during the preparatory proceedings to prove that the offense of injury has been established.
4. The consequence of reopening preparatory proceedings is that the trial evidently cannot be concluded in accordance with the original trial schedule. Lay judges would have to return home and wait for the next trial date, by which time they might be unable to take leave, thereby creating the risk that the lay judges may fail to meet the statutory quorum.
5. Therefore, it is recommended that the following provision be added to Article 43 of the Draft: "A prosecutor may make preliminary or alternative statements regarding the specific facts or statutory provisions constituting the alleged crime, provided that the underlying facts are shared in common and such statements do not prejudice the exercise of the defendant's right of defense," and that Article 5, Paragraph 4 of the Draft be amended to exclude the application of Article 300 of the Code of Criminal Procedure.

Discovery System

1. Article 51, Paragraph 1 of the Draft requires defense counsel to ascertain facts and clarify issues with the defendant before the prosecutor has disclosed any evidence. However, without evidentiary materials in hand, defense counsel is fundamentally incapable of ascertaining what the facts are.
2. "Voluntary discovery" lacks compulsory enforcement power. If the prosecutor is unwilling to make disclosures, the goal of narrowing issues through voluntary discovery cannot be achieved. In situations where the case details remain unclear to the defense, their best choice will likely be: "to maximize the scope of dispute as much as possible" so that the prosecution is forced to disclose the maximum amount of evidentiary materials. However, this outcome likewise fails to achieve the objective of narrowing issues.
3. Article 55 of the Draft provides for the prosecutor's "second-stage discovery," wherein defense counsel requests further disclosure from the prosecutor based on the materials disclosed pursuant to Article 53 and the evidence inventory under Article 54. However, defense counsel has not currently been granted investigative powers, making it practically difficult—based merely on the names of evidence listed in the evidence inventory under Article 54—to understand whether circumstances exist under Article 55, Paragraph 1 where assessing the probative value of evidence requested by the prosecutor for investigation is important, or whether circumstances exist under Article 59, Paragraph 1 related to the factual or legal assertions of the defendant and the defense. It is foreseeable that severe operational difficulties will arise in the future. In addition, current prosecutorial ethics norms lack explicit regulations addressing prosecutors who conceal evidence during discovery, making it difficult to prevent prosecutors from doing so.
4. Regarding defense disclosure, Article 57, Paragraph 1, Subparagraph 2 of the Draft requires the disclosure of "prior statement records" or "other written records." According to the legislative reasoning, "other written records" include statements recorded on physical recording media capturing images and sound. However, if the records are interview records produced by defense counsel interviewing a witness, expert witness, or interpreter, they should in principle constitute the work product of defense counsel and be entitled to confidentiality. If the client was also present at the time, it simultaneously implicates the confidentiality obligations governing communication between defense counsel and the client. Whether such records must still be disclosed to the prosecution remains unclear from the statutory text.
5. To this end, the Foundation advocates maintaining the file-review system, whereby the defense may inspect and copy files at the prosecutors office.

Judge's Influence on Lay Judges During Pre-Trial Instructions, Intermediate Discussions, and Final Deliberation

1. Improper "pre-trial instructions" under Article 66, Paragraph 1 of the Draft should serve as a ground for appeal. Therefore, the statute should explicitly stipulate that the presiding judge's pre-trial instructions must be meticulously recorded in the transcript so as to serve as the basis for appellate review in the future.
2. The "intermediate discussion" under Article 66, Paragraph 2 of the Draft is limited to instances where the presiding judge deems it necessary to supplement the pre-trial instructions during the course of the litigation proceedings. It naturally follows that the presiding judge may not conduct intermediate discussions regarding the results of every evidence investigation. If the presiding judge violates this provision by conducting intermediate discussions regarding the results of evidence investigation, it constitutes a breach of this article as well as the principle of criminal procedure that judicial conviction must be formed based on the comprehensive purport of all arguments, and this should serve as a ground for appeal. However, since this paragraph does not require intermediate discussions to be conducted publicly, neither the prosecution nor the defense would be aware of any violations.
3. Since intermediate discussions are by nature a "supplement" to pre-trial instructions, the objective can be fully achieved by having the presiding judge immediately ask the lay judges if they have any questions after the pre-trial instructions are concluded. There is truly no necessity to establish intermediate discussions, which merely create closed-door contamination and closed-door negotiations.
4. The intermediate discussions prescribed in Article 69, Paragraph 3 of the Draft pertain exclusively to matters reserved for the panel of professional judges, such as evidentiary competence and the necessity of evidence investigation; lay judges have no right to be present. If a dispute arises, it is fully resolved by hearing the opinions of the prosecution and defense pursuant to the proviso of Paragraph 2, rendering the establishment of intermediate discussions under Paragraph 3 entirely unnecessary.
5. Regarding "final deliberation," the Foundation recommends separate deliberation and voting. Furthermore, Article 82, Paragraph 3 stipulates that the presiding judge must explain and summarize the investigation results of various items of evidence to the lay judges during deliberation. In practice, this allows the presiding judge to smuggle their own mental conviction to the lay judges under the guise of summarizing the evidence investigation results. Moreover, because this is conducted in the form of an explanation by the presiding judge, lay judges will accept it without suspicion under the authority of the presiding judge; hence, this provision should be deleted.

Investigation of Evidence and Hearsay Evidence

1. Articles 73 to 75 of the Draft respectively provide the methods for investigating physical evidence, documents, and quasi-documents, and Article 76 provides for questioning by lay judges. However, the order of evidence investigation is not regulated. Consequently, it may happen in the future that physical evidence, documents, and quasi-documents are investigated before personal evidence (witness testimony).
2. Pursuant to Article 74 of the Draft, documents include transcripts. Therefore, if the trial schedule dictates that transcripts be investigated prior to personal evidence, it may lead to a situation where a transcript is read aloud to the lay judges before personal evidence is investigated. This is manifestly inconsistent with the objective of Subparagraph 3 of the legislative reasoning for Article 45—which hopes that lay judges can quickly comprehend the contents of investigated evidence without needing to examine case files and exhibits in detail, thereby avoiding excessive burdens—and will also foster trials conducted on the basis of transcripts.
3. When a prosecution witness has appeared in court and is subjected to cross-examination, if the prosecution during direct examination only questions matters related to the facts to be proven by that witness, and those matters constitute only a small fraction of the witness's interrogation transcript, may the prosecutor subsequently use that witness's interrogation transcript as a "document" under Article 74 of the Draft and read aloud portions related to the direct examination to the lay judges? Or even read portions exceeding the direct examination? This further highlights the impropriety of treating transcripts as documentary evidence for investigation.

Commissioned Judge's Prior Contact with Case Files and Evidence During Preparatory Proceedings

1. Pursuant to Article 60 of the Draft, the court may, upon request, issue a ruling ordering evidence disclosure. Under Paragraph 3 of that article, when making such a ruling, the court shall first hear the opinions of the opposing party or order the parties to submit evidence to the court. During this process, the commissioned judge may come into prior contact with case files and evidence, creating the risk of contaminating their mental conviction and resulting in an asymmetry of information between them and the other judges on the panel (including both professional and lay judges).
2. Pursuant to Article 273 of the Code of Criminal Procedure, parties may request the court to retrieve evidentiary materials during preparatory proceedings in preparation for the trial date. Once the materials are retrieved, the commissioned judge will likewise come into prior contact with them due to the materials being attached to the court file, thereby contaminating their mental conviction; the presiding judge will also see them during the course of litigation management and become similarly contaminated. The Draft lacks any corresponding regulations to address this.

Sentencing Arguments

1. The sentencing arguments prescribed in Article 79, Paragraph 2 take place immediately following the conviction arguments prescribed in the first paragraph, without any separation between the two. For cases involving a plea of not guilty, the defense is thus placed in a state of psychological schizophrenia, making proceedings practically unmanageable.
2. Prior to Article 79 of the Draft, there are no regulations whatsoever regarding sentencing investigations. Consequently, for cases involving a not-guilty plea, it is difficult for the defense to conduct necessary sentencing investigations prior to final arguments to prepare for subsequent sentencing arguments. This renders sentencing arguments purely perfunctory, no different from the current judicial reality where sentencing investigations and arguments have been reduced to empty formalities.
3. For lay judges, once a defendant pleading not guilty is found guilty during sentencing deliberations, they have absolutely no sentencing data from the defense to refer to and can only rely on the opinions of professional judges and their own intuition to make judgments, thereby defeating the purpose of introducing lay participation in sentencing.
4. In cases involving a not-guilty plea, if the defense—by virtue of entering a not-guilty plea—fails to request an investigation before the conclusion of preparatory proceedings, the preclusion effect under Article 64 of the Draft bars them from requesting an investigation during the trial. This forces the defense during preparatory proceedings to enter a not-guilty plea on the one hand while simultaneously preparing evidentiary investigations for sentencing in the event of a guilty verdict. During trial proceedings, this is likely to confuse the lay judges regarding the defense's pleading direction, while on the other hand weakening the strength of the not-guilty defense.

Appeals

1. Article 88 of the Draft merely prescribes the simplification of judgments of conviction while omitting judgments of acquittal, which may lead the panel conducting a lay participation trial to lean toward a presumption of guilt. Therefore, it is recommended that this be amended to: "The grounds in the judgment of a case subject to lay participation trials may merely record the names of evidence and the reasons for judging important issues."
2. Currently, the second instance in criminal procedure still adopts a system of retrial (de novo review). Article 92 of the Draft does not alter the structural design of the retrial system. Consequently, appellate courts of the second instance may still rely entirely on written materials—built upon the foundation of evidence investigated during a first-instance lay participation trial—to form a mental conviction completely divergent from that of the lay participation court, which entirely violates the spirit of lay participation.
3. The Judicial Yuan's quasi-participation (minzheng) simulations never simulated how first-instance judges should write judgments under the quasi-participation system, and thus never simulated second-instance proceedings. Therefore, it is highly questionable whether the two provisions concerning the second instance in the current draft can fulfill the objective of enabling the appellate court to properly exercise its power of review based on the purpose of lay participation. If the Draft fails to provide comprehensive regulations for the second instance, adequate simulations regarding the second instance should be conducted before the Act is implemented.

Event Promotion: Evidence Discovery Seminar

* On June 4–5, JRF has invited prominent attorneys from the United States and Taiwan to Taiwan to host the Seminar on the Lay Participation System—Evidence Discovery. All are welcome to attend! For the agenda and registration, please visit: https://www.jrf.org.tw/articles/1503