"We Want Case-File Review, Not Discovery": Joint Statement by Civil Society Organizations Opposing the Introduction of Discovery

Joint Statement (June 7, 2018)

The method of case-file review provided under Article 33 of the current Code of Criminal Procedure is a vital tool for safeguarding the fundamental human rights of defendants—such as the right to access information and mount a defense—and for ensuring a fair trial.

Articles 53 to 61 of the Draft Act on Employing Lay Assessors in Criminal Trials, announced by the Judicial Yuan at the end of last year, overturn the current rule allowing defense counsel to comprehensive review case files and evidence after indictment, introducing a three-stage discovery system very similar to that of Japan. Despite criticisms that this legislative pace moves in a regressive direction contrary to the Constitution, the Judicial Yuan stubbornly persists in going its own way. The reasons given are none other than: promoting the clarification of issues and evidence, preventing false defenses and the collusion or destruction of evidence, and fully safeguarding the defendant's right to defense.

Other hills' stones can be used to polish jade. On June 4 and 5, 2018, the Judicial Reform Foundation invited attorney Yamamoto Ryōsen from the Osaka Bar Association and New York State attorney Melinda Sarafa to hold the "International Symposium on Discovery in Lay Participation Trial Systems" at the Taipei Jeyun Hall. Through attorneys Yamamoto Ryōsen and Melinda Sarafa—who are rich in courtroom experience regarding actual criminal defense and discovery in Japan and the United States—the symposium shared the norms and practical operations of discovery in Japan and the US.

Attorney Yamamoto introduced the history of discovery in Japan. Although the 1922 Taishō Code of Criminal Procedure adopted a method similar to Taiwan's, allowing the review of all case files at the court, discovery fell into extreme difficulty from the introduction of the principle of single-copy indictments in 1948 until 1969. Even after a 1969 ruling by the Supreme Court requiring prosecutors to disclose witness-related interrogation records after direct examination, courts could only advise but not enforce compliance. During the 35 years leading up to the 2004 amendment of the Code of Criminal Procedure which adopted a three-stage discovery system, an immense number of wrongful convictions occurred because defense counsel lacked evidence to mount an effective defense. From 2004 to the 2016 amendment which introduced lists of evidence that prosecutors must deliver, defense counsel remained blind to what evidence actually existed in a case.

Compared to Taiwan, Japan started from a point where defense counsel had no evidence at all, and gradually expanded to acquiring evidence related to the prosecutor's application for investigation, and further extended to the disclosure of category evidence and evidence related to the defense counsel's arguments. Only two years ago did they obtain evidence lists containing only titles, thereby gradually overcoming the dilemma where the weapons of the prosecution and defense were unequal and difficult to balance. Yet the Draft Act on Employing Lay Assessors in Criminal Trials, in an unconstitutional posture, openly deprives defendants and defense counsel of their right to comprehensive case-file review under current norms, pushing them into the realm of dark the rule of law.

Attorney Sarafa noted that, compared to Taiwan, the US also does not fully disclose evidence to defense counsel. Whether evidence is disclosed is determined by prosecutors assessing its "materiality." This means evidence is filtered through the prosecutor's subjective standards, and prosecutors may refuse disclosure on the grounds of immateriality. Trials conducted under conditions of insufficient evidence have seen instances where prosecutors deemed evidence immaterial and withheld it, yet that evidence proved critically influential to the outcome of the case, leading to judgment results manifestly contrary to the facts.

Furthermore, both Attorney Yamamoto and Attorney Sarafa mentioned that at the very beginning of the investigation procedure, prosecutors and police narrowly investigate only in directions unfavorable to the defendant, seizing evidence they subjectively believe points to guilt while ignoring the defendant's defensive arguments and evidence. By the time defense counsel learns of a fact favorable to the defendant through protracted discovery, the evidence may long have been lost to the passage of time. Such a situation risks leading to miscarriages of justice.

Regardless of the US, Japan, or Taiwan, Attorney Yamamoto, Attorney Sarafa, and the discussing professors unanimously agreed that promoting issue clarification has nothing to do with discovery. The reason is that conscientious and competent lawyers, in order to fully protect the defendant's right to defense, have no choice but to try to file applications with prosecutors to obtain more evidence, and will certainly wait until they are certain of having obtained sufficient category evidence before submitting defense arguments according to the law. Therefore, discovery causes the preparatory proceedings to bloat, delays the court's trial schedule, and completely runs counter to the goal of high-profile cases under lay participation trials being tried and concluded expeditiously.

Tunnel vision—meaning once police and prosecutors who monopolize investigative powers subjectively determine that a suspect is heavily implicated, there is a risk that the scope of evidence collection and investigation will narrow and lean unfavorably—applies to discovery as well. If the power to decide whether to disclose is handed back after indictment to prosecutors whose duty is prosecution, it becomes even harder to avoid having only presumption-of-guilt evidence remain after screening. Tasting success makes one crave it more; human nature dictates this. The rule of law must rely on systems, never individuals. What a criminal defendant can rely upon is solely objective evidence favorable to them. The experiences of both Japan and the US show that incomplete discovery is the root cause of miscarriages of justice and is certainly not something Taiwan, which already protects a defendant's right to file review, should emulate.

The price of a miscarriage of justice is irretrievable freedom and life. There is unexpectedly an inequality in the right to access information between defendants in lay participation trials and those in ordinary trial procedures governed by the Code of Criminal Procedure. The Judicial Yuan should delete Articles 53 to 61 of the Draft Act on Employing Lay Assessors in Criminal Trials, which are unconstitutional and violate Judicial Yuan Interpretations No. 737 and No. 762, to truly fulfill the human rights protections of criminal defendants.

Co-signing Organizations

Taiwan Criminal Defense Lawyers Association
Judicial Reform Foundation
Taipei Bar Association
Taiwan Association for Innocence
Taiwan Association for Human Rights