Responding to Legislator's Doubts: Institutional Transition is Not an Issue, Not Having a Choice Is—Day 13 of Sit-in Protest Against the Inclusion of the Lay Assessor Bill in the Legislative Yuan's Extraordinary Session

The "Alliance for the Concurrent Trial of Lay Participation and Jury Systems"—composed of civil society organizations such as the Judicial Reform Foundation and the Taiwan Association for Parliamentarian Jury—held a press conference titled "Responding to Legislator's Doubts: Institutional Transition is Not an Issue, Not Having a Choice Is" at 9:30 a.m. on July 11 in front of the Legislative Yuan's main entrance. Three attorneys explained, from the perspectives of both abstract legal systems and concrete historical cases, that the institutional transition concerns raised by the ruling party's legislator do not exist, emphasizing that only through testing the concurrent trial of both systems can a superior system that withstands comparison be found.

In an op-ed published on July 7, Democratic Progressive Party caucus secretary-general and Legislator Chung Chia-pin raised various arguments against the simultaneous trial of both systems, suggesting that institutional change is akin to organ transplantation. He argued that it would be advisable to adopt the lay assessor system, which involves smaller deviations from the current system, to prevent rejection phenomena such as operational friction during the transition, particularly regarding rules of evidence and the burden of proof.

Alliance Convenor Attorney Lin Yung-sung first explained that the burden of proof means who bears the responsibility of proving the defendant's guilt; this responsibility has always fallen upon the prosecution, regardless of the system adopted. Defendants may do their utmost to prove their innocence. Regarding the rules of evidence, the current provisions are quite rudimentary, but for the system of public participation in trials to succeed, both the lay assessor and jury systems require reforms to make the rules clearer and more plain-spoken; otherwise, when the public does not know how to determine facts, judges will take the lead. This is an example of how public participation in trials serves as a "locomotive" driving complementary institutional changes. Legislator Chung Chia-pin is entitled to his differing opinion, but he cannot provide incorrect information.

Secondly, regardless of which system is passed, there will be a two-year preparation period until 2023. In addition to amendments to complementary legislation, education and publicity directed at the public are also crucial. Legislator Chung Chia-pin believes that education and publicity for the concurrent trial of both systems would make it difficult for citizens to learn, and would force the public and companies to request leave from their ordinary economic lives to decide a person's life, liberty, and property. The core of either system is to enable the public to learn how to articulate opinions, discuss, and persuade one another—the difference between the two systems lies solely in whether professional judges are part of the discussion panel and whether sentencing is included in the scope of discussion.

Furthermore, Legislator Chung Chia-pin mentioned that parties might feel uncertain about the merits of the two systems, feeling that a system they were not given a choice over might have been better, thus generating a sense of unfairness. Attorney Lin countered that even under a single system, the public naturally compares the attitudes and trial quality of judges across different courts; even with only a lay assessor system, the public would still compare the differences between professional judges and lay assessor cases, and introducing the jury system today will inevitably lead to comparison. However, this is precisely the purpose of the concurrent trial of both systems: to allow the public to experience and compare them so as to discern the strengths and weaknesses of each system. Attorney Lin emphasized that the Alliance hopes future citizens will have the right to choose the system they deem best. In summary, Attorney Lin argued that Legislator Chung Chia-pin's opposition is unfounded.

In addition, regarding Legislator Ker Chien-ming's view that Taiwan is a civil law jurisdiction and thus unsuitable for introducing the common law jury system, Attorney Lin pointed out that legal systems from the two major legal traditions frequently interact and borrow from one another. For instance, Taiwan introduced the common law cross-examination system after 2003, and South Korea, a civil law jurisdiction, introduced the jury system in 2008; civil law countries such as Russia, Spain, and Austria also feature jury systems. Therefore, differences in legal traditions do not constitute grounds for opposing the introduction of a system.

Regarding the "hung jury" issue—where a jury cannot reach a unanimous verdict—Attorney Lin highlighted that this actually embodies a profound democratic spirit. Yesterday, a simulated jury trial was held at the Jinan Church. Through the arduous process of shifting from an initial split of 9 to 3 and 10 to 2 to finally reaching a unanimous verdict, jurors had to set aside other prejudices and speak through evidence to persuade one another. This reflects the reality that democracy is not merely a matter of head-counting and majority rule, but rather entails mutual reasoning, persuasion, and respect for the minority.

Although persuading one another takes time, the civil society version sets the time limit for declaring a hung jury in a jury trial at three days. This is longer and more prudent than the time professional judges actually spend on forming inner conviction and writing judgments. Moreover, when combined with centralized and continuous trials, it avoids the current situation where every court session is separated by three weeks to a month, causing judges to nearly forget the contents of the previous session. Furthermore, due to errors by professional judges, citizens often resort to repetitive appeals, and years of protracted litigation constitute the greatest pain and torment for the people. Lay assessor or jury trials bring more people into the trial process and demand centralized trials, which is equivalent to deploying heavy forces at the court of first instance, thereby helping to elevate the quality and accuracy rate of first-instance trials and consequently placing certain limits on appeals. Finally, Attorney Lin also re-explained the issue of detention period calculation mentioned in yesterday's press release.

Attorney Chang Ching, a member of the National Congress on Judicial Reform, added that the Code of Criminal Procedure underwent a major reform in 2003, known as the "2003 New System." It shifted the inquisitorial system designed in 1928 to a modified adversarial system. In other words, the investigation of evidence shifted primarily to prosecutors and defense attorneys, with judicial investigation serving a supplementary role; simultaneously, American-derived systems such as the exclusionary rule, the hearsay rule, and cross-examination were introduced. Common law emphasizes procedural justice, ensuring the fairness of outcomes through procedural rules rather than leaving the investigation of evidence—which decides the fate of the parties—to the conscience of the judge. Overall, while the 2003 New System was not a wholesale adoption, it genuinely introduced the spirit of the common law, making Taiwan's criminal procedure different from Germany's inquisitorial system. If a jury system is implemented in the future, it will align much better with the spirit of the current amendments to the Code of Criminal Procedure than a lay assessor system would. Therefore, the transition concerns feared by Legislator Chung Chia-pin do not exist.

Attorney Chang further pointed out that the jury system's requirement for a unanimous verdict, the prosecutor's burden of proof, and the presumption of innocence are three legal principles that are closely intertwined. We strictly require the prosecutor's evidence to convince every single juror beyond a unanimous consensus that the defendant is guilty; this is precisely the manifestation of the presumption of innocence. The lay assessor system still deviates slightly from this legal rationale because majority voting in a lay assessor system means that some agree while others disagree, signaling a compromise in our adherence to the presumption of innocence and the prosecutor's burden of proof. Despite the strict demands of the jury system, its greatest benefit is the reduction of wrongful convictions—a democratic state governed by the rule of law would rather let the guilty go free than mistakenly convict an innocent person.

Attorney Chang emphasized that it is precisely because professional judges have caused so many wrongful convictions in the past, leading to a plummeting of public trust in the judiciary, that the public must be allowed to participate in trials. This point holds true for both lay assessor and jury systems. Regarding the institutional choice of how to participate, the aforementioned comparison reveals that the lay assessor system proposed by the DPP caucus—which is lay to the law—presents more problems, and it is hoped that the public will support the jury system, which has fewer shortcomings.

Attorney Cheng Wen-lung shared the story of Australia's first jury trial, hoping to garner support for the concurrent trial of both systems so that the jury system can become an option in Taiwan's judicial system. Early British law was extremely harsh, resulting in a thief named Susannah being sentenced to 14 years of transportation to North America. During her sentence, Susannah fell in love with another prisoner, Henry, and gave birth to a son, little Henry. However, following the American independence in 1776, Susannah was transported to another territory in Australia, separating the family across distances. Upon hearing this story, British philanthropist Mrs. Elizabeth Fry initiated a petition and fundraising campaign to support Susannah's family, ultimately enabling them to be exiled together. Nevertheless, the captain of the convict ship, taking advantage of contemporary laws dictating that prisoners had no guaranteed rights, lawfully misappropriated the public donations Susannah had received. Judge Collins and the jury in Australia, upon taking up the case, were nevertheless willing to uphold justice and ordered the captain to return the 15 pounds. This story demonstrates how a jury can draw upon the social experience of ordinary people in concrete judgments to realize social justice for the common folk, preventing judges from being hijacked by conservative legal interpretations and rigid statutory applications, thereby guiding the progress of the law.

Attending Representatives

Attorney Lin Yung-sung / Chairman, Judicial Reform Foundation (Convenor)
Attorney Cheng Wen-lung / Founding Chairperson, Taiwan Association for Parliamentarian Jury (Convenor)
Attorney Chang Ching / Member, National Congress on Judicial Reform

Press Contacts

Judicial Reform Foundation / Director Hsiao I-min
Taiwan Association for Parliamentarian Jury / Deputy Secretary-General Lin Ping-chuan