Taiwan Judicial Reform Foundation's Comments on the Amendment to the Enforcement Rules of the Constitutional Court and Lay Assessor Act

1. Where there is concern that the particulars stated in the written indictment violate Paragraph 4, Article 43 of the Act, the provisions of Paragraphs 2 to 5 of the preceding article shall apply mutatis mutandis.

2. Where there is a dispute as to whether the particulars stated in the written indictment violate the provisions of Paragraph 4, Article 43 of the Act, the court may deliberate and properly determine the matter by considering whether any of the following circumstances exist:
   1. Stating the contents of evidence that are not necessary for specifying the criminal facts.
   2. Stating criminal records unrelated to the present case.
   3. Stating the defendant's character, past conduct, background, living conditions, or relevant evaluations that are not necessary for specifying the criminal facts.
   4. Stating other matters outside the scope of Paragraph 2, Article 43 of the Act, which are sufficient to form a mental impression regarding the establishment of the criminal facts; provided, however, that this shall not apply to matters inextricably linked to and necessary for explaining the criminal facts.

1. Upon reviewing the provisions of the subparagraphs in Paragraph 2, they in fact target redundant statements that should not, as a rule, be included in a written indictment. For instance, criminal records referred to in Subparagraph 2 should not be stated regardless of whether they are connected to the case; moreover, there are many ambiguities in Subparagraph 3 regarding whether character and past conduct may be necessary for specific criminal facts. Therefore, for such contents that are irrelevant, it should be explicitly specified that they belong to the category of "posing a risk of creating prejudgment by the court" to provide clarity.

2. Based on the above, it is recommended to amend the text of Paragraph 2 as follows: "The contents stated in the written indictment which are provided in Paragraph 4, Article 43 of the Act and pose a risk of creating prejudgment by the court refer to any of the following circumstances:
   1. The contents of evidence that are not necessary for specifying the criminal facts.
   2. Criminal records.
   3. The character, past conduct, background, living conditions, or relevant evaluations of the defendant and the victim.
   4. Other matters stated outside the scope of Paragraph 2, Article 43 of the Act, which are sufficient to form a mental impression regarding the establishment of the criminal facts."

1. In cases subject to citizen participation in trials, the court should preferentially evaluate the possibility of transferring the case for mediation or referral to restorative justice before the conclusion of preparatory proceedings; if deemed possible, such transfer or referral should be conducted before the first trial date.
2. In the circumstances of the preceding paragraph, if the court deems it necessary, it shall confirm with the defendant, the victim, or their family members whether they are willing to have the case transferred for mediation or referred to restorative justice.

1. According to the intent of the Supreme Court's 2019 Tai-Shang Character No. 2191 Criminal Judgment, the outcome of conducting restorative justice is also a crucial consideration in determining whether to impose capital punishment. Therefore, if conducting restorative justice is possible yet no such proceedings have been undertaken, grounds for a judgment violating the law may arise.
2. The intent of the aforementioned judgment should be stated in the legislative explanations to facilitate the completion of relevant procedures.

Article 130

The court may flexibly utilize pre-trial consultation meetings to handle the following matters:
1. Confirming the opinions of the prosecutor and defense counsel on the matters set forth in each subparagraph of Paragraph 2, Article 47 of the Act and formulating a preliminary course of action.
2. Confirming the status of evidence disclosure between the prosecutor and defense counsel.
3. Setting the deadlines for submitting written documents or statements prescribed in Paragraph 5, Article 52 and Paragraph 3, Article 54 of the Act.
4. Confirming the dates for conducting preparatory proceedings.
5. Coordinating disputes between the prosecutor and defense counsel regarding procedural matters.
6. Other matters conducive to the progress of the preparatory proceeding dates.

1. Evidence relating to the case obtained by the prosecutor after the prosecution and prior to the conclusion of the first-instance debate shall also be disclosed to the defense counsel or the defendant in accordance with Paragraph 1, Article 53 of the Act.
2. In the circumstances of the preceding paragraph, the prosecutor should proactively disclose the obtained evidence or inform the defense counsel or the defendant of the fact that such evidence has been acquired.
3. Where the prosecutor knows that investigative authorities are in possession of evidence relating to the case that has not been submitted, the prosecutor may order the submission thereof; upon acquiring such evidence, the prosecutor shall disclose it to the defense counsel or the defendant in accordance with Paragraph 1.

1. In accordance with the intent of Paragraph 1, the phrase "should proactively disclose..." in Paragraph 2 should be amended to "shall proactively disclose."
2. Based on the same intent, the phrase "may order the submission thereof" in Paragraph 3 should be amended to "shall order the submission thereof"; furthermore, provisions should be added allowing the defendant and their defense counsel to petition the court for an order of submission in cases where the prosecutor fails to order such submission.

1. Where the prosecutor obtains evidence relating to the case only after the conclusion of the first-instance oral debate and deems it sufficient to affect the outcome of the judgment, the prosecutor may also proactively disclose it to the defense counsel or the defendant.
2. The provisions of the preceding paragraph shall also apply after the judgment becomes final; in such circumstances, the prosecutor may disclose the evidence to the persons prescribed in Article 427 of the Code of Criminal Procedure.
3. Where the second-instance court or the court handling a motion for retrial has knowledge of the circumstances set forth in Paragraph 1, it may order the prosecutor to submit such evidence to the court.

1. Where the prosecutor, defense counsel, or defendant finds it necessary to obtain data or clarify specific matters from relevant agencies (institutions), organizations, or individuals, they may petition the court to issue an official letter or utilize other methods to retrieve, order the submission of, or request a report thereon; if the court deems it necessary, it may also act on its own authority.
2. After the court obtains the data or the documents recording the contents of the report pursuant to Paragraph 1, it shall immediately notify the prosecutor, defense counsel, or defendant to inspect the case files and evidence.
3. The data or documents recording the contents of the report referred to in Paragraph 1 may be used as evidence in the case only after the court has ruled to investigate them upon petition or on its own authority; the method of investigation shall be conducted in accordance with the provisions of Articles 74 to 76 of the Act.
4. The data or documents recording the contents of the report referred to in Paragraph 1 shall be stored in the administrative supplementary files or kept in temporary custody by the court through the creation of a temporary inventory; they shall not be compiled into the trial case file prior to the completion of investigation in accordance with statutory procedures.
5. Where the data referred to in Paragraph 1 belongs to the submitting agency, organization, or individual, they shall be returned as soon as possible after the conclusion of the case; provided, however, that this shall not apply to articles that can serve as evidence or are confiscable and have been seized in accordance with the law.
6. The provisions of the preceding five paragraphs shall apply mutatis mutandis to cases where a confiscation procedural participant or their agent petitions the court to retrieve data.

1. Paragraph 4 explicitly stipulates that data retrieved by the court upon petition or on its own authority shall be stored in administrative supplementary files or kept in temporary custody by the court through a temporary inventory. However, which unit is responsible for custody of the administrative supplementary files? Is it possible for judges and lay assessors to access such materials prior to trial? This appears unclear. To implement the core spirit of the principle of separate submission of indictments and evidence (Dossierverbot), this part needs clarification.
2. Specific suggested wording is on the right: "lll. The data or documents recording the contents of the report referred to in Paragraph 1 may be used as evidence in the case only after the court has ruled to investigate them upon petition or on its own authority they have been investigated in accordance with statutory procedures; the method of investigation shall be conducted in accordance with the provisions of Articles 74 to 76 of the Act. Prior to the completion of investigation in accordance with statutory procedures, the court shall not contact or review the data or documents recording the contents of the report referred to in Paragraph 1."

1. Except where the presiding judge or the court deems open explanation necessary, pre-trial explanations shall not be conducted publicly.
2. Both the prosecutor and defense counsel may request to be present during the pre-trial explanation.
3. Upon request by the prosecutor or defense counsel, and if deemed appropriate, the presiding judge may arrange a suitable venue and utilize technological equipment capable of mutually transmitting sound and images to enable the prosecutor and defense counsel to observe and hear the pre-trial explanation process from other locations within the court.

1. According to the explanation in the legislative reasoning, the pre-trial explanation is not part of the trial procedure and is not conducted openly in the courtroom. Therefore, whether this procedural process is audio and video recorded throughout remains unclear.
2. It is thus recommended to confirm in the provisions or the legislative reasoning that although the court's pre-trial explanation procedure is not public, it shall be audio and video recorded throughout to dispel controversies or serve as a basis for verification when disputes arise.

1. The parties, defense counsel, or other litigation participants shall not submit evidentiary materials on the trial date that have not been ruled permissible for investigation.

2. Where the presiding judge perceives the circumstances of the preceding paragraph, they shall immediately halt it; if deemed necessary, they shall also provide necessary clarification or elaboration to the lay assessors and reserve lay assessors in accordance with Article 46 of the Act.

3. The parties and defense counsel may submit relevant necessary materials to explain any of the following items; provided, however, that if the court deems them inappropriate, it may restrict or prohibit their submission:
   1. Facts of common knowledge.
   2. Facts already apparent to the court or known to the court in an official capacity.
   3. The Constitution, statutes, orders, relevant interpretations, or legal principles.
   4. Universally recognized rules of experience or logic concerning which the parties and defense counsel manifestly raise no dispute.

4. In the circumstances of the preceding paragraph, the contents should be proactively disclosed to the opposing party in advance.

1. Based on the intent of Paragraph 1, all evidence used on the trial date seemingly ought to have been recognized as having probative capacity during preparatory proceedings and ruled permissible for investigation.
2. However, the use of impeachment evidence is not without doubt. The Supreme Court's 2011 Tai-Shang Character No. 1731 Judgment states: "So-called 'impeachment evidence,' belonging to the concept of Anglo-American law, refers to evidence contesting the credibility or probative force of a witness's statement. Its function lies solely in diminishing the probative force of 'substantive evidence' (i.e., evidence proving the existence or non-existence of a fact in issue) for reference in the court's judicial deliberation, and it may not serve as the basis for establishing criminal facts. Therefore, restrictions on the probative capacity of 'impeachment evidence' are not as strict as those for 'substantive evidence' and are appropriately relaxed; even hearsay evidence prohibited as evidence under Paragraph 1, Article 159 of the Code of Criminal Procedure may be used as 'impeachment evidence.'" Furthermore, when both sides are still unclear about matters regarding statement credibility or probative force, it is genuinely difficult to make a "prior petition" during the preparatory proceeding stage, and courts likewise struggle to "pre-judge" hypothetical facts in issue. Consequently, the use of impeachment evidence warrants proper handling through special provisions.

1. The basic principles of criminal trials referred to in Paragraph 3, Article 82 of the Act shall include the following matters:
   1. The presumption of innocence and the principle of evidence-based adjudication.
   2. The prosecutor's burden of proof and the principle that the defendant has no obligation to self-incriminate.
   3. The purpose, methods, and conduct of deliberation.
   4. The process of fact-finding, legal application, and sentencing.
   5. Other necessary matters deemed by the court to be relevant to the deliberation of the case.

2. The matters set forth in the preceding paragraph should be prepared in writing beforehand by the presiding judge and provided for the inspection of the parties and defense counsel.

3. The provisions of Article 199 shall apply mutatis mutandis to the circumstances of the preceding paragraph.

1. According to the provisions of Article 184, written documents for pre-trial explanations shall be provided for the inspection of the prosecutor and defense counsel at an appropriate time prior to the conclusion of preparatory proceedings, and the prosecutor and defense counsel may express opinions and have them recorded in the minutes.
2. However, since this part lacks relevant provisions, the provisions of Paragraphs 2 to 4 of Article 184 should apply mutatis mutandis.

1. Where the presiding judge deems it necessary, they may confirm the provisional opinions of the lay assessors and judges on specific disputed issues in an appropriate manner.
2. The method of confirmation in the preceding paragraph may be conducted by open or secret ballot.
3. When conducting confirmation under Paragraph 1, the presiding judge should take care to do so after full discussion and remind the lay assessors to make judgments based on independent thinking, without needing to change their own views merely to conform to others.

1. Based on the concept of egalitarian interaction between judges and lay assessors, there is no particular need to exclude lay assessors from proposing the confirmation of provisional opinions, except when the adjudicator deems it necessary. However, current regulations merely stipulate that the presiding judge may conduct confirmation when deemed necessary, while containing no relevant provisions on whether lay assessors may propose or suggest when they deem it necessary to understand provisional opinions. This risks leaving lay assessors at a loss and hindering them from properly expressing their opinions and needs.
2. Therefore, lay assessors should be granted the opportunity to propose confirmation, which the presiding judge should properly inform them of, so as to enhance their agency in trials and strengthen their sense of responsibility for adjudicating.

1. Where the presiding judge deems it necessary, they may order a review of evidentiary contents.

2. In addition to inspecting physical or digital case files and evidentiary data, the review in the preceding paragraph may also flexibly utilize technologies such as video playback systems and real-time speech recognition systems to understand witness testimony or the actual progress of trial proceedings.

3. In the circumstances of the preceding two paragraphs, information equipment such as computers, large screens, projection screens, or tablet computers in the deliberation room may be utilized to display or play back evidentiary contents.

1. Regarding the determination of criminal responsibility, discussions may take the facts asserted by the prosecutor as the core, while referencing the arguments presented by the defendant and defense counsel, to ascertain whether reasonable doubts still exist regarding the facts asserted by the prosecutor.

2. Where the presiding judge or accompanying judges deem the discussion still insufficient after the lay assessor panel has discussed in the manner of the preceding paragraph, they may examine relevant norms and the evidence of the case to ascertain whether there are matters not submitted by the prosecutor or defense counsel that might affect the conclusion; if such matters exist, they shall be raised together for discussion.

1. Where the parties or defense counsel dispute matters directly or indirectly affecting the determination of a crime, the presiding judge or accompanying judges should bring them up for discussion during deliberation and confirm the opinions of the members of the lay assessor panel on each such matter.
2. Where the matters in the preceding paragraph pertain to indirect facts, care should also be taken to thoroughly discuss the logical basis for inferring direct facts.

Identical to the comments on Article 255.

1. Where the court deems it necessary, it may utilize sentencing tools developed by the Judicial Yuan to assist discussions and provide search results from relevant information systems for the lay assessors' reference.
2. In the circumstances of the preceding paragraph, the operational principles, limitations, methods of generating results, and other precautions of the relevant information systems should be fully explained.
3. The court should confirm the sentencing tools scheduled for use in sentencing deliberation during preparatory proceedings, enable the prosecutor and defense counsel to become aware of them in an appropriate manner, and grant them opportunities to operate, use, and express opinions on them.

1. In accordance with the intent of Paragraph 3, sentencing assistance tools used as reference materials for deliberation may only be used for deliberation after being presented during preparatory proceedings, having opinions expressed by both sides, and having their probative capacity confirmed.
2. However, the provisions of Paragraph 1 lack clarity, creating a risk in practice that the court, upon deeming it necessary yet failing to investigate such evidentiary materials during preparatory proceedings, might directly utilize sentencing assistance tools and data. To avoid misunderstandings, it is recommended to merge and formulate appropriate provisions based on the text of Paragraph 3, and deliberate whether there is a necessity to add relevant provisions within preparatory proceedings to ensure perfection.

1. The parties, defense counsel, or assistants may petition to inspect the deliberation opinion sheet of Article 297 after the judgment becomes final. However, where the court deems that the contents requested for inspection can directly or indirectly identify the identity of a lay assessor, it may restrict the inspection of that portion of the materials.
2. The inspection in the preceding paragraph shall take place at a venue designated by the court.

1. Where a case is remanded to the original court by the second-instance court, the provisions of Article 43, Paragraph 3 of Article 52, and Paragraph 3 of Article 54 mutatis mutandis applying Paragraph 3 of Article 52 of the Act shall not apply to matters that have already been tried and judged by the original court or the second-instance court.
2. In the circumstances of the preceding paragraph, the handling of matters concerning compulsory measures and evidence preservation shall not be subject to the provisions of Article 44 of the Act.

1. These Enforcement Rules adopt the system of concurrent dossier transmission for retrials. Even as stated in the legislative reasoning, because the prosecutor will naturally mention the results of the original and second-instance judgments concerning relevant matters during preparatory proceedings, it is deemed unnecessary to exclude court prejudgment, bias, or bridge the information gap between judges and lay assessors.
2. However, since retrials involve the reconstitution of the court to conduct a trial, it is truly doubtful whether the advantages of the non-concurrent dossier transmission system can be summarily excluded. Remand for retrial by an appellate court is, in nature, a reinvestigation and redetermination of facts by the first-instance court. Furthermore, according to the legislative intent of the Citizen Judges Act, retrial proceedings are naturally not limited to reviewing the grounds upon which the appellate court pointed out illegality in the original judgment, and lay assessors do not necessarily hold the same opinions on facts deemed undisputed by the appellate court.
3. Therefore, regarding retrial proceedings in cases governed by the Citizen Judges Act, while it is necessary to pay special attention to the issues pointed out by the appellate court, the scope of its trial is certainly not limited thereto, nor is it appropriate to instruct or imply that lay assessors in the retrial may directly make the same determination on the grounds that "the facts were determined by the original court and not pointed out by the appellate court."
4. Viewed in this light, retrial proceedings should also observe the intent of Article 43 of the Citizen Judges Act regarding non-concurrent dossier transmission. Directly excluding the spirit of the parent statute within the Enforcement Rules raises concerns of violating the principle of legal reservation.
5. As for the judge entrusted with preparatory proceedings, they should properly understand the gist of the appellate court's remand through consultation procedures and review the original court's case files within the necessary scope of conducting preparatory proceedings, rather than without restriction. This part can still be studied in accordance with the intent of the non-concurrent dossier transmission system.

1. Where a case is remanded by the second-instance court, the retrial court shall ascertain as early as possible during preparatory proceedings whether there are any changes in the facts of the indictment, the applicable statutory provisions, and the defendant's statements or defenses.
2. Evidence lawfully investigated by the original court, preceding court, or second-instance court which is ruled by the retrial court to possess probative capacity and is investigated to completion during the trial may serve as the basis for judgment.
3. The evidence of the preceding paragraph shall be investigated by the person asserting such evidence in the manner prescribed in Paragraph 1 of Article 73 and Articles 74 to 76 of the Act; if there is no person asserting such evidence, it may be investigated by the court on its own authority.
4. Evidence investigated during the trial procedures of the original court, preceding court, or second-instance court may be investigated by playing back the audio or video recordings of those trial proceedings on the spot.
5. Regarding the matters of the preceding two paragraphs, the retrial court shall first afford the parties and defense counsel opportunities to express their opinions.
6. The trial of a remanded case shall enable lay assessors and reserve lay assessors to understand the case's disputed issues, evidentiary contents, results of judgments across previous instances, and reasons for revocation and remand through appropriate methods, while taking care to avoid imposing an excessively heavy burden on their time and mental energy.

1. There are different methods for investigating witnesses and expert witnesses who previously appeared in the original first instance for cross-examination during retrial proceedings: (1) Pursuant to Paragraph 3 of Article 293: "The evidence of the preceding paragraph shall be investigated by the person asserting such evidence in the manner prescribed in Paragraph 1 of Article 73 and Articles 74 to 76 of the Act; if there is no person asserting such evidence, it may be investigated by the court on its own authority." That is, both prosecution and defense may summon witnesses and expert witnesses back to court in the manner of "personal evidence" for investigation via cross-examination.
   (2) Pursuant to Paragraph 4 of Article 293: "Evidence investigated during the trial procedures of the original court, preceding court, or second-instance court may be investigated by playing back the audio or video recordings of those trial proceedings on the spot," and its legislative explanation: "If evidence investigated by the original, preceding, or second-instance court were all to be investigated in the manner of documentary evidence, lay assessors and reserve lay assessors might find it difficult to comprehend and face an excessive burden. If the contents of statements made by witnesses, expert witnesses, or the defendant in the original, preceding, or second-instance court were all to be investigated by means of examining written records, lay assessors and reserve lay assessors would have to review massive amounts of documentary evidence, bearing a heavy burden. Therefore, in such circumstances, it may also be investigated by playing back the audio and video recordings of those trial proceedings on the spot. Paragraph 4 is enacted accordingly." From this, it can be understood that the principle seemingly investigates via "documentary evidence," with playback of audio and video recordings as an exception.

2. Referring to the provisions of Paragraph 5 of this article: "Regarding the matters of the preceding two paragraphs, the retrial court shall first afford the parties and defense counsel opportunities to express their opinions." This seems to indicate that the method of investigation is ultimately ruled upon by the court on its own authority. Thus, the design of retrial proceedings easily causes a huge information gap between judges who have read the files and lay assessors who have not, casting doubt on whether the objective of joint trial and adjudication by judges and lay assessors is achieved.

1. When the second-instance court assesses the necessity of investigating evidence petitioned for by the parties or defense counsel, it should consider whether, after investigating such evidence and comprehensively judging the results of all evidentiary materials, there is a high probability that circumstances under Paragraph 1 of Article 317, Article 318, or Article 319 are recognized, requiring revocation.
2. Where the evidence of the preceding paragraph was previously dismissed by the first-instance court regarding a petition for investigation, the second-instance court should also properly consider the purpose of the citizen participation in trials system and the reasons for the first-instance court's dismissal of the evidence investigation petition when assessing the necessity of investigation.
3. Where the evidence of the preceding paragraph was previously investigated by the first-instance court, the second-instance court should also consider whether the evidence investigation was incomplete in the first instance, necessitating re-investigation.
The matters of the preceding three paragraphs shall be substantiated by the person petitioning for evidence investigation.

1. Legislative explanation for Paragraph 1: "Furthermore, the provisions of this paragraph mean that if the court assesses that after investigating such evidence, singly or combined with evidence previously lawfully investigated by the original court and comprehensively judged, a reasonable doubt may be generated, recognizing the likelihood that the aforesaid first-instance judgment is inappropriate or illegal due to any of the circumstances in each subparagraph of Paragraph 1 of Article 38, it is satisfied; acquiring a definite mental conviction is not required, which is hereby explained."

2. The aforementioned standard for assessing the necessity of investigation is consistent with the terminology used in the current Code of Criminal Procedure's standards for initiating retrials, raising concerns that its interpretation of the standard for investigation necessity is overly rigorous.

It is recommended that the wording of the legislative explanation return to the intent of Articles 64 and 90 of the Citizen Judges Act. Alternatively, if Paragraph 1 is maintained, it is recommended to delete the word "high" from "...a high probability... requiring revocation," so as to prevent the rigor of its assessment from exceeding the intent of the parent statute and cutting off space for practical development of appropriate standards.