Rules of Evidence in the Modified Adversary System ─ With Focus on the Practice of Trial
Date Issued
2007
Date
2007
Author(s)
Shih, Mu-Chin
DOI
zh-TW
Abstract
In September 2003, Taiwan began to adopt the modified adversary system for the criminal litigation system, and in the process, the Exclusionary Rule of Evidence, Hearsay Rule and the cross-examination system are introduced. Because the scope of this reform is broad, and the revised articles are yet too simple, judges remain befuddled by the application of the new law even after 3 years and 6 months of practice, resulting in a discrepancy in interpretation. The situation has yet to be improved.
This paper briefly introduces the Rules of Evidence in the modified adversary system, and compares the Rules against that adopted in the U.S. and Japan, respectively. It discusses the procedures adopted by Taiwan, including the rejection of the jury system, Principle of Unitary Indictment and cause of action system, which are then compared against their American and Japanese counterparts. In addition, the different interpretations provided by the supreme courts are analyzed according to the issues addressed, such as the admissibility of illegally obtained evidence, the admissibility of hearsay evidence and the general investigative procedures involved in obtaining evidence. The purpose of the paper is to first discuss the issues in general terms, identify the core problems, analyze the problems through academic, theoretic, and practical aspects, and finally offer some legal basis for interpretations. Furthermore, it is worth discussing the discrepancy between Judicial Yuan Interpretation No. 592, on the one hand, and No. 384 and No. 582, on the other, in determining whether hearsay evidence should be the sole ground for an acquittal. Finally, legal precedents should also be unified: After the implementation of the new Code of Criminal Procedure, some courts still cite legal precedents that are no longer cited by the Supreme Court. This paper also reviews several current precedents based on the outcome of the trials, and proposes that the Supreme Court should refrain from using those precedents in the future.
Because the new Code of Criminal Procedure is still in its infancy and remains primitive, there is uncertainty in the application of the law in areas such as determining the admissibility of illegally obtained evidence and how to properly handle the evidence: Should the admissibility of such evidence be excluded entirely, and if so, should it be excluded based on Article 158-4 of the Code of Criminal Procedure? Are statements made before a judge or prosecutors admissible? Is the defendant required to be cross-examined? Is there a different interpretation before and after the announcement of J.Y. Interpretation No. 582, the proviso of Article 7-3 of the Criminal Procedure with respect to contents of special documents? Is the Rule of Consent still consistent with Article 159-1~4 of the Code of Criminal Procedure? Should new evidence be admitted and investigated during trial? These issues have led to inconsistent interpretations issued by the Supreme Court, some are perhaps due to incomplete laws, while others are due to different interpretations of legal terms. The Supreme Court has not reached a consensus on these issues, which will only result in confusion and contradictions among the lower courts. Therefore, it is necessary to hold criminal division meetings to reach, by resolution, a uniformed interpretation. Items 1 and 2 of Article 159-1, Item 4 of Article 159-4, and Item 2 of Article 165-1 should also be revised to make the procedures more complete and to meet practical application.
Subjects
證據法則
證據能力
證據排除法則
傳聞法則
反對詰問
Rule of Evidence
Admissibility of Evidence
Exclusionary Rule
Hearsay
Cross-Examination
SDGs
Type
thesis
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