The study on restrict or deprivation of the right of confrontation- Focus on the victim-witnesses in sexual assault crime
Date Issued
2016
Date
2016
Author(s)
Chang, Yu-Hsin
Abstract
The defendant’s right of cross-examination against the witness can be deemed as a prevailing human right, and is also an indispensible element to guarantee a fair trial in judicial proceeding. Ideally, the general measure to conduct cross-examination should be a face-to-face confrontation in the court room; However, in sexual assault cases, the victim might be lack of ability to testify, or cannot testify freely and clearly due to fear of the defendant. To protect the victim-witnesses under this situation, limitations and deprivation of the right of cross-examination could be justified. From the perspective of human right protection established by European Court of Human Right and the U.S. Federal Supreme Court, choices of alternatives to cross-examination should be made in accordance with the principle of priority of taking the better defense for the accused. If the protection of witness can be secured, a least restrictive means against the right of cross-examination should be adopted. To reconcile the conflict of interest between the defendant and the victim, the testimony that has not been cross-examined cannot be used as the sole decisive evidence for a guilty verdict. Though, in Taiwan, Code of Criminal Procedure, Witness Protection Act, Sexual Assault Crime Prevention Act, Child and Youth Sexual Exploitation Prevention Act, and Regulation for prevention of victim making repetitive Statement in Sexual Assault Cases stipulate certain alternatives for confrontation in order to protect victim-witness, which is not mature enough. In real practice, defendant’s right of cross-examination has been unduly limited or deprived for the protection of the witness. To correct this situation, implementation of investigation and classification of the necessity of witness protection in the investigation process must be strictly followed. Also, adoption of alternatives cater to the necessity of witness protection must be based on the principle of Proportionality in order to protect defendant’s right to confront and cross-examine the witness in the court room, while the protection of witness can be safeguarded at the same time, which also meet the basic requirements of criminal procedure, such as the principle of direct trial, fair trial and Proportionality, and conform to the prevailing international value of human right protection.
Subjects
sexual assault crime
right of confrontation
protection of victim-witness
investigation of necessity of witness protection
priority of taking the better defense for the accused
SDGs
Type
thesis