Courts must presume innocence

2003 was a year of many accomplishments in the field of judicial reform in Taiwan. In January, the case of the Hsichih Trio, which had been stuck in the courts for years, took a dramatic turn as the accused were found not guilty. In February, the newly amended Code of Criminal Procedure (刑事訴訟法) was promulgated and came into effect in September, formally incorporating the presumption of innocence into the articles of law. 
This was accompanied by a number of related provisions, one of which stipulated that when suspects claim interrogation under duress or torture, the onus is on prosecutors to disprove such allegations. Other measures included mandatory provision of legal counsel in major cases and those in which the accused comes from a disadvantaged background, as well as affirming the exclusion of hearsay evidence.

It is easy to talk about the presumption of innocence, but implementing it in practice has been another matter altogether. For example, the Hsichih Trio were acquitted because the judges were of the opinion that the available evidence did not prove the defendants were involved in the crime. Nevertheless, many media reports chose to interpret the finding as "this does not mean they are innocent, only that there is not enough evidence to prove their guilt."

This is just as if someone, say John Doe, goes to a bookstore and the alarm goes off by accident as he walks out. 

John Doe then opens his bag for the sales staff to inspect, to prove that he hasn't stolen anything, and nothing suspicious is found, but the sales staff say: "OK, you can go now, but it doesn't mean you didn't steal our books - only that there's no evidence to prove it!"

The whole point of the presumption of innocence is that everyone is considered innocent until proven guilty. In Taiwan today, however, that principle is often turned on its head, becoming "even after someone has been found not guilty, it still doesn't mean they didn't commit the crime." This view makes everyone a potential criminal. The presumption of innocence in effect becomes nothing less than a presumption of guilt.

In the current upsurge of controversy over capital punishment, the presumption of guilt comes up all the time. For example, in the case of the 1987 kidnapping and presumed murder of 10-year-old Lu Cheng (陸正), which is still being tried, Chiou Ho-shun (邱和順) and his co-defendants have been in custody for 22 years. 

When tapes of Chiou's interrogation were examined in court, his cries of pain could clearly be heard, making it clear that he did not confess the crime of his own free will. Several of the police officers and prosecutors involved have since been disciplined for dereliction of duty, having been found guilty in court. 

Nevertheless there are still many people, who, feeling strong sympathy with the boy's family, lose sight of the presumption of innocence and clamor for the case to be brought to a quick conclusion, the assumed outcome being a guilty verdict and execution.

Victims' relatives, pained by the loss of their loved ones, are bound to be emotionally inclined toward a presumption of guilt. That is only natural, and it would be hard for anyone in a similar situation to feel otherwise. But it is not the job of the courts to empathize and thereby adopt the relatives' presumption of guilt as such an attitude would lead to wrongful convictions and unjust executions.

Public support and sympathy for victims' families could just as well be manifested in the establishment of a government- sponsored victim support network. What we absolutely must not do is sacrifice the quality of trials, and the presumption of innocence is one of the principles that must not be set aside.

In many ways it seems that we have not made any progress since 2003. Not only have we seemingly slipped backward on the presumption of innocence, but there is also a gaping hole in relation to the mandatory provision of counsel in court.

Mandatory representation is provided for by Article 31 of the Code of Criminal Procedure, according to which the state must guarantee the accused's right to a fair defense. Because the law is a game of complex rules an accused person may not understand, professional defense advocates should be appointed to protect their rights. However, Article 388 of the Code opens a big loophole by allowing the state to evade this responsibility in the third instance (the second appeal) of a trial, thus infringing the right of the accused to a full and proper defense.

Above all, it should be borne in mind that the third instance of a trial is a trial on law rather than fact, making it particularly specialized and intricate, and if defendants are not represented by a lawyer in court it is difficult to argue that they receive a fair trial.

Consequently, in our legal system, trial in the third instance is curtailed to such an extent that there really are only two trials. A decision as to whether this loophole can be eliminated is now in the hands of the Justices of the Constitutional Court. They are the ones who will decide whether this year will be a year of progress or a year of regression for jurisprudence in Taiwan.



Chang Chuan-fen is a freelance writer and author of An Unhealthy Coming of Age: The Case of the Hsichih Trio, 1991 to Date.

TRANSLATED BY JULIAN CLEGG