Editor’s note: In 2020, after years of advocacy by judicial reformers, Taiwan’s legislature passed the Citizen Judges Act (國民法官法 or Guo Min Fa Guan Fa) , providing for professional judges to share their benches - and their power - with lay judges in a relatively small subset of criminal cases. In cases punishable by more than ten years’ imprisonment or those with criminal intent resulting in death, six randomly selected citizens and three professional judges will jointly decide both guilt or innocence and the sentence. Courts, prosecutors, and lawyers are preparing for the law to take effect in January 2023. USALI Perspectives invited six experts in Taiwan’s judicial system - scholars, lawyers, a prosecutor, and a former judge - to unpack the practical challenges and potential larger significance of this seemingly small step. Part II can be found here.

Opportunities and Challenges: A Scholar’s Perspective

By Mong-Hwa Chin

In addition to creating a lay judge system, Taiwan’s Citizen Judges Act introduces several significant changes to criminal procedure in Taiwan to accommodate the characteristics of citizen judges. In this way, it is hoped that citizen jury trials will become a testing ground for new ideas and a reform engine for Taiwan's criminal justice system.

The first major change involves the dossier, which contains all the state’s evidence in the case. Under existing criminal procedure, judges rely heavily on reviewing the dossier before trial. The benefit of this practice is that it can significantly reduce the time spent on trials. The downside is obvious. When reviewing the dossier, judges unavoidably make determinations about the case; it is quite difficult for judges to go into a trial open-minded. Drafters of the Citizen Judges Act feared it would impose too great a burden on citizen judges if they had to review the dossier before trial. To ensure that the two groups of judges receive the same information, the Citizen Judges Act mandates that professional judges may not see the dossier before trials in which citizen judges participate. Reformers have advocated banning pretrial review of dossiers for decades. Now this goal is finally being realized through the lay judges reform.

The second major change addresses the role of bias in criminal trials. Professional judges have always been presumed by virtue of their training to understand the risks of bias. Therefore, except for the rules regarding judges’ recusal, the procedural law does not address bias in any way. In practice, parties rarely raise a motion to recuse a judge from trial, and if raised, such motions are rarely approved. However, recognition and prevention of bias are explicit themes in the Citizen Judges Act. The presumption that judges will be aware of their own biases, whether true or not, cannot be applied to citizen judges. Judges and the two parties must control the risks of bias through voir dire, instructions, and discussion. The new procedural rules allow professional judges to review the issue of bias, breaking the previous silence.

Reformers have advocated banning pretrial review of dossiers for decades. Now it is finally being realized through the lay judges reform.

The new law also brings challenges. Judges currently must provide elaborate written verdicts that describe the facts, the evidence, and the rationale for the judgment. All three elements must be closely woven together. The written verdict plays an important role in any appeal. Moreover, under current law, appellate courts are also trial courts, which means presenting new evidence and arguing factual issues during appeal is possible.

Since it would be impossible for lay judges to provide systematic and elaborate reasons during deliberation, the Citizen Judges Act allows all judges to write simplified written verdicts that will include only the facts, evidence, and decisions on important issues. This change will inevitably make the decision-making process less transparent and have a significant impact on appeals. Without a detailed statement of reasons, appellate courts will no longer be in a position to scrutinize trial court decisions. Also, the Citizen Judges Act requires appellate courts to respect the findings and conclusions of the citizen judges’ trial court to the greatest extent possible when they exercise their review power. Considering these changes, the second-instance appellate courts are likely to eventually focus more on reviewing legal errors than on fact determination. Critics argue that the new law will essentially deprive the defendant of the opportunity to argue facts in appellate courts. Especially when one considers the significant changes at the first-instance trial level, critics argue that the second instance should serve as a safety valve in case of problems in the first instance trial.

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Mong-Hwa Chin is an associate professor of law at National Yang Ming Chiao Tung University School of Law. He has studied mock trials held by district courts in Taiwan in preparation for the lay judge reform.

The Perspective of Criminal Defense Lawyers

By Chun-Hung Lin and Yu-teng Lin

From the perspective of criminal defense attorneys, the Citizen Judges Act is a breakthrough for judicial reform in Taiwan and a boon for defendants. When six randomly selected lay judges and three professional judges sit down to try a criminal case together, none of them will be allowed to see the dossier or the evidence before a prosecutor and a defense attorney present their arguments at trial. This reform will at long last ensure that the court strictly employs an adversarial system.

Taiwan’s criminal attorneys have long advocated that judges should not have access to entire dossiers and evidence before trying a criminal case If judges can review an indictment with the dossier and evidence before the defense even has a chance to speak, it may create a bad impression of the defendant and result in unfairness. Ending this practice in citizen-judge trials will allow attorneys and prosecutors the opportunity to fairly present their evidence in the trial.

This prohibition will also have beneficial effects on the rules of evidence. Taiwan’s evidence rules were written for professional judges. Even though the Code of Criminal Procedure calls for the exclusion of hearsay, confessions extracted by improper means, and other evidence obtained in violation of rules, professional judges are not willing to make exclusion decisions before or during the trial. They prefer to review all the evidence and decide its admissibility while writing the final judgment. This practice is seriously harmful to the defendant’s rights. In the new citizen judge trials, a professional judge will examine whether evidence is admissible or not at a pretrial hearing, and inadmissible evidence will be kept from being presented at trial. The core of the trial will become what happens in court, rather than the production of a written judgment. This reform will likely require the court to establish more detailed exclusionary rules.

The core of the trial will become what happens in court, rather than the production of a written judgment.

These changes may also positively influence trials heard without lay judges. According to Citizen Judges Act Article 5, citizen judges will participate in trials only when the defendant is charged with an intentional offense that results in death or a crime punishable by at least ten years’ imprisonment. That means most cases will still be tried only by professional judges. However, it is hard to imagine a country allowing two different criminal procedures to coexist for long. Thus, it is likely that the new exclusionary rules and evidence rules eventually will be adopted for trials without citizen judges, further strengthening the adversarial system.

The Citizen Judges Act will radically transform Taiwan’s criminal procedure system, forcing professional judges to further adjust existing rules and establish new ones. For the criminal defense community, this is a welcome reform.

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Chun-Hung Lin is a partner at Cogito Law Office in Taiwan, chairman of theTaiwan Criminal Defense Attorney Association, and a director of the Judicial Reform Foundation.

Yu-teng Lin is a partner at Oz & Goodwin Global Law Firm in Taiwan, a PhD student at National Taiwan University College of Law, and a visiting scholar at the U.S.-Asia Law Institute at NYU School of Law.

A Prosecutor Anticipates Taiwan’s Citizen Judges Act

By Sin-Tian Chen

Although only about 0.19% of all cases or approximately 600 per year are expected to be heard by the new mixed judicial benches, it is considered a major shift in criminal procedure. Prosecutors must evaluate the potential influence that lay judges may have and develop plausible strategies to adapt to this new world.

First of all, according to the act, prosecutors and defense lawyers will have to conduct a voir dire process, a brand new undertaking for both sides. In jurisdictions with a tradition of jury trials, such as the United States and Canada, navigating the voir dire process has developed into a mature, professional industry. In Taiwan, however, prosecutors lack fundamental knowledge about how to select citizens to serve as lay judges for a particular case. How to choose suitable citizens to hear different sets of facts involving defendants with various backgrounds will become the first challenge in the new trial procedure.

How to choose suitable citizens to hear different sets of facts involving defendants with various backgrounds will become the first challenge in the new trial procedure.

Second, lay participation means that the prosecutor has to build a case in front of all nine judges, including six ordinary citizens. In traditional trials, prosecutors only face professional judges who already have a legal background and trial experience, making communication quite easy. To address lay citizens who lack basic knowledge of criminal law and procedure, prosecutors will have to develop different skills and strategies. For example, if the charge is causing serious physical injury resulting in the death of another (in violation of Criminal Law Article 278), prosecutors do not explain to professional judges what intent and causation mean, but can focus on the facts and evidence. For lay judges, however, it will be absolutely necessary to explain the relevant legal concepts in plain language. According to the act, before the trial begins, the citizen judges should be briefed by professional judges on basic principles such as the presumption of innocence, that the prosecutor bears the burden of proof, and that proof is needed beyond a reasonable doubt. How well the professional judges convey these ideas to the citizen judges, and the extent to which the citizen judges absorb the information, will significantly affect the work of the prosecutor at trial.

Once the lay judges are selected and briefed, prosecutors will have to decide what information to present and how to present it convincingly. Traditionally, when prosecutors file charges against a suspect, they send a detailed written indictment along with the full case dossier to the court, and the judges can read all the materials ahead of trial to have a basic view of the case. The indictment should fully explain the facts and evidence for each offense and article of the law violated. It is common for prosecutors to provide an explanation for each piece of evidence related both directly and indirectly to facts in the indictment.

By contrast, for citizen judge trials, the law introduces a “three-stage discovery procedure,” similar to that adopted by Japan when it launched a lay judge reform called saiban-in seido in 2009. When prosecutors file charges against a suspect, they provide only an indictment, including an objective description of the facts and articles of the law alleged to have been violated. All evidence and materials are to be kept from the court for subsequent discovery. At the first stage, prosecutors are allowed to provide only evidence that is directly related to the indicted facts, along with a list of the remaining evidence. At the second stage, defense lawyers may apply for discovery based on the list of evidence. A third stage allows the defense to apply for further discovery of remaining evidence if it is necessary for the defense’s case. If deemed necessary, the court may also order the prosecutor to disclose all evidence. The new system of discovery may allow prosecutors to use evidence or materials at hand in a more flexible way. But it also brings the challenge of developing a comprehensive narrative without the assistance of a dossier that could have been digested before trial by professional judges.

Factors other than the case itself, such as prosecutors’ appearance and communication skills, may influence citizen judges’ impressions and decisions in subtle ways.

Citizen judges unfamiliar with legal concepts, terminologies, and processes may become lost in a jungle crammed with evidence, facts, and laws. It will be essential for prosecutors to provide a useful map, that is, a convincing story, to navigate lay judges through the jungle of evidence and convince the judges that the defendant is guilty beyond all reasonable doubt. Moreover, they will have to do this through oral communication in the courtroom. Throughout the whole process, prosecutors should not only observe the reactions of all the judges, but also pay attention to how much is being understood by the citizen judges, especially when it comes to a complicated legal concept or application of laws. Factors other than the case itself, such as prosecutors’ appearance and communication skills, may influence citizen judges’ impressions and decisions in subtle ways.

Soon, prosecutors will have to stand in front of a new bench representing the views both of legal professionals and ordinary people. Will the act fundamentally change what plays out in Taiwan’s courtrooms as well as the conduct of prosecutors? Time will tell.

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Sin-Tian Chen is a prosecutor in the New Taipei District Prosecutors Office and was a 2021-2022 visiting scholar at the U.S.-Asia Law Institute.

Suggested Citation:
“Taiwan’s Citizen Judges Act: Part I,” USALI Perspectives, 3, No. 4, October 10, 2022, https://usali.org/usali-perspectives-blog/taiwans-citizen-judges-act-part-1.

The views expressed in USALI Perspectives are those of the authors, and do not represent those of USALI or NYU.

This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.