Reforming the mechanism for screening prosecutorial charging decision in Taiwan

For years, prosecutors in Taiwan have been faced with criticism from scholars, lawyers, and judges over the abuse or errors of prosecutorial charging decision where there is insufficient evidence to indict a case or there is an ill or unjustified motivation or consideration behind the charge, whether those charges are intentionally or erroneously made. These criticisms strongly suggest that the current screening mechanism does not function effectively as a shield to protect the accused and to scrutinize prosecutorial charging decisions. As a result, not only does unwarranted charging inflict a discriminative effect upon defendants, but it also burdens our criminal justice system with inflated caseloads and fosters mistrust of the system by the citizens. The prosecutorial system in Taiwan mainly adopts mandatory prosecution, which means that prosecutors are obligated to charge once the requirement of mandatory prosecution is satisfied, i.e., sufficient evidence to entertain a suspicion that the defendant committed the crime is reached, in felony cases. But in practice, prosecutors retain a large measure of decisions that permit abusive or erroneous charges to be filed. Therefore, the effective screening of prosecutorial charging occupies a critical stage in criminal justice to prevent potential wrongful prosecution and conviction. However, one may infer that the system is seldom being employed to screen charging decisions, given that both the overall offense and the corruption offense dismissal rates are much lower than 1%. Although these statistics are not determinative, they still strongly imply the screening system in Taiwan is ineffective. As such, the current screening mechanism does not ii function effectively as a shield to protect the accused and scrutinize unwarranted charging decisions. The current body of research does point out the problems of prosecutorial charging decision, yet it does not address any prospective solutions. Moreover, it does not propose any reforms to the current screening mechanism or has any evaluation of the current screening mechanism. It is, therefore, the goal of this dissertation to analyze current deficiencies of the mechanism and to institute potential alternatives for screening mechanisms in order to eradicate unfounded or erroneous prosecution. In achieving this goal, the methodology of “comparative analysis” is the major underpinning. Legal theories from various bodies of research are referenced in order to identify the characteristics of the major systems of the United States and France, as well as address the advantages and disadvantages of those screening mechanisms, such as the grand jury and preliminary hearing mechanisms in the United States, and investigating judges (juge d’instruction) in France. These features are then compared and contrasted to Taiwan’s current system to discover the defects in the design of its screening mechanism, including the screening procedure, screener neutrality, evidentiary rule, the right to counsel, the threshold to screening, and discovery. Furthermore, screening mechanisms from different countries originated from different historical backgrounds as well as different legal cultures, which are explored to determine if the resulting procedures provide a potential vehicle for Taiwan to reform its current screening system. iii Eventually, the proposed reform of the screening mechanism would adopt adversarial-style procedures that emphasize an evenhanded process for both parties, more participation and input from the defense, and independent screening procedures that allow the screening judge to hold a hearing. Both structural reform to the screening procedure and adding an adversarial component to improve the screening would lead to a comprehensive and improved solution for Taiwan. Through the external improvements, the system would scrutinize prior to charging, increasing the chances of weeding out unfounded prosecutions.

Name thesis:degree_name

J.S.D.

Level thesis:degree_level

Dissertation

Discipline thesis:degree_discipline

Law

Grantor

University of Illinois at Urbana-Champaign

Year dc:date

2014

Author dc:creator

• Wen, Tzu-Te

Contributors dc:contributor

• Leipold, Andrew D.
• Ross, Jacqueline E.
• Johnson, Eric A.
• Marshall, Anna-Maria

• Screening of Charging Decision
• Taiwanese Screening Mechanism
• United States Screening Mechanism
• Judicial Legal Culture
• Legal transplant
• Comparative Criminal Procedure

Statement dc:rights

• Copyright 2014 Tzu-Te Wen

Language dc:language

en

Handle dc:identifier

http://hdl.handle.net/2142/49790

OAI identifier oai:identifier

oai:www.ideals.illinois.edu:2142/49790