The innocence movement in Taiwan started in 2012 when a group of lawyers and scholars started the Taiwan Innocence Project (TIP).2 TIP started as a group that provided free post-conviction legal representation to those who claimed they were innocent. Over the years, in addition to providing legal representation, the TIP has grown to embrace several other missions, including providing support and guidance to clients and their families, advocating for institutional reforms, and raising social awareness. Since 2012, TIP has represented twenty-three clients and had success in ten cases.3 These ten cases triggered a series of legal reforms regarding post-conviction laws in Taiwan. This essay will discuss some of the most significant changes in the law.
A. Reinterpreting “New Evidence”
The Code of Criminal Procedure in Taiwan (the “Code”) allows defendants to request a retrial based on new evidence after the direct appeals are exhausted.4 Before 2014, the courts had a very restricted interpretation of what constituted new evidence. Precedent required that the new evidence must have existed before but not discovered until after a conviction.5 Also, the new evidence alone must have had enough weight to cast doubt on the conviction.
In 2014, several changes were made to the Code.6 First, the new statute explicitly mandates that new evidence does not need to have existed before a conviction.7 A piece of evidence that is created after a conviction can also suffice as new evidence. For example, post-conviction DNA testing reports can now qualify as new evidence even though the report did not exist at the time of the trial. Second, the Code requires that the court evaluate the weight of the new evidence, not just independently, but also by considering it with all previous evidence.8
The second aspect of the reform can be completed by reviewing the written verdict. Criminal cases in Taiwan are decided by professional judges who, at the conclusion of the trial, are required to provide a detailed verdict explaining the court’s findings and the evidence that supports these findings.9 A common analogy to writing a verdict is building a house. The verdict must explain the pillars and beams that support this house. The old precedent required that new evidence act as a wrecking ball to destroy the house with one hit. The new law, however, recognizes that although new evidence may seem insignificant on its own, it could still undermine the integrity of a conviction when considered jointly with other evidence. The new law essentially requires that the court explore what kind of damage the new evidence could cause to the pillars and beams and whether the house is still safe to inhabit.
Finally, the updated Code sought to prevent the courts from raising the threshold of granting a new trial by increasing the new evidence weight requirement through judicial practice. In the amendment note, the lawmakers established a “reasonable probability” standard, requiring that the court grant a retrial if there was a reasonable probability of a different result if the court had considered this new evidence in the previous trial.10
B. Creating and Expanding the Right to Investigation Before Retrial
In Taiwan, a criminal defendant may request that the court investigate favorable evidence at trial.11 The defendant may move the court to ask the judge to summon a witness, hire an expert at the court’s expense, or ask the court to order documents or other evidence to be submitted to the court. However, although the right to investigate evidence has long been the tradition at trial, it was never recognized in post-conviction procedures.
Inspired by the post-conviction DNA testing statutes in the United States, TIP successfully lobbied the legislature to pass Taiwan’s version of such a law in 2016. The new law permits courts to authorize a retesting of DNA evidence if the court reasonably believes that the DNA testing result can be used as “new evidence” by the defendant in a subsequent retrial procedure.12 However, three criteria must be met: (1) the object to be tested is in the government’s possession; (2) the object has never been tested in a previous trial, or it was tested, but a new method is now available; and (3) the testing method is scientifically sound.13 The new law also permits the court to conduct an investigation sua sponte or hold a hearing to determine whether to allow such a motion.14
However, the right to the investigation should not be limited to DNA evidence. In 2020, the Code formally incorporated the right to an investigation in post-conviction procedures. A person claiming innocence may now request that the court investigate whether there is a cause for a retrial. For example, previously, the defendant had to present the court with the actual new evidence before the court would consider reopening the case. The new law requires only that the defendant point out where new evidence can be found and request the court to investigate it.15
C. The Reform of Criminal Compensation Act
TIP’s first exonerated client was Long-Qi Chen.16 In March 2013, Chen was convicted of sexual assault and sentenced to four years due to improperly interpreted DNA evidence. After the conviction, Chen was unwilling to go to prison, and he decided to flee with his family. While hiding from the authorities, he approached TIP, and TIP began to represent him in court to request a retrial. In December 2013, a retrial was granted, and he was formally exonerated in March 2014.17
The case cost Chen almost everything. Before the conviction, Chen was the owner of a seafood restaurant. He was forced to sell the restaurant at a price much lower than the market price. To protect his family, he divorced his wife (although his family stayed with him while he was fleeing). He developed anxiety and depression, and could not recover from either even after exoneration. Many would think that Chen would have received a comparable amount of money from the government to compensate for his losses. However, that was not the case. Taiwan’s Criminal Compensation Act only provides compensation based on the time served in prison.18 Because Chen never served a day in prison, he was not eligible for any compensation under the law.
In 2019, the Judicial Yuan, the judicial administration authority in Taiwan, announced a bill to reform the Criminal Compensation Act. The bill included a clause that allows exonerees who have not been incarcerated to request compensation.19 According to the bill, compensation is calculated based on the original conviction and sentence. A person sentenced to death may receive compensation up to TWD 1,000,000 (approximately USD 33,000) and a person sentenced to less than a year may receive up to TWD 100,000 (approximately USD 3,300).20 In Chen’s case, he could receive up to TWD 360,000 (approximately USD 12,000). The legislature is currently discussing the new bill.
II. Uncertainties and Future Challenges
Although these reforms are considered signs of progress, there remain many uncertainties and challenges to be solved. For example, the new law on newly discovered evidence mandates that judges consider the new evidence with all existing evidence to determine whether the new evidence may undermine the verdict’s rationale.21 However, it is still unclear whether courts may reconstruct the evidence determined by the previous trial. If the answer is yes, the court can still deny the retrial based on a rationale other than the one adopted by the previous trial court. Using the analogy of building houses, the question is whether courts have the power to disregard the original house built by the previous trial court and to reorganize the pillars and beams to build a new house that could withstand the challenges of the new evidence. If courts are allowed to rebuild houses with a new rationale, the new law may not significantly change the chances of reopening cases after all.22
One of TIP’s clients, Chin-Kai Lu, is a victim of such a rationale. Lu was convicted as an accomplice of sexual assault and attempted murder and was sentenced to twenty years in prison in 2006.23 Lu was later excluded through DNA testing. However, even after DNA excluded him, the court denied him a retrial and, without any support from the evidence, reasoned that the DNA testing results did not change the fact that Lu could still be an accomplice by “suppressing the victim” while others completed the crime.24 This rationale was never examined in the previous trial.
Therefore, it is more reasonable to deny the court’s power to create a version of the truth that was never examined by a previous trial. The court’s duty should be straightforward: if the new evidence undermines the conviction’s rationale, the court must grant a new trial. Whether existing evidence can be reorganized and reinterpreted to convict the defendant regardless of the new evidence is a decision that should be left for the new trial to decide.
Other challenges persist for reinvestigating post-conviction cases. The right to an investigation is a significant step forward for defendants because most defendants are not represented by an attorney or lack the resources to do an investigation after the trial.25 However, the courts deny half of the motions for post-conviction DNA testing, not because the courts were unwilling to investigate for the defendant but because the evidence was usually lost or destroyed—leaving nothing left to test.26 There is no uniform rule that requires the government to preserve criminal evidence after a conviction is final. Due to limited space and resources, the government would routinely discard evidence.27
As for the Criminal Compensation Act, the problem is quite straightforward: the amount of compensation for those who had not been incarcerated is way too low. The amount of compensation is so low that Long-Qi Chen is considering whether to file the compensation application. For those who are wrongfully incarcerated, the law mandates that they should be compensated at a rate between TWD 3,000 and 5,000 (approximately USD 100–160) per day.28 However, in Chen’s case, his compensation would be approximately equivalent to TWD 1,000 (approximately USD 30) per day. Moreover, organizations such as TIP have always advocated that exonerees need more than money. Most of them have suffered from poor health and did not have the skills to work or the knowledge to manage their compensation. Therefore, the TIP has advocated that the government should provide health services and occupational training and should assign professionals such as lawyers and accountants to help exonerees get back on their feet. However, the new bill does not require the government to do anything except provide monetary compensation.
This essay introduces three significant reforms of Taiwan’s legal framework for postconviction relief since 2014. These changes show that the legislature and the judiciary are making progress in addressing wrongful convictions. Furthermore, some of these changes, such as the right to investigation and compensation for exonerees who were never incarcerated, are reforms that are rarely seen in other countries. Therefore, Taiwan is becoming a testing ground for the innocence movement around the world. However, the new reforms also bring uncertainties and challenges. There is undoubtedly more to be done before the ideals behind these reforms are fully realized.
- ↑ 1 Associate Professor, National Yang Ming Chiao Tung University School of Law, Taiwan; Member, Board of Administration, Taiwan Innocence Project.
- ↑ 2
About, Taiwan Innocence Project, https://twinnocenceproject.org/en/about-en/ [https://perma.cc/GUD4-MHXT] (last visited Feb. 1, 2021).
- ↑ 3
Case List, Taiwan Innocence Project, https://twinnocenceproject.org/en/case_map_en/caselist_en/ [https://perma.cc/86C5-BM3K] (last visited Mar. 11, 2021).
- ↑ 4
Code of Criminal Procedure [Code of Crim. Proc.] art. 420, Fawubu Fagui Ziliaoku (Taiwan).
- ↑ 5
Code of Crim. Proc. art. 420 amendment note (Taiwan).
- ↑ 6
Brandon L. Garrett, Towards an International Right to Claim Innocence, 104:4 Cal. L. Rev. 1173, 1210 (2017).
- ↑ 7
- ↑ 8
- ↑ 9
Code of Crim. Proc. art. 310 (Taiwan).
- ↑ 10
Code of Crim. Proc. art. 420 amendment note (Taiwan).
- ↑ 11
Code of Crim. Proc. art. 163 (Taiwan).
- ↑ 12
Post-Conviction DNA Testing Act art. 2, Fawubu Fagui Ziliaoku (Taiwan).
- ↑ 13
- ↑ 14
Post-Conviction DNA Testing Act art. 6, Fawubu Fagui Ziliaoku (Taiwan).
- ↑ 15
Code of Crim. Proc. art. 429-3 (Taiwan).
- ↑ 16
See Garrett, supra note 6, at 1210.
- ↑ 17
See also Greg Hampikian, Gianluca Peri, Shih-Shiang Lo, Mong-Hwa Chin & Kuo-Lan Liu, Case Report: Coincidental Inclusion in a 17-locus Y-STR Mixture, Wrongful Conviction and Exoneration, 31 Forensic Sci. Int’l: Genetics, at 1 (2017).
- ↑ 18
Criminal Compensation Act art. 6, Fawubu Fagui Ziliaoku (Taiwan).
- ↑ 19
See Press Release, Judicial Yuan Criminal Department, The 180th Session of the Judicial Yuan passed the draft amendments to some provisions of the Criminal Compensation Law, (Nov. 2019) http://jirs.judicial.gov.tw/GNNWS/NNWSS002.asp?id=547314 [https://perma.cc/6Q96-XJ3C].
- ↑ 20
Draft Amendments to Criminal Compensation Act art. 6-1 (Taiwan).
- ↑ 21
See Code of Crim. Proc. art. 420 (Taiwan).
- ↑ 22
See Mark Godsey, Blind Injustice 14 (2017) (acknowledging that it is not uncommon for prosecutors in the United States to reconstruct the case theory to reconcile with reliable new evidence. By coincidence, this often happens in sexual assault cases as well.).
- ↑ 23
TAI urges to Stand up for Jin—Kai Lu, who was wrongfully convicted by flawed DNA Test, Taiwan Innocence Project (Oct. 2, 2015), https://twinnocenceproject.org/en/wrongful-conviction-day-2015-tai-urges-to-stand-up-for-jin-kai-lu// [https://perma.cc/8JCK-FJXS].
- ↑ 24
Qin Sheng Zai Zi Caiding, Judgment No. 57, Sifayuan Jiansuo Xitong (High Ct. May 15, 2014) (Taiwan).
- ↑ 25
See Justin Brooks, Alexander Simpson, Paige Kaneb, If Hindsight Is 20/20, Our Justice System Should Not Be Blind to New Evidence of Innocence: A Survey of Post-Conviction New Evidence Statutes and a Proposed Model, 79 Alb. L. Rev. 1045, 1069 (2015) (examining similar problems which can be found in the United States).
- ↑ 26
As of February 16, 2021, there were fifteen motions for post-conviction DNA testing. Among them, seven motions were denied because evidence was destroyed. See Sheng Zi Caiding, Judgement No. 2159, The Judicial Yuan of the Republic of China Law and Regulations Retrieving System, https://law.judicial.gov.tw/Index.htm [hereinafter The Judicial Yuan Database] (Taiwan High Ct., Aug. 16, 2018); Sheng Zi Caiding, Judgment No. 1011, The Judicial Yuan Database (Taiwan High Ct., 27, 2019); Sheng Zi Caiding, Judgment No. 2241, The Judicial Yuan Database (Taiwan High Ct., Aug. 26, 2019); Sheng Zi Caiding, Judgment No. 4224, The Judicial Yuan Database (Taiwan High Ct., Dec. 31, 2019); Sheng Zi Caiding, Judgment No. 934, The Judicial Yuan Database (Taiwan High Ct., Tainan, Dec. 27, 2018); Sheng Zi Caiding, Judgment No. 338, The Judicial Yuan Database (Taiwan High Ct., Tainan, May 31, 2017); Sheng Zi Caiding, Judgment No. 99, The Judicial Yuan Database (Taiwan High Ct., Hualien, Sep. 28, 2018).
- ↑ 27
See Lin Yu Shun (林裕順), Shi Zhi Hung (施志鴻), Chang Chia Wei (張家維), Yeh Tzu Chun (葉姿君), Woguo Jianli Wanshan Xingshi Zhengwu Baoguan Zhidu zhi Yanjiu (我國建立完善刑事證物保管制度之研究) [The Research on the Criminal Evidence Management Procedure in Taiwan], 26 Xingshi Zhengce yu Fanzui Fangzhi Yanjiu Zhuankan (刑事政策與犯罪防治研究專刊) [Rsch. J. on Crim. Pol’y & Crime Prevention] 171, 179–80 (2020) (Taiwan).
- ↑ 28
Criminal Compensation Act art. 6, Fawubu Fagui Ziliaoku (Taiwan).