Since the oath texts required for the oath which should be taken for the testimony of a witness and for the opinions of an expert witness is different, their identity should certainly be differentiated and they should be required to take oath; and if there is any violation of the oath, the testimony or expert opinions can hardly be admitted as legitimate evidentiary materials (Taiwan)
2019.3.7
Jhen-Yi Chen
The Supreme Court rendered the 107-Tai-Shang-3087 Criminal Decision of March 7, 2019 (hereinafter, this “Decision”), holding that since the oath texts required for the oath which should be taken for the testimony of a witness and for the opinions of an expert witness are different, their identity should certainly be differentiated and they should be required to take oath; and if there is any violation of the oath, the testimony or expert opinions can hardly be admitted as legitimate evidentiary materials.
According to the facts underlying this Decision, the original decision held that the Defendant was the legal representative of Company A. Obviously knowing that Company A did not apply to the competent authority for issuing a permit for processing wastes, the Defendant purchased waste electrical wires and cables and separated the plastic skin and copper wires of the waste electrical wires and cables by using his equipment such as peeling machines and pulverizers to sell the copper wires. As a result, the first instance decision in which Jen-chieh Chen was found guilty of the offense of illegal disposal of wastes under Article 46, Subparagraph 4 of the Waste Disposal Law (and was sentenced to one year and six months in prison) for his illegal storage, disposal and processing of wastes such as waste electrical wires and cables was upheld. The second instance appeal for this portion was rejected and the forfeiture portion of the first instance decision was set aside. In addition, instructions relating to such forfeiture were also provided. Dissatisfied, the Defendant appealed.
According to this Decision, an oath-taking system is specifically set up under the Code of Criminal Procedure to ensure the verity of the testimony of a witness and of the determination opinions of an expert witness. However, such purposes of the two are different from the focus of witness testimony on truthfulness and credibility, while the emphasis of an expert witness’s opinions should be on fairness and honesty. Therefore, the texts for the two types of oath should be different. To be specific, the text of the oath taken by a witness under Article 189, Paragraph 1 of the Code of Criminal Procedure should contain the wording “the statement shall be true without concealment, embellishment, addition or reduction.” In contrast, Article 202 of the same law specifically provides that the text for the oath taken by an expert witness shall contain the wording “the expert opinion shall be fair and honest. In addition, Article 158-3 of the same law provides that the testimony or opinion of a witness or expert witness required but failing to take an oath pursuant to law shall not be admitted as evidence. The failure to take an oath includes not only the failure to sign the oath but also the violation of the statutory oath-taking procedure under Article 189, Paragraph 1 and Article 202 of the same law (the contents of the oath). Therefore, if a witness is assigned by the court or prosecutor to share his/her determination opinion based on his/her special knowledge or experience and the “current facts” (rather than facts witnessed or experienced by the witness in the past), this witness also carries the characteristics of an expert witness. In this connection, the oath for a witness or the additional oath for an expert witness should be ordered based on the specific circumstance. To wit, whether such individual testifies in the capacity of a witness or an expert witness should certainly be specifically differentiated before an oath should be taken pursuant to law. If the statutory procedure is violated or contravened, the witness testimony or expert opinion does not meet the statutory procedure and thus can hardly be admitted as legitimate evidentiary materials and shall not be admitted into evidence.
It was further pointed out in this Decision that the original trial court had summoned, ex officio, a section chief of the Environmental Protection Administration to appear in court to state his opinion based on his special business knowledge and experience and on other relevant administrative circulars or requirements concerning whether the waste electrical wires and cables in this case were by nature “ordinary wastes” or “industrial wastes.” Therefore, the witness simply stated his professional opinions rather than attested to any past fact he had personally experienced. He did not appear in court to function as a regular witness but rather was actually an expert witness. The original trial court had summoned this individual to appear in court in the capacity of a witness. Therefore, the actually implemented procedure concerning the instruction for the witness’s oath-taking obligation and penalty for perjury and the requirement for taking a witness’s oath was certainly inappropriate. Since the expert opinion provided in the hearing of the original court failed to meet statutory requirements, it could hardly be regarded as legitimate evidentiary materials. Since the original decision was in breach of laws and regulations for its adoption of such opinion to support its guilty finding, it was reversed and remanded.