2017.5.24
Frank Sun
The Taiwan High Court rendered the 106-Jin-Shang-Yi-3 Criminal Decision of May 24, 2017 (hereinafter, the “Decision”), holding that if the procedure in which a witness makes an identification is defective or if the creditability of such identification is suspicious, determination unfavorable to the accused should not be made.
According to the facts underlying this Decision, a prosecutor indicted the accused, holding that the accused had sent promotional materials and conducted telephone interviews without authorization under a pseudonym to solicit investment from nonspecific individuals and accept investment payment from others in violation of Article 44, Paragraph 1 of the Securities and Exchange Law concerning operation of securities business without the permission and license from the competent authority. The accused also allegedly committed an offense in violation of Article 175, Paragraph 1 of the same law. The originally trial court acquitted the accused. Dissatisfied, the prosecutor appealed.
According to the Decision, statements in which individuals are identified are an evidentiary method by which a victim or eyewitness identifies and confirms the actor of an offense. In this case, the witness neither followed the method of “identification during a live lineup” nor made the identification among pictures of several individuals. Instead, only the pictures of the above specific suspect were shown to the witness for identification. Therefore, it could not be ruled out that the hinting or leading effect on the face or features of the suspect had been created in the mind of the witness, calling into question if the witness’s subsequent identification of the accused in person was affected by the pictures which had been initially presented to the witness. Therefore, it should be concluded that the witness could not specifically identify that the accused was the person using the pseudonym. It was further held in the Decision that since the procedure in which the witness made an identification during investigation was defective, the creditability of the identification was also suspicious, determination unfavorable to the accused should not be made on such basis.
It was further concluded that since the prosecutor had failed to substantiate that the accused was the suspect in this case, the appeal was rejected and the original decision that had exonerated the accused was upheld.