May 2018
It should not be concluded that a statement which is supposed to be sworn but is not sworn is admissible evidence simply on the ground that the statements of the joint accused were not illegally extracted or there was no other circumstance where the statements were obviously unbelievable due to impediment of freedom of statement during the interrogation by the prosecutor (Taiwan)
2018.2.8
Frank Sun
The Supreme Court rendered the 106-Tai-Shang-1010 Criminal Decision of February 8, 2018 (hereinafter, the "Decision"), holding that it should not be concluded that a statement which is supposed to be sworn but is not sworn is admissible evidence simply on the ground that the statements of the joint accused were not illegally extracted or there was no other circumstance that obviously renders the statements unbelievable due to impediment of freedom of statement during the interrogation by the prosecutor.
According to the facts underlying this Decision, it was held in the original decision that the accused had committed an offense of obtaining property by fraudulent means during the discharge of duties and had jointly committed an offense of preparing false accounting documents under Article 71, Subparagraph 1 of the Commercial Accounting Law before amendment with the rest of the charges acquitted. Both dissatisfied with the original decision, the prosecutor and the accused appealed.
According to the Decision, the joint accused had double identities as the accused and witnesses by nature. To investigate the offenses of another accused and out of the need to gather evidence, the prosecutor should interrogate the joint accused as witnesses and should inform the witnesses of their relevant procedural rights such as refusal to provide a testimony and cause them to provide sworn testimonies to meet the exceptional requirement for hearsay evidence under Article 159-1, Paragraph 2 of the Code of Criminal Procedure. As for statements made in the capacity of the joint accused on the offenses of others, since they are not liable for perjury, the credibility of such statements is inferior to that of a sworn testimony. Therefore, this does not meet the criteria for the above requirement, and such statements can be exceptionally admitted as evidence only when their relative or absolute credibility is assured pursuant to the same legal principle for Article 159-2 and Article 159-3 of the same law and when it is necessary to use such evidence. Therefore, it should not be concluded that a previous statement (which was supposed to be sworn but was not sworn) is admissible evidence simply on the ground that statements of the joint accused were not illegally extracted or there was no other circumstance where the statements were obviously unbelievable due to impediment of freedom of statement during the interrogation by the prosecutor. Therefore, although it was concluded in the original decision that despite the fact that the statements given by the joint accused to the prosecutor during investigation were not sworn, they were still admissible evidence for concluding offenses pursuant to Article 159-1, Paragraph 2 of the Code of Criminal Procedure, the original decision failed to indicate the essential criteria and was thus unlawful. Therefore, the original decision was remanded.
Frank Sun
The Supreme Court rendered the 106-Tai-Shang-1010 Criminal Decision of February 8, 2018 (hereinafter, the "Decision"), holding that it should not be concluded that a statement which is supposed to be sworn but is not sworn is admissible evidence simply on the ground that the statements of the joint accused were not illegally extracted or there was no other circumstance that obviously renders the statements unbelievable due to impediment of freedom of statement during the interrogation by the prosecutor.
According to the facts underlying this Decision, it was held in the original decision that the accused had committed an offense of obtaining property by fraudulent means during the discharge of duties and had jointly committed an offense of preparing false accounting documents under Article 71, Subparagraph 1 of the Commercial Accounting Law before amendment with the rest of the charges acquitted. Both dissatisfied with the original decision, the prosecutor and the accused appealed.
According to the Decision, the joint accused had double identities as the accused and witnesses by nature. To investigate the offenses of another accused and out of the need to gather evidence, the prosecutor should interrogate the joint accused as witnesses and should inform the witnesses of their relevant procedural rights such as refusal to provide a testimony and cause them to provide sworn testimonies to meet the exceptional requirement for hearsay evidence under Article 159-1, Paragraph 2 of the Code of Criminal Procedure. As for statements made in the capacity of the joint accused on the offenses of others, since they are not liable for perjury, the credibility of such statements is inferior to that of a sworn testimony. Therefore, this does not meet the criteria for the above requirement, and such statements can be exceptionally admitted as evidence only when their relative or absolute credibility is assured pursuant to the same legal principle for Article 159-2 and Article 159-3 of the same law and when it is necessary to use such evidence. Therefore, it should not be concluded that a previous statement (which was supposed to be sworn but was not sworn) is admissible evidence simply on the ground that statements of the joint accused were not illegally extracted or there was no other circumstance where the statements were obviously unbelievable due to impediment of freedom of statement during the interrogation by the prosecutor. Therefore, although it was concluded in the original decision that despite the fact that the statements given by the joint accused to the prosecutor during investigation were not sworn, they were still admissible evidence for concluding offenses pursuant to Article 159-1, Paragraph 2 of the Code of Criminal Procedure, the original decision failed to indicate the essential criteria and was thus unlawful. Therefore, the original decision was remanded.
