The Supreme Court rendered the 107-Tai-Shang-1200 Criminal Decision of June 20, 2018 (hereinafter, the “Decision”), holding that the evidentiary admissibility of a statement given by a person other than the defendant to the judge outside of a trial and to the prosecutor in the course of investigation requires that lawful investigation procedures including an examination procedure in the course of a court trial should be conducted before such statement may be relied on as a basis of determination.
According to the facts underlying this Decision, the original decision upheld the first instance decision, which had found that the defendant attempted to prevent a candidate from being elected by spreading rumors in writing, which was sufficient to inflict damage upon another person, and dismissed the Defendant’s second instance appeal. Dissatisfied, the Defendant appealed.
According to this Decision, Article 159-1, Paragraphs 1 and 2 of the Code of Criminal Procedure provide for the evidentiary admissibility of a statement given by a person other than the defendant to the judge outside of the trial or to the prosecutor in the course of investigation. However, such evidence can be relied on as a basis of determination only when lawful investigation procedures including an examination procedure in a court trial have been conducted.
Therefore, it was further pointed out in this Decision that the original decision had cited the testimony of a witness (i.e., the Complainant) provided in a civil preparatory proceeding for another civil matter and during the investigation of this case as a fact-finding basis without allowing the Defendant to exercise the cross-examination right. In addition, the Defendant also denied the verity of the testimony. Although the prosecutor had motioned to summon the Complainant to testify in court during the first instance trial in order to assume the burden of proof, the prosecutor suddenly gave up the chance to call the Complaint to the stand when he was present in court. Despite the fact that the Defendant immediately indicated that he would request that the Complainant be called to the stand so that the Defendant could conduct a direct examination, still the first instance court violated the law for failure to consider the request, for its reliance on the testimony given by the Complainant outside of the trial as fact-finding evidence without allowing the Appellant to exercise his cross-examination right, and for its failure to explain the reasons for not calling the Complainant to the stand. The Appellant did not relinquish his examination right during the original trial. In the face of such evidence, which was formally unfavorable to the Appellant but was important to the facts to be verified, and whose investigation was not difficult or impossible, the original trial court elected to rely on the Complainant’s testimony outside of the trial as the basis of determination without instructing the prosecutor to motion for evidentiary investigation. Therefore, the original trial court was unlawful for failure to investigate evidence which should have been investigated during trial, and the original decision was remanded.