The Supreme Court rendered the 105-Tai-Shang-379 Criminal Decision of February 3, 2016 (hereinafter, the “Decision”), holding that the provision concerning hearsay rule exception under Article 159-2 of the Code of Criminal Procedure does not apply if the prosecutor is negligent in summoning witnesses to appear in court for investigation.
According to the facts underlying the Decision, the Appellant was found in the original decision to have committed an offense of joint and illegal possession of guns capable of shooting bullets to inflict injuries. Dissatisfied, the Appellant filed this appeal.
According to the Decision, Article 159-2 of the Code of Criminal Procedure provides: “When the statements made, in the investigation stage, by a person other than the accused to the public prosecuting affairs official, judicial police officer, or judicial policeman are inconsistent with that made in trial, the prior statement may be admitted as evidence, provided that special circumstances exist indicating that the prior statements are more reliable, and that they are necessary in proving the facts of the criminal offense.” This is one of the exceptions for the hearsay rule. However, if a party believes that what the witness saw and heard is necessary to prove the defendant’s criminal fact under the principle of direct examination, oral proceedings and nemo tenetur se ipsum accusare (meaning “no man is bound to accuse himself”), the prosecutor shall apply to the court to summon the witnesses to appear for cross examination in accordance with Article 161-1 of the Code of Criminal Procedure for the purpose of investigation. If the statement provided by a witness in trial is different from the statements previously made before the prosecuting affairs official, judicial police officer or judicial policeman by the same witness, the prior statements before the trial can be admitted as evidence only on an exceptional basis when the criteria under Article 159-2 mentioned above are also met.
It was further pointed out in this Decision that if the prosecutor is negligent in summoning witnesses to appear in court for investigation, the Defendant is not obligated to clarify and certainly is not required to provide evidence to prove otherwise. In this matter, the hearsay rule exception under Article 159-2 of the Code of Criminal Procedure did not apply because the prosecutor had failed to summon witnesses to appear in court for investigation. Therefore, the original decision which held that as the defense attorney of Appellant waived the right to summon a witness to testify in court and the statement made by a witness during police interrogation was admissible evidence under Article 159-2 of the Code of Criminal Procedure was unlawful for reversing the burden of proof and for erroneous application of law in the decision and was revered and remanded.