Taiwan’s New Adversarial System and the Overlooked Challenge of Efficiency-Driven Reforms

[Margaret K. Lewis is a Senior Research Fellow at NYU Law School’s U.S.-Asia Law Institute.]

Thank you to the editors of the Virginia Journal of International Law and to Opinio Juris for providing this forum. My article grew out of work on legal reforms in Mainland China, which led to a cross-Strait project. As I learned more about Taiwan’s criminal justice system, I realized that Taiwan’s reform path presents an intriguing story of a legal transplant at a time when systems around the world are increasingly unmoored from the traditional adversarial/inquisitorial divide.

By way of brief background, over the past twenty years, Taiwan has transformed from a repressive, martial law state into a vibrant, multi-party democracy, and wide-sweeping reforms to the legal system have accompanied these political changes. Prior to the current reform project, the criminal justice system had a strong inquisitorial flavor. What Taiwan chose to adopt at the turn of the century is what they call a “reformed adversarial system.” The desired new system is adversarial in that it is rooted in the idea that the criminal process is structured as a contest between the competing views of the defense and prosecution, and the case is ultimately resolved by a neutral adjudicator.

When talking with Jaw-perng Wang, a friend who is a prominent Taiwanese criminal procedure scholar (and respondent to this post), he told me that Taiwan had introduced plea bargaining as part of its transition towards an adversarial system. This surprised me because plea bargaining had traditionally been frowned upon as going against the prevailing view in Taiwan that the criminal process involved a search for objective truth and that justice is not open to negotiation. Despite these objections, in order to speed cases through the system, Taiwan has promoted not only plea bargaining, but also three other alternatives to the full trial process, what I collectively term “efficiency-driven procedures”; namely, plea bargaining, deferred prosecution, file-based adjudication, and simplified trials. What really struck me was Professor Wang’s explanation that because the new trial procedures were putting greater strain on this new adversarial system, expedited procedures were necessary to resolve cases rapidly.

This type of case-load pressure argument in support of plea bargaining is not novel to Taiwan. What is different and important is how a growing reliance on plea bargaining and other streamlined procedures plays out in a jurisdiction that is attempting to fundamentally shift to an adversarial system. And beyond a straightforward efficiency rationale, outside of the context of Taiwan, scholars have proposed that plea bargaining could actually encourage a new adversarial spirit because it is a party-controlled procedural form of resolving cases.
The problem is that the scenario that appears to be developing in Taiwan is a different one. Instead of enhancing robust interaction between the prosecution and defense, these trial-avoiding and trial-condensing procedures have created a separate track of expedited, prosecutor-dominated justice alongside the adversarial one. The vast majority of defendants see their cases decided at the prosecutor-controlled investigation stage or directed through an abbreviated adjudication stage with little activity by either the judge or defense.

Admittedly, that most cases are decided without a contested trial is not shocking. What is concerning is that the trumpeted adversarial reforms are not permeating into efficiency-driven procedures and these procedures are increasingly coming to dominate in Taiwan. My claim is that these procedures, which are seen as necessary for Taiwan’s new system to even function, are actually impeding the development of the desired adversarial approach. This observation is important not only to Taiwan, but also to other transitional jurisdictions by sounding a note of caution that focusing on the minority of cases in which defense lawyers spar with prosecutors in the courtroom may lead reformers to overlook how the overall reform package is increasingly channeling cases through very different processes.