【Legal Life】Ch12 Summary Judgment vs. Right to Confront and Cross-Examine Witnesses

To end this nightmare as soon as possible, at the end of Episode 9, Chün-ming decided to confess in exchange for the prosecutor moving for a summary judgment. But right then, his lawyer suddenly told him, "You know, even though a summary judgment can wrap this case up quickly, it means sacrificing some very important legal rights!"

Alright, I chose summary judgment, what is next?

The requirements and procedures for summary judgments were already introduced in Episode 9. However, summary judgment is not as flawless as it appears—fast, light, and simple. One major problem is that because summary judgment proceedings do not involve open court trials, they inevitably sacrifice a portion of the defendant's rights under the Code of Criminal Procedure. Among these, the most heavily impacted is the defendant's "right to confront and cross-examine witnesses."

At this point, the court must first review whether the defendant's case truly meets the statutory requirements for summary judgment. According to Article 452 of the Code of Criminal Procedure, under certain circumstances—for instance, if the defendant is actually innocent, or if the crime committed is so heinous that it fundamentally fails to meet the "petty offense" requirement of a summary judgment—the court should not continue to handle the case through summary proceedings, but should instead revert to the "ordinary trial procedure."

If the court passes this review, then pursuant to Article 453 of the Code of Criminal Procedure, once it is determined that a summary judgment will be adopted, the court must issue an "immediate disposition." In plain language, this means the court cannot drag its feet; it must administer swift justice, promptly execute the judgment, and bring the case to a speedy conclusion.

At this point, the entire summary judgment procedure is drawing to a close. However, summary judgment is not as flawless as it seems; a major problem is that because it does not involve open court hearings, it inevitably sacrifices some of the defendant's rights under the Code of Criminal Procedure. Among them, the most severely affected is the defendant's "right to confront and cross-examine witnesses."

Right to Confront and Cross-Examine? Is it that important?

The right to confront and cross-examine witnesses is a vital right enjoyed by defendants under the Code of Criminal Procedure, with its origins tracing all the way back to the right to institute judicial proceedings under Article 16 of the Constitution. However, this is far too profound and discussing it seriously would take until the next Olympic Games, so it will be explained to readers here using simple concepts.

As the name suggests, the right of confrontation and cross-examination is a combination (duh) of the "right of confrontation" and the "right of cross-examination." They are two distinct concepts of rights, but conventionally they are lumped together like handmade beef balls and discussed as one.

Right of Confrontation

According to Article 97 of the Code of Criminal Procedure, a defendant has the right to confrontation, and Article 184 governs the circumstances for confronting witnesses. In plain terms, this means defendants face defendants, witnesses face witnesses, or witnesses face defendants, standing face-to-face in a head-on duel to question one another so the judge can see who is telling the truth.

Right of Cross-Examination

According to Article 166 of the Code of Criminal Procedure, the defendant (or the defendant's defense counsel) may cross-examine a witness after the presiding judge verifies the witness's identity. This scene is also a courtroom drama favorite. From Phoenix Wright's giant pointing finger to Komikado Kensuke's furrowed brows, the goal is always to dismantle unfavorable witnesses or protect favorable ones through a volley of questions. However, cross-examination in Taiwan's reality is not that dramatic, because everyone has to wait for the court clerk to type out every single sentence spoken ahhhhhhh.

Theoretically, through confrontation and cross-examination, the facts of the case can be effectively clarified to reveal when the tide goes out, who is swimming naked lingering doubts, further protecting the defendant from unjust grievances. It is a crucial defensive right for the defendant.

So why can summary judgment openly omit (censor) confrontation and cross-examination?

Aside from petty offenses, the basic requirement for summary judgment is the "defendant's confession." Furthermore, based on the obtained evidence, "it can be clearly ascertained that the defendant actually committed the crime." For example, being caught driving under the influence at a police checkpoint—if you confess and the breathalyzer confirms it, it doesn't get any more obvious than that. Therefore, under the premise of conserving judicial resources without wrongly punishing the innocent, sacrificing the defendant's right to confrontation and cross-examination in this context does not constitute an excessive infringement on the defendant's right to access court.

To summarize all of the above, the advantage of summary judgment is that it is "fast and efficient," while the disadvantage is that it sacrifices the defendant's right to confrontation and cross-examination. Therefore, before making a choice, investments carry risks, please read the prospectus carefully first, you still need to double-check which procedure suits your case. If you truly want to turn over a new leaf and repent, get it over with quickly and use summary judgment. But if you are more wronged than Tou Ngo and want to pull off a miraculous courtroom comeback, never say you are applying for a summary judgment.

Reference Articles

Article 16 of the Constitution
The people shall have the right of petition, lodging complaints, and instituting legal proceedings.

Article 97 of the Code of Criminal Procedure
I. Where there are multiple defendants, they shall be interrogated separately; those who have not yet been interrogated shall not be present. However, if necessary for discovering the truth, they may be ordered to confront each other.
II. A defendant may also request a confrontation. Such a request for confrontation by a defendant shall not be refused unless it is manifestly unnecessary.

Article 166 of the Code of Criminal Procedure
I. Witnesses and expert witnesses summoned upon application by a party, statutory agent, defense counsel, or assistant shall, after identity verification by the presiding judge, be directly cross-examined by the party, statutory agent, or defense counsel. If the defendant has no defense counsel and does not wish to conduct cross-examination, the presiding judge shall nevertheless provide an appropriate opportunity for them to question the witness or expert witness.
II. The cross-examination of the aforementioned witnesses or expert witnesses shall proceed in the following order:
1. Direct examination first by the party, statutory agent, or defense counsel who applied for the summons.
2. Cross-examination next by the opposing party, statutory agent, or defense counsel.
3. Redirect examination again by the party, statutory agent, or defense counsel who applied for the summons.
4. Recross-examination once more by the opposing party, statutory agent, or defense counsel.
III. Upon completion of the aforementioned cross-examination, the parties, statutory agents, or defense counsel may, with the permission of the presiding judge, conduct further examination.
IV. After the witnesses and expert witnesses have been examined by the parties, statutory agents, or defense counsel, the presiding judge may conduct an examination.
V. Where the same defendant or private prosecutor has two or more statutory agents or defense counsel, their examination of the same witness or expert witness shall be delegated to one of them as a representative. However, this shall not apply with the permission of the presiding judge.
VI. For witnesses or expert witnesses summoned upon simultaneous application by both sides, the order of direct examination shall be determined by agreement between both sides; if they cannot agree, it shall be determined by the presiding judge.

Article 452 of the Code of Criminal Procedure
Cases in which the prosecutor has moved for a summary judgment, if the court deems that there are circumstances specified in the proviso of Article 451-1, Paragraph 4, shall be tried by applying ordinary procedures.

Article 451-1 of the Code of Criminal Procedure
I. In cases referred to in Paragraph 1 of the preceding article, if the defendant confesses during the investigation, they may indicate to the prosecutor the range of punishment they are willing to accept or their willingness to accept a declaration of suspended sentence. If the prosecutor consents, it shall be recorded in the transcript, and based upon the defendant's representation, the prosecutor shall petition the court for a specific sentence or request a declaration of suspended sentence.
II. Before making the aforementioned petition for sentencing or request, the prosecutor may consult the victim's opinions and, considering the circumstances and with the victim's consent, order the defendant to perform the following items:
1. Apologize to the victim.
2. Pay a commensurate amount of compensation to the victim.
III. If the defendant confesses to the crime but has not made the representation referred to in Paragraph 1, they may do so to the court during the trial, and the prosecutor may likewise petition the court for a specific sentence or request a declaration of suspended sentence based upon the defendant's representation.
IV. In the circumstances of Paragraph 1 and the preceding paragraph, the court shall render a judgment within the scope of the prosecutor's petition for sentencing or request for a declaration of suspended sentence, except under any of the following circumstances:
1. The crime committed by the defendant is not a case that may be adjudicated by summary judgment as prescribed in Article 449.
2. The facts of the crime ascertained by the court are manifestly inconsistent with the facts upon which the prosecutor based the request for sentencing and conviction, or during the trial other facts of a crime constituting a single offense under substantive law are discovered, sufficient to render the prosecutor's petition for sentencing manifestly inappropriate.
3. The court, after trial, deems that a judgment of acquittal, dismissal of prosecution, dismissal of action, or lack of jurisdiction should be rendered.
4. The prosecutor's request is manifestly inappropriate or manifestly unjust.

Article 453 of the Code of Criminal Procedure
For cases adjudicated by summary judgment, the court shall issue an immediate disposition.