\\jciprod01\productn\N\NYI\43-3\NYI305.txt unknown Seq: 1 7-JUN-11 7:02 ONE PROBLEM, TWO PATHS: A TAIWANESE PERSPECTIVE ON THE EXCLUSIONARY RULE IN CHINA BY YU-JIE CHEN* I. INTRODUCTION .................................. 713 R II. TAIWAN’S INITIAL EFFORTS TO CURB TORTURE AND WRONGFUL CONVICTION ......................... 715 R III. TAIWAN’S EXCLUSIONARY RULES .................. 719 R A. Background to Taiwan’s Reform of Exclusionary Rules ....................................... 719 R B. Changes Regarding Coerced Confessions......... 721 R C. Changes Regarding Illegally Obtained Physical Evidence ..................................... 723 R IV. TAIWAN’S HOLISTIC APPROACH AND CONTINUING PROGRESS ....................................... 724 R V. RELEVANCE OF TAIWAN’S EXPERIENCE TO CHINA . 725 R A. Exclusionary Rule ............................ 725 R B. Reform Push ................................. 726 R I. INTRODUCTION Professor Margaret Lewis’s outstanding article1 adds a pi- oneering, valuable chapter to the growing comparative schol- arship on exclusionary rules. Along the way, she tackles the fundamental questions that should be asked regarding all China’s recent criminal justice reforms: Why does an authori- tarian regime make legal changes that seemingly restrain its power? What are the challenges that are hindering implemen- tation? What reforms are needed to improve actual practice? Lewis carefully unravels the forces that moved the govern- ment of the People’s Republic of China, tasked with managing an increasingly sophisticated population of 1.4 billion and an increasingly complex criminal justice system, to announce two * Senior Research Fellow, U.S.-Asia Law Institute, New York University School of Law; LL.M. 2008, New York University School of Law; Taiwan law- yer. The author greatly appreciates the helpful comments and suggestions of Professor Jerome A. Cohen and Ms. Hsu Yi-Ping. 1. Margaret K. Lewis, Controlling Abuse to Maintain Control: The Exclusion- ary Rule in China, 43 N.Y.U. J. INT’L. & POL. 629 (2011). 713 \\jciprod01\productn\N\NYI\43-3\NYI305.txt unknown Seq: 2 7-JUN-11 7:02 714 INTERNATIONAL LAW AND POLITICS [Vol. 43:713 sets of evidence rules in May 20102 (the “Evidence Rules”). The rules deal with a wide range of evidentiary issues in crimi- nal cases and, in particular, set forth procedures to handle evi- dence allegedly obtained through illegal means. She con- cludes that the major motivation for the government to swiftly pass the Evidence Rules following the highly publicized wrong- ful conviction of Zhao Zuohai3 was to contain the public’s growing discontent with rampant injustice and police abuses, which apparently had threatened the regime’s legitimacy. Al- though the Evidence Rules are touted as a major step forward, Lewis points out many challenges that are likely to stand in the way of their meaningful implementation. Her analysis is a road map, leading to other changes necessary to address the major problem in China’s criminal justice system: the growing gap between the law on the books and the law in action. Lewis discusses why other jurisdictions incorporate exclu- sionary rules into their criminal justice systems. This high- lights the Chinese authoritarian regime’s distinct motivation to bolster its legitimacy by adopting the Evidence Rules. Among the jurisdictions examined, the Republic of China on Taiwan (ROC or Taiwan) is closest to China in cultural ties, language, features of a continental European system, and a le- gal tradition of inquisitorial criminal justice. Yet, compared with China, Taiwan has made tremendous strides toward the rule of law in recent decades. It therefore deserves close atten- tion because its experience may serve as a useful reference for China’s future.4 2. “Guanyu Banli Sixing Anjian Shencha Panduan Zhengju ruogan Wenti de Guiding” he “Guanyu Banli Xingshi Anjian Paichu Feifa Zhengju ruogan Wenti de Guiding” de Tongzhi ( ) [Notice Regarding the Issue of “Rules on Certain Issues Relating to Examining and Judging Evidence in Death Penalty Cases” and “Rules on Certain Issues Relating to the Exclusion of Illegal Evidence in Criminal Cases”] (promulgated by the Supreme Peo- ple’s Court, Supreme People’s Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice, June 13, 2010), available at http://www.spp.gov.cn/site2006/2010-06-25/0005428115.html. 3. For an introduction to the Zhao Zuohai case, see Lewis, supra note 1, at 630-31. 4. See generally Jerome A. Cohen, Keynote Essay, 3 TAIWAN IN COMP. PER- SPECTIVE 5 (2011). \\jciprod01\productn\N\NYI\43-3\NYI305.txt unknown Seq: 3 7-JUN-11 7:02 2011] ONE PROBLEM, TWO PATHS 715 Taiwan’s example should certainly shed some light on the questions raised in Lewis’s article. Taiwan too has confronted the challenges of grappling with police abuses and wrongful convictions amid institutional constraints similar to China’s, but it has made considerably greater progress. This comment thus aims to call special attention to Taiwan’s experience. It will first examine Taiwan’s initial efforts to deal with these problems and then discusses the island’s subsequent adoption and implementation of the exclusionary rule.5 The comment will conclude with some reflections on what Taiwan’s experi- ence can tell us about China and might contribute to China. II. TAIWAN’S INITIAL EFFORTS TO CURB TORTURE AND WRONGFUL CONVICTION The ROC’s Criminal Procedure Code, which became ap- plicable to Taiwan in 1945,6 has long prohibited the use of force, threats, inducements, deception, or other illegitimate means in interrogations of defendants.7 It further stipulated that the defendant’s confession may be used as evidence only if (1) it is not extracted through force, threats, inducements, deception, or other illegitimate means and (2) it corresponds with the facts.8 Theoretically, this provision rendered illegally obtained confessions inadmissible at trial. But reality was much more 5. “Exclusion of evidence” (Zhengju paichu) and “prohibition of use of evidence” (Zhengju shiyong jinzhi) are both common phrasings in Taiwan to refer to prohibitions against the court’s use of evidence as basis of convic- tion. Broadly speaking, the scope of the exclusionary rule in Taiwan covers exclusion of illegally obtained confessions and physical evidence. 6. When in October 1945 the Republic of China’s Nationalist govern- ment (Kuomintang or KMT) took control of Taiwan after World War II, Japanese colonial rule was replaced by the ROC’s legal system. Four years later, after defeat in the civil war against China’s Communist Party, the KMT central government retreated to Taiwan and imposed on this island the longest period of martial law (1949-1987) in modern world history. See gener- ally Tay-sheng Wang ( ), Taiwan de falu jishou jingyan ji qi qishi ( ) [Taiwan’s experience with legal transplants and its lessons], 1 ZHONGYANYUAN FAXUE QIKAN 111 ( ) [ACADEMIA SINICA L.J.], at 115 (2007). 7. Zhonghua Minguo xing shi su song fa ( ) [Re- public of China Criminal Procedure Code] art. 98 (Jan. 1, 1935; prior to the amendment of Jan. 28, 1967). 8. Id. art. 270 (Jan. 1, 1935; prior to the amendment of Jan. 28, 1967). \\jciprod01\productn\N\NYI\43-3\NYI305.txt unknown Seq: 4 7-JUN-11 7:02 716 INTERNATIONAL LAW AND POLITICS [Vol. 43:713 gruesome. A defendant’s confession was viewed as the “king of evidence” in practice.9 Coerced confessions were rarely ex- cluded during the martial law era (1949-1987) maintained by the Nationalist Party (Kuomintang or KMT), because proving police coercion was a formidable task for the defendant.10 The judiciary, including Taiwan’s special constitutional court—the Council of Grand Justices—was in the firm grip of the KMT’s authoritarian government and rarely issued pro-human rights decisions that challenged the regime. The very first reform that addressed police coercion and wrongful convictions was prompted in 1982 by the highly pub- licized Wang Ying-Xian case.11 It grasped public attention the way China’s Zhao Zuohai case more recently did. Wang, ac- cused of committing the first bank robbery in Taiwan’s history, killed himself after confessing during police interrogations. However, Wang had not committed the crime. The real rob- ber was captured soon after Wang’s death. The media then revealed that Wang had been tortured to confess and tragically ended his life out of desperation to prove his innocence. Like the later sensational Zhao Zuohai story on the Mainland, Wang’s case fueled public anger and propelled the then-au- thoritarian KMT government to adopt an unprecedented re- form.12 However, the reform did not relate to the exclusion of illegally obtained evidence, but to enabling defense lawyers to monitor police/prosecutorial behavior during interrogations. In response to public criticisms and the pleas of the Taiwan Bar Association and local bar associations,13 the Legislature 9. Even in the late 1990s, judicial practice still held onto this view. See Tze-Lung Chen, ( ), Zhengju faze zhi xiuzheng fangxiang ( ) [The direction of the revisions of evidence rules], 52 YUEDAN FAXUE ZAZHI 60 ( ) [TAIWAN L. REV.], at 74 (1999). 10. See generally Ming-Woei Chang, The Exclusionary Rule in Taiwan: Les- sons from the United States, 8 AUSTL. J. ASIAN L. 68 (2006). 11. See TUN-MING TSAI ( ), SHEHUI YU FALU ( ) [SOCIETY AND LAW] 352-53 (2001). 12. See Feng-Jeng Lin ( ), Dujue xingqiu san bu qu ( ) [Trilogy to end torture to extract confessions], JUD. REFORM FOUND. NEWSLETTER, July 14, 2007, available at http://www.jrf.org.tw/newjrf/epaper/files/381-