Taiwan: The Codification of a Judicially-Made Discretionary Exclusionary Rule

Abstract

Until 1998, Taiwan had no provisions for excluding evidence gathered in violation of the law, constitutional or otherwise. This changed in 1998, when the Taiwan Supreme Court ruled that otherwise relevant evidence could be excluded if it would undermine the interests of justice or the right to a fair trial. The decision of the Supreme Court led to action by Taiwan’s legislature between 2001 and 2003, which introduced several exclusionary rules including a general rule which allows the judge to exclude illegally gathered evidence after he or she engages in a balancing of several important factors, including the gravity of the violation, the good faith of the officer who violated the law, the nature and importance the rights which were violated, the gravity of the charged offense and the harm it caused, the deterrent effect suppression will have on future violations, the possibility that the evidence would have inevitably been discovered and prejudice to the defense caused by the violation. Although Taiwan still recognizes the importance of the determination of the truth, popular dissatisfaction with the judiciary led to the introduction of exclusionary rules, which are quite often applied by the courts.