Is the Historical Dilemma of Being Unable to Review Case Files During Investigation About to Be Resolved?

Are prosecutors handling cases actually disadvantaged? This question naturally yields different perspectives depending on one's position.

Prosecutors constantly complain that being a prosecutor nowadays is difficult. Detention is harder to secure, wiretapping is less accessible, and other coercive investigative measures are gradually disappearing, making casework extremely difficult. Conversely, lawyers and defendants experience a completely different reality: the prosecutors' power of compulsory measures remains formidable, the court's approval rate for wiretap warrants is very high, and wiretap lines connect directly to telephone lines. If criminal facts are caught on a wiretap, so be it, and all audio recordings are captured indiscriminately, leaving privacy almost entirely unprotected. Furthermore, for defendants facing detention requests, because proceedings have just begun or prosecutors have just wrapped up their wiretaps, the speed of seeking detention is usually lightning-fast, leaving people with little defense. Due to the principle of non-disclosure of investigation, file-review is prohibited, often leaving defendants powerless to defend against prosecutors' attacks. The threshold of judicial conviction for granting detention is relatively low; once a detention ruling is made, the individual simply "waves goodbye" for two months. Even if they are subsequently released on bail or even acquitted, their personal freedom has unquestionably been infringed upon, and the damage to their reputation and personal dignity is likely irreparable.

In fact, the privacy, reputation, and personality rights of criminal suspects are also among the protective objectives of the principle of non-disclosure of investigation. If file-review during investigations is appropriately opened, this objective might be achieved, potentially serving as a method to balance criminal investigation with the suspect's reputation.

A Historical Dilemma

In response to the government's introduction of the two International Covenants, the Judicial Yuan amended the Code of Criminal Procedure, originally intending to moderately open up the defendant's right to review case files during investigations. However, due to the Ministry of Justice's staunch opposition, even when legislative amendments were narrowed down during negotiations to allow the review of only "court transcripts of the detention hearing," or further restricted to "viewing only without the right to transcribe," the proposal ultimately fell through.

Prosecutors naturally have their reasons, which generally center around "incomplete investigations"—especially in cases where accomplices are still at large or there are concerns about witnesses colluding. They argue that "the defendant's lawyer" cannot be allowed to review the files, lest "details of the investigation be leaked" to others. The prosecutors' objective is to bring all bad actors to justice and ensure no one slips through the net, which is understandable.

Upon closer reflection, the person restricted from reviewing files during the investigation is actually the lawyer, because the defendant has no right to review case files in the first place (even at the trial stage, they can at most request the delivery of transcripts). Such a mindset not only distrusts the defendant but also distrusts the lawyer; it worries not just about the defendant, but also that the lawyer will steal evidence, tamper with evidence, harass witnesses, or coach them on collusion.

By the same token, prosecutors are also human. Who can guarantee that they will never be misled by the police, make their own misjudgments, or misread evidence, and thus hastily request a defendant's detention? Under the current reality of our judiciary's continued preference for detention—where judges are constrained by time pressure, did not collect the evidence themselves, and prosecutors are not obligated to attend hearings—would firmly refusing to let the defendant's lawyer thoroughly examine the case files before mounting a proper defense risk excessively infringing upon the defendant's constitutional safeguards in criminal procedure?

Assessing Current Realities to Determine Boundaries

The extent to which file-review should be permitted during investigations is a matter of policy decision-making. Merely listening to prosecutors' anxieties that they "cannot carry on with their cases" or defense counsels' indignation that defendants are "fighting blindly" amounts to nothing more than one-sided claims. If this devolves into a battle of stances, both sides can certainly cite individual cases to attack each other. However, taking one's own stance to absolute extremes is unhelpful; discussions should be grounded in the merits of the specific issues.

The Ministry of Justice, which holds state public authority, should make every effort to investigate and let the numbers speak. In recent years, under our current judicial practice, exactly how many detention-request cases have there been? If lawyers were permitted to review case files, how might things "spin out of control"? What would the resulting damage to criminal investigations actually be? Furthermore, how many cases involve situations where, from the time of detention until release on bail, the prosecutor took no investigative action whatsoever? Or how many cases result in an acquittal after detention? Only after a preliminary clarification of the current situation can responsible policy decisions regarding legal amendments be made.

In fact, if a defendant is not detained, whether case files can be reviewed during the investigation may not be a major issue. After all, whether prosecutors investigate quickly or slowly is determined by their own pace, and others cannot say much. However, if a person is already locked inside a detention center—where the most severe consequences have already occurred—to assert, regardless of gravity or circumstances, that a defendant is completely barred from reviewing the prosecutor's case files to understand what is happening and present arguments in their own defense risks violating the principle of proportionality.

The Grand Justices recently decided to hold a Constitutional Court hearing at the end of March regarding the issue of file-review during investigations. A fascinating oral argument is anticipated, and we believe the Grand Justices intend to break down this unreasonable system. Let us wait and see where the final boundary will be drawn.

※ Original publication: PNN PTS News Issues Center