The Right to Review Case Files During Detention Hearings: Did You Misunderstand Something?

Regarding whether a defendant has the right to obtain case file information during pre-trial detention review proceedings in the investigative stage, the Grand Justices of the Judicial Yuan rendered Interpretation No. 737. Media outlets and social networking sites extensively reported and shared: "The Grand Justices declare unconstitutional the provisions of the Code of Criminal Procedure that restrict a defendant's lawyer from reviewing case files during detention procedures." However, the Ministry of Justice issued a press release clarifying: "There is a misunderstanding in the media reports; this Interpretation did not declare any provisions of the Code of Criminal Procedure unconstitutional," resulting in the peculiar phenomenon of "each party interpreting a single Grand Justices' interpretation to suit its own narrative."

The Constitutional Interpretation Petition in the Lai Su-ju Case

The factual origin of the petition stems from former Taipei City Councilor and Director of Ma Ying-jeou's Office Lai Su-ju, who was implicated in accepting bribes in the Twin Towers scandal. Lai Su-ju stated that the prosecutor used communication transcripts as confidential documents and applied to the court for her detention on the grounds that she had assets overseas and posed a flight risk. During the detention hearing, she requested that her defense counsel be allowed to review the case files, but the court refused. This prevented her from knowing the contents of the detention request and thus from exercising her right of defense. She was detained and incomcommunicado by the court for four months, prompting her to petition for a constitutional interpretation.

Current provisions of the Code of Criminal Procedure stipulate that a defendant only has the right to review case files during trials. During the investigative stage, no such right is granted. Therefore, in detention review hearings, neither the lawyer nor the defendant has the right to review the evidence and documents submitted by the prosecutor, and are merely informed passively by the judge of the essentials of the facts upon which the detention request is based during the court hearing.

Judicial trials in our country have historically been time-consuming and protracted. By the time heavy criminal cases pass through multiple instances and a judgment is finally rendered, several years have passed, and the public often becomes apathetic toward the case. This situation prompts the judiciary to use the detention of criminal suspects as a tool to quickly give the public the illusion that the defendant has already been "punished." Coupled with the principle of non-disclosure of investigations—which in practical operation is often ridiculed as "non-disclosure to the defendant, but fully disclosed to the media"—once a defendant is detained, the media's heavy broadcast of their "crimes" easily creates a public trial. Their social standing is rendered almost equivalent to being convicted. For years, whether detention is granted has thus become an indicator of winning or losing a trial. This circumstance severely violates the presumption of innocence and may reinforce the prosecutor's incentive to detain people to extract confessions. Under such unhealthy judicial conditions, the more serious the crime the defendant is accused of, the more crucial detention becomes to their future trial outcome, and the more imperative it is to safeguard their right to review case files during detention review proceedings.

The Code of Criminal Procedure stipulates that during detention hearings, the prosecutor "may" appear in court to state the reasons for requesting detention and present necessary evidence. That is, the prosecutor's attendance is not mandatory. Unless necessary, prosecutors typically do not appear in court to state their opinions during detention hearings. The reality of a detention hearing is that the judge holds the case files and evidence, while the lawyer—like a blind person touching an elephant—guesses what facts the prosecutors have mastered and what evidence they might hold based on the essentials stated by the judge, thereby conducting a blank defense for the defendant. Consequently, judges can only make judgments based on the case files and the detention request during detention reviews. According to statistical figures, the court's approval rate for detention is as high as 80 percent. A lawyer who does not know how to exercise the right of defense and a prosecutor who has a victory secured and does not need to appear in court stand in vastly disparate positions. A blank defense is practically equivalent to no defense at all. The granting of the right to review case files is an absolute, sufficient, and necessary condition for safeguarding the right of defense. Lacking the right to review case files during detention, the protection of the right of defense in the investigative stage is rendered a mere formality, and the inequality of arms tilts the scales of justice.

Perhaps because the public generally feels that the regulation prohibiting file review is absurd and contrary to the protection of the right to litigation, there was an eager anticipation for the emergence of the right to review files during detention. When the Interpretation was finally released, people prematurely declared that the law had been found unconstitutional and that defendants should enjoy the right to review files during detention. In contrast, the Ministry of Justice's interpretation of this Interpretation—perhaps because its own interests are involved—seized upon every opening to claim that the Grand Justices did not declare any provisions of the Code of Criminal Procedure unconstitutional.

The Ministry of Justice Issues Its Own Press Release to Clarify the Interpretation

The Ministry of Justice believes that the Grand Justices merely stated that defendants and their defense counsel can only know the facts upon which the grounds for detention are based, while failing to further know the evidence and materials regarding the detention request, constituting insufficient protection, and that laws should be amended to strengthen their right of defense—only this, and nothing more. The Ministry of Justice contends that this does not constitute a comprehensive opening of file review, which is why the Grand Justices emphasized in the main text that "the manner of obtaining knowledge thereof is not necessarily limited to inspecting, transcribing, or photographing case files and evidence." Furthermore, if there are concerns that inspecting files would destroy, forge, or alter evidence, collude with accomplices or witnesses, or otherwise endanger the purpose of the investigation or jeopardize the life or physical safety of others, the inspection of case files and evidence may be restricted or prohibited. To put it bluntly, the Ministry of Justice's meaning is that following this Interpretation, it is sufficient as long as the court lets the defendant know a bit of information; once there is circumstances obstructing the investigation, information can be withheld entirely. The Ministry of Justice's interpretation explicitly and implicitly suggests that this Interpretation by the Grand Justices does not grant any "right to review files," but merely states that more information should be provided. If the Ministry of Justice's interpretation is "correct," then weren't the media reports on the direction of the Grand Justices' Interpretation "completely wrong"? Must the Grand Justices, following the Meihua Riverside Housing Case, once again follow Vice President Su Yung-chin and "make a grand comeback" to actively accept media interviews and give us a constitutional law lesson?

Regardless, the law will eventually have to be amended. However, the Grand Justices did not tell us how defendants and lawyers should review case files, leaving the matter entirely to the legislators to handle—whether to allow lawyers to inspect, transcribe, or photograph case files and evidence, or to have judges present, inform, or provide relevant case files for review, or through other appropriate methods. The right to review files is granted, but whether given much or little, the Grand Justices have no opinion. One can easily imagine that this will detonate another fierce conflict between the Judicial Yuan and the Ministry of Justice; the Grand Justices have clearly left the job half-done.

Moreover, this situation inevitably raises concerns that if the final conclusion of the legal amendment is that case file disclosure in detention hearings is limited to the judge orally disclosing the contents of the case files on the spot, followed by the lawyer expressing an opinion, or if courts simply "give deference" and uniformly dismiss a lawyer's request to review files whenever the prosecutor states that allowing the lawyer to review files in this case would endanger the investigation, lead to the fabrication or alteration of evidence, or result in collusion—simply going through the motions to detain people early so everyone can call it a day—can the public accept such an outcome? The Supreme Prosecutors Office will soon hold a seminar on legal amendments, and subsequent developments warrant continuous attention and oversight.

Detention is the most severe compulsory measure depriving a defendant of liberty prior to indictment, and the state should grant defendants the maximum procedural safeguards. Based on the constitutional principle of due process, the reasons for requesting detention and related evidence presented by the prosecution must be promptly made known to the criminal suspect and their defense counsel in an appropriate manner so that the right of defense can be effectively exercised. At this juncture, the principle of non-disclosure of investigations must relatively recede and cannot impede the realization of due process. It is hoped that the Grand Justices' Interpretation is merely a starting point. Whether the right to review files during detention can achieve epoch-making innovation depends entirely on whether the Judicial Yuan and the Ministry of Justice can work with one heart and mind to take a giant step forward in reform when the new government takes office in the future.

※ Originally published in the PNN PTS News Issues Center