What is Mandatory Defense During Investigation

According to Article 31, Paragraph 1 of the Code of Criminal Procedure, for offenses carrying a minimum sentence of three years or more, cases involving internal or external security offenses, or defendants with mental disabilities who have not retained counsel, the court must appoint a public defender during trial proceedings. This is known as "mandatory defense," and its purpose is to safeguard the rights and interests of defendants during trial proceedings and ensure they receive comprehensive legal assistance. If a mandatory defense case proceeds without retained or appointed counsel, the trial proceedings will be deemed illegal and revoked, and the case will be retried with counsel present.

However, under our current laws, the requirement for mandatory defense exists only during the trial stage and is absent during the investigative stage. Although Article 27, Paragraph 1 of the Code of Criminal Procedure stipulates that a defendant may retain counsel at any time, an investigation may still be conducted against a defendant even if they have not retained counsel. Because criminal proceedings do not merely begin at trial, but rather commence with police investigations, if a defendant cannot obtain adequate legal assistance during the investigation, it not only leads to the neglect of evidence preservation and the loss of the opportunity to self-advocate during trial, but also leaves the defendant unaware of how to assert their rights when infringed upon, resulting in excessive human rights violations by prosecutors and police.

Based on the reality of investigative practices, evidence and statements that have a significant impact on the case are mostly obtained during investigations. During the process of extracting confessions and gathering evidence, if investigative personnel cross proper boundaries while the defendant lacks the assistance of counsel, it not only violates the defendant's rights but also affects the trial court's future judgment, leading to miscarriages of justice. For example, if investigative personnel interrogate a defendant through coercion or misleading methods without counsel present to halt such improper behavior, the resulting interrogation may contradict the defendant's true intent. Furthermore, because courts still maintain the habit of "giving greater weight to initial confessions," it becomes very difficult for defendants to subsequently overturn original, untruthful records. Even if investigative actions are not overly excessive, if a defendant can begin preparing defense materials for themselves earlier, they will be better positioned to present arguments favorable to themselves during trial. If counsel is present during the investigation, the defendant's preparation in this regard can be even more thorough. Although some question whether giving defendants ample opportunity to prepare makes it easier for them to evade guilt, a defendant might also be wrongfully accused, and restricting their right to a defense will instead cause miscarriages of justice and wrongful imprisonments.

The structure of the judicial system is divided into the accusatory party—namely the investigative authorities—the defendant and defense counsel, and the adjudicator. The function of investigative authorities is to prosecute crimes, belonging to the attacking side, while the defendant and defense counsel belong to the defensive side. Both sides present arguments favorable to themselves during trial so that the facts are fully presented for the trial court to adjudicate. If investigative authorities can rely on state power and resources during investigations to gather materials unfavorable to the defendant while the defendant cannot obtain certain assistance or gather materials favorable to themselves, this creates procedural and substantive unfairness, leading to an unfair final trial outcome.

During this National Judicial Reform Conference, the proposal to introduce a mandatory defense system during investigations was debated and ultimately reached an impasse due to opposition from the Ministry of Justice and prosecutors. Because prosecutors are investigative authorities, naturally they do not merely wish to grant defendants greater rights—which might hinder their investigative work or even obstruct courtroom debate—since the purpose of a trial is not necessarily to secure a defendant's conviction; if a defendant is innocent, their innocence should naturally be restored. Due to the problem of role conflict, expecting prosecutors to concurrently protect the interests of the accused while pursuing the prosecution is practically contradictory and impermissible. Therefore, prosecutors cannot be expected to protect defendants; instead, other legal assistance should be provided to defendants. When investigative authorities leverage their full manpower, material resources, and legal profession, yet remain unwilling to grant defendants the opportunity to obtain legal assistance, this reflects a disregard for the procedural rights of defendants. Because litigation has become a highly professional endeavor, obtaining professional legal assistance during litigation should be a fundamental requirement of judicial human rights. The mindset behind rejecting this requirement truly deserves thorough reexamination.