Judicial Vision—Starting from the Enforcement of the Principle of Non-Public Investigation

※ This article was originally published in the Taichung Bar Association Journal, Vol. 19, No. 4. Special thanks to Attorney Lin Chih-chung for providing the content.

The recent extensive media coverage of the murder case involving a freelance model surnamed Ch'en has sparked discussions on how the investigators in the case violated the principle of non-public investigation. In fact, this is an old problem; it is simply that our government is incompetent and has consistently failed to enforce the non-public nature of investigations.

Around 2008, a client of mine who had served as a government minister was accused of sexual harassment and molestation by his female assistant during the statutory campaign period for the legislative elections of that year. He had originally retained another colleague for his defense, and during that period, I was additionally retained to join the defense team. After investigating the case, the prosecutor issued a non-prosecution disposition in September of that year. Upon taking over the case and discussing the facts and defense strategy with my client, his primary concern was whether the prosecutor in charge could strictly uphold the principle of "non-public investigation." In his understanding, if the prosecutor failed to uphold this principle and leaked the contents of the female assistant's accusation to media friends—subjecting them to sensationalized and vivid media accounts—then even if the investigation concluded with a favorable non-prosecution disposition, the damage caused to his reputation by the media reports would be irreparable. I consoled him, saying: "This is a sexual harassment case, and the investigating prosecutor is an experienced head prosecutor who is herself a woman. She should be mindful of both your reputation and the complainant's." Sure enough, during the investigation, we were not hounded by the media and were able to quietly focus our minds on defending the case. Ironically, it was only after the prosecutor issued the non-prosecution disposition that a report on this case by a print media outlet caused dissatisfaction among our client, who felt the report was unfair.

Paragraph 1, Article 245 of the Code of Criminal Procedure stipulates: "Investigations shall not be public." This is known as the "principle of non-public investigation."

Paragraph 3 of the same Article stipulates: "Prosecutors, prosecutor-investigators, judicial police officers, judicial police, defense counsel, agents for private prosecutors, or other personnel lawfully performing duties in connection with an investigation procedure shall not publicly disclose matters learned through the performance of their duties during the investigation, unless otherwise provided by law, or necessary for the maintenance of the public interest or the protection of legitimate rights and interests."

In accordance with this provision, as defense counsel for a defendant during an investigation, whenever I encounter a case of high public interest and face media interviews, I consistently adopt a "no comment" attitude. If my client wishes to hold a press conference, I generally stand in opposition to it because I have no way of predicting what questions media practitioners might ask at the press conference, nor can I control what my client might say—especially since I cannot foresee whether media workers will fabricate reports after the conference. Complying with the principle of non-public investigation is not merely an ethical principle in my practice; it is also my statutory duty. Should I violate it, I would bear legal responsibility, such as criminal liability for disclosing professional secrets under the Criminal Code, or disciplinary liability under the Attorney Regulation Act.

Why does the legislation explicitly stipulate the "principle of non-public investigation"?

From the perspective of the defendant, as mentioned earlier, while a case is still in the investigative stage, it remains extremely unclear whether the defendant has actually committed a crime. If the investigative details or the facts of the accusation are leaked to the media and sensationalized by them, the general public can easily form the impression that "the defendant is guilty," which inevitably harms the defendant's personal reputation. Furthermore, even if the prosecutor ultimately indicts the defendant after concluding the investigation, prior widespread media coverage risks influencing the court, raising concerns of a "trial by media."

From the perspective of the investigators, the leakage of investigative details may lead to the obstruction of the investigation procedure or its outcomes. For example, if a media report states: "Prosecutorial and investigative personnel emphasize that the secret account data brought back from Singapore has a significant clarifying effect on the case," it is tantamount to telling the defendant: "The prosecutorial and investigative authorities already know that the defendant has a related account in Singapore, and this account may be relevant to the ongoing investigation." In doing so, it effectively reminds the defendant: "You need to pay attention to this issue yourself, figure out a way to clear yourself, and be careful while doing so to avoid being reported by the media and caught by me." Naturally, this will increase the difficulties and obstacles faced by investigators in handling the case and may even allow the defendant to escape justice. Therefore, many of my friends who serve as prosecutors have told me: when investigating cases, the thing they fear most is a big mouth! Consequently, whenever I see reports stating "Prosecutorial and investigative personnel emphasize...", "According to prosecutorial and police sources...", "The forensic pathologist stated...", "The police stated that today they will...", "The prosecution announced that it has targeted...", and so on, I find it unbelievable. Did the prosecutors, investigators, police, and forensic pathologists really say those things? Does the principle of non-public investigation still exist? Where are the ethical norms for investigating cases?

Is the principle of non-public investigation really that difficult to implement? Does this principle conflict with the public's "right to know"? I think that the exception provision in Paragraph 3, Article 245 of the Code of Criminal Procedure—namely, "necessary for the maintenance of the public interest or the protection of legitimate rights and interests"—is far too abstract and is the reason why loopholes have been blown wide open in the principle of non-public investigation. Here, I quote from the record of a Japanese journalist who interviewed the Special Investigation Department of the Tokyo District Public Prosecutors Office (similar to Taiwan's Special Investigation Division, which was abolished not long ago) in May 1987 for your reference:

「...What surprised me even more was the strict restriction on interviews. We were not permitted to contact frontline prosecutors. Anyone who violated this would be banned from entering the prosecutors office. Prosecutors who leaked information to the media would be demoted. The only people we were allowed to meet were the Director of the Special Investigation Department and three Deputy Directors.」

Japan was already upholding the "principle of non-public investigation" this strictly thirty years ago, and what exactly have we done? Stones from other hills may serve to polish jade; I think the Minister of Justice, the Director-General of the National Police Agency, and investigative personnel really need to step up their game.