The Investigation of Judicial Police from the Perspective of a Criminal Court Judge

I. Related Issues in Police Investigation

Deficiencies in Investigative Capacity

What is the investigative capacity of Taiwan's police force? Turn on the television and watch the news, and you will surely find scenes like this familiar: In an ongoing kidnapping and extortion case, a group of reporters crowd around police officers and a suspect (what about the principle of non-disclosure of investigation?), rushing into a private residence claimed to be "the crime scene where the victim is hidden" (unknown whether a search warrant was present?). The police officers rummage through things bare-handed while asking the suspect, "Where is the crime tool?" (obligation to inform before interrogating a defendant?). Reporters are wedged in the already chaotic and crowded space to snap photos. A police officer suddenly pulls out an item (handling it bare-handed) and repeatedly questions the suspect, "This is your tool for doing XX, right?" The suspect lowers his head and mumbles. The screen cuts to a glamorous female anchor who, with a radiant smile and an uplifting tone, announces, "Today, there has been a breakthrough development in the XX case; the police have seized the suspect's crime tools." A single segment of footage fully exposes the shortcomings of police investigations: negligence in preserving the crime scene, making scene reconstruction difficult; failure to promptly collect fingerprints or take other measures on the newly seized suspected crime tools or stolen goods to establish a connection between the evidence and the suspect; and on the other hand, prematurely presupposing a stance and investigative direction, directly announcing "case solved" through the media, thereby missing the golden opportunity for effective evidence collection. (When the author questions police officers about their failure to conduct exhaustive evidence collection, the most frequent reply heard is, "The suspect has already confessed, the evidence is very clear!")

The author offers another real-world example. In a robbery and rape case, Woman A tearfully stated: Male friend B falsely acted attentive and gave her honey juice to drink, which turned out to be laced with anesthetics. Afterward, taking advantage of her unconsciousness, he raped her and took her valuables. Male friend B only admitted to having sexual relations and denied the accusation, claiming that their sexual relations were consensual, and that Woman A went to sleep on her own after finishing the honey juice. After accepting the case, the court found that the important piece of evidence—the cup—had no record of being seized and submitted for forensic identification. When the police officer was summoned to verify this, he unexpectedly stated, "Woman A indeed submitted the cup to the police station, but it was not sent for testing, and the cup was discarded during a general cleanup of the police station." The situation of police officers losing evidence without presenting it in court sounds absurd, but from the author's experience in criminal adjudication, it is recurring. Here, it simultaneously reflects the police's erroneous concept of evidence collection and lack of discipline.

As is universally known, the more sufficient the evidence, the more likely the trial result will "approach" the truth and correctly determine whether the defendant's crime exists. The investigative results of frontline police officers actually dictate the success or failure of the entire criminal litigation procedure. Recently, the author read the book Records of Solving Cases by Super-sleuth Dr. Henry Lee, dictated by Dr. Henry Lee, and was full of admiration. Recently, Dr. Lee has caused a sensation in Taiwan—especially in the judicial circle—and for good reason. The strictness in handling affairs as a scientist and the rule-of-law philosophy as a judicial figure demonstrated during his investigation process deserve to be emulated by our country's investigative authorities.

Deficiencies of Illegal Evidence Collection

The problems of Taiwan's police force in criminal investigation lie not only in the lack of investigative capacity, but also in the issue of illegal evidence collection. When the author first assumed office in criminal adjudication, she was surprised by the police's illegal evidence gathering and the passive and indifferent responses of prosecutors and judges, who are charged with investigation and adjudication. To some judges and prosecutors, the fundamental rights proclaimed by the Constitution and the provisions of the entire Code of Criminal Procedure regarding evidence acquisition seemed merely to have a declarative function. When handling individual cases, they never based their considerations on relevant provisions to examine how the evidence submitted by police officers was obtained, what the legal basis for evidence collection was, whether it was illegal, and what its legality was. Not only was the relevant concept and corresponding ability not cultivated in the entire pre-service and in-service education of judicial officials, but the judgments (or prosecutorial disposition documents) of courts at all levels have also never expressed an opinion on this historically.

In practice, what is the legality of police evidence collection? The drama of police conducting a "search" under the guise of "inspections" (lin-chien) is frequently staged in Taiwan. As a result of getting used to treating malpractice as standard practice, not only the police, but also many prosecutors, judges, and lawyers whose goal is to protect the procedural rights of defendants, fundamentally cannot clarify the distinction between a search and an inspection. Prosecutors and judges acquiesce in the police's illegal evidence gathering, and the result is merely making police officers view illegality as a matter of course. When police officers apply to prosecutors for a search warrant, they still need to demonstrate that the requirements are met, and the search warrant can only be executed after being reviewed and approved by the prosecutor and issued. Since police officers do not need a search warrant and directly conduct illegal searches and seizures under the guise of "inspections," and prosecutors and judges also cite and adopt the seized items as evidence, and usually do not face prosecution or administrative sanctions, what incentive do police officers have to search in accordance with statutory procedures? Under this vicious cycle, although cases like Meng Chueh-tzu accusing police officers of illegal searches briefly focus the spotlight of news media, situations of illegal searches and seizures have never ceased.

Frequently accompanying illegal searches is the problem of illegally arresting defendants—that is, arresting defendants directly without them being flagrant offenders, quasi-flagrant offenders, or meeting the requirements for emergency arrest. In addition, the problem of judicial police subjecting defendants to improper interrogation is also frequently criticized and is a source of malpractices in our country's prosecution and investigation; advanced nations have already discussed this extensively.

In our country's practice, police and investigative agencies also have the problem of illegal evidence collection that "violates the reservation of law." For instance, measures adopted by prosecutors and investigators during investigations, such as wiretapping, mandatory urine collection (only Article 25 of the Narcotics Hazard Prevention Act provides for the testing of urine for defendants during probation, but forced testing remains prohibited unless approved by a prosecutor or juvenile court), and mandatory blood collection, although involving infringements on people's fundamental rights, fundamentally lack a legal basis for these measures.

II. Impact of Police Investigation Deficiencies on Adjudication

Criminal adjudication takes collected evidence as its object, and through statutory evidence investigation procedures, confirms whether the defendant's crime exists. Simply put, the entire criminal procedure is a process of "grasping the unknown through the known, and inferring facts through evidence." When frontline police and investigative agencies responsible for investigation possess more sufficient investigative capacity and better comply with statutory procedures, it is possible for the court's trial results to achieve their purpose. Conversely, insufficient evidence-collection capacity by police officers is like a jigsaw puzzle: the more puzzle pieces missing, the more limited the facts that can be grasped. At this time, the court's trial may yield two possible results. First, the court judgment violates the rules of evidence; when the degree of conviction supported by the evidence objectively (and not through the judge's arbitrariness) has not yet reached the statutory "conviction of certainty," a guilty verdict is still pronounced. Second, the court announces an acquittal on the grounds of "inability to prove the crime."

In the former scenario, not only is the judgment illegal, but in fact, there is an extremely high risk of producing erroneous judgments and miscarriages of justice (or even wrongful deaths?). For the wrongfully accused, families are broken, and the infringement upon human rights could not be more severe. In Taiwan's judicial circle, whether the degree of conviction of judges when pronouncing guilty verdicts has already reached the statutory "degree of certainty" is unknown due to a lack of systematic judgment analysis and research. Having studied in Germany, interned in courts there, and engaged in adjudication work in Taiwan, the author—based on personal experiences and comparing similar cases—notes that the evidence required when Taiwan courts hand down guilty verdicts is indeed relatively weaker. In addition, one can also catch a glimpse of this from the cases described in the book Records of Solving Cases by Super-sleuth Dr. Henry Lee. For example, in the case of "The Missing Little Girl," American police confirmed through forensic examination that the blood on the suspected murder weapon (a knife) matched the victim Joanna, the cutting marks on the blade matched the knife marks on Joanna's body, the suspect Ronald's fingerprints matched those on the knife handle, and Ronald's blood type matched the blood type of the semen collected from the victim (the suspect's fingerprints and blood type were obtained with court permission). Only at this stage did the criminal police have sufficient evidence to ask the court to "arrest" the suspect. Of course, by the time of the prosecutor's indictment and the court's judgment, the evidence went far beyond this. Extrapolating from this, in individual cases of guilty verdicts in Taiwan, compared to advanced countries like the United States and Germany, the possibility of misjudgment should be relatively higher.

In the latter scenario mentioned earlier, where the defendant's crime cannot be proven and an acquittal is rendered, although it is the inevitable result of judgment according to law, it simultaneously signifies that due to deficiencies in investigative capacity, the truth of the criminal facts failed to be investigated. The true criminal (the defendant or someone else) fails to receive due punishment, the state's penal power cannot be effectively exercised, and the penal purpose of "general prevention" is not achieved. Consequently, it often shakes the public's expectations of social justice and affects the image of public order. In summary, the result of judicial police investigation deficiencies—regardless of whether the court ultimately delivers a wrongful guilty verdict or allows a criminal to escape—either infringes upon human rights or worsens public order. This shrivels the function of the criminal litigation procedure and ultimately shakes the foundations of the state under the rule of law.

In addition, regarding the relationship between police investigation deficiencies and adjudication, the author intends to review it from the perspective of "taking responsibility." Every time a socially prominent case is pronounced not guilty by a court on the grounds of "inability to prove the defendant's crime," it invariably causes an uproar in public opinion—with quite a few voices targeting and denouncing the judges. At this time, opening television talk shows and reading newspaper commentaries, people talk animatedly, arguing whether human rights or public order is more important. In fact, this question itself is fundamentally wrong. The foundation of adjudication comes from collecting and investigating evidence. Under Taiwan's current situation, when police investigative capacity is insufficient (and illegal) to the extent that criminal facts cannot be confirmed, both public order and human rights are simultaneously violated. Unable to prove the crime, the court pronouncing the defendant not guilty is the only result of adjudication according to law, and public opinion naturally has no room to blame the court. Interestingly, when socially prominent cases are acquitted due to insufficient evidence, the public reaction in Taiwan is vastly different from that in other advanced countries. In Taiwan, courts often become the target of public criticism, even forcing judges to hold press conferences to publicly explain their mental process of conviction, whereas the frontline prosecutors and police responsible for the investigation do not correspondingly shoulder the blame. The distortion of the rule-of-law development is distressing. In contrast, during the author's observations in Germany, the objects of public censure at such times are uniformly directed toward the investigative direction and capacity of prosecutors and police, with no questioning raised against the courts. Furthermore, when the Simpson case—the trial of the century in the United States—resulted in an acquittal, public opinion reviewed the causes mostly targeting various oversights by the Los Angeles police in crime scene handling and inspection processes, and the Los Angeles City Council immediately passed legislation to increase the budget and equipment for the police department's forensics.

III. The Function of the Exclusionary Rule in Correcting Police Discipline

As mentioned earlier, illegal police evidence collection is a problem that urgently needs to be addressed. Aside from the individual responsibility of police officers, what legal effect should illegal evidence gathering produce in individual criminal litigation procedures? Importantly, does it result in the effect of evidence prohibition (exclusion)?

When evidence presented in court is illegally obtained, whether the court can utilize it as the basis for adjudication is the so-called principle of evidence prohibition, or the exclusionary rule of evidence (which laypeople and even the legal circle often mistakenly confuse with the fruit of the poisonous tree doctrine). The author once expressed opinions in an adjudication case, which was subsequently reported by news media. Unfortunately, the media had a superficial understanding, presented many erroneous concepts, and attracted even more misunderstandings. The most common ones are: mistakenly assuming that evidence exclusion equals the fruit of the poisonous tree; or mistakenly believing that since our country's law has no explicit statutory basis, illegal evidence cannot be excluded; or mistakenly believing that our country adopts the principle of ex officio investigation and has no room to apply the "American law" exclusionary rule of evidence. In fact, evidence prohibition is not a product exclusive to American law; Germany and Japan, whose legal systems are similar to ours, recognize it in both academic and practical circles. Moreover, regardless of whether they are Anglo-American legal family countries dominated by case law, or civil law countries like Germany and Japan with written law, evidence prohibition originates from academic theories and judicial judgments. Even without explicit statutory provisions, one cannot abruptly make a negative inference to deny the possibility of evidence prohibition.

As for the theory of evidence prohibition—namely, under what conditions courts may not use specific evidence—the theory involves vast complexities and will not be covered in depth here. What is examined here instead is the policy function of evidence prohibition in curbing illegal investigations.

What is the purpose pursued by prohibiting courts from using certain illegally obtained evidence? There are different views in academia: some argue the purpose is discovering the truth, while others recognize protecting individual rights, ensuring fair state trials, and correcting discipline (the consensus view in the United States). The discipline-correction theory is precisely the subject of this article. This theory posits that when evidence is illegally gathered, courts should refrain from using it, thereby removing prosecuting authorities' incentive to gather evidence unlawfully and correcting their conduct going forward—since even illegally obtained evidence cannot ultimately be used, prosecutors and police have nothing to gain from illegal collection even under pressure to solve cases or meet performance metrics. Once a court excludes illegally obtained evidence, the misconduct of the prosecutors and police involved becomes exposed, and a resulting inability to convict may itself draw public criticism toward them. Evidence prohibition thus lends positive support to correcting police and prosecutorial discipline (see Lin Yu-hsiung, Theory and Development of Evidence Prohibition from Basic Cases, published in Professor Huang Tung-hsiung's Festschrift, November 1997, pp. 1 et seq.). The author deeply agrees. As mentioned earlier, illegal evidence collection by judicial police in our country is a longstanding problem, but the attitude of our prosecutors and judges toward this has also always been very passive. As for police officers being sentenced to prison as a result, while such cases exist, they are very few and disproportionate to the actual cases occurring; the effectiveness of other administrative sanctions is also questionable. In summary, existing sanction measures seem incapable of effectively curbing illegal police evidence collection. If evidence prohibition becomes a clear norm, judicial police can no longer rely on illegal means to obtain evidence as before, and investigative methods must keep pace with the times and shift toward legal and more scientific avenues of investigation. Only then will the discipline and investigative capacity of judicial police be forced to improve, and only then can legislators squarely face the problem of investigative methods "violating the reservation of law." Moreover, only when evidence prohibition becomes a clear norm indicating that the non-application of evidence stems from judicial police illegality can courts possibly stop bearing the cross for investigative vices.