Amendment to Article 33 of the Code of Criminal Procedure Enhancing the Criminal Defendant's Right to Review Case Files Takes Effect!

On March 9, 2018, the Grand Justices delivered Judicial Yuan Interpretation No. 762, declaring Article 33 of the Code of Criminal Procedure unconstitutional regarding a defendant's right to access case files and evidence during trial. Following this, the Legislative Yuan passed the amendments through its third reading on May 24, 2019, which were promulgated by the President on June 19 and took effect on December 19. The key points of this amendment regarding the right to access case files and evidence are outlined below:

1. Reviewing case files is no longer exclusively a lawyer's right; defendants, with the court's permission, also enjoy the right to access case files and evidence:

   Under the old law, only lawyers commissioned by defendants had the right to inspect case files and evidence, as well as to transcribe or record them; defendants were unable to review the files and evidence directly.

   Defendants without legal representation could only request copies of the written transcripts from the court after paying the prescribed fees, while remaining entirely uninformed about other case files and evidence. This prevented criminal defendants from expressing opinions on evidence or case file contents other than the transcripts themselves, creating procedural flaws in criminal proceedings and subsequently hindering the defendant's effective exercise of the right to defense. Furthermore, Grand Justices Interpretation No. 762 pointed out that the old law violated the constitutional intent to guarantee due process under the people's right of litigation. As the subject holding the right to review files, a defendant must have comprehensive access to case files and evidence information.

2. Defendants have the right to inspect the contents of all case files and evidence:

   Following the amendment, defendants without legal representation, upon court approval and advance payment of fees during the trial, may inspect copies of all case files and evidence. As for why this is restricted to copies: given that the defendant is a party in a criminal case, allowing a defendant direct custody of the original files offers no guarantee against the destruction of evidence, and would additionally require the court to increase security personnel. The Grand Justices held in this Interpretation that restricting the defendant's inspection to copies is not unconstitutional, while also supplementing in paragraph 8 of the reasoning that, with the advancement of technological equipment, "copies" can also be expansively interpreted to include photographs of case files and evidence, electronic file dossiers, etc. Any format that enables the defendant to understand the full contents of the case files and evidence is acceptable.

JRF Commentary

1. Failure to amend the scope of the defense counsel's exercise of the right to review files

   The "case files and evidence" referred to in Paragraph 1 of the current Article 33 of the Code of Criminal Procedure do not explicitly specify whether they are held or kept by the court or the prosecutor. In practical operations, prosecutors do not necessarily submit all items seized during the investigation to the court. Moreover, the transcripts prepared either by the court during trials or by prosecutors and judicial police officers during investigations mostly consist of summary highlights rather than complete records, frequently resulting in overly brief transcript entries that fail to reflect the original intent. When defense counsel attempts to clarify whether the transcripts match the actual interrogation contents, they must still apply to the court for the delivery of audio or video recordings and provide justifications. This undoubtedly hollows out the legislative intent behind mandatory full-course audio or video recording, prevents defense counsel from effectively defending their client, and infringes upon the rights of the defendant.

   Therefore, the scope of defense counsel's right to review files should encompass case files and evidence held or possessed by both the court and the prosecutor. Examples include the contents of court proceedings, interrogations during investigations, or audio and video recordings, thereby enabling commissioned lawyers to effectively exercise the right to defense and safeguard the rights and interests of their clients.

2. The scope of the right to review files for defendants without defense counsel should be expanded

   The scope of the right to review files for defendants without commissioned defense counsel should be identical to that of defendants with commissioned defense counsel. It must similarly include duplicate electronic files, the contents of audio or video recordings from interrogations, questioning, and court hearings during investigations, as well as the right to inspect, transcribe, photograph, or reproduce evidence in accordance with conditions specified by the court or prosecutor, so that the defendant's right to defense may be fully guaranteed.