When Social Workers Encounter Criminal Cases

Since the Kai Kai case first drew public attention—from the social worker's improper handcuffing at the outset to the issues raised during the subsequent trial—many social workers have been asking the same fundamental question: "What should I do if I become involved in a criminal case one day?"

With a background in both law and social work, I have occasionally shared my observations at seminars and public discussions. Below, I have organized some of the legal issues social workers may encounter at different stages of criminal proceedings.

1. Investigation Stage: Appearing as a "Witness"

For many social workers, their first experience entering a police station or prosecutors office is after being asked to appear as a "witness." Several points are particularly important.

Can a Witness Have a Lawyer Present? Can a Witness Refuse to Testify?

As a general rule, an ordinary witness testifies about facts that they personally perceived. A witness is not ordinarily expected to speculate, offer unsupported opinions, or infer facts they did not personally observe. In other words, a social worker should describe what they actually saw, heard, or did, rather than be required to "guess" why a child was injured or to speculate about a family's circumstances.

A witness also does not generally have a statutory right to have counsel present during witness questioning. This is not a rule specific to social workers. A witness may of course seek legal advice outside the questioning process, but the procedural rights of a witness differ from those of a suspect or defendant.

In addition, Article 182 of the Code of Criminal Procedure allows certain professionals—including physicians, pharmacists, midwives, religious professionals, attorneys, defense counsel, notaries public, certified public accountants, and psychologists—to refuse to testify about confidential matters entrusted to them or learned through their professional work, unless they have been released from the duty of confidentiality. Social workers are not currently included in this provision, which has become an important subject of discussion within the social work profession.

Can someone be summoned as a witness and later become a defendant? Yes. The Supreme Court has held that where investigators already regard a person as a criminal suspect but deliberately question that person as a witness in order to circumvent the procedural safeguards applicable to defendants, statements obtained through that process may be inadmissible. See Supreme Court Criminal Judgment 92-Tai-Shang-4003 (2003). The key issue is whether investigators deliberately circumvented the required warnings and protections. If the circumvention was not deliberate, admissibility may instead require a case-specific balancing of the procedural violation, prejudice to the defense, and relevant public interests.

In practical terms, however, these questions are often not fully resolved until the trial court examines admissibility. During the investigation itself, Article 181 of the Code of Criminal Procedure may be particularly important: a witness may refuse to testify if the testimony could expose the witness, or a person within the relationships specified by law, to criminal prosecution or punishment.

If a social worker believes during the investigation that questioning was leading, coercive, or otherwise improper, defense counsel may later ask the trial court to obtain and review the audio or video recording of the questioning. Similar issues have arisen during hearings in the Kai Kai social worker case, where a witness disputed the accuracy of the prosecutor's written record and the defense subsequently requested that the recording be examined. If the court grants such a request, the issue may be tested during public trial proceedings.

Where questioning is genuinely improper, exclusion of evidence is not the only possible mechanism of accountability. The Judges Act also provides a system for requesting the evaluation of prosecutors. A request does not necessarily have to wait until the entire criminal case becomes final. As explained by JRF, an evaluation request may be filed with the Prosecutor Evaluation Committee within the applicable statutory period following the prosecutor's indictment. For information on requesting an evaluation, see this link.

Is It Improper for a Witness to Meet with the Defendant's Lawyer and Review Their Own Interview Record Before Testifying?

One of the most sensational issues in the media during the trial arose from a TaiSounds report alleging that two Child Welfare League Foundation supervisors met with Chen Shang-chieh's retained counsel before appearing in court. The headline framed the incident as possible "witness collusion." That framing appears to have reflected the strong reaction expressed in court by the three-judge panel and the prosecutor toward the practice of interviewing witnesses.

But what is a witness interview? It is not the same thing as legal representation or legal consultation.

The Taiwan Bar Association and the Taiwan Criminal Defense Attorney Association have repeatedly emphasized that attorneys may interview witnesses outside court as part of legitimate investigation and defense preparation. As early as Article 16 of the 1995 version of the Attorney Ethics Rules (descriptive English title), the rules provided in substance that an attorney could ask a witness outside court about facts known to the witness when reasonably necessary to clarify relevant facts or prepare a defense, but could not induce the witness to make false statements.

The right of defense counsel to conduct lawful witness interviews is an important component of providing a client with effective assistance of counsel. The Taiwan Criminal Defense Attorney Association has likewise emphasized the necessity of witness interviews.

To establish procedures and safeguards for witness interviews, the Taiwan Bar Association later adopted the Guidelines for Attorneys Interviewing Witnesses (descriptive English title). The Guidelines expressly recognize that an attorney handling a legal matter may interview a witness outside litigation proceedings in order to investigate the facts, gather evidence, and facilitate meaningful testimony.

Witness preparation may include introducing a witness to the courtroom environment and procedure, helping the witness recall and accurately describe facts, preparing the witness for examination and cross-examination, and assessing the reliability of anticipated testimony. Both prosecutors and defense counsel may have legitimate reasons to speak with witnesses before they testify.

Pretrial witness interviews are therefore a lawful means by which defense counsel can investigate evidence and provide an effective defense. Their purpose is to identify the facts a witness may be able to establish, clarify disputed issues through subsequent examination, and avoid wasting trial time on irrelevant evidence. This is fundamentally different from colluding with a witness or inducing perjury. Treating all witness interviews as suspicious risks discouraging defense counsel from engaging in legitimate preparation and may ultimately undermine the defendant's constitutional right to an effective defense.

That said, the scope of a witness interview still matters. A witness's own prior investigative statement may, depending on the circumstances, be reviewed to help the witness recall what occurred and prepare for testimony. Providing the witness with other case files or evidence raises different concerns and is not automatically justified merely because witness preparation itself is lawful.

2. Investigation Stage: Appearing as a "Suspect or Defendant"

If you receive a summons or are questioned by police as a criminal suspect, the legal situation is fundamentally different. One point deserves particular emphasis: at this stage, a social worker should not face the criminal process alone and should obtain legal representation.

Summonses, compelled appearances, arrests, and custodial questioning are governed by detailed procedural requirements. A defendant is generally summoned before coercive measures are used; compulsory appearance ordinarily requires legal authorization; custodial questioning is subject to restrictions, including rules concerning nighttime questioning and the duration of detention; and Article 8 of the Constitution of the Republic of China requires an arrested or detained person to be brought before a competent court within 24 hours, subject to legally prescribed exclusions.

It is extremely difficult for a defendant to navigate these rules alone. It is therefore both reasonable and necessary for social welfare organizations to provide access to counsel or other litigation support when their staff become involved in criminal proceedings.

The handcuffing of the social worker at the beginning of the Kai Kai case was especially controversial, but the law already places limits on the use of restraints. The Regulations on the Use of Restraints in Escort and Arrest and the Police Power Exercise Act require the use of coercive measures to be justified and proportionate. The restraints regulations require consideration of factors such as risks of violence, self-harm, escape, or disruption, and also require authorities to protect the person's bodily integrity and reputation and to avoid unnecessary public exposure of restraints.

JRF issued a statement at the outset of the case criticizing the handcuffing and the accompanying violation of the principle of non-disclosure of investigations. A total of 233 social work and mental health organizations and groups joined a related petition, after which the police issued an administrative reprimand to the head of the Criminal Investigation Division of the Wenshan Precinct.

The broader problem, however, is the systemic incentive in high-profile cases to create a "red-carpet-style perp walk" for the media. That institutional pressure remains an issue requiring continued attention.

3. Trial Stage: What Are the Boundaries of Criminal-Law "Guarantor Status"?

In an ordinary negligent-homicide case, many elements may be disputed, including causation between the defendant's conduct and the victim's death. These issues are also relevant in the Kai Kai social worker case. For the social work profession as a whole, however, perhaps the most consequential question is whether a social worker has "guarantor status" under criminal law in a particular case. That determination affects whether negligent homicide can be established on the basis of an omission.

Put simply, people fail to do countless things every day. Criminal liability does not ordinarily arise merely because someone failed to act and a harmful result occurred. Liability for an offense by omission generally requires a special legal duty to prevent the relevant harm. A person who bears such a duty is sometimes described in criminal-law doctrine as occupying a "guarantor position" or having "guarantor status." Examples may include primary caregivers, guardians, physicians, or childcare providers, depending on the circumstances and legal source of the duty.

It is important not to conflate this issue with separate allegations of affirmative misconduct. Some online commentary has asked: "If a social worker actively falsified records, how could that social worker still claim to lack guarantor status?" That question combines two distinct legal issues: whether an affirmative act of falsifying records constitutes an offense, and whether a failure to perform a legal duty can support criminal liability for negligent homicide by omission. The two questions must be analyzed separately.

Before the Kai Kai case, social workers had rarely, if ever, been used as the central example in Taiwanese textbooks or case law discussing guarantor status. After the case emerged, Professor Ying-Chieh Lu of National Chung Cheng University analyzed a hypothetical scenario in an article titled "Social Workers and Guarantor Status under Criminal Law".

Professor Lu's analysis distinguishes between the close, day-to-day care of a child awaiting adoption and the periodic monitoring role of a social worker. Under the hypothetical, the child's legal representative consensually transfers immediate responsibility for the relevant risks to the childcare provider. Although a private child welfare organization sends social workers to visit the child, those visits are intended to observe the safety of the childcare environment, the interaction between the child and caregiver, and possible neglect or mistreatment. The visits do not necessarily place the child within the social worker's sphere of "close care," nor do they necessarily transfer primary control over the relevant risks to the social worker.

On that hypothetical, Professor Lu concludes that the social worker lacks guarantor status and therefore would not incur criminal liability for negligent homicide based solely on omission. This remains, however, a doctrinal analysis of a hypothetical case rather than a categorical rule governing every social worker.

The legal analysis must return to the facts of each case. Different divisions of responsibility among institutions, different workflows, different timelines, and different evidentiary records may all affect whether the conditions for guarantor status—such as close care, assumption of responsibility, or transfer of control over risk—are satisfied. This is also why a central issue in the Kai Kai trial has been: "Who was the social worker primarily responsible for the case?" Through witness examination, questions have arisen not only about the childcare provider and the indicted social worker, but also about the social worker's direct supervisor, senior supervisor, and social workers from other agencies or parts of the service network.

As the first- and second-instance proceedings involving the childcare providers drew to a close, public attention increasingly shifted toward the social worker's case. Social-media commentary has been highly divided, and meaningful discussion is difficult when information is fragmented.

Beyond the individual case, however, there are structural questions that directly affect frontline work: performance pressures that may encourage unnecessary restraint or public display of suspects, social workers' lack of a profession-specific privilege to refuse testimony, and whether social workers receive adequate institutional support when they become involved in litigation.

Some may regard these issues as secondary, unrelated to children's rights, or merely occupational risks viewed from the perspective of social workers. But the two concerns are not mutually exclusive. If large numbers of social workers leave high-risk child-protection work because professional responsibilities and criminal-liability boundaries are unclear or institutional support is inadequate, that outcome would hardly advance children's rights. These structural questions therefore deserve sustained public discussion and attention.