93.
Currently, the potential remedies available to defense attorneys-at-law to resist
restrictive orders or injunctions set by prosecutors during investigation remain
uncertain. The Judicial Yuan should review the definitions on the scope of
quasi-interlocutory appeals filed pursuant to Article 416 of the Code of
Criminal Procedure, in order to seek effective protection of the defendants’
right to defend themselves.
94.
When inspecting the correspondence transmitted between inmates and defense
attorneys (agents ad litem), with the purpose of checking for contraband, the
prisons/detention centers should only “open but not read” the correspondence
in question. If inmates need to deliver anything during visitation from their
defense attorneys, and the item is confirmed free from any contraband upon
inspection, the guard on duty should specify the inspection result and type and
quantity of the articles in the “Inmate’s Defense Attorney Visitation Record”
and allow delivery. However, they are prohibited from confiscating the
inmates’ articles at their discretion, and should promptly transfer them to the
defense attorney forthwith.
95.
According to the Code of Criminal Procedure, where a defense attorney is
found to have destroyed, forged, or altered evidence, or conspired with a cooffender or witness, the judge may issue a restriction order to the defense
attorney and prohibit him/her from visiting or communicating further with the
defendant. Notwithstanding, restriction of free communication between
defense attorney and defendant damages the integrity of the defendant’s right
to defense. Therefore, it is still necessary to evaluate with care how to protect
the defendant’s litigation rights and devise alternative measures for related
sanctions, when the defense attorney is reasonably suspected of committing
misconduct. Upon investigation and subsequent follow-up by the Control
Yuan, the Judicial Yuan has proposed a draft of amendments to certain
provisions of the Code of Criminal Procedure. The draft adds the provision
that when a defense attorney is believed to have accessed the recorded
evidence and case files for improper purposes, the prosecutor may petition the
presiding judge either verbally or in writing during the investigation and trial
to prohibit the defense attorney from further participation in the case. The draft
is still being deliberated.
96.
Ever since the Legal Aid Act was amended, it has been alleged that legal aid
resources have been abused, due to the absence of wealth-exclusion clauses,
plus a lenient review mechanism. Clearly, the Judicial Yuan has failed to
effectively communicate and promulgate that under the Legal Aid Act only
“persons who are indigent” and “unable to receive proper legal protection” are
to be aided by the Legal Aid Foundation. Currently, the Judicial Yuan’s policy
goal in contracting public defenders appears to be ambiguous. Therefore, it is
still necessary to discuss the entire criminal defense system and allocation of
relevant resources.
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