Formosan Brothers

New Trends in Practice Regarding the Admissibility of the Evidence of Extraterritorial Police Interrogation Report

2020/10/20

        In cross-border criminal cases, testimonies which were given to foreign police agencies in foreign countries often affect the direction of the case and become key factors to whether the defendant would be convicted. Taiwan courts often deem such police interrogation reports as “hearsay.” However, opinions regarding the admissibility of such reports have been quite divided.

        Some judgments hold that one should observe whether the country has been fairly developed in political and economic system, and one must also consider whether the making process of the report and external environment are credible. If the answer is positive, then the report made by the foreign police agency shall pertain to “documents made in other reliable circumstances in addition to the special circumstances” as prescribed in Subparagraph 3 of Article 159-4 of the Code of Criminal Procedure. Such report may directly be deemed to hold admissible. (See Taiwan Supreme Court criminal judgment 100-Tai-Shang-Zi No. 4813.) There are some other judgments, based on the same reason, hold that the admissibility of the evidence shall be applied through the analogical application of Subparagraph 3 of Article 159-4. (See Taiwan Supreme Court criminal judgment 101-Tai-Shang-Zi No. 900.) There are also other judgments holding that since foreign police agencies have the same police system and function as Taiwan’s, they should fall under the aforesaid provisions in terms of the legal order. Articles 159-2 or 159-3 shall be applied through analogy to such foreign police interrogation reports and shall be admissible. (See Taiwan Supreme Court criminal judgment 96-Tai-Shang-Zi No. 5388.)  

        Other than the aforementioned judgments, other judgments recognized differences among nations in terms of legal systems and practices. Moreover, such judgments also deemed that the defendant’s right of defense shall not be restricted unless otherwise provided by law. If the court can admit the admissibility of the evidence to such reports through the analogical application of Taiwan’s hearsay exception clause, it may lead to the unjustifiable expansion of the hearsay exception clause and further hurt the defendant’s confrontation right, which obviously contravenes the principle of legal reservation. Therefore, except where a nation has exhausted all ways to protect the defendant’s confrontation right, otherwise, this type of foreign police interrogation reports shall not be admissible in principle. (See Taiwan Supreme Court criminal judgment 104-Tai-Shang-Zi No. 2479.)

        The divergence in judicial opinions shows the court swings between the two primary purposes of truth discovery and protection of the defendant’s rights. Yet the high uncertainty caused by divergence in opinions certainly does not work in the defendant’s and their counsel’s favor. Finally, in its decision for the first criminal court hearing of 2018, the Taiwan Supreme Court began consolidating opinions regarding such legal issues. After almost two years, a stable framework seems to be formed regarding the Taiwan Supreme Court’s admittance of the admissibility of foreign police interrogation reports. As the recent Taiwan Supreme Court criminal judgment 109-Tai-Shang-Zi No. 3257 states clearly: Foreign police interrogation reports are, in nature, similar to the police interrogation reports in Taiwan. They both pertain as hearsay and should be categorized under the same legal provision, receive the same disposition, and have similar provisions applied. Given that the defendant’s confrontation right is protected, foreign police interrogation reports may be admitted as evidence through the analogical application of Articles 159-2 and 159-3 of the Code of Criminal Procedure. In sum, there are two criteria for the analogical application of the hearsay exception clause on foreign police interrogation reports:   

1. Premise of application:

The reason why the witness cannot appear in court to testify must not be attributable to the government agencies, and the court must exhaust all ways to protect the defendant’s confrontation right. For example: by way of “remote means” as provided in Paragraphs 2 and 3 of Article 177 of the Code of Criminal Procedure.

2. Regarding the content of the foreign police interrogation report:

Must examine strictly the existence of “absolute credibility” and “necessity” of the foreign police interrogation report.

        Moreover, it should be noted that, if the foreign country involved has an agreement of mutual legal assistance with Taiwan, the Supreme Court strongly emphasizes that, in principle, the court should give priority to apply “remote means” to allow the witness and defendant to confront and cross-examine each other in this kind of circumstance. (See Taiwan Supreme Court criminal judgment 108-Tai-Shang-Zi No. 2034).

(Author: Hsin-Yang Lee, currently an intern attorney at Formosan Brothers, Attorneys-at-Law)

 

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