2017年3月16日 星期四

Media leaks imperil the idea of a fair trial

Wu Ching-chin 吳景欽

(Wu Ching-chin is an associate professor, chair of Aletheia University’s law department and director of Taiwan Forever Association)
(作者為真理大學法律系副教授兼系主任、永社理事)

Translated by Edward Jones

TAIPEI TIMES / Editorials 2017.03.16

http://www.taipeitimes.com/News/editorials/archives/2017/03/15/2003666782/2


Liang Ssu-hui (梁思惠), a model and girlfriend of Cheng Yu (程宇), a suspect in a recent high-profile murder case of another model, surnamed Chen (陳), was detained without visitation rights by the police on March 3.

However, after it emerged that Liang had not been at the scene of the crime, she was released.

The ensuing frenzied backpedaling by Taiwanese media and social media users — who had quickly passed judgement on Liang and left hate-filled messages on her Facebook page — was shameful to witness.

It seems that in Taiwan, the legal principle that investigation details are confidential exists only on paper.

All too often, during the initial stages of an investigation, while police were gathering material and establishing suspects’ whereabouts, details of the investigation are made public.

Not only does this run the risk of potential evidence being destroyed or covered up, but it might also put suspects on guard, making it more difficult for prosecutors to uncover the truth during questioning.

If, when the facts of a case are still unclear, details of an investigation are made public, this could encroach upon the privacy — and damage the reputation — of victims, witnesses and other parties caught up in the investigation.

It is all too easy for pretrial publicity to result in a “trial-by-media.”

The principle of maintaining confidentiality during investigations is by no means absolute.

In cases where a suspect is on the run, when deciding whether to release information to the media, law enforcement authorities take into consideration the potential danger a suspect poses to the public and whether the public can provide useful assistance.

Article 245 of the Code of Criminal Procedure (刑事訴訟法) prohibits prosecutors, police, defense attorneys or any other public officials connected with an investigation from publicly disclosing any information related to the case, except when it is permitted under the law, is in the public interest, or is required in order to uphold the law.

The Judicial Yuan also has specific measures to ensure that investigators abide by the law and to ensure human rights are protected.

However, there is a vast difference between what the law states and what actually happens.

This is because if police or prosecutors leak information, although they could be prosecuted for having disclosed state secrets, in the majority of cases prosecutors and police are unwilling to turn against one of their own, meaning successful legal action is rare.

Even if a source is identified, the excuse that the leak was either in the public interest or to ensure public safety is used.
Furthermore, even if such justifications for disclosing information did not exist, this type of offense normally only receives a jail term of less than three years, and trials often end in a deferred prosecution, a suspended sentence or the sentence being commuted to a fine.

In most cases, investigators who have been charged with disclosing information receive only a token punishment.

This latest instance of an ongoing investigation being splashed across the media and the Internet should be thoroughly investigated and the source of the leak uncovered, even if there is not much hope of a successful prosecution.


It is imperative that the law is amended to close loopholes; otherwise, the principle of confidential investigations is nothing more than aspirational.