~~~~~~&~~M·~~~~~~A
The Rationality and Implied Construction of the
Limitation in Appointed Counseling during
Preliminary Investigation
Jl1 ~ .*
Sheng-Ye Jheng
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JJJ: 96.10.28; ~J[imim\ S ~: 96.11.19/97.03.15; :ti1:f'l 1r-s
:97.03.30M~~:~•·a~~··~••·•••~·*-~•·
Keywords: investigation, appointed counseling, the right to counsel, presumption of innocence, legal assistance .
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Abstract
Government authorities are obliged to appoint a public counsel to the qualified defendants in criminal proceedings for certain conditions. However, this obligation of appointing counsels exists only in litigation, but not in preliminary investigation. And this differentiation can hardly be reasoned by neither economical situation nor theoretical consideration. The demand for appointed counseling in litigation, even in comparison with the demand in preliminary investigation, is not obviously in excess of that in preliminary investigation. Consequently, the real reason of this differentiation to appointed counseling may lie in the negligence of a criminal suspect's principal status in preliminary investigation, in the prosecute and police agency's presupposition that the appointed counsels who may interfere with his or her investigation, and in a wrongful hypothesis, a core reason, that the spirit of preliminary investigation is to "catch the bad guy" at all cost and gives rise to a thought that all criminal suspects are assumed to be guilty even before their verdict. Those reasons specified therein are the roots of the rotten tree, which need our attention and introspection. Therefore, this article argues that appointed counseling shall be given according to the real circumstances as the conditions set in laws, but not to the circumstances whether occurred in preliminary investigation or in trial. The Congress of Taiwan should extend present set conditions for appointed counseling to preliminary investigation.
"Accompanied by an attorney when first investigated by police officers"
project proposed by the legal aid foundation just got on the road recently, and this project shall not be another excuse for government authorities to have their obligations exclusive of appointed counseling, but a reminder of the existence of such obligation which provides the protection for each qualified criminal suspect to have appointed counseling to government authorities which shall modify the Criminal Procedure Code.
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