The Supreme Court rendered the 107-Tai-Shang-386 Criminal Decision of March 15, 2018 (hereinafter, the “Decision”), holding that if records created by social workers or counselors for their counseling cases only record a victim’s statement, they are still the same cumulative evidence as a victim’s statement and have nothing to do with corroborative evidence.
According to the facts underlying this Decision, a prosecutor prosecuted the Defendant for committing opportunity indecency by touching the private part of Woman A. The Tainan Branch of the Taiwan High Court set aside the first instance decision and rendered a decision to acquit the Defendant. Dissatisfied, the prosecutor filed this appeal.
According to the Decision, although the written or oral statements of social workers or counselors on individual counseling cases they work on are based on their direct observations and actual personal experience and may serve as independent corroborative evidence since they are by nature given by witnesses who have witnessed the incident, still this is limited to their personal reactions of the observation of the victims giving their statements when the social workers or counselors were exposed to the victims in order to substantiate the mental states of the victims, the perceptions of the victims or the impact on the victims. However, if the records so prepared only record the statements of the victims, they are the same cumulative evidence as a victim’s statement and certainly have nothing to do with corroborative evidence.
It was further pointed out in this Decision, the student counselling recording forms prepared by social workers or counselors for Woman A contained records about the Defendant’s sexual assault against her and were based on Woman A’s statement. Such forms were not any different by nature from a transcript of her own statement. Therefore, they were the same and it was certainly inappropriate to be directly cited as corroborative evidence against the Defendant. Therefore, it was held in this Decision that the gist of the prosecutor’s appeal was not compatible with the legal violations for which appeal to the third instance court may be filed under the law. Since the appeal violated legal requirements, the appeal was rejected.