Since the accused was tortured for confession before his statement was taken, the confession given during police interrogation shortly thereafer was resulted from a continuation of the pressure from improper police torture before the statement was drafted; and, therefore, such statement, which was not given out of arbitrariness, should be excluded (Taiwan)

2018 年 4 月 26 日

2017.10.26
Frank Sun

The Taichung Branch of the Taiwan High Court rendered the 105-Zai-3 Criminal Decision of October 26, 2017 (hereinafter, the “Decision”), holding that since the accused was tortured for confession before his statement was taken, the confession given during police interrogation shortly thereafer was resulted from a continuation of the pressure from improper police torture before the statement was drafted; and, therefore, such statement, which was not given out of arbitrariness, should be excluded.

According to the facts underlying this Decision, Accused A, who was prosecuted, and Accused B (who was not prosecuted since he had deceased) in another matter had been singing songs at a KTV store with their friends in 2002 with B possessing two standard pistols and two modified pistols. When B was firing the guns as he pleased after drinking, the KTV store called the police. Meanwhile, B handed over the standard pistols to A. Later when the police breached the facility, Police Officer C was shot and killed by A and this constituted homicide. The original decision convicted A based on evidence such as his statement. After Accused A and the prosecution motioned for retrial, the court granted and conducted the retrial.

According to the Decision, if the first confession of the Accused was obtained by investigators (prosecutors) by improper means, such confession shall not be admissible evidence for a lack of arbitrariness. Subsequently, different investigators (prosecutors) conducted another interrogation and obtained the second confession of the Accused without improper means. Therefore, whether the second confession should be excluded would depend on whether the impact of the non-arbitrariness of the first confession on the second confession can be excluded. This is known as the continuous effect of non-arbitrary confession in academic theories. To wit, the unjustified method for obtaining the first confession was the cause, while the second confession was the effect. If the two have a causal relationship as determined through observation of the objective circumstances of individual cases, the second confession should be excluded. Otherwise, it would have evidentiary effect.

It was further pointed out in the Decision that the statement drafted by Accused A was prepared after he was tortured for confession. Accused A also gave his confession during police interrogation. Although Accused A also confessed his crime during the prosecutor’s investigation at Fengyuan Hospital, not in the Criminal Division of Fengyuan Precinct, still Accused A was interrogated by the prosecutor on the same day shortly after the police interrogation with a very short interval between the two interrogations. In addition, when Accused A was treated at Fengyuan Hospital, police officers were always present to guard and control the site. Therefore, the pressure from the previous improper police torture on him still existed. In addition, when interrogated by the prosecutor, he had not confessed his crime from the very beginning until the transcript of his police interrogation was shown to him by the prosecutor. Even so, he still stated: “I did not specifically aim at the head of the police officer when I fired the gun,” which is different from his statement given during the police interrogation that he fired at the “head” of the police officer. He also stated that the pistols he had fired were counterfeit rather than standard and requested the prosecutors to examine these pistols. This shows that he confessed with reservation, and that Accused A’s confession before the prosecutor was affected by continued pressure from improper police torture, not out of arbitrariness. Therefore, the confession should be excluded and should not serve as evidence for his conviction.

Relevant evidence and examination results were further considered in this Decision, which held that C had been shot to death by B with a standard pistol firing at C three times, and that C’s death was not caused by Accused A’s firing. Therefore, the original decision was reversed and a decision was rendered to exonerate Accused A.