The Defense Lawyer’s Right To Access Case Files Before The Decision Of Pre-Trial Detention

In addition to the introduction and conclusion,this article is divided into four parts.The first part goes into the necessity of granting defense lawyers the right to access case files before the decision of pre-trial detention.During the arrest phase,false or improper arrest frequently occurs in practice,the institution of the detention necessity reviewing is not working well,and it is difficult for lawyers to effectively perform their duties as defenders.In order to improve the quality of arrest cases,justify the proceeding and facilitate the implement of the detention necessity reviewing system,the defense lawyer should have access to case files before the decision of pre-trial detention,which means the lawyer’s right to participate in litigation will be substantively extended.The second part argues the feasibility of granting defense lawyers the right to access case files before the decision of pre-trial detention.In consideration of the possible negative impacts on the interest of investigation,procuratorial interest and the right of third parties,the defense lawyer doesn’t have right to reading case files during the arrest phase.However,such negative influences can be solved to the hilt through the designing of the institution,the legislature may design it according to "the principle of balancing interests" and "the principle of litigation benefits".In addition,there has been exploration of the lawyer’s marking right during the arrest stage in practice,and the attitude of relevant practitioners can also support the agreement.The third part is a comparative study of the lawyers’ right to access case files before the decision of pre-trial detention.The German lawyer is entitled to get information related to detention during the temporary arrest and the custody reviewing phase.After the law revision in 2017,Taiwan authorities officially granted defense lawyers limited marking rights before the decision of pre-trial detention.The European Court of Human Rights had adopted a series of case law to confirm the lawyers’ right to access files related to the detention legality.While there is no examination system for lawyer making in U.S.A,the defense lawyer has actually learned the specific information through the detention hearing process.The fourth part related to the construction of the lawyers’ right to access case files before the decision of pre-trial detention,which includes the subject,scope,method,right relief and supporting system.The subject includes the right one and the duty one.Defense lawyers and duty lawyers enjoy the right to review files,while the duty one involves the person of certifying,docking and notifying.Based on the principle of interest balancing,the lawyer should be bared from learning the confession,witness testimony and the individual information of the witnesses,informants or spy agents,etc.While,establishing the right relief system and completing the supporting measures will be necessary.For example,setting up the code of conduct,homologous disciplinary mechanism and a perfect duty lawyer system.