How Should China Establish The Privilege of Silence System in Criminal Proceedings?

1. The blood line and the con nonations of the Privilege of Silence. Miranda warning originated from a case heard by the U. S. commanding Court in 1966 an 18-year-old girl was kidnapped and raped, she identified that it was Miranda who did that. The police interrogated Miranda and drug ab ingestiond his justification as the hearing testimony. After Miranda was convicted he appealed to the Supreme Court on the grounds that the police did non inform him of the correct to remain unsounded, and his apology was concocted under pressure.He said that if he had been told to pip a perk of tranquillity, he would curb non made up that confession. After con spatial relationring every the arguments, the United States Supreme Court ruled the Miranda confession invalid. Because of this jurisprudence, when arresting or interrogating amusings, the police need to say the Miranda warning first. This is how the countenance of lock was innate(p) in the discriminatory basement.The Pri vilege of Silence contains the pastime connotations First, the rummy has no obligation to say words which strength be detrimental to his/her declargon, the pursuance agencies or the tribunals rat not use in sympathetic or debasing methods to force him to say Second, the suspect has the secure to al slipway keep obtuse during the interrogation, and the judge john not make the adjudication against him/her because his/her silence Third, before the suspect says the favorable or unfavorable word to him/her, he/she has the even up to go to bed the consequences of these words.And he/she must be voluntary to say. If the suspect was forced to speak, the court coffin nailnot use these words as the record. 2. The Privilege of Silence in china In china, the Privilege of Silence has not yet been puddleed. This is inseparable with chinas actual situation. In Chinas judicial practice, on one hand, necessitateible to the comparatively poorly developed investigation technology, the testimony of the suspect ladders an serious part in guiding the police to find out the truth. On the another(prenominal) hand, paying attending to the testimony of the suspect can hence enhance case handling efficiency.However, the neglect of the business of silence begins to ceaselessly expose just about problems. For example, many significant wronged cases reported by the media these geezerhood show that the problem of Confession by Torture is so repelling in China. Although the confession by deformation is strictly withdraw by fell rectitude, yet in the investigation, prosecution or trial activity, the phenomenon of torture gener eithery gos. It is not uncommon that the judiciary staff frequently uses threat, enticement, lie or other iniquitous methods to collect enjoin, which seriously violates the basic human skilfuls guaranteed in the Constitution.Among the various causes of the torture phenomenon, the most of import reasons ar the political orien tation of the stipulation of viciousness and the practice of relying heavily on confessions. Thus the creation of the right of silence plays an important use in effectively combating with this phenomenon. 3. Pros and cons Whether China shall establish a correct to silence system? This has long been the savoury topic in the legal circles in recent years. The primarily backup ideas are as following (1) The establishment of right to silence can swear out to curb the long-standing phenomenon of confessions by torture.Extracting confessions by torture is a refuse and forbidden behavior in the civilized society. Its typical characteristic is to chaffer violence or disguised violence on the suspect, severely desolate both the suspects physical and psychological health, violating the natural rights of human. (2) It is needful by the full implementation of the presumption of innocence. Although the presumption of guilt is exterminateed by right, yet in Chinas judicial practice , this denigratory ideology is not blush close to be banned.Under the invasion of this ideology, the alleged offender is considered as a imm oral exam and he/she shall be treated as a culpable. So the penalties, the long-term or even indefinite detention, the torture and other inhuman ways can all be imposed on him/her. 3 (3) China has recognized the right of silent advocated by just about inter topic rules or meeting, therefore, China involve to make the cor replying provisions in the work out of Criminal agency. With the suppuration of international scotch and trade, the cultural exchanges in the midst of China and foreign countries save to deepen.You can read also King v CogdonThe technological media makes Chinas judicial activities began to be transparent to the world. Thus, to safeguard the image of the country, a high demand of the legality in investigative activities must be assured. (4) The abideation of the favour of silence was considered to be one of the mo st important milestones in humans fight to the civilization. It ensures the humanity and justice in the criminal proceedings. It reflects the distributor point of judicial civilization of a country, and is an inevitable necessity of the country according to law.Opponents argue that the country should not create a right of silence system, the right of silence does not meet the conditions of our country, at least for now China does not yet have the conditions to enroll this system, their views mainly include the following (1) The privilege of silence reduces the say-so of the proceedings, and influences the effectiveness of punishing crimes. The confession of the suspect is the shortcut for investigators to identify the facts of the case, scarce the silent right blocks this shortcut. This right of the suspect would make the investigators interrogation right exist in name only.As a result, the anticipate of various voltage evidences relies solely on the existing investigation te chniques and the professional competence of the investigators, thereby greatly slow down the investigation process, and even stagnating investigative work. at that place are irreconcilable contradictions between the privilege of silence and the belief of economic proceedings. And if the investigators failed to find relevant evidences other than the confession, the truth of the case would not be identified and the suspect must be released.If the released defendant were the real criminal, then it would undoubtedly indulgent the evil, and would obstruct upholding the accessible justice. (2) The privilege of silence is keep back to increase the cost of judicial proceeding. Once the suspect decides to keep silent, investigators then have to spend date and energy, make use of manpower, material and financial resources to search for clues and evidence for the case. Therefore, the establishment of the silent right system testament of necessity lead to the increase in the cost of liti gation. (3) The privilege of silence cannot basically exclude the confession by torture. The right of silence can help oneself to curb the torture to some degree, but due to a intermixture of objectively presenting reasons, investigators can always amaze up with various mean or reasons to circumvent the legal responsibility. Therefore, the privilege of silence itself is not the recover of torture. To make the privilege truly serve to inhibit the confession by torture, there must be corresponding establishment of mechanisms to ensure the enforcement of this privilege. (4) In some major crimes of terrorism and organize crimes, the privilege of silence might be used by these career criminals, make them escape from the punishment of law.This is contrary to the original purpose. Despite there are certain flaws exist in the privilege of silence system, However, even criminals should also have their own personal rights, not to mention the suspects, any suspect can not be identified as guilty before the court makes a final judgment, so their right to remain silent should not be nonlegally infringed. If much(prenominal) a close judicial procedure could not be ensured, then the remote eternal justice would be curst to remain as utopia.The reason that the Americans has accepted the Miranda warning and would tolerate the side effects of the Miranda rule is that they believe that the laws first operation is to suppress the world sanction, succorary is to suppress the dangerous accessible criminals. 1 If the public authority were out of control, its harms to the society would be far to a greater extent than those of personal crimes. Letting go the murderers may make the justice come late, but letting loose the public power may in the end distort and devaluate justice.If the authority were abused to protect the so-called justice, it would be passing possible that some legal-abiding citizens might be pushed into the abyss of evil. By then, even if it punishe d crimes a hundred times, it would not offset the stock that a kind person had gone through from one injustice. veritable(a) though the build of the privilege of silence system is the trend, it is important for us to realize that there are objective flaws exist in this system, efforts should be made to forestall its negative effects.According to the current conditions of the country, my suggestion is to confirm a limited right of silence. 4. Recommendations Build a limited privilege of silence system. The right of Silence System is an integrated system that contains galore(postnominal) aspects of deep-seated factors in the litigation. Thus the establishment of the right of silence system is not a simple task, but a systematic project, including the legislators decision-making, the publics recognition and support, the corresponding operational mechanism and the appropriate safeguard mechanism.Therefore, under current conditions, the country needs to establish a minimal mechanis m of protection of the right to silence. (1) Comprehensively establish the article of faith of the presumption of innocence. The principle of the presumption of innocence is one of the basic principles in the criminal proceedings and is a generally recognized criminal procedure principle for modern countries under the rule of law. And the right of silence system is the un overturnable logic requirement of the principle of the presumption of innocence.The Article 12 of the encrypt of Criminal function in China stipulates No person shall be found guilty without being judged as much(prenominal) by a Peoples Court according to law. It has absorbed the spirit of the presumption of innocence. Therefore, the Code of Criminal Procedure should further clarify the principle of the presumption of innocence. This is the theoretical base for and the guarantee of implementation of the privilege of silence system. Accordingly, the Article 12 can be modified to Every person should be regarde d as necessitous before the Courts effective verdict.Every suspect has the privilege of silence, unless his/her privilege of silence is excluded by law. (2) Expressly exclude the rule of self-incrimination and all the way confirm the privilege of silence. Prohibit making any adverse induction because of the suspects silence. Cancel the obligation stipulated in the Criminal Procedure Law that requires the suspects to coif questions truthfully. There is a close connection between the exclusion of self-incrimination and the privilege of silence.And the exclusion of self-incrimination should be a basic principle for the criminal proceedings. Therefore this principle could be added in the first chapter of the Code of Criminal Procedure&8212-the tasks and basic principles, namely any person can not be compelled to testify against himself/herself, suspects and defendants in criminal proceedings have the right to remain silent, unless his/her right of silence is excluded by law. Prohib it regarding the suspects and the defendants silence as aggravating circumstances. There is a contradiction between the right of silence and the obligation to honestly state. Therefore, to ensure the exercise of the privilege of silence, the 93 Article of the Code of Criminal Procedure stipulates that the suspect must answer the investigators questions truthfully should be removed. 7 (3) Establish Illegal Oral demonstration exclusionary rule and arbitrary confession rule. These are two important rules in the rules of evidence and are institutional guarantees for the privilege of silence and can help curb the phenomenon of confession by torture.Illegal evidence exclusion rules require all illegal or improper defended evidences (rather than confession out of dethaw leave) should be absolutely ruled out, and confessions cannot be proven beyond clean doubt should also be excluded. Arbitrary confession rule models that, unless the law explicitly limits, the confessions are effectiv e only under the circumstances that the suspects voluntarily, purposely and rationally give up their rights of silence. In China, the Criminal Procedure Law of the Peoples Republic of China clear stipulates that Judges, prosecutors and investigators must, in accordance with legal procedures, collect various evidence that can confirm the suspects and the defendants guilt or innocence, or the gravity of his/her crime extorting confessions by torture, endanger, enticing, tricking or other illegal methods are strictly forbidden in collecting evidence and any person shall not be compelled to prove his own guilt.Therefore, found on the existing spirit of law, we can further confirm the evidence exclusion rules. In the Article 46 of the Code of Criminal Procedure, aft(prenominal) the existing credence shall not be readily habituated to oral statements,7 we can further add where extorting confessions by torture or threat, inducement, fraud, all-encompassing detention or other illegal methods that are used to obtain the testimony of attestores, statements of victims and the confessions of the suspect can be verified, then these confessions shall not be used to accuse a crime or make a judgment. (4) Establish systems to encourage the defendant to testify, including the testimony immunity system and lunacy programs. The right to silence does not mean that suspects cannot speak, nor that to encourage suspects to not confess, but to give him/her the right to choose whether to remain silent or to make a statement, this is to protect his/ her basic human rights. The law does not prohibit self-incrimination, but prohibits forced self-incrimination. In America, for example, through the Plea Bargaining, the offenders guilty vindication rate is up to 90%.To minimize the side effects of the right to silence system, we shall establish some relevant systems to ensure that the defendant actively cooperates with the judicial authorities in a timely manner to check out the facts. First, through legalizing the leniency policies to encourage the defendant to admit guilt initiatively, making the confession the legal circumstances of leniency, rather than just discretionary circumstances. The second is to establish testimony immunity system. Prohibit using some of the defendants statements to testify against herself/himself, and exempt the according criminal responsibilities.But argument the testimony immunity system should only be applied to some significant and complex cases, for example, organized crime, triad societies, smart crime, putridness and grafting crime, transnational crime or other major crimes. (5) make better the witness system. The testimony of witnesses is an important means to expose and prove the criminal. The establishment of right to silence system will make the Criminal proceedings mainly rely on evidences other than confessions. Consequently, the reference of the witness testimony will be more large and more important.Therefor e, the Code of Criminal Procedure should stipulate that witnesses must appear in court, and construct supporting measures to mend the attendance of witnesses and to ensure the witnesses provide testimony objectively and sufficiently. First, we must establish system to force witness to court and clear the legal consequences of the illegal testimony. The second is to establish a material compensation system and the shelter guarantee system for the witness, eliminating their worries. 6) Establish the Notification of Procedural Rights and the Lawyer aim Right mechanisms, protect the suspects meeting right and dialogue right. These are the important procedural safeguards for the full implementation of the right to silence, without which, the right of silence would merely be a meaningless rule. It is impossible for hoi polloi to exercise their rights if they dont know them. And the judicial officers may use the misleading and unclear circumstances to lure confessions. To make the sus pects be clearly informed of their rights prior to the interrogation is a common practice and consensus in most countries.Therefore, the law must stipulate detailed requirements to the notification system, including the time and specific issues of the notification, statutory interpretation obligations and the consequences of having failed to perform the duties and responsibilities. Due to the suspects are not necessarily familiar with the law, without the assistance of counsel, the right to silence is baffling to be well implemented. The lawyer presence right is an effective way to avoid confession by torture and to ensure the exercise of the right of silence.In Chinas criminal proceedings, the lawyers involvement degree is very low, especially compared to the developed countries. Therefore, according to the countrys conditions, barely some major cases, such as cases involves national security, complex organized crime cases, the Code of Criminal Procedure should endow the presence right to the lawyer. Through protecting the meeting rights and colloquy rights of the suspects, the law can prevent or reduce the coercion to the suspects in custody. Therefore, the law should reduce the limits to the suspects meet and communication.Of course, in some special cases, to protect some significant social interests, the law can set up unavoidable exceptions, review or control the suspects meeting and communication rights. (7) Establish some exceptions to the right of silence. To decide whether or not a suspect will be endowed the right of silence in a case, the specific issues need to be analyzed first. In some special cases, the suspects right of silence should be restricted. These restrictions are to seek the sexual union between individual rights and the social interest.According to this principle, at least it seems to me, the following crimes should be excluded A. Crimes of endangering national security, financial fraud crime and computer crime. The countrys inte rests are above everything else, to effectively safeguard national security and fight against both domestic and foreign hostile forces, the chapter one of the Criminal Lawcrimes of endangering national securitycould be excluded. The intelligent crimes have become increasingly prominent and due to the limits of the countrys investigative techniques, the high-tech crimes are to awkward to detect.Thus, at least for now it is not appropriate to give such criminals the privilege of silence. B. Smuggling, narcotics, money laundering, robbery and other severe joint crime, criminal syndicate and underworld crime and other organized crime. In crimes such as smuggling, narcotics and money laundering, criminals usually use one-way communication. Thus the confessions of the suspects play a crucial role in revealing the cases causes, backgrounds and processes, and the relationships between the accomplices. If they were given the right to silence, the real culprits behind the scene would not lik ely to be captured.Organized crime has the following characteristics numerous people, strict organization, huge hazards or potential harms and hard to track down. Such cases are very difficult to catch, of accomplices, confessions plays the pivotal role. Therefore the confessions of the captured suspects tend to play a decisive role in such cases. C. Corruption, bribery and huge unidentified property cases. At present, China is in a period of high incidence of corruption cases, the fight against corruption is a long-term and arduous task.In battle array to effectively combat corruption and bribery, to curb and reduce the incidence of job-related crimes, it is recommended that those crimes are being excluded. Besides, most criminal subjects in these crimes hold an important authority have a certain degree of education background and social status. Which means they have wide social relations and inexpugnable social activities ability, and often have both preparations before and coun termeasures after the crime. Such strong anti-investigative capacities often interfere the detection processes.The investigation of these crimes would be harder if they were endowed with the privilege of silence, which would damage the interests of the country. D. Cases relate to public synthetic rubber and emergency situations. For crimes involving public safety, if not got confessions in time, significant public safety hazard would happen. For life threatening cases, if the suspect did not immediately provide the place of where the victims were hidden, the personal safety of the victims would be endangered. Thus the privilege of silence should be excluded in these cases.For example, kidnapping, illegal detention, unaccounted dangerous goods crimes such as poisons, firearms, ammunitions and explosives. To these cases, at the trial stage, the privilege of silence is undoubtedly applied, but at the interrogation stage, whether or not the privilege of silence should be given need to be identified by the judges. E. The defendant should not keep silent on some crimes misrelated basic personal information. Such information includes name, identity, age, occupation, address and so on.This is in order to combat crime effectively and accurately, and to avoid unnecessary losses. (8) Improve the construction of the judicial organs. The establishment of the privilege of silence system is the trend, which put forward higher requirements for the construction of the judicial organs. The judicial offices should actively respond to this trend and try to improve themselves in the following two ways First, update the judicial notions of the staff and weaken the confessions role in evidence system.In current criminal proceedings, the confession is cognize as the king of the evidence, the value and importance of the confession is extremely exaggerated. This notion is still deeply rooted in the minds of many judicial officers, which is contrary to the requirements of the right o f silence system. Therefore, the judicial organs should change their concepts, and establish the concept of human rights protection, and resolutely put an end to the behavior of extracting confessions. Second, use high-tech to equip judicial organs, and to improve their investigation abilities.The establishment of the privilege of silence system will makes the judicial officers pay more attention to obtaining external evidence rather than confessions. Which requires the country to increase investment in technology and equipment of the investigative organs, to improve the standards of the investigators, and to actualize scientific investigation. With the development of the litigation civilization and the improvement of the detection capability, the number of the unpunished criminals will be gradually reducing, and the side effects of the privilege of silence system will be minimized.