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

1. The origin and the con nonations of the Privilege of concealment. Miranda warning originated from a theatrical role compreh terminal by the U. S. compulsory Court in 1966 an 18-year-old girl was kidnapped and raped, she identified that it was Miranda who did that. The fairness interrogated Miranda and used his fittingification as the hearing testimonial. After Miranda was convicted he appealed to the Supreme Court on the grounds that the police did non inform him of the chastise to remain motionless, and his plea was concocted downstairs pressure.He said that if he had been told to amaze a exclusive rectify of hush, he would have non made up that exculpation. After con situationring all the arguments, the United States Supreme Court ruled the Miranda exculpation invalid. Because of this jurisprudence, when arresting or interrogating funnys, the police need to say the Miranda warning first. This is how the favor of hush up was born in the juridical governi ng body.The Privilege of Silence contains the pastime con nonations First, the mistrust has no obligation to say words which might be detrimental to his/her own, the prosecution agencies or the courts can not use barbarian or degrading methods to force him to say Second, the am exploitation has the indemnify to of all time declargon speechless during the interrogative mood, and the judge can not shew the adjudication against him/her because his/her shut away Third, onward the shadowy says the favorable or unfavorable word to him/her, he/she has the cover to know the consequences of these words.And he/she must be voluntary to say. If the suspect was forced to speak, the court cannot use these words as the bear determine. 2. The Privilege of Silence in mainland mainland China In China, the Privilege of Silence has not in so far been cooked. This is inseparable with Chinas actual situation. In Chinas legal practice, on unrivalled hand, due to the comparatively poorl y developed investigating technology, the testimony of the suspect plays an all-important(prenominal) part in guiding the police to dis tightly fitting out the truth. On the other hand, make uping attention to the testimony of the suspect can indeed enhance case handling efficiency.However, the neglect of the slump of suppress begins to constantly expose some problems. For example, some significant wronged cases describe by the media these years show that the problem of Confession by squeeze is so unspeakable in China. Although the confession by dun is purely prohibited by vile Law, withal in the investigation, prosecution or running activity, the phenomenon of wring generally follows. It is not un putting surface that the judiciary staff frequently uses threat, enticement, deceit or other illegal methods to collect evidence, which soberly violates the staple human rights guaranteed in the Constitution.Among the various causes of the torture phenomenon, the most imp ortant reasons be the ideology of the boldness of guilt and the practice of relying heavily on confessions. Thus the governing of the favor of calm plays an important role in impellingly combating with this phenomenon. 3. Pros and cons Whether China shall ca-ca a right to lock up organisation? This has long been the hot topic in the legal circles in juvenile years. The mainly supporting ideas are as interest (1) The establishment of right to calm can help to curb the long-standing phenomenon of confessions by torture.Extracting confessions by torture is a spurned and forbidden behavior in the civilized society. Its regular characteristic is to impose violence or disguised violence on the suspect, severely devastating both the suspects physical and mental health, violating the natural rights of human. (2) It is required by the full slaying of the assumption of innocence. Although the assurance of guilt is prohibited by uprightness, yet in Chinas judicial practice, this harmful ideology is not change surface close to be banned.Under the impact of this ideology, the alleged offender is considered as a reprehensible and he/she shall be treated as a savage. So the penalties, the long-run or even indefinite detention, the torture and other inhuman ship canal can all be imposed on him/her. 3 (3) China has recognized the right of silent advocated by some inter issue rules or coming upon, therefore, China needs to reap the corresponding provisions in the label of miserable Procedure. With the development of international economic and trade, the cultural exchanges between China and foreign countries continue to deepen.You can read overly King v CogdonThe technological media makes Chinas judicial activities began to be transparent to the world. Thus, to guard the image of the ground, a spirited demand of the legality in inquiring activities must be assured. (4) The confirmation of the fringe benefit of secrecy was considered to be one of the most important milestones in humans fight to the civilization. It go overs the cosmos and justness in the iniquitous proceedings. It reflects the degree of judicial civilization of a country, and is an inevitable requirement of the country according to integrity.Opponents argue that the country should not create a right of quiet down brass, the right of shut away does not meet the conditions of our country, at least for now China does not yet have the conditions to introduce this system, their views mainly include the following (1) The privilege of silence discredits the effectiveness of the proceedings, and influences the effectiveness of punishing plagues. The confession of the suspect is the shortcut for investigators to discover the facts of the case, but 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 inquisition of various potential evidences relies solely on the existing investigation techniques and the sea captain competence of the investigators, thereby greatly slow down the investigation process, and even stagnating investigative work. There are irreconcilable contradictions between the privilege of silence and the principle 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 defendant must be released.If the released defendant were the real guilty, then it would undoubtedly indulgent the evil, and would obstruct up take awaying the social justice. (2) The privilege of silence is bound to append the cost of litigation. Once the suspect decides to keep silent, investigators then have to spend time and energy, make use of man big businessman, corporeal and financial resources to search for clues and evidence for the case. Therefore, the establishment of the silent right system will inevitably lead to the increase in th e cost of litigation. (3) The privilege of silence cannot fundamentally close the confession by torture. The right of silence can help to curb the torture to some degree, but due to a variety of objectively presenting reasons, investigators can always come up with various means or reasons to circumvent the legal responsibility. Therefore, the privilege of silence itself is not the cure of torture. To make the privilege truly serve to chasten 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 organized crimes, the privilege of silence might be used by these career reprehensibles, making 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, whatever suspect can not be identified as guilty before the court makes a final judgment, so their right to remain silent should not be illegally infringed. If much(prenominal) a close judicial procedure could not be ensured, then the remote eternal justice would be doomed 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 function is to suppress the public authority, secondary is to suppress the unsafe social criminals. 1 If the public authority were out of control, its harms to the society would be far more than those of personal crimes. Letting go the murderers may make the justice come late, but letting loose the public power may ultimately distort and devaluate justice.If the authority were abused to treasure the so-called justice, it would be extremely possible that some legal-abiding citizens might be pushed into the abyss of evil. By then, even if it punished crimes a hun dred times, it would not off batch the pains that a kind person had gone done from one injustice. Even 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 prevent its negative effects.According to the online 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 interconnected system that contains m whatever 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 grab protection mechanism.Therefore, under current conditions, the country needs to establish a minimum mechanism of protection of the right to silenc e. (1) Comprehensively establish the principle 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 necessary logic requirement of the principle of the presumption of innocence.The phrase 12 of the recruit of execrable Procedure in China stipulates No person shall be found guilty without being judged as such by a Peoples Court according to law. It has absorbed the spirit of the presumption of innocence. Therefore, the enroll of Criminal Procedure should raise clarify the principle of the presumption of innocence. This is the theoretical basis for and the guarantee of implementation of the privilege of silence system. Accordingly, the word 12 can be modified to any person should be regarded as innocent before the Courts effective verdict.Every suspect h as the privilege of silence, unless his/her privilege of silence is excluded by law. (2) Expressly exclude the rule of self-incrimination and pass waterly confirm the privilege of silence. Prohibit making any adverse inference because of the suspects silence. Cancel the obligation stipulated in the Criminal Procedure Law that requires the suspects to answer 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-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. Prohibit regarding the suspects and the defendants silence as aggravating circu mstances. There is a contradiction between the right of silence and the obligation to honestly state. Therefore, to ensure the make 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 banned Oral Evidence exclusionary rule and arbitrary confession rule. These are ii 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 obtained evidences (rather than confession out of free will) should be absolutely ruled out, and confessions cannot be enhancen beyond reasonable doubt should also be excluded. Arbitrary confession rule puts that, unless the law explicitly limits, the confessions are effective only under the circumstances that the suspects voluntarily, intentionally and rati onally give up their rights of silence. In China, the Criminal Procedure Law of the Peoples Republic of China clearly stipulates that Judges, prosecutors and investigators must, in union 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, threatening, enticing, tricking or other illegal methods are sternly forbidden in collecting evidence and any person shall not be compelled to tell his own guilt.Therefore, based on the existing spirit of law, we can further confirm the evidence exclusion rules. In the Article 46 of the Code of Criminal Procedure, subsequently the existing credence shall not be pronto given to oral statements,7 we can further add where extorting confessions by torture or threat, inducement, fraud, extended detention or other illegal methods that are used to obtain the testimony of witnesses, statements of victims and the confession s 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 aid the defendant to testify, including the testimony resistor system and leniency 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 plea 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 seasonably manner to investigate the facts. First, through legalizing the leniency policies to encourage the defendant to accept guilt initiativ ely, 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 note the testimony immunity system should only be applied to some significant and complex cases, for example, organized crime, triad societies, pine crime, corruption and bribery crime, transnational crime or other major crimes. (5) Improve 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 role of the witness testimony will be more prominent and more important.Therefore, the Code of Criminal Procedure should stipulate that witnesses must appear in court, and take a leak supporting measu res to improve 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 hire system and the earnest guarantee system for the witness, eliminating their worries. 6) Establish the Notification of adjective Rights and the Lawyer Presence Right mechanisms, protect the suspects meeting right and communication 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 nonsensical rule. It is impossible for people to forge their rights if they dont know them. And the judicial officers may use the misleading and unclear circumstances to lure confessions. To make the suspects be clearly informed of their rights prior to the interrogation is a common practice and consensus in most countries. Therefore, the law must stipulate small 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. delinquent to the suspects are not necessarily familiar with the law, without the assistance of counsel, the right to silence is difficult to be well implemented. The lawyer presence right is an effective way to repress confession by torture and to ensure the exercise of the right of silence.In Chinas criminal proceedings, the lawyers involvement degree is very low, e particular(a)ly compared to the developed countries. Therefore, according to the countrys conditions, except some major cases, such as cases involves national security, complex organized crime cases, the Code of Criminal Procedure should authorise the presence right to the lawyer. Through protecting the meeting rights and communication 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 necessary 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 examine first. In some special cases, the suspects right of silence should be restricted. These restrictions are to seek the unification 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 interests are above everything else, to effectively safeguard national security and fight against both dome stic and foreign hostile forces, the chapter one of the Criminal Lawcrimes of endangering national securitycould be excluded. The intelligent crimes have have increasingly prominent and due to the limits of the countrys investigative techniques, the advanced crimes are to difficult 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 likely to be captured.Organized crime has the following characteristics numerous people, strict organizat ion, 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 unknown property cases. At present, China is in a period of high incidence of corruption cases, the fight against corruption is a long-term and onerous task.In order 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 culture background and social status. Which means they have wide social relations and strong social activities ability, and often have both preparations before and countermeasures after the crime. Such strong anti-investigative capacities often interfere the detection processes.The inves tigation 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 safety and want 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 interject 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 unrelated basic personal information. Such inf ormation includes name, identity, age, occupation, insure 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 known as the king of the evidence, the value and richness 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 of 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 uncorrected criminals will be gradually reducing, and the side effects of the privilege of silence system will be minimized.