A Study On Illegal Causative Behavior In Criminal Proceedings

It has lead to varying degrees of confession dependence because the suspect’s confessionhas unique value among countries. The investigation organ is likely to take illegal behaviorfor obtaining confessions. This paper regards the illegal obtain confession behavior as theresearch object and discusses related issues.The full text is divided into three parts: introduction, main body text and conclusion.The first part is the introduction. The introduction included writing motive and purpose,research status at home and abroad, the ideas and methods of research and innovation.The second part is the main body and divided into five chapters. The first chapterincludes the summary for illegal obtain confession behavior and related problems. Themethod of narrow and essential sense should be used when the behavior of illegal-obtainconfession is defined, that is, the behavior of illegal-obtain confession is defined from anglesof the exclusionary rule of illegally obtained confession and substantive infringement of rights.There are a variety of classification of the behavior of illegal-obtain confession, In this paper,according to the violation of the rights of suspects is the substantive rights or proceduralrights, the behavior was divided into illegal-method and illegal-procedure behavior. Theformer shows through torture, threats, promise, deceit and other illegal methods, the lattershow obtain confession through the violation of the legal procedures. In order to effectivelyprevent and punish the behavior, the behavior was forbidden from international, regionalconvention to domestic legislation. In the relationship between the behaviors, illegal evidenceand illegal-confession exclusion, illegally-confession is obtained confession through theillegal behavior, but there is not absolute and certain relation between the illegal behavior, andillegal evidence and illegal confession exclusion. In a country or area under the rule of law,there has a considerable degree overlap about the judgment standard of the behavior andillegal confession exclusion. In our country, there is a big gap between the two standards.The second chapter discusses the torture. Identification and expression form of torture isthe emphases of this chapter and is cause easily confusion of implementation of theexclusionary rule of illegally-obtained confession in the judicial practice. The judicialinterpretations of the Supreme People’s court and the Supreme People’s Procuratorate definethe torture, but there are different between the definition of torture in the Convention AgainstTorture and the judicial interpretations, The definition does not include mental torture in the judicial interpretations. Identification of torture should grasp the two aspects: one is means ormethods, the other is the extent of damage to the suspect. The elements of torture means arethree aspects: Corporal punishment, Disguised corporal punishment and mental torture.Corporal punishment is directly violence to the body of the suspect and produce severe pain.Corporal punishment can be divided into two categories: One kind is the direct assault;another kind is beaten or tortured by the tool. Disguised corporal punishment is not actively tothe suspect physical violence, but the suspect suffered physical torture by relatively passivebehavior. Common methods are such as baking, hungry, freezing, drying, the fatigueinterrogation, long time to maintain a fixed position. Mental torture is a method that generatesintense mental pain through the mental torture of suspects. From the extent of damage to thesuspect, we should grasp the following aspects: firstly, the pains or sufferings of constitutetorture need achieve to “severe”, so the means should be seriousness. Although the extent ofpains or sufferings is difficult to clearly define from the front, it can be judged from thereverse or objective factors with the help of common sense and experience of human society.Secondly, it should not “make it rigidly uniform” when the extent of pains or sufferings arejudged. Thirdly, when it is difficult to judge the extent through rules of thumb and commonsense, the doctor should be asked to intervene and evaluate by the medical standards. In therelationship of torture and torture, inhuman and humiliating treatment, this paper thinks thattorture, in addition to including torture, should also include the inhuman and humiliatingtreatment. In relation to torture and illegal confession exclusion, the extracted confession bytorture should be absolutely excluded, there should be no exception.The third chapter discusses the threat, promise, and deceit. When the international,regional convention and national legislation prohibit torture, psychological manipulationmethods gradually occupied the main position to obtain confessions. The essence ofpsychological manipulation lie in eliminating the suspect’s psychology of refused toconfession through the use of the theories and methods of psychology. From the torture topsychological manipulation, their fundamental purpose is consistent from beginning to end,namely, obtain the confession. The general methods of psychological manipulation have twokinds in the interrogation practice: one is the reverse stimulation, the other is positivestimulation. These two methods are filled with threats, promises and deceits in specificcontent. In the interrogation practices, psychological manipulation methods wander between“interrogation strategy” and “illegal interrogation”. There have the necessity and inevitability that the interrogation tactics were used in the interrogation practices and all countries (regions)also left space for the use of the interrogation tactics. However, if it is more than the necessarydegree, the psychological manipulation methods violate probably the voluntary of confession,and even lead to a false confession. Therefore, the appropriate limits of the use ofpsychological manipulation methods must be set in the judicial practices. At the macro level,the implementation of psychological manipulation method should comply with six principles,namely, the principle of not lead to false confession, not illegal principle, the principle ofproportionality, the principle of good faith, the principle of not infringe the basic morality andethics, the principle not use to specific population. As far as threats are concerned, threat ofviolence shall be prohibited; The threats of increasing punishment or compulsory measuresshould be a concrete analysis, if they are in the range of law or policy and not beyond theinvestigation authority, the threats should be allowed, on the contrary, not allowed; The threatsof impair the suspect’s basic physiological needs in the procedure are not allowed; The threatof damage relative interests should be a concrete analysis, on the one hand, it depends on therelationship between the suspect and relatives, on the other hand, it depends on whether thereis evidence to prove the suspect’s relatives suspected of a crime; The threat of fuzzy languagein the interrogation should have allowed generally. As far as promises are concerned, if thepromised benefits do not violate the law and belong to the authority of investigation organ,the promises are permitted; if the suspect’s basic physiological needs are peomised in theprocedure, they are not allowed; if the promised benefits are unfulfilled or deceptive promisewhich to damage the credit of interrogation organs, they are not allowed. As far as deceptionsare concerned, they have a high permissible degree, compared to the threats and promises inthe judicial practice, the pure deception will not generally lead to confession inadmissibility.Deception in theory can be divided into deception of formal interrogation and deception ofsubstantial interrogation. On the former, the society generally accepted moral bottom lineshall not exceed and shall not obtain confession by falsifying evidence, the threateningdeception and the promise of deception is not allowed; in the latter case, the specificoccupation and false lover are not disguised, and the privilege against self incrimination shallnot be infringed.The fourth chapter discussed other illegal-obtained confessions methods. Within theframework of the Criminal Procedural Law and the judicial interpretations,“other illegalmethods” include the threat of violence; threat or inducement the vital interests of the suspect or his close relatives; illegal detention; use of drugs. From the perspective of the comparativelaw and strengthening the protection of human rights, the definition of “other illegal methods”in the judicial interpretations is inappropriate. The range of “other illegal methods” should beexpanded. In the interrogation practices, besides threats, promises and deceptions, thepsychological manipulation methods also include the polygraph and hypnosis. As far aspolygraphs are concerned, the suspect is required to a polygraph test which does not itselfconstitute “pressure” that causes the confessions inadmissibility. If interrogators exaggeratethe polygraph accuracy or deceive suspects not pass the polygraph, it should be banned. Interms of use hypnosis method, the authenticity and reliability of confessions by the method isunable to guarantee, so it should be banned.The fifth chapter mainly discussed a few illegal-procedure behaviors that may cause theconfession inadmissible from the perspective of comparative Law. In the countries or regionsunder the rule of law, the right to silence and the right to counsel are the main contents ofrights informing before interrogation. America, Britain, Germany and Italy established thatthe confession is inadmissible without informing the rights before the interrogation throughlegislation or legal precedent. There have large gaps on informing rights before theinterrogation between the country of rule of law and in China. One is thin about theinformational content; the other is that the rule didn’t establish which the confessions areinadmissible without informing the rights before the interrogation. However, the articleeighty-second in the judicial interpretation of the Supreme People’s Court leaves space for theexclusion the interrogation record without informing the rights before the interrogation. Theright to counsel is the suspect’s constitutional rights, if the right is violated, the confessionshould be excluded. In our country, the suspect does not enjoy the right in the interrogation,but the lawyer’s rights to meet and communicate indirectly play a role in interrogation, therights is the most important right the of suspects enjoyment in the investigation stage. If theinvestigation organ refuse to counsel met with the suspect or obstruct the free exchange, andthen the confession is inadmissible, unless the investigation organ have legal reasons or provesubsequent confession voluntary. When recording or videotaping in the interrogation hasbecome an important procedural safeguard suspect from illegal interrogation, and has alsobecome an important starting point for the interrogation procedure reform. There have twomodes between the absence of the whole video and recording and exclusion ofillegal-obtained confession: the first mode is mode of statutory exclusion plus exception, the model is divided into two types, one is that interrogation record is inadmissible, unless theprosecution can prove that no audio recording or video comply with the law or withjustification. Another is to increase the exceptions, that is, in addition to comply with thestatutory exception or justification, the prosecution can also prove the written confessionsadmissible by provoing the suspect’s voluntary. The second mode is the discretionaryexclusion, it is one of the factors of affecting the admissibility of interrogation records if thewhole interrogation is not audio recorded or videoed. The admissibility of interrogationrecords should be judged by totality circumstances surrounding the confession. We shouldadopt the second type in the first modes. In order to better protect the rights of juvenilesuspects, an appropriate adult should be presence in the interrogation stage. If the procedure isviolated, the confession may be excluded. The procedure was stipulate in our “criminalprocedural law”, but the law does not provide the consequences of violating the procedure.The defect should be perfected through the exclusion model of principle plus exception. As amatter of principle, when juvenile suspects are interrogated and no appropriate adult is present,then the confessions should be excluded. The exceptions include absent is justified oremergency situations. If the defense thinks the adult is not the “appropriate” or appropriateadult doesn’t discharge of his duties effectively, whether the confession is excluded depend ontotality circumstances surrounding the case.The last part is the conclusion. The part pointed out that the theoretical study can onlyprovide relatively clear standards for the definition the behaviors of illegal-obtain confession.Within the current legal framework, for the benefit of the practitioners hold and operation, themost feasible approach is to establish guiding cases of universal reference value. In the future,the range of the conducts of illegally obtained confession and the exclusionary rule in theCriminal Procedure Law and the judicial interpretations should be reformed in order to thestandards overlap of the conducts of illegally obtained confession and the exclusionary rule.