Research On The Audio-video Recording System Of Investigative Interrogation

On the basis of fully drawing on the practical experience of public security organs and offices of the public prosecutor,legal basis for the audio-video recording system of investigative interrogation was formally added in our country when the Criminal Procedure Law was revised in 2012.However,the legislative provisions are too arbitrary and rough,which not only failed to effectively solve the problems arising in the process of spontaneous pilot and promotion by the public prosecutor as well as security organs,or improve the operation effect of the system,but also led to contradict of the original intention under the influence of relative local factors,thus the system has been repeatedly criticized as turning into a "cover up" for extorting confessions by torture.Moreover,in the background of the times,the legitimacy foundation of the audio-video recording system is even more precarious because of the concerns about the recording materials hindering the substantive process of court trials and the doubts about the necessity of applying the system in confession cases.Therefore,it is necessary to re-examine the legitimacy and rationality of the recording system based on a comprehensive investigation and reflection on the operation of it in our country,so as to seek an appropriate way out for it.The main body of this paper is divided into six chapters.The first chapter analyzes the concept,elements and types of the audio-video recording system of investigative interrogation.The audio-video recording system of investigative interrogation refers to the behaviors and rules of recording the process of interrogating criminal suspects by investigators,as well as producing,storing and using audio or video recording materials.The subject of recording behavior is usually the investigator who conducts interrogation,but in the case of separation of interrogating and recording,it would be the other personnel in the investigation organ.The object of recording behavior includes the interrogated suspect,investigator and interpreter.There are two ways of recording,audio recording and video recording.The recording content is the situation in the process of interrogation.In addition,the production,storage and use of audio-video recording materials are also important elements of the system.According to different standards,the system can be divided into audio recording system and video recording system,custody interrogation recording system and non custody interrogation recording system,compulsory interrogation recording system and arbitrary interrogation recording system.The second chapter discusses the purposes and functions of the audio-video recording system of investigative interrogation.First,based on the common concern for the basic values of entity justice,crime control,procedural justice,and human rights protection,different countries or regions regard the discovery of entity truth and the guarantee of procedural justice as the fundamental purposes of establishing and implementing the audio-video recording system of investigative interrogation,and further clarify different direct purposes.On the entity,the discovery of truth is mainly embodied in promoting the accuracy of interrogation records and ensuring the authenticity of confessions,and the fundamental purpose of guaranteeing procedural justice further clarifies the direct purposes of enhancing the legality of interrogation and the voluntary nature of confessions.Secondly,in the sense of the effects of promoting the realization of the purposes,it discusses the functions of the system and the mechanism of promoting.Specifically,the fundamental purposes and the more explicit direct purposes of the system are mainly realized by the proof function and deterrent function of the system.The third chapter makes an empirical study on the operation of our country’s audio-video recording system of investigative interrogation.After explaining the research methods adopted,the macro-level operation of the system is firstly inspected,including the implementation of recording and the formation of audio-video recording materials,the sending and reading audio-video recording materials,and the frequency of use of audio-video recording materials in court hearings.Secondly,the specific usage pattern and actual effect of audio-video recording materials are inspected and analyzed.As for the usage pattern,based on the statistics of the selected judicial documents,audio-video recording materials mainly play a role of proof in the trial,and most of them are used to prove procedural matters related to the legality of interrogation.In the aspect of entity,the audio-video recording materials are mainly used to prove the authenticity of the interrogation transcripts or the contents of confession and defense.In practice,the proportion of using audio-video recording materials to solve relevant disputes is not high,and even if they are used,they often play a role together with other evidence materials to prove relevant disputes.In terms of results,when audio-video recording materials were involved in the settlement of disputes on the legality of interrogation and the authenticity of transcripts,mostly drawing positive conclusions,rarely having a negative impact on the evidence ability of confessions or transcripts.Even if negative conclusions were drawn and relevant evidences were decided to be excluded,it might not have an actual impact on the final judgment results.The fourth chapter analyzes the predicaments existing in the operation of the audio-video recording system of investigative interrogation in our country and the deep reasons for the predicaments.In the judicial practice of our country,audio-video recording materials mostly play the auxiliary function,taking the accuracy of interrogation transcripts as the proof object,and the procedural evidence function,taking the legality of interrogation as the proof object,and the confession function which takes the facts of the cases as the direct proof object has also been slightly reflected.However,the review function of the audio-video recording materials has not been brought into play,which further aggravates the inadequate proof and guarantee of the authenticity and voluntary nature of confessions,and hinders the pursuit and realization of the fundamental purposes of discovering entity truth and ensuring procedural justice.As far as the deterrent function against interrogation misconduct is concerned,the deterrence of the "camera" which has certain inherent limitations is relatively weak.Due to the review function not been brought into play,the auxiliary function and procedural evidence function often play a one-way role in judicial practice,and there are few adverse consequences for the interrogators,the deterrence based on the application of audio-video recording materials is also relatively weak.Moreover,based on the phenomenon of "recap" in the process of forming,sending and using audio-video recording materials in practice,it may not only miss the review,discovery and punishment of interrogation misconduct,but also very likely to form a reverse incentive effect by strengthening the evidence effectiveness of guilty confessions obtained by misconduct,which further aggravates the predicaments in the adoption of deterrent function.After pointing out the predicaments in the operation of the system,it analyzes the deep causes of the predicaments from the formulation of mandatory norms,the value orientation of public security and judicial organs,the checks and balances among power organs,the litigation mode and technical support.The fifth chapter discusses the appropriate adjustment in the perception of the system in our country.To break through the predicaments,it is necessary to redefine proper purposes and reshape the proof function.Firstly,while pursuing the fundamental purposes of achieving entity and procedural justice,it is necessary to clarify and emphasize the protection of the rights of the accused as the basic orientation,and urge the power subjects to take into account and pay attention to the pursuit and realization of the purposes from the dimension that is beneficial to the accused.As for the direct purposes,in addition to strengthened the ensuring of the authenticity of confessions and the enhancing of the voluntary nature of confessions,the direct purposes of establishing and implementing the audio-video recording system should also be adjusted and clarified based on the orientation of rights protection.Secondly,it is necessary to reshape the proof function of audio and video recording materials which plays a core role in promoting the realization of the purpose.The auxiliary function shall be weakened,and when the accuracy of interrogation transcripts is in doubt,audio-video recording materials shall give full play to their confession function.The review function of audio-video recording materials and its effective play should be attached great importance to,the review consciousness and ability of judges and defense lawyers should be improved,and expert witnesses with psychology and other social science knowledge should be introduced to help to make scientific analysis and reliable judgments on the voluntary nature and authenticity of confessions.In addition,combining with the current practice of the leniency system for confession and punishment,further attention should be paid to promote the effective play of the review function in confession cases.The sixth chapter puts forward the specific optimization path of the audio and video recording system of investigative interrogation.First,in the implementation of recording,compulsory application should be adopted,requiring that all criminal cases’investigative interrogation process should be recorded,and clarifying the justifiable reasons for not recording.In terms of recording method,conditions should be actively created in the future,taking the way of video recording for all criminal cases,and preventing bias effect that may be caused by improper recording.Secondly,to improve the mechanism of sending,reading and using audio-video recording materials.By achieving the integrity of the sending of audio-video recording materials to the public prosecution and judicial organs,preventing "recap" based on sending,as well as ensuring the implementation of the defense lawyers’ right to read files.In the process of using,in addition to giving due consideration to the efficiency of the trial,attention should also be paid to the proper handling of the contents that need to be strictly confidential or should not be excessively disclosed,so as to enhance the legitimacy of the use of audio-video recording materials and their functions.Finally,it is necessary to improve the sanction mechanism for illegal recording.While using legislation to regulate necessary matters,it is necessary to clarify the entity or procedural adverse consequences that law enforcement officers who violate the regulations must bear,so as to improve the legal status of sanctions.Designing and adopting stepwise procedural sanctions,so as to further strengthen the feasibility and legitimacy of procedural sanctions,and ensure the realization of the sound provisions and good purposes of the system.