Study On The Rules Of Confession

In criminal procedure, confession, severing as an important type of evidence, has been playing an irreplaceable role in investigation and conviction. But there have been controversies arising from confession, due to some historical, institutional and ideological factors, which has increasingly attracted people's attention. The heavy emphasis on confession has given rise to confession by torturing, despite the fact that it is constantly prohibited. Citizens are endowed with the constitutional right of freedom of speech, but in criminal procedure, suspects and defendants are deprived of silence right; even if there are signs indicating some confession is illegally obtained by detectives, court has no alternative but admitting the confession as evidence because the detectives do not need to cross-questioned in court. The immediate cause for these problems is that there exists no rational confession-regulating system at present. Confession, according to the study of criminal procedure law in China, refers to the statements and exculpations of criminal suspects or defendants. But, this author believes that the concept of confession should be understood in terms of both broad sense and narrow sense. The definition mentioned above is the broad sense of confession, but in its narrow sense, confession only refers to suspects and defendants'guilty confession and in general the narrow sense of confession should be adopted. On the one hand, confession may possibly serve as true, comprehensive and concrete evidence. But on the other hand, for the influence of various factors, false confession appears often and it is repeatable and instable. In history, confession was once called the "king of the evidence", and for a long period confession by torturing was the widespread legal way to obtain confession. It was not until the era of intime conviction, did the myth of confession was challenged. The importance of confession in modern criminal procedure has dwindled, becoming a kind of ordinary verbal evidence. Confession rule refers to a series of rules used to standardize, define, obtain, inquire and evaluate oral confession. It consists of the main part of rules of criminal evidence with the characteristics of definite guidance, obvious procedure as well as compulsory potency. The confession rule can enforce the detective departments and staff to verify the truths of those cases, to safeguard human rights and enhance the litigant efficacy. Confession rule, like any other legal systems, results from the choice value. In general, the value goal of law rests upon order, freedom, safety, fairness, justice, human rights, benefit (or efficiency) and so on. Considering confession rule as well as the characteristics of criminal procedure, this author believes that the priority of value orientation in confession should be given to justice, while giving proper attention to efficacy. Justice covers substantive justice and procedural justice. Since the utilization of confession rule is strictly a procedural process, procedural justice weighs more in this domain. The procedure justice intrinsically covers at least the equality, transparency, participation, timeliness and finality of procedure and referee's neutrality. In the rule of confession, efficacy is the second value to be pursued. Efficacy refers the result after subtracting investment from output. The efficacy value in law refers to the fact that law enables people and society to gain more output by investing less. It is a manifestation of increase of not only economic efficiency, but also social efficiency. The rule efficacy value and justice value in confession rule, to a great extent, form a unity and opposite relation. The key to handle this relation lies on the fact the value goal should be oriented toward justice, while giving adequate attention to efficacy. In pretrial procedure, confession rule mainly standardizes the activities in obtaining confession. To do this, a key position should be established for the presumption of innocence and the principle that "no person shall be compelled in any criminal case to be a witness against himself", so that these principles can play a role in the implementation of the article "No person shall be found guilty without being judged as such by a People's Court according to law"in Criminal Procedure Law. It is a common practice in western countries that suspects have the right not to testify. This rule in China, however, has not been established. The establishment of silence right not onlymeets the requirement of justice in process, the protection of human rights and the change of criminal procedure mode, but also is contributive to the change of old-fashioned criminal procedure mode that centers on confession. Therefore, silence right appropriate to the situation in China should be established. Following the establishment of this rule, plea bargaining will appear as a result. Plea bargaining originated from the United States, and it has widely spread to many countries because of its advantage in promoting the efficacy of litigation. The plea bargaining, if established in China, may make contribution to promoting litigant efficacy, meeting the objective of penalty, realizing the policy of "Confession leads to lighter punishment", prosecuting criminals and maintaining justice. The establishment of this rule might be potentially difficult, but the establishment of any new and major rule might face great difficulties. It is feasible, therefore, to establish a plea bargaining rule with Chinese characteristics, as long as it meets the value goal of justice and efficacy. In pretrial procedure, the application of confession rule mainly involves cross examination and admission of evidence. The principles of direct trial and oral evidence are the prerequisite to cross examination procedure and it requires that all evidence be present to judges in court, and opportunities be given to prosecutor and defendant to cross-examine their statement, and the evidence, then, can be admitted. The decision by court can be legally effective only through direct trial and oral evidence. The key issue in the construction of confession cross examination is the presence of detectives in court to be cross-examined by prosecutor and defendant on the validity of the source of confession. For some reason, however, detectives in our country are usually not required to be present in court. This brings about a series of consequences. The principles of direct trial and oral evidence are ignored and this makes cross examination and adversary system impossible to function; court's role in the regulation of investigating activities is minimized and therefore judicatory justice is greatly impeded. In the admission of evidence, the exclusion of illegal confession forms an important part. Illegal confession refers to the behavior that investigators violate legally prescribed process in obtaining confession, usually by means of torture, threat, enticement anddeceit. It is a consensus to exclude illegal confession in criminal procedure, because it embodies the regulation of jurisdiction over administrative power and the requirement of justice in criminal procedure. In addition, it is able to encourage detective agencies to change the old ways of investigation, by applying new technology and more humane ways of investigation. There are some views against the exclusion of illegal confession by claiming that it might give some criminals chance to escape punishment, but this is not necessarily correlated to the crime rate of our country as a whole. To set up the system of exclusion of illegal confession, this author argues that all evidence obtained by means of torture, threat, enticement and deceit should be eliminated; as for the evidence collected on the basis of the illegal confession, its validity can be flexibly considered in light of real situation. Experience can be borrowed form other countries with the respect of exception, such as purged taint exception, independent source exception and inevitable discovery exception.