The Exhausting Interrogation

This thesis includes four parts except for introduction and conclusion.Part I explains the arising of exhausting interrogation. The typical form of exhausting interrogation is deprivation of the interrogated suspect’s sleep and rest. Sleep and rest deprivation may be combined with other intensive interrogation techniques as well. The application of exhausting interrogation denies the suspect as an active party of criminal process and may result in false confession. In addition, it is contrary to the law and may undermine legal authority. The reasons why investigators favor exhausting interrogation include social acceptance of comparatively “soft” intensive interrogation techniques, defects of current interrogation regulations and the effect of obtaining confession by exhausting interrogation. The explanatory document stipulates that confession gathered by exhausting interrogation should be excluded, but it does not define what exhausting interrogation is.Part II shows the practical problem concerning exhausting interrogation. The stipulation of exhausting interrogation in explanatory document does not contribute to material debates between the prosecutor and the defense in the trial. The court applies tests like time limit of interrogation, reasonable and necessary rest when deciding whether the interrogation is “exhausting”. However, the laws do not stipulate time limit of interrogation and necessary rest in a specific way. The definition of illegal methods in laws and judicial interpretations fails in instructing the deciding process of whether the interrogation is “exhausting”.This can be explained by the obstacle of comparing suffering reflected by length of interrogation and obvious injure separately.It is necessary to clarify the test of exhausting interrogation.Part III tries to set a test of exhausting interrogation. Most scholars suggest time limit be clarified without discussing the relation between this limit and the definition of illegal methods in judicial interpretation. Experience in the comparative law shows that inadmissibility of confession is mainly because the interrogation techniques overbear the suspect’s will rather than the interrogation results in pain or suffering, including when exhausting interrogation are applied. In China’s criminal process, the investigative organization can constrain the suspect beyond 48 hours in “to-case period” when the main task is obtaining confession. If independence of the detention center can not be guaranteed, investigators can also control the suspect’s sleep and rest after he or she has been sent to the detention center. These two factors both facilitate exhausting interrogation.Though exhausting interrogation may not result in suffering as torture, the decline of cognitive ability will also contribute to false confession. Therefore, the test of exhausting interrogation should not be confined to suffering. Failure of guaranteeing necessary rest can be inferred from the facts that interrogation lasts beyond 12 hours or 6 hours of contiguous rest can not be satisfied in every 24 hours. Under these situations, the confession gathered should be excluded, though there are some exceptions.Part IV explores the systematical control and prevention of exhausting interrogation. The time limit itself can not control exhausting interrogation effectively with supporting systems missing. The length of “to-case period” must be regulated strictly. If this period lasts beyond 48 hours without reasonable explanation, a presumption can be drawn that illegal methods of gathering confession are applied. Video and audio recording of interrogation should be implemented rigidly and it is a target that this recording system may cover all interrogations in criminal cases gradually. Investigators become fatigued while they conduct exhausting interrogation and it reflects their “inability” of gathering confession. Adoption of technical rules governing interrogation and enhancing of stimulating mechanism for suspects to confess voluntarily are essential to change this “inability”. In order to eliminate exhausting interrogation and other illegal methods of gathering confession, efforts should be made in the following way: implement the principle that nobody should be compelled to confess to be guilty, regard the suspect as an active party of criminal process, respect the suspect’s fundamental rights and enhance judicial review of investigative activities in the background of establishing trial centralism.