An Empirical Study on Procedure Behavior of Interrogation in Criminal Procedure Law〔*〕

Wang Rui

(Nanjing Forest Police College，Nanjing Jiangsu 210046)

Ⅰ．Study on the rules of interrogation procedure

China’s regulations on investigation and interrogation are intensively reflected in Criminal Procedure Law，Provisions on Procedures of Criminal Cases by Public Security Organs issued by Ministry of Public Security and Rules of Criminal Proceedings for People’s Procuratorate issued by the Supreme People’s Procuratorate．As for the contents of these laws and rules，China has basically formed the system of rules of interrogation procedure，which shows the progress of legal system and protection of human rights．But some problems are not explicit and some procedure rules should be improved．〔1〕

1．The rule of the privilege against self－incrimination

The new regulation in article 50 of Criminal Procedure Law of 2012，“Not to be compelled to testify against himself or to confess guilt”，marks the establishment of rules of the privilege against self－incrimination．According to the idea of procedural justice，the suspect enjoys the right not being forced to state or not and the investigation organ is obliged to ensure the voluntary statement and shall not adapt inhumane or demeaning methods to obtain confession．The rule of the privilege against self－incrimination in nature protects the suspect from illegal procedure and guarantees the voluntariness and legitimacy of their confession．

The article 118 of Criminal Procedure Law stipulates the interrogation procedure and legalizes the criminal policy of leniency for those who confess．However，the policy lacks specific protection．The interrogator faces severe pressure from the society and need the suspect’s confession to deal with cases，but the suspect capable of counter－investigation seldom provides confession that perhaps put him in jail．So the strategy of interrogation is characteristic of manipulation and deceptiveness．〔2〕If stating truthfully brings vital interests，the suspect will be willing to state as things really are．Specific institutional guarantee will urges the suspect to state truthfully after weighing the pros and cons．

The rule of the privilege against self－incrimination aims to prevent extorting confession by torture and regulate the methods of obtaining evidence．And the article 54 stipulates that the suspect’s confession obtained illegally such as by torture and witness’s testimony and victim’s statement obtained illegally such as by threats or violence should be excluded．Therefore，the exclusionary rule of illegally obtained evidence is the supporting measure for the enforcement of the rule of the privilege against self－incrimination．

2．The rule of lawyer’s defense

The suspect and his lawyer enjoy the rights in the interrogation as follows:the suspect’s right of effective assistance of lawyer in the investigation，the suspect’s right of correspondence and meeting with lawyers，the suspect’s right of complaint and accusation．According to Criminal Procedure Law of 2012，the suspect can entrust a lawyer from the date on which the case is transferred for examination before prosecution and the lawyer can apply for obtaining a guarantor pending trial for the suspect．The suspect can hire a lawyer in the investigation，but cannot have the lawyer present during questioning．This makes the lawyer’s function of supervising and legal consulting less efficient．

The first interrogation matters the real time when the lawyer gets involved into a criminal case．In most cases，the suspects are arrested by the investigation organ and taken back to the police office for interrogation or treatment，or sent back home first and called back to the post office again for fur-ther interrogation after identification results come out，such as the certificate of traffic accident responsibility．So in practice，the interrogation has begun without first interrogation and even compulsory measures are taken once the identification results come out．When waiting for the first questioning，the lawyer can’t provide the suspect with legal help in a long process of the case．So whether the first interrogation shall conclude the first contact between the investigation organ and the suspect needs to be clarified．

As professor Merryman says，“The imparity of litigation rights and secrecy of written procedures always cause the danger of monstrous tyranny．”〔3〕In the interrogation，to have a lawyer present will insure that the suspect confesses sensibly．

3．The rule of audio and video recording

The whole process of interrogation should be recorded synchronously to ensure the integrity and continuity of the record．According to Provisions on Procedures of Criminal Cases by Public Security Organs，the suspect shall be sent into the detention house once being arrested，but the time limit for detaining shall not exceed 24 hours．In fact，because of the lack of necessary external supervision，the rule of audio and video recording becomes a mere formality．The law doesn’t set regulations before recording，which leaves room for illegally obtaining evidence．〔4〕

In practice，the record often begins after the interrogator has disintegrated the suspect’s psychological defense line and obtained confession．The procuratorate often rejects the defendant’s requirement of providing the record for some reasons．The law stipulates that the records must be provided in the statutory situation，but doesn’t stipulate the legal consequence of not providing records that are designated to provide．

4．The rule of time and place

The place of interrogation will affect the suspect’s psychology and confession．According to Criminal Procedure Law of 2012，the suspect shall be sent into the detention house once being arrested by public security organ，and for special case，the time for detaining can be extended as long as 24 hours．In judicial practice，the suspect is often arrested in a temporary office．Without necessary structural constraints of interrogation，it is difficult to implement the rule of the privilege against self－incrimination．

Criminal Procedure Law stipulates the time for summons or forced appearance，but not the time for interrogation．According to Criminal Procedure Law ，interrogation must be conducted within 24 hours after the arrest．If the interrogation is conducted outside the detention house，the lack of legislative limit will result in the prolonged interrogation．

Due to the suspect’s weak position in the interrogation，it is important to set procedural constraints on arbitrariness of public power．In the situation where the suspect’s confession is an important source of evidence，the key is to ensure the voluntariness of the confession．〔5〕

5．The rules of interrogation procedure

According to Provisions on Procedures of Criminal Cases by Public Security Organs and Rules of Criminal Procedure for People’s Procuratorate，when interrogating a criminal suspect，the investigators shall first ask the criminal suspect whether or not he has committed any criminal act，and let him state the circumstances of his guilt or explain his innocence，then they may ask him questions．

The rules of interrogation procedure stipulate the obligation of investigation organ to inform．The obligation to inform matters not only the interrogation procedure，also the relationships between punishing crimes and protecting human rights．China has signed International Covenant on Civil and Political Rights and taken relevant articles as guide to set up the rule of informing which is suitable to China’s conditions．

6．The exclusionary rule of illegally obtained evidence

In order to ensure the legality of interrogation methods and compliance with the interrogation rules，security mechanism is built in China，including the rule of the privilege against self－incrimination，the exclusionary rule of illegally obtained evidence and the rule of audio and video recording of interrogation．The promulgation and application of Provisions on Certain Issues Concerning the Examination and Judgment of Evidences in Death Penalty Cases and Provisions on Exclusion of Illegally Obtained Evidences in Criminal Cases and the remodification of Criminal Procedure Law shows that China has initially built the framework of exclusionary rule of illegally obtained evidence and established the development direction of strict exclusion of oral evidence and measured exclusion of material evidence．〔6〕

The illegality refers to the violation of the regulations in Criminal Procedure Law of 2012 and relevant judicial explanations on the basis of the Law．All illegally obtained evidence shall be excluded automatically．The fruit of the poisonous tree shall not be taken as illegally obtained evidence generally，except the confession obtained by severe violation of the personal rights of the suspect，victim and witness．

Ⅱ．An empirical study on procedure behavior of interrogation

The procedure behavior is constructed by above－mentioned rules．The interrogators shall carefully design the plan，scene，method，strategy and breakthrough before the interrogation and make adjustments as the subjective and objective conditions change in the interrogation in order to disintegrate the suspect’s psychological defense line and obtain truthful confession．〔7〕

1．Preparation for the interrogation

(1)Conventional preparation，also tangible preparation

The conventional preparation concludes the arrangement of interrogation room，documents，video and studio records，and time arrangement and so on．

In practice，the interrogation is always conducted by the previous investigator．When the case is complicated，the interrogation is difficult and the number of suspects involved is large，an interrogating team should be established with others．An old interrogator will be better when the suspect is old．An interrogator with much social and interrogating experience will be better when the suspect has complicated experience．An interrogator who has the same character，hobby and ability with the suspect will help with the interrogation．The interrogation should be conducted in a unified and coordinated way when interrogating a criminal group．

(2)U nconventional preparation，also intangible preparation

The unconventional preparation concludes legal description of the nature of the case，the features of the case and the suspect，the plan and the aim of the interrogation and so on．Making a plan for interrogation is of great importance．

The features of the suspect mainly conclude the name，age，birthplace，job，education，social relations and so on．The features of the case conclude when and where the case happened and was reported，the direction，scope and methods of investigation．The main criminal facts conclude the time，place，methods，process and result of crime．

2．Stages of the interrogation

In investigation practice，the interrogation is always conducted for several times in order to find out the case．The whole process of interrogation can be divided into three stages in chronological order:beginning，stalemate and end．〔8〕

(1)The stage of beginning

According to Provisions on Procedures of Criminal Cases by Public Security Organs and Criminal Procedure Law，this stage shall follow these steps:firstly，state the identity of people involved，the reason and requirement of interrogation;secondly，inform the criminal suspect of his rights and obligations;thirdly，find out the suspect’s basic information again;fourthly，ask the suspect whether or not he has committed any criminal act and let him state the circumstances of his guilt or explain his innocence;fifthly，listen to the suspect’s free statement．

Rogar，a French expert of investigation and interrogation，once said，“the importance of first few hours of the interrogation can’t be underestimated，because the loss of time equals the loss of truth．”From the perspective of strategy，the interrogation is often conducted at the following opportunities:the suspect gives himself up;the suspect is arrested at the scene of crime;solid evidence has been obtained．

(2)The stage of stalemate

In this stage，offense and defense between the interrogator and object of interrogation are intense．The suspect often has a series of reaction of denial，first getting angry，then depressed，again denying the accusation，finally admitting the accusation．〔9〕When complete information can’t be acquired by free recall，the interrogator shall question the suspect in this stage．The goal of this stage is to find out contradiction and carry on confrontation．

(3)The stage of end

The interrogation shall end in a positive atmosphere whatever the result is．

Firstly，this stage aims to acquire a complete and systematic confession of the suspect．Secondly，relevant legal procedures should be completed．For example，the evidence materials shall be recognized and signed by the suspect．Thirdly，the interrogator shall fulfill the obligation to inform and ask the suspect and victim for opinions of the expert evaluation．If the suspect and victim object the expert evaluation，the evaluation shall be supplemented and conducted again．Lastly，the suspect shall be inculcated with a positive attitude of the conclusion of investigation．

The rules of interrogation procedure involve the behavior pattern，rights and obligations of presider，participant and other roles in the decision－making process．The behavior of interrogation procedure is the practical step of procedure rules and to achieve the normalization of process through setting relevant roles’behavior pattern．To form China’s Miranda Warnings and carry on empirical studies on the procedure behavior of interrogation mean a lot to the perfection of interrogation procedure．

(Translated by Dai Jiabao)

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