Due to abuses of the extortion of confessions by torture, modern societies ruled by law have established a series of standards and measures in the legislative and judicial fields to put checks the practice.
I. The system of the right to silence. The majority of Anglo-Saxon and continental genealogies of law have implemented the system of the right of silence. Since the accused has the right to keep silent, oral confessions and verdicts have lost their assumed connection, and therefore there is no incentive or purpose in extorting confessions by torture. However, the system of the right to silence cannot entirely eliminate such practices.
II. The supervision system that records and videotapes the entire interrogation process. Under such a system, the detention and delivery of suspects for interrogation are duties carried out by two different departments. Recording and videotaping start once the suspects are taken away from the place where they are detained and continue non-stop throughout the process. Two copies of the tapes and videotapes are made, with one given to the accused.
III. Lawyers must be present when the investigative organizations interrogate the suspect. In the majority of Anglo-Saxon countries and continental genealogies of law, it is clearly stipulated that lawyers must be present during the interrogation process. Oral confessions obtained without a lawyer present can be viewed as illegal evidence and ruled out by the courts.
IV. All evidence obtained by torture should be excluded. The majority of Anglo-Saxon countries and continental genealogies of law not only rule out evidence obtained by torture, but also exclude the “fruits of the poisoned tree,'' which refers to other evidence obtained indirectly in illegal ways. The latter practice is most typical in the United States. In the United Kingdom, however, a comparative exclusion principle has been adopted, i.e., not all evidence obtained in ways that constitute general misdemeanors is excluded, while evidence obtained through torture is excluded without exception.
V. Concerning the burden of proof in cases of extortion of confessions by torture, most countries have adopted the principle that the prosecuting parties are required to produce evidence. This means that if the accused raises concerns over the possibility that the police may have extorted confessions by torture, the prosecuting parties must produce evidence proving the claim to be false, otherwise the evidence will be excluded. This is because the accused usually does not have the ability to collect evidence in cases of extortion of confessions by torture. The establishment of such a system of burden of proof bears great influence on curbing the practice of extortion of confessions by torture.
The occurrence of extortion of confessions by torture has historical roots as well as a certain degree of inevitability. To reduce the practice, it is important to take effective prevention measures. While it cannot be completely avoided, the aforementioned measures as practiced in foreign countries have, in some cases, achieved positive results in reducing such crimes.
Since the phenomenon of extortion of confessions by torture still exist in China, it may be necessary to accelerate the legislative efforts in the field by China's law makers.
(The author is chairman of the Criminal Law Committee, All China Lawyers Association)
(People’s Daily 04/04/2001)