Monday, August 10, 2009

Forced Confessions to Be Inadmissible for Death Penalty in China

Over the past two and half months, I had devoted my every waking moment into studying for the Texas Bar Examination (TBE), which FINALLY took place on July 28-30. This should explain the absence of any posts for the last several months. Now, with the bar exam behind me, I'm ready to resume blogging.

While I was preparing for the TBE, the subject that I was most uncomfortable with was constitutional criminal procedures. Crim Pro was difficult because of the myriad protections for the accused and public policy exceptions. One of the most complex concepts was the admissibility of confessions obtained in violation of a suspect's constitutional rights: Miranda rights and the Sixth Amendment right to an attorney. According to the holding of Miranda v. Arizona,
The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in the court of law; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.
The police may interrogate a suspect after he was given his Miranda warnings only if the suspect voluntarily resumed discussions about the alleged crime and waived his rights. Without
a voluntary waiver by the suspect, any confession or inculpatory information obtained by the police while he was in police custody as a result of interrogation is inadmissible to prove guilt.

A suspect's Sixth Amendment "super" right to counsel attaches once formal judicial proceedings take place. "Formal charge, preliminary hearing, indictment, information, or arraignment" are
all considered formal judicial proceedings according to Brewer v. Williams. After a defendant's "super" right to counsel attaches, he has a right to counsel at police questioning by an undercover
police officer and the right to counsel at questioning even if not in police custody.

These broad constitutional protections for criminal defendants operate as a critical shield against police misconduct in law enforcement. The protections are so broad that any inculpatoryinformation or confession (as stated above) gained in violations of the constitutional is inadmissible.Further, exclusions of such illegally obtained inculpatory information apply to felony and misdemeanor
cases--including death penalty cases.

Reports in China show that the Chinese government will probably soon adopt similar evidentiary rules to exclude forced confessions from being used against defendants in capital cases.

China does ban torture by police in order to force confessions. But, that does not mean much. If we all still recall, the U.S. "does not" torture either, and yet it happened. If the new evidentiary
rules are adopted, they could at least in theory be a powerful tool in protecting the basic rights of criminal defendants, and they could counter rampant police abuses in China.

Let's hope that this long overdue procedural protection for criminal defendants become a reality
in China.

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