Dependence on confessions persists despite legal reforms

By Wu Danhong Source:Global Times Published: 2012-8-20 1:15:05

Editor's Note:

China will start a new trial scheme in Wuhu, Anhui Province that will allow suspects to lie to police officers without being charged with further offenses and make complaints if they are harassed and forced by the police to confess. This trial scheme, initiated by the Public Security Ministry, Supreme People's Procuratorate and the Procedural Regime and Judicial Reform Research Center of the Renmin University of China, is part of broader reforms aimed at curbing the use of torture in criminal investigations. Police officers will also receive new training to cope with such change. Instead of demanding suspects confess, they will be equipped with the skill to spot loopholes in any lies. But how will this trial scheme influence China's legal reforms? Will it effectively wipe out forced confession?

Forced confessions are a tumor in the justice system. The UN Convention Against Torture has clearly forbidden state authorities to use any form of torture and cruel treatments in any territory under their jurisdiction. China is a signatory of the convention and thus has the obligation to fulfill its commitment.

However, since oral confessions have been traditionally perceived as the most important evidence in criminal investigation, as well as due to the lack of effective implementation in banning forced confession, the use of torture still exists in practice. Scandalous cases where forced confessions were exposed have shocked many people.

Several of the worst cases, like that of Zhao Zuohai, a farmer who was forced to confess to a murder charge he didn't actually commit, eventually drove the country's five top legal bodies, including the Supreme People's Court and the Supreme People's Procuratorate, to jointly release a new rule in July 2010 that nullifies evidence gained illegally.

This year, China's lawmakers made further progress on banning forced confession by amending the country's Criminal Procedure Law to include the 2010 rule.

One significant change in the newly amended Criminal Procedure Law is that suspects will now enjoy the privilege against self-incrimination, which means that forcing suspects to confessions that will incriminate themselves is now forbidden. This change echoes another UN convention, the International Covenant on Civil and Political Rights, that China signed in 1998.

However, although China has now allowed suspects not to testify against themselves, suspects do have an obligation to confess "honestly." This obligation has long existed in the country's Criminal Procedure Law, and the newly amended 2012 version did not remove this rule. Suspects, challenged by powerful State authorities in a closed environment, are still pressed to testify against themselves.

This obligation has been kept for so long because of a long-standing myth that a case cannot be closed without a confession. Although China's Criminal Procedure Law has been trying to deprioritize the importance of confession in criminal investigations, this idea has prevailed. 

Some police officers argue that confessions are still crucial because of the pressure to solve cases and the bottlenecks in investigation. So the more difficulties they face in solving a case, the more dependent on confessions they become. And the more they depend on oral confessions, the less likely it is they will become motivated and creative in gathering other evidence.

The dependence on confessions must be broken if forced confession is to be stopped effectively.

Allowing suspects to lie, giving them the right to speak freely, and even allowing them to keep silent will all help protect suspects from being forced to testify against themselves, and should be considered in measures against forced confession. If our police officers can become less dependent on confessions, forced confessions will eventually die out.

The author is an associate professor on evidence law at China University of Political Science and Law.

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