A Comparative View of the Law of Interrogation

Abstract

Forty years ago, when the U.S. Supreme Court fashioned the Miranda procedure to safeguard the rights of suspects subject to police interrogation, the procedure and its exclusionary remedy were considered an American novelty. Few countries then required the police to issue preinterrogation warnings, and it was rare for courts to exclude confessions on the grounds of procedural violations. The past forty years have seen significant changes in the criminal justice landscape on the world scene. Today, the concept of preinterrogation warnings is widely accepted, and failure to issue the required warnings in many countries constitutes a ground for exclusion. This article explores the development in the law of interrogation in England, Canada, France, Germany, Russia, and China. The American Miranda procedure is used as a reference point to highlight the similarities and differences between American and other countries' practices.

The evolution of criminal interrogation rules in China

“…According to Article 93 of the CPL, ‚when interrogating a suspect, the investigators shall first 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; then they may ask him questions‛. The Chinese legal principle maintains that the suspect's defence comes first because it is primarily designed to prevent the police from proceeding on the premise that the suspect is guilty (Ma, 2007). Whatever the proclaimed rationale, there is little doubt that this arrangement is advantageous to the investigation.…”

“…The agreement that we shall all have interrogation justice seems to be one of the few points of consensus in the pluralistic societies around the world (Ma, 2007). Within every criminal justice, we see various mechanisms ostensibly designed to constrain and shape the way in which the police exercise their questioning powers (Van Kessel, 1998).…”

Interrogational fairness under the European convention on human rights

“…Therefore, in the field of the law of confession, changes are occurring in both systems, in the composition of the mixture between concerns over the factual accuracy of statements and the fairness of the manner in which they are obtained, and these are reflected in piecemeal changes in the organization of criminal procedure. To take two examples, despite the traditional emphasis in the inquisitorial system on the importance of truth-finding, continental European countries, however, has seen a growth in administering warnings to suspects about their right to remain silent prior to interrogation and the use of an exclusionary rule to ensure the police compliance with the warning requirement 2 (Ma, 2007). A countertendency in common law jurisdictions, away from an emphasis on respect for autonomy, however, is seen in the shift from giving more procedural safeguards in police questioning.…”

“…The U.S. Court then seemed to lead the way in expanding the procedural safeguards for suspects subject to police inquiry. Nevertheless, in the post-Miranda cases, to accommodate the conflicting interests between law enforcement and individual interests in police interrogation cases, the U.S. Court has carved various exceptions out of Miranda exclusion policy, for instance, the public security exception, which permits the police to interrogate a suspect without the Miranda warning if there is evidence indicating that immediate interrogation is necessary for some urgent public need (Ma, 2007;Roth, 2008). 3 According to The Police and Criminal Evidence Act 1984 (PACE 1984), silence during the police questioning should not be capable of being the subject of adverse comment by both the judge and the prosecution.…”

“…Somewhat akin to the Miranda rules 48 , when a suspect has invoked the right to be assisted by counsel during 48 The Miranda Court established a general rule that once a suspect indicates that he or she does not wish to be interrogated, the police must ease all questioning (Van Kessel, 1998). With respect to whether the police may make attempts to obtain a waiver of the right to remain silent from a suspect, the U.S. Court in subsequent decisions made a distinction between the situation when a suspect asserts his or her right to remain silent and the situation when the right to counsel is invoked (Ma, 2007). If a suspect asserts only the right to remain silent, the police may resume questioning after a substantial time lapse so long as they properly advise the suspect of the Miranda rights prior to interrogation (Michigan v. Mosley, 1975).…”