(1) Basic international standards for protecting the rights of criminal suspects and defendants [1]
In the second half of the 20th century, strengthening the protection of human rights in criminal procedure has become the main trend of criminal procedure reform. International human rights conventions such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Optional Decision of the International Covenant on Civil and Political Rights have established a series of basic international norms to protect the rights of criminal suspects and defendants, mainly including: (1) the principle of equal rights. "Everyone is born free and equal in dignity and rights." [2](2) Judicial relief. Ensure that people whose rights or freedoms have been violated can get effective remedies. (3) The procedural guarantee of the right to life. Provisions: the death penalty shall not be executed without the final judgment of a qualified court; Anyone sentenced to death should have the right to ask for pardon or commutation, and all cases sentenced to death should be pardoned, pardoned or commuted. [3](4) Torture or cruel, inhuman or degrading treatment or punishment is prohibited. (5) procedural guarantee of personal freedom and safety. (6) All persons deprived of their liberty should be treated humanely or with respect for human dignity. Personality right is one of the three qualifications of human rights [4], and it is the spiritual condition to maintain the qualification of life subject. Criminal suspects and defendants are also human beings, and they also enjoy their personality, which is also respected and cannot be arbitrarily deprived. (7) Independent and fair trial (8) A person accused of a criminal offence has the right to be defended. The right of defense is the most basic and important right that criminal suspects and defendants should enjoy in criminal proceedings. In a sense, the evolutionary history of criminal proceedings is the development history of the right of defense. [5](9) Give special protection to minors. (10) Presumption of innocence. Anyone accused of a criminal offence has the right to be considered innocent until proven guilty according to law. (1 1) Oppose forced self-incrimination. No one was forced to testify against himself or admit to a crime. At present, many countries have recognized the right of silence of criminal suspects and defendants, including Taiwan Province Province and Hongkong. (12) the right to criminal compensation. These international criminal justice norms are the minimum standards that all countries should abide by in the process of criminal justice. Their overall spirit is to prevent the abuse of power by the state, protect the basic rights of criminal suspects and defendants and realize judicial justice in the process of investigating criminals' criminal responsibility.
(B) the basic rights of criminal suspects in China
In China, the basic rights of criminal suspects mainly include: personal freedom and security rights; The right to accept the prophet; The right of lawyers to provide assistance; The right to apply for withdrawal; Criminal compensation right, etc. [6]
First, the right to personal freedom and security. China's Constitution clearly stipulates that citizens' personal freedom is inviolable. Without a specific organ, a specific procedure is not subject to arrest. Accordingly, the current criminal procedure law stipulates the specific conditions, procedures and deadlines of all compulsory measures to restrict personal freedom in the investigation stage. If the compulsory measures taken against the public security organs and people's procuratorates exceed the statutory time limit, the criminal suspect has the right to demand the cancellation of the compulsory measures.
Second, accept the right of the prophet. Informing criminal suspects of their rights is an internationally recognized judicial norm. The criminal suspect has the right to be informed of the contents and reasons of the accusation and the litigation rights he enjoys in a timely manner. When a criminal suspect is told why compulsory measures have been taken or questioned, he has the right to hire a lawyer to help and entrust a defender.
Third, the lawyer's right to help. The Constitution of China guarantees the right to defense of all persons under criminal investigation. Article 96 of the Criminal Procedure Law stipulates: "A criminal suspect may hire a lawyer to provide him with legal advice, appeal and accusation on his behalf after the first interrogation by the investigation organ or the day when compulsory measures are taken. If the suspect is arrested, the lawyer hired can apply for bail pending trial. " This will advance the time for lawyers to intervene in criminal proceedings from the trial stage to the investigation stage.
Fourth, apply for cancellation right. This is a relief right, that is, the criminal suspect has the right to apply for the withdrawal of investigators, prosecutors, clerks, experts and translators, and to apply for reconsideration of the decision to reject the withdrawal application. In order to protect the basic rights of criminal suspects, it is very important to prevent the involvement of interested parties.
Fifth, the right of criminal compensation. Article 4 1 of China's Constitution stipulates: "People who have suffered losses due to the violation of civil rights by state organs and their staff have the right to obtain compensation according to law." The legislature promulgated the State Compensation Law in May 1994. According to this law, anyone who is wrongly detained or arrested without criminal facts or evidence to prove that he is seriously suspected of a crime is finally acquitted, and the criminal suspect who has been infringed by illegal property measures taken by the relevant state staff can obtain state compensation according to the prescribed procedures.
Second, the conflict between extorting confessions by torture and the protection of criminal suspects' rights.
There is always a gap between reality and theory, and at the same time, the system itself is not perfect, and there are still great shortcomings in protecting the rights of criminal suspects: prolonged detention, extorting confessions by torture and preventing lawyers from performing their duties normally are still three stubborn diseases in China's judicial practice, among which the problem of extorting confessions by torture is particularly serious. Although China's laws explicitly prohibit extorting confessions by torture, and the criminal law also specifically stipulates the crime of extorting confessions by torture, it is still repeatedly prohibited.
(A) the meaning of extorting a confession by torture
The American International Encyclopedia defines "torture" as: "Torture is a kind of corporal punishment that deliberately causes physical or psychological pain." [7] The definition of "extorting a confession by torture" in China's criminal law is: "extorting a confession by torture refers to the act of judicial staff using corporal punishment or disguised corporal punishment to extort a confession." This kind of behavior seriously violates the personal rights and democratic rights of criminal suspects and defendants, and also damages the image of judicial investigators and the majesty of the law, making people lose their faith in the law.
(B) the harm of extorting confessions by torture
In today's increasingly civilized and humanized litigation, all countries explicitly prohibit extorting confessions by torture. However, this ancient and barbaric way of extorting confessions by torture is banned under the background of the rule of law, which seriously harms society.
First of all, extorting confessions by torture has seriously violated the personal rights of criminal suspects. Extorting confessions by torture is achieved by corporal punishment or disguised corporal punishment, which causes great physical pain to criminal suspects and defendants and is a serious violation of human rights. A person's personality and dignity should be protected, even if he has violated the criminal law. However, in today's prevailing interrogation concept of "no beating, no confession", it is not uncommon for some judicial organs and judicial staff to extort confessions by torture. Some leaders of judicial organs have insufficient understanding of the serious harm of extorting confessions by torture, and even have misunderstandings. They believe that extorting confessions by torture is only a matter of working methods, and problems are also "work mistakes" and "doing bad things with good intentions." Even if it causes serious consequences and violates the criminal law, it is also called "duty crime" and tries its best to excuse it. It is precisely because of this umbrella that some case handlers are even more unscrupulous, completely ignoring the rights and interests of criminal suspects, resulting in serious consequences of death and serious injuries.
Secondly, extorting confessions by torture violates the principles of a series of basic value goals in modern criminal proceedings.
First, extorting a confession by torture damages the value goal of due process. For a long time, China has always attached importance to the entity and neglected the procedure, but the long-term judicial practice has exposed the serious drawbacks of this concept. Modern criminal procedure theory puts forward that substantive truth and due process are the dual value goals pursued by criminal procedure system. The core idea of due process is to restrict state power, bring the activities of state organs and their staff into legal orbit, and follow due and reasonable legal procedures to prevent the abuse of state judicial power and protect the basic human rights of criminal suspects and defendants. Extorting confessions by torture, as a brutal and cruel litigation method, violates the requirements of due process concept by obtaining evidence at the expense of violating the basic human rights of criminal suspects and defendants. Even from the perspective of substantive truth, extorting confessions by torture may sometimes help to discover the substantive truth, but at the expense of due process, the law may lose its majesty, and people will gradually lose their faith in the law and stop seeking legal protection, thus shaking the foundation of the legal system.
Second, extorting a confession by torture is not conducive to substantive truth. In judicial practice, there are preconditions and conditions for extorting a confession by torture to discover the substantive truth, which depends on two preset preconditions and conditions. First, the criminal suspect who is the object of extorting a confession by torture is the real criminal in this case; Second, the confession made by a criminal suspect under torture must be objective and true. [8] In theory, with these two conditions, it is possible to discover the entity truth and thus crack down on crime. However, the current mechanism cannot ensure the realization of these two preconditions and conditions. From the perspective of investigation mechanism, the object of investigation power is only a criminal suspect, not necessarily a real criminal; The result of the operation of investigation power is not only to find out the case, catch the criminal, but also to exclude the suspect's criminal suspicion, so it is impossible to guarantee that all suspects are real criminals. In judicial practice, once the suspect is not a real criminal, extorting a confession by torture can only be a confession, resulting in unjust, false and wrong cases.
Third, extorting confessions by torture violates the principle of presumption of innocence. The principle of presumption of innocence requires criminal suspects and defendants to be presumed innocent before conviction, the prosecution bears the burden of proof, the prosecution and the defense are in an equal position, and the judge remains neutral in the trial, thus setting up the status relationship among the three parties in criminal proceedings, as well as the division and limitation of the rights protection and judicial power of criminal suspects and defendants. Its proceedings are conducted in an objective and rational spirit, and its fairness is self-evident. Extorting confessions by torture is inevitably related to the presumption of guilt under feudal judicial proceedings, and it has a fundamental conflict with the principle of presumption of innocence in content and spirit. In essence, extorting a confession by torture is that the state procuratorial organs and their staff force criminal suspects and defendants to make guilty confessions through extorting a confession by torture as evidence to prove the defendant's guilt. This is actually forcing the defendant to prove his guilt and imposing the burden of proof on the defendant, which violates the basic requirements of the liability rule of the presumption of innocence.
Fourth, extorting a confession by torture may shake the authority of the law. The realization of legal value lies in the concrete application of law in real society. A law, no matter how perfect, will always be a pile of waste paper if it is not supported and enforced. The key to the implementation of law lies in citizens' belief in the supremacy of law and their great trust in law. In order for citizens to establish such beliefs, the law should take the protection of civil rights as the starting point. The operation of law includes legislation, law enforcement and justice, with emphasis on law enforcement and justice. Extorting confessions by torture has seriously violated the personal rights of criminal suspects and defendants, which may make them lose their trust in the law and cause serious consequences in society. It may also make people around the criminal suspect doubt whether the law can protect themselves and think that "it is better to flatter law enforcers than to believe in the law". Once the supremacy of law is lost, there is no authority at all, so the law will eventually become a dead letter.
(C) the reasons for the repeated prohibition of extorting confessions by torture
Modern countries ruled by law have explicit provisions prohibiting extorting confessions by torture, and our laws are no exception. However, the phenomenon of extorting confessions by torture still exists in China to varying degrees. The reason for this is the following：
1, legal system
First, the obligation to "answer truthfully" is unreasonable. Article 93 of China's current criminal procedure law stipulates that criminal suspects should truthfully answer the inquiries of investigators. This sentence clearly stipulates that the criminal suspect has the obligation to "truthfully answer", which also means that he will bear corresponding responsibilities if he does not "truthfully answer". But the premise of "truthful answer" is that the suspect speaks, and how to make him speak is a problem in itself. Even if the suspect answers the investigator's question, he is faced with the question of whether his answer is "truthful". What are the criteria and basis for judging "truth" and who will make the judgment? If the investigator thinks that he didn't answer or that his answer is not "truthful" and he didn't fulfill the obligation of "truthful" answer, does it mean that he must bear the responsibility of the so-called unfulfilled obligation and be punished accordingly? Does this mean that investigators can use extreme means to force criminal suspects to tell the truth?
The proviso in Article 93 of the Criminal Procedure Law stipulates: However, you have the right to refuse to answer questions irrelevant to this case. The criminal suspect seems to enjoy a certain right to silence, which is a right to the so-called "truthful answer" obligation. However, the law does not clearly stipulate what the question is "irrelevant to this case", nor does it stipulate who will confirm it, the investigator or the interrogated person? Unfortunately, this is not the case. Investigators always try their best to make their questions "relevant" to the case, and interrogators still have to abide by the obligation of "truthfully answering". It can be seen that this "proviso" has not only failed to protect the rights of criminal suspects, but has become one of the high-sounding legal basis for investigators.
Second, the supervision of investigation activities is weak. The law stipulates that the people's procuratorate has the right to supervise the legality of investigation activities, but the investigation measures of the investigation organs are mostly decided by themselves, and the law does not stipulate that the procuratorate can send personnel to be present during the investigation. Therefore, the so-called supervision of procuratorial organs is extremely ineffective. In the cases handled by the procuratorate itself, its investigation power is stronger. For criminal suspects who need to be arrested, the procuratorate may decide to arrest them without the consent of any organ. At the same time, in order to reduce interference from all sides and ensure the smooth progress of investigation and prosecution, the media are not allowed to report on investigation activities. Even privileged lawyers, in our country, suspects not only have no right to be present during interrogation, but also have no freedom to meet suspects. [9] Therefore, the whole interrogation process was completed in secret. Outsiders don't know whether the suspect has been tortured to extract a confession. However, even if the criminal suspect who was tortured was found to retract his confession on the spot in court, it was difficult for him to provide evidence to prove it. In the end, the judicial organ decided that the confession made by the suspect in the investigation organ was legal and valid on the grounds of insufficient evidence (although it was not the case), so as to make a judgment on the suspect. This objectively provides favorable conditions for the occurrence of extorting a confession by torture and emboldens those who extort a confession by torture.
Third, the evidence system is not perfect. Confession has the characteristics of easy access and high proof value, and has always been called "the king of evidence". A true confession is undoubtedly excellent evidence. In the absence of other important evidence, the role and significance of confession are even more significant. Not only does it solve the problem that criminal suspects deny crimes, but investigators can also get other clues from their confessions, and then find other evidence to form a complete chain of evidence. Because of this, the confession won the "love" of the investigators. What if the suspect refuses to confess if he wants to get a confession? "Under the four questions, there will be brave people; Under severe punishment, I have to be embarrassed. "
In this regard, Article 46 of China's Criminal Procedure Law clearly stipulates that all cases should focus on evidence, investigation and study, and do not trust confessions for sentencing. If only the defendant confessed and there was no other evidence, the defendant could not be found guilty and punished. Lawmakers hope to reduce their dependence on confessions when handling cases, thus reducing confessions by torture. However, this provision is actually not perfect. Confession always exists in written form, which does not really reflect whether the suspect was tortured to extract a confession. Moreover, the law of our country does not stipulate that the evidence obtained by torture is invalid, so investigators can obtain other evidence materials through the specific criminal circumstances in the confession. In this way, the confession and other evidence confirm each other and form a complete chain of evidence, which can also convict the suspect.
2. Understand the concept.
First, the historical burden is heavy. In the long history, China has always taken the road of attaching importance to human rights, and the phenomenon of extorting confessions by torture has long been legal. Even Bao Qingtian and Bao Zheng regard torture as a housekeeping tool, and always "extort confessions by torture to serve", claiming that "there is no need for torture and no real repentance". After liberation, although the law prohibits extorting confessions by torture, the idea of extorting confessions by torture still exists and affects people's thoughts and lives. The existence of this misconception is largely due to the fact that there has always been a concept of emphasizing entity over procedure in China. Although it is still inconclusive which is more important, the words of Wan Exiang, vice president of the Supreme People's Court, are still worth learning from. He said: "Procedural justice is the goal pursued by the judiciary. Procedure is the rule of the game in litigation. Only litigation conducted in accordance with procedures is a lawsuit in the legal sense. "
Second, the legal concept of judicial staff is weak. Some people think that extorting a confession by torture has its unreasonable side, but it is conducive to finding out the facts of the crime, excavating the remaining crimes and objectively improving the efficiency of investigation. However, criminal proceedings must be based on justice, rather than blindly pursuing efficiency. There is also a misunderstanding that it is completely reasonable for a person who commits a criminal act not only to violate the criminal law, but also to refuse to confess and extort a confession by torture, but this thinking completely ignores that criminals also have legal rights. Of course, criminal suspects should answer the questions of investigators truthfully, but if this is used as an excuse to extort confessions from criminal suspects by torture at this time, it will not only violate the humanitarian spirit, but also shake the normative basis on which the law depends and make people shake the authority of the country.
Third, the concept of human rights and human rights protection is weak. In the slave society and feudal society that lasted for thousands of years, China's concept of human rights and awareness of human rights protection were weak. China's recognition and acceptance of human rights and the concept of human rights protection is not long, and the research, publicity and education of human rights theory and practice are not long. In the first 10 and the last 20 years after the founding of New China, it was isolated from the international community for a long time due to the outrageous resistance and blockade of western powers. This kind of international environment and external situation is particularly likely to arouse China people's nationalist sentiment of self-protection. Coupled with the ideological reasons of dogmatism, the people of China, the political forces leading the country and the state power system have always maintained necessary and even high vigilance against the human rights values of western countries, including the West. As a national consciousness and legal culture, it is impossible to completely change and form a profound concept of human rights and the pattern of human rights protection in a short time in the absence of a historical foundation in China.
In short, the phenomenon of extorting confessions by torture has existed for a long time in the long history of human social development because people do not realize its harm to the overall development of society. Because there are only a few unjust, false and misjudged cases caused by extorting confessions by torture, their feelings and voices are often overwhelmed without affecting the overall situation. However, with more and more attention paid to individual rights and social values, and law becoming the main means to adjust political life and economic life, people's way of thinking will inevitably change fundamentally; Out of trust in the law and the pursuit of justice, people will not only ignore the infringed rights of a few people, but also consider how to protect their rights in the same situation. We must see that the consequences of extorting a confession by torture will be unimaginable. Extorting confessions by torture not only violates the personal rights of criminal suspects, but also violates the foundation of national legal system construction. In today's civilized human society, the phenomenon of extorting confessions by torture has become a serious obstacle to undermining judicial justice and infringing on human rights, thus affecting the overall situation of governing the country according to law and even the development of the whole society.
Third, the perfection of the protection mechanism of criminal suspects' rights
China has made great efforts to protect the human rights of criminal suspects and defendants: it has signed a series of relevant international conventions and strengthened cooperation with the international community [10]; Domestic legislation has been strengthened, such as clearly stipulating "the basic rights and obligations of citizens" in the constitution; The Criminal Law stipulates the crime of extorting confessions by torture; The revised Criminal Procedure Law has expanded the scope of lawyers' participation in criminal proceedings. Law enforcement supervision and public opinion supervision have been strengthened. However, from the repeated phenomenon of extorting confessions by torture in judicial practice, it can be seen that there are still great deficiencies and defects in the protection of the rights of criminal suspects, and more efforts are needed. From the background analysis, there are both the imperfection of the current litigation system and the negative influence of the traditional litigation concept. In this regard, improving the protection mechanism of criminal suspects' rights can start from two aspects: system improvement and concept renewal.
(A) the system is perfect
First, establish the principle of "refusing to force self-incrimination" and the limited rules of "the right to silence". The privilege of refusing to force yourself to blame originated from the "defendant talk" mode in the American colonial period. In this mode, the intervention of lawyers and the testimony of defense witnesses are greatly restricted. With the intensification of the conflict between the colonies and the British Empire, the colonial people began to demand the right to be tried by an impartial jury and other common law rights. "The privilege of not being forced to testify against oneself" was written into the constitutions or human rights declarations of the States before the independence of the United States. [1 1] A criminal suspect enjoys the privilege of not being forced to testify against himself, mainly to prevent the danger that what a person says may be used as evidence in criminal proceedings. The right to silence system is an extension of this system.
"The right to silence means that in criminal proceedings, criminal suspects or defendants have the right to remain silent about the interrogation of judicial personnel, including police, prosecutors and judges, and not to prove their guilt [12]." It is very necessary to establish this system in China, because (1) is the need to further promote democracy and justice in criminal procedure in China. Compared with the criminal procedure law promulgated by 1979 in July, the criminal procedure law revised by 1977 in March has more democratic and fair contents. For example, it is stipulated that the right to conviction shall be uniformly exercised by the people's court; Absorbed the content of the principle of presumption of innocence; The system of exemption from prosecution was abolished; It stipulates that lawyers have the right to intervene in the investigation stage; To stipulate the basic prosecution and defense in the trial. However, with the deepening of governing the country according to law and building a socialist country ruled by law, criminal proceedings are further democratized and fair, and it is imperative to protect criminal suspects' litigation rights and give them the right to silence. (2) It meets the needs of the trend of democratization of litigation in the world. In today's world, the continuous development of democratization of criminal procedure has gradually become a major trend, and giving criminal suspects the right to silence is one of the important contents. In order to conform to the development trend of democratization of litigation, China should also gradually establish the principle that criminal suspects have the right to silence according to the actual situation of justice in China and its advantages and disadvantages. Of course, everything has advantages and disadvantages, so when introducing the principle of "right to silence", we should limit it to some extent and give full play to its advantages.
Second, establish an early warning system similar to Miranda rule. Miranda rule, also known as Miranda warning, is an important procedural rule for police to interrogate criminal suspects, and it is also an extension of the privilege of opposing forced self-incrimination. According to the Miranda rule, before being detained for questioning, you must tell the suspect: (1) You have the right to remain silent; (2) Anything you say will and can be used as evidence against you in court; (3) Have the right to have a lawyer present during interrogation; If you can't afford a lawyer, we can assign a lawyer for you free of charge to help you during the trial. [13] The first sentence is to establish the criminal suspect's right to silence. Affirming the right to silence will cut off the inevitable connection between confession and case, and urge investigators to stop blindly pursuing confession and actively seek other evidence, thus reducing the occurrence of similar phenomena of extorting confessions by torture and protecting the basic human rights of criminal suspects. The second sentence is a warning to the suspect and a supplement to the right to silence. The third sentence stipulates that lawyers have the right to be present during interrogation. The first paragraph of Article 96 of China's Criminal Procedure Law stipulates: "A criminal suspect may hire a lawyer to provide him with legal advice, complaints and accusations after being interrogated for the first time by the investigation organ or from the date when compulsory measures are taken." However, it does not stipulate that lawyers have the right to be present at the trial. Because there is a big gap between the criminal suspect and the investigation organ in litigation status and strength, if the criminal suspect is allowed to face the investigation organ alone, it is easy to be forced by the investigation organ, including extorting a confession by torture. Lawyers are familiar with the law and know the rights and obligations of criminal suspects, and can provide legal assistance to criminal suspects; At the same time, lawyers should be aware of the rights and obligations of the investigation organs, and be present at the interrogation to supervise the investigation activities of investigators to prevent the investigation organs from extorting confessions by torture. The fourth sentence is a supplement to getting help from a lawyer.
In judicial practice, many criminal suspects are not clear about their rights, or even ignorant. The establishment of such an early warning system can avoid this phenomenon to some extent. Only when a criminal suspect knows what kind of rights he enjoys can he make better use of these rights and protect himself better. Therefore, it is necessary to implement this system today when the rule of law is emphasized and human rights are paid more and more attention.
Third, guarantee the lawyer's right to meet and establish the lawyer's presence system. The right to meet a lawyer is the most basic right of a criminal suspect in custody. Through the meeting, lawyers can learn about the case from the criminal suspect, know whether the criminal suspect has been treated improperly by the investigation organ, and provide legal advice. This is the basis for lawyers to play their defense function in the process of litigation. Article 96 of China's Criminal Procedure Law stipulates that the hired lawyer has the right to meet the criminal suspect after the first interrogation or since the date of taking compulsory measures. Article 1 1 of the Provisions on Several Issues Concerning the Implementation of the Criminal Procedure Law of six ministries and commissions also stipulates the shortest time limit for lawyers to meet criminal suspects in the investigation stage, and states that "for cases that do not involve state secrets, lawyers do not need to obtain approval to meet criminal suspects". However, according to the needs of the department, the investigation organ made an interpretation of the meaning and logical structure of the legal provisions that violated the original intention of the legislation. For example, the law clearly stipulates that lawyers meet with criminal suspects, except for cases involving state secrets, which do not need approval, but must be approved; The minimum time limit of 48 hours is implemented as an exclusion clause and so on. In addition, China's criminal procedure law stipulates that when a lawyer meets a criminal suspect, the investigation organ decides whether to send a staff member to the scene. In judicial practice, the investigation organ has fully expanded and explained this legal provision. The presence of staff becomes a prerequisite for lawyers to meet. According to the internal regulations of the investigation organ, personnel must be sent to the scene, and other personnel are not familiar with the case. Because of the particularity of the people present, meeting with lawyers must focus on the undertaker. When the undertaker claims to be "busy", the lawyer can't realize the right to meet. Late meetings are actually unnecessary, and lawyers' meetings are useless. Investigators arranged interviews in spite of their busy schedules, warned in advance and asked questions afterwards, which made the conversation between the suspect and the lawyer without confidentiality, which made the suspect's psychological burden overweight and seriously affected his communication with the lawyer.
Therefore, it is suggested that China's legislation should make it clear that investigators should "see but not hear" when they are present, which can not only prevent the dangerous behavior of criminal suspects, but also ensure their safe conversation with lawyers [14]. The lawyer's right to meet the criminal suspect is a basic and guaranteed right for lawyers to really play their defense function in the investigation stage, and it is also the premise for lawyers to carry out other litigation activities. This kind of interview can only be meaningful if it is confidential, and the current legislation and its implementation on the presence of investigators have greatly weakened the role that lawyers should play in the interview. What's more, some local investigation organs conduct secret surveillance by means of audio and video recording without notifying lawyers. This practice seriously violates the right of secret communication between lawyers and criminal suspects and should be explicitly prohibited. In short, there are fewer and fewer restrictions on the right to meet by law, which should be the future development trend, especially the confidentiality of meetings, which must be recognized by law.
Fourth, improve the evidence system and establish the rules of arbitrariness of confession and exclusion of illegal evidence. If litigants want to protect their substantive rights and interests, they must prove their claims with evidence. If there is no evidence to support their claims, they will not be protected by law and their legitimate rights and interests will not be guaranteed. The role of evidence in protecting the rights of the parties is mainly manifested in the role of evidence rules, that is, on the one hand, the parties can exercise their rights to collect, use and examine evidence through reasonable rules of proof and cross-examination, on the other hand, the judicial personnel can be prevented from abusing their powers to infringe on the legitimate rights of the parties through strict rules of evidence exclusion. It is generally believed that the confessions of criminal suspects and defendants are only the product of their free will, which is "voluntary" and acceptable. The rule of illegal evidence is the principle of "fruit of poisonous tree" in the United States. The principle of "fruit of poisonous tree" was established in the case of 1920 silvetorne v. the United States. In the judgment of this case, the court pointed out that the illegally obtained evidence should not be used to obtain other evidence, because the initially illegally obtained evidence has corroded and polluted all other evidence obtained later. [15] There is no relevant provision of "exclusionary rule of illegal evidence" in China's criminal procedure law, only article 6 1 of the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of the Criminal Procedure Law of People's Republic of China (PRC) stipulates: "It is strictly forbidden to collect evidence by illegal means. Witnesses' testimony, victim's statements and defendant's statements obtained by extorting a confession by torture or by threatening, luring or cheating, etc., cannot be used as the basis for finalizing the case. "This makes up for the shortcomings of the current criminal procedure law to a certain extent. However, as a basic principle of evidence involving the protection of citizens' major rights and interests, it is stipulated by judicial organs in the form of judicial interpretation, and its legitimacy is questionable. It fundamentally violates the spirit and requirements of the principle of procedural legitimacy generally followed by modern countries ruled by law. Therefore, based on the requirements of procedural standardization, the rules of arbitrariness of confession and exclusion of illegal evidence should be established in criminal procedure legislation.
Fifth, establish the principle of inversion of burden of proof. In judicial practice, when the defendant recants his confession in court on the grounds of being tortured, the judge often asks: What is your evidence? In fact, the vast majority of defendants were accused.