19 12, the British "Judges Law 19 12" expressly stipulates the right to silence. Influenced by English law, Article 5 of the American Constitution Amendment 1789 clearly stipulates the privilege of opposing forced self-incrimination. It stipulates that "in any criminal case, no one shall be forced to prove his guilt". Germany, Japan and other civil law countries have finally been determined by the criminal procedure law, and directly stipulated the rules of the right to silence in their legislation. For example, Article 38 of the Japanese Constitution stipulates: "No one shall be forced to make statements against himself". Article 198 (2) of the Criminal Procedure Law stipulates: "When conducting the investigation mentioned in the preceding paragraph, the criminal suspect should be warned that it is unnecessary to make a confession that goes against his own consciousness." With the efforts of the United Nations to establish and promote the internationalization of criminal justice, especially the minimum standards of human rights protection in the field of criminal justice, ① the right to silence has been confirmed by United Nations documents.
There are famous cases about the right to silence in history, such as Shirur v. Williams and Miranda's suggestion, especially Miranda v. Arizona in 1966, which is of great significance. It can be said that this case has a milestone role in the final establishment of the right to silence system. The case happened in March, 1963. A woman in Arizona was raped by a man. After about 10 minutes, the victim was released. After the victim's accusation and description, the police arrested Miranda. During the trial, Miranda confessed her rape and signed the confession. On this basis, Miranda was convicted of kidnapping and rape, but later Miranda thought that she was forced to confess under the circumstances at that time. The Supreme Court of the United States agreed with the defendant that the atmosphere during the trial and the psychological means used by the interrogators prevented the defendant from being physically forced, but this was not a true expression of his will. Subsequently, the court stipulated that the detainee must be informed of the following matters: he has the right to remain silent and not answer questions; Anything he says may be used as evidence against him in court; He has the right to consult a lawyer and have a lawyer present at the trial; If he can't afford a lawyer, he has the right to be represented by an appointed lawyer free of charge. The above provisions are the content of the right to silence in modern western countries.
China also had the practice of the right to silence, but it appeared in local laws and regulations. In August, 2000, the People's Procuratorate of Shuncheng District, Fushun City, Liaoning Province took the lead in introducing the system of "zero confession" in China, that is, the guilty confession of a criminal suspect arrested by the investigation organ was temporarily regarded as nothing, and whether he was suspected of committing a crime was mainly demonstrated by reviewing other evidence. During this period, the suspect enjoys the right to silence. For a time, major media rushed to report, and some public opinions strongly called for the rapid popularization of the "right to silence" in the work of judicial organs, which could be in line with international standards. Many scholars also began to study the feasibility of implementation in China.
Contrary to the scholars who call on China to implement the right to silence as soon as possible, some scholars believe that the right to silence does not apply to China, because for innocent people, the right to silence is a related weapon to resist extorting confessions by torture. For real criminals, the right to silence may also become a "life-saving straw" for them to cope with interrogation and investigation. They also have several reasons to point out that the right to silence is not suitable for implementation in China:
Waste of police force, affecting the detection of cases. In recent years, the crime rate in China is on the rise. If the suspect is given the right to remain silent, then he may use this right to fight tenaciously. If the suspect refuses to cooperate and remains silent within 24 hours of detention, it will be difficult to find out the case and waste police resources;
Second, China's investigation technology and equipment are generally backward. If criminal suspects and defendants are given the right to remain silent, the result is that they will abuse this right, which is not conducive to cracking down on crime.
Third, some scholars believe that the right to silence does not conform to the principle of "being lenient in confession and being strict in resistance" in China.
The right to silence is an important content of presumption of innocence. The presumption of innocence is put forward by the bourgeoisie against the presumption of guilt in feudal autocratic criminal proceedings. ④ The idea of presumption of innocence was first put forward by the famous Italian jurist Beccaria in the mid-8th century. He pointed out: "Before the judge decides, a person cannot be called a crime. As long as it cannot be concluded that he violated the contract that gave him public protection, society cannot cancel his public protection. "
The right to silence is a specific requirement and measure to protect the defendant's litigation rights in order to implement the principle of presumption of innocence in many western countries' laws and international conventions. The important contents include that the defendant has the right to refuse to state, and the prosecution can neither force the defendant to prove his guilt nor convict him because of his silence.
However, China's legal system construction has only been on the right track for more than 20 years, and it has absorbed a lot of modern legal thoughts and advanced practical means from western countries in all aspects. However, the right to silence has not yet been incorporated into our legal system. I think there are the following reasons: first, influenced by our traditional ideas and national thinking habits, China is a country that has long implemented the obligation standard, and citizens generally hold a fear of state organs and adopt an attitude of avoidance, tolerance and obedience. Second, China's economic system and political system, China is a socialist country, emphasizing individual rights under the overall interests of the country. At present, China is in the primary stage of society and in the process of transforming the old and new economic systems, so the crime rate has increased, while China's legal system is still not perfect, and the conditions for criminal investigation are still very backward compared with western countries; Third, the torture rule of "confessing leniently and resisting severely" has been deeply rooted in China's criminal organs.
The right to silence is a natural right, a right to "not speak" and a right to presumption of innocence. The right to silence is a basic human right and one of the standards of a country's legal civilization. It can be said that it is a direction of the development of modern legal system, and the provision of the right to silence provides a strong guarantee for preventing the phenomenon of extorting confessions by torture in the trial process. The emergence of the right to silence guarantees the personal rights of criminal suspects in the interrogation stage, and urges investigators not to rely too much on confessions, but to actively seek and collect evidence to solve the case. Some scholars have raised objections to the opposition to the introduction. They believe that, firstly, although extorting confessions by torture is strictly prohibited in China's criminal law and criminal procedure law, it is an indisputable fact that extorting confessions by torture is prohibited in China at present, and using the right to silence from the litigation mechanism is the most effective way to stop extorting confessions by torture; Two, so far, there is no sufficient evidence to show that giving criminal suspects and defendants the right to remain silent is bound to be detrimental to the fight against crime.
It is only a matter of time before the right to silence is introduced into China as a system in line with modern democratic and legal thoughts. However, while seeing the positive role of the right to silence, we should also think of some negative roles it plays in judicial trials, so as to better introduce this system in view of the situation of "acclimatization" in China.