The Historical Origin of Self-incrimination

The rule of not being forced to testify against oneself originated in Britain, and people's struggle about this rule has gone through hundreds of years, which can be traced back to Britain 12 century. According to the research of Dr. Yi Yanyou from China University of Political Science and Law, after Norman conquered Britain in 1066, the state of disunity of British laws ended. In order to realize the centralization of judicial power, William asked the original judicial organs to conduct trials in the name of the king according to the king's writ to prevent the expansion of his power, and at the same time set up a "command meeting" composed of monks, nobles and senior officials. At first, it only exercised the highest judicial power when the peace of the king was seriously threatened and the local court could not meet the judicial requirements; Later, its judicial function was paid attention to, and a series of specialized agencies gradually separated from it to exercise royal judicial power, including the throne court, and the power of these courts was expanded. At that time, in Britain, the church was an influential political organization, and the church courts had "special" jurisdiction over disputes between believers, so disputes between believers could not be resorted to ordinary courts.

Under this inquisitorial procedure, the judge enjoys great power, while the suspect and the defendant do not enjoy any litigation rights. They are only the objects of trial and torture. At that time, the church court in England also designed a special oath procedure, requiring the defendant to answer all the questions against him truthfully. At that time, the defendant would not be informed of the specific contents of the charges against him, nor did he know what the evidence against him was, so under this procedure, no matter how he answered, he might be distorted to prove his guilt. If he refuses to take the oath or fails to provide universally accepted evidence, he will be convicted and punished; If he doesn't tell the truth, he will bear the risk of being convicted of perjury, so once the defendant enters the oath procedure, he is basically doomed.

At that time, the ordinary court used this as an excuse to oppose the church court. Judges of ordinary courts signed habeas corpus to oppose the lawsuit presided over by religious officials in order to resist the ultra vires behavior of church courts. Later, a series of written laws against the "oath procedure" were promulgated one after another, which to some extent also included the germination of the rule that self-incrimination should not be forced. Leonard Levy, an American expert on the rule of involuntary self-incrimination, also pointed out in his article "The Origin of the Fifth Amendment": "The rule of involuntary self-incrimination came into being in the struggle between two opposing criminal procedure systems. On the one hand, it supports the common law of civil rights and freedoms, and gradually forms and develops the right not to be forced to answer self-incrimination (the rule of not being forced to self-incriminate); On the other side is the Roman law tradition and the English church court that applies the interrogation system. Its law enforcers strongly oppose the rule that they should not be forced to testify against themselves. "

Later, with the rise of kingship, ordinary courts opposed the "oath procedure" of church courts, and developed their own interrogation procedures accordingly, including the use of interrogation oath, which is often reflected in the behavior of throne courts, constellation courts and high committees. These courts are directly controlled by the royal family, so they often use sworn questioning procedures to cater to the king's ideas. 1568, when the chief justice of the ordinary court of appeal granted a writ of habeas corpus to a person who was forced to take an oath, he was the first person to publicly oppose such an oath in the royal court and put forward a resounding slogan: "No one should be forced to testify against himself"-this became a famous saying that people are willing to praise when agreeing with the rule of not being forced to testify against themselves.

Later, when thomas carter, a Puritan, was accused of the crime of belief, he thought that swearing was an invasion of personal privacy, an invasion of personal conscience, or a violation of religious teachings. Soon, the common law and the British Magna Carta became the main reasons against the oath. James Mirrlees, a well-respected lawyer and parliamentarian, believes that the interrogation oath violates the common law rules and Article 29 of the Magna Carta, because it declares that criminal proceedings should be regulated by laws enacted by Parliament. Accordingly, in 1534, the British Parliament announced that oath was prohibited as a trial method, and at the same time, the law that allowed bishops of church courts to use interrogation techniques since 140 1 was abolished, which reflected the struggle between the British Parliament and the king.

In the end, the parliament won a preliminary victory. /kloc-At the beginning of the 7th century, British law developed in the direction of restricting the use of oath and interrogation procedures and confirming that it was not forced to testify against itself. Of course, this was also retaliated by the trial procedure, and the "Lilburne case" was thus produced. The basic situation of this case is: Li Erben, male, was accused of crimes many times in his life: the first time he was tried in the Constellation Court for political crimes in 1637, and the last time he was tried in the ordinary court for treason (starting from 1694). Li Erben's reputation mainly comes from his wonderful defense in the last trial, that is, he advocated that the defendant should get the help of the defense lawyer and that the jury should decide both facts and legal issues; The case related to the rule of not being forced to testify against himself was his first trial. In this trial, Li Erben was accused by the Constellation Court of allegedly importing inflammatory books into Britain. During the trial, Li Erben denied the accusation of the Constellation Court and demanded to confront the plaintiff face to face, refusing to take an oath or answer any "rude" questions, so as not to be hurt by answering such questions. Specifically, in this trial, Li Erben exercised the rule of not being forced to testify against himself in two places: first, in the "confession procedure", he declared: "According to English law, I will not answer any questions that are not conducive to me or about me"; The second time, when Judge Cabo, the presiding judge, asked him to read the handwriting, he refused to read the documents submitted by the prosecution, and once again insisted that he would not answer any questions, but asked the prosecution to prove his guilt first.

At that time, the Constellation Court not only refused to accept his request, but convicted him of contempt of court with 1639, put him in prison and gave him corporal punishment. When Li Erben was flogged, he preached the disadvantages of the interrogation procedure to a large group of people who sympathized with him. It was Li Erben's righteous attitude that won the sympathy and support of the people and turned public opinion to the side of parliament. In less than two years, Parliament came to power. In 164 1, Parliament declared the judgment of Lear's case illegal, abolished the Constellation Court and the High Committee, and prohibited the use of "oath ex officio" in criminal cases. Another year later, a delegation of 12 Anglican bishops sued the Puritan-controlled parliament and called on the king to protect their immunity in the House of Lords. In the trial of this case, he advocated the rule of not being forced to testify against himself. 1688, King James II sued seven bishops for disobeying his order to cancel all laws against extremism. In this case, the rule of not being forced to testify against oneself is firmly established in Britain.

Since 1688, Britain formally established the rule of not being forced to testify against oneself, the John jervis Act passed in 1848 stipulates that the suspect must be informed of the right to refuse to answer questions in the pretrial investigation procedure, and warned that his answers in the pretrial trial can be used as evidence against him in the trial; 1898 The British Criminal Evidence Act also stipulates that the defendant has the right not to be forced to provide evidence against himself during the trial; The Rules for Judges promulgated by 19 12 also reaffirmed that the police must inform the suspects of their right to remain silent before interrogating them, otherwise any statement made as a result will have no legal effect.

The "judge rules" here are neither laws nor precedents set by British judges. It is a procedural guide for interrogating criminal suspects made by the judge of the throne at the request of the police department, which is actually binding on the interrogation behavior of the police. 19 12 has only four rules, and 19 18 has added five rules. After 1930, there are many "supplementary notes". The "Rules for Judges" in 1964 has been completely revised and added together with the "Supplementary Notes". Among these "rules", there are rules about not being forced to testify against yourself. That is to say, the Rules for Judges had practical legal effect before the promulgation of the Law on Police and Criminal Application in Britain 1984, and there were a lot of provisions in the Rules for Judges about not being forced to testify against oneself.

In the United States, although it was originally a British colony, the formal establishment of the rule of not being forced to testify against oneself in the United States cannot be said to be entirely influenced by Britain. Because most of the first people who arrived in the American continent were Puritans or people sentenced by British courts, they had a personal understanding of their own situation and insisted on the rule of not forcing self-incrimination, which was also an important reason why the United States later made the rule of not forcing self-incrimination a constitutional principle.

Because the United States is a federal country, different states also have their own constitutions, so by the1780s, the constitutions of nine states had clearly stipulated the privilege of "not being forced to testify against oneself" (that is, the rule of not being forced to testify against oneself), although the Bill of Rights passed later clearly stipulated this. The Fifth Amendment of the American Constitution clearly stipulates that "anyone ... has the right not to be forced to testify against himself", and the later "Miranda rule" was developed from then on.

Later, the US Supreme Court explained this constitutional amendment through a series of cases. Its main contents are as follows: (1) This privilege only applies to criminal cases, including not only the substantive statements that lead to self-incrimination, but also all other evidence that may lead to self-incrimination; (2) Not only criminal suspects and defendants can claim this privilege, but also witnesses can claim this privilege; (3) This privilege can be claimed not only in the investigation procedure, but also in the trial process; (4) This privilege is limited to my own interests and cannot be extended to the interests of others; (5) This privilege only applies to natural persons, not to legal persons.

In addition, this constitutional right can also be applied in all states. According to Mr. Waltz's acceptance, a case in which the rule of not being forced to testify against oneself plays a key role in the application of the state is the case of malloy v. Hogan in 1964. In this case, malloy was previously convicted of gambling. After serving his sentence, he was summoned for questioning by the person entrusted by the court to investigate gambling activities. When the investigator asked questions about malloy's conviction, malloy refused to answer on the grounds that "this may be due to me", and the state court that appointed the investigator sentenced him for "contempt of court". Malloy refused to accept this and appealed to the Supreme Court. The Supreme Court of the United States finally overturned the judgment of the lower court, arguing that the questions asked by the investigators to malloy were related to the crimes he committed. If Ma answered, it would "probably constitute a link in the evidence chain that is enough to link (him) with the recent crimes, and he may still be prosecuted for the crimes"; At the same time, the Supreme Court also ruled that not only state courts should respect the privilege of the Fifth Amendment like federal courts, but also state courts should follow federal standards when applying this privilege. The Supreme Court described the "federal standard" as: "The privileges provided include not only those answers that support a guilty verdict ... but also those answers that will form part of the chain of evidence required for prosecution." It is through this precedent that the United States has established that the rule of not being forced to testify against itself can be applied to all States through due process stipulated in the 14th Amendment to the Federal Constitution.

In addition, this rule has been established in other common law countries. For example, Article 7 of the Charter of Rights and Freedoms adopted by Canada in 1982 stipulates that everyone shall have the right to life, personal freedom and security, and shall not be deprived of these rights unless it conforms to the principle of basic justice. Therefore, the case law of the Supreme Court of Canada holds that the right of police to remain silent during interrogation after arrest is one of the principles of "basic justice" stipulated in the Charter of Rights and Freedoms, and points out: "Perhaps the most important organizing principle in criminal proceedings is that the defendant shall not be forced to assist in the accusation against himself".

France belongs to a typical civil law country, and the rules on not being forced to testify against oneself in civil law countries show the pattern and characteristics with written code as the core. Specifically, France has traditionally pursued the inquisitorial litigation mode, which requires the criminal suspects and defendants to have the obligation to "truthfully state", otherwise the court may sentence them to "false statement punishment" or "disobedience punishment", and at that time, the judicial organs were explicitly given the right to extort confessions from the criminal suspects and defendants by torture. Although the law promulgated by France 1789 has abolished the requirement of interrogating the defendant under oath, the criminal law passed by France 1808 also stipulates that the court can take all measures to discover the truth and interrogate the defendant before trial and during the trial.

It was not until 1897 that France passed a new law, requiring the investigating judge to clearly inform the suspect of the rules that he should not be forced to testify against himself and the right to have a lawyer present when interrogating him. At present, it has become a principle of French criminal procedure not to be forced to testify against oneself. Apart from the identity of the accused, they are not obliged to answer questions from the police, prosecutors or investigating judges. The defendant can also keep silent during the trial according to his own wishes without fear of punishment. Articles 1 14, 1 16, 128 and 133 of the French Criminal Procedure Law, as amended by 1993, stipulate the relevant rules of not being forced to testify against oneself.

In Germany, 1994/kloc-0 was revised on October 28th, and 1994 came into effect on February 28th, based on the reflection on Nazi atrocities in World War II. In this chapter, then he should be told that he has the right to state the crime or not to state the case according to law, and he has the right to consult with the defender of his choice at any time, including before interrogation. In addition, he should be informed that he can apply for collecting some evidence in his favor. In this appropriate case, the defendant should also be informed that he can make a written statement. Thus, the strict obligation of "informing" that interrogators should adhere to when interrogating the defendant for the first time is established, such as informing the defendant of the reasons for being accused, the possible punishment, collecting some favorable evidence, etc. The most important thing is to inform the defendant of the right to state the charges or not to state the case.

German scholar Schmidt believes that in Germany, criminal suspects and defendants not only have the right to remain silent, but also have the right to lie without being investigated for criminal responsibility for perjury. For the rule of not being forced to testify against oneself, the German Criminal Procedure Law clearly stipulates the informing procedure of interrogators before asking questions. According to another German scholar's explanation, "If the interrogators don't give this warning, their statements can only be used as evidence if they can prove that the suspect knows this right", "The suspect can limit his willingness to answer questions, withdraw his answers, and even refuse to answer one or some specific questions"; During the court hearing, the presiding judge, after reviewing the defendant's personal situation, should inform him that he should not be forced to testify against himself, and then interrogate the defendant in court about the criminal facts. The defendant may refuse to answer every specific question, and the court shall not make adverse inferences against the defendant.

In Japan, Article 38 of the Constitution of Japan, which was enacted in 1946, stipulated that self-incrimination should not be forced, which was formulated under the pressure of the United States after the Second World War. Before that, the Japanese police had always been hostile to the provision of not forcing criminal suspects to testify against themselves, which was of course related to the legislative provisions at that time: Meiji Criminal Procedure Law of 1890, on the one hand, Taisho Criminal Procedure Law of 1922 stipulated that the defendant must be given the opportunity to state favorable facts, but it was not clearly stipulated that criminal suspects should not be forced to testify against themselves. The rule that you are not forced to testify against yourself now is not only embodied in the Japanese Constitution, but also clearly stipulated in the Japanese Criminal Procedure Law.

In addition, article 29 of the Dutch criminal procedure law stipulates that criminal suspects and defendants are not obliged to answer questions from police, prosecutors and judges. When the police have reasonable reasons to suspect that someone is guilty, they must inform him that they are "not obliged to answer questions" before interrogation. If the rights and interests of the criminal suspect are damaged by the police's failure to give a warning, or the criminal suspect is subjected to any improper pressure from the police office, the confession obtained from him shall not be used as evidence. Article 64 of Italy's new criminal procedure law stipulates: "Before interrogation, in addition to the provisions of Article 66, paragraph 1, the interrogated person shall be informed of the right not to answer questions." Article 6 1 of the Portuguese Criminal Procedure Law also stipulates that at any stage of criminal proceedings, the defendant has the right not to answer questions about the criminal facts accused of him or the contents of statements about these facts. A criminal suspect may refuse to answer questions about the facts of the alleged crime or make false answers, and shall not make unfavorable inferences because of his silence, nor shall he be investigated for criminal responsibility for making false statements. In addition, the Criminal Procedure Laws of Bulgaria, Poland, Yugoslavia and Taiwan Province Province, Hongkong and Macau all have provisions on the rule of not being forced to testify against oneself.