The Privilege of Silence
How Should China Establish The Privilege of Silence System in Criminal Proceedings?
Wenxuan Ma
1. The origin and the connotations of the Privilege of Silence.
"Miranda warning" originated from a case heard by the U.S. Supreme Court in 1966: an 18-year-old girl was kidnapped and raped, she identified that it was Miranda who did that. The police interrogated Miranda and used his confession as the hearing testimony. After Miranda was convicted he appealed to the Supreme Court on the grounds that the police did not inform him of the right to remain silent, and his confession was concocted under pressure. He said that if he had been told to have a privilege of silence, he would have not made up that confession. After considering all the arguments, the United States Supreme Court ruled the Miranda confession invalid. Because of this jurisprudence, when arresting or interrogating suspects, the police need to say the "Miranda warning" first. This is how the privilege of silence was born in the judicial system.
The Privilege of Silence contains the following connotations: First, the suspect has no obligation to say words which might be detrimental to his/her own, the prosecution agencies or the courts can not use inhuman or degrading methods to force him to say; Second, the suspect has the right to always keep silent during the interrogation, and the judge can not make the adjudication against him/her because his/her silence; Third, before the suspect says the favorable or unfavorable word to him/her, he/she has the right to know the consequences of these words. And he/she must be voluntary to say. If the suspect was forced to speak, the court cannot use these words as the evidence.
2. The Privilege of Silence in China
In China, the Privilege of Silence has not yet been established. This is inseparable with China's actual situation. In China’s judicial practice, on one hand, due to the comparatively poorly developed investigation technology, the testimony of the
Wenxuan Ma
1. The origin and the connotations of the Privilege of Silence.
"Miranda warning" originated from a case heard by the U.S. Supreme Court in 1966: an 18-year-old girl was kidnapped and raped, she identified that it was Miranda who did that. The police interrogated Miranda and used his confession as the hearing testimony. After Miranda was convicted he appealed to the Supreme Court on the grounds that the police did not inform him of the right to remain silent, and his confession was concocted under pressure. He said that if he had been told to have a privilege of silence, he would have not made up that confession. After considering all the arguments, the United States Supreme Court ruled the Miranda confession invalid. Because of this jurisprudence, when arresting or interrogating suspects, the police need to say the "Miranda warning" first. This is how the privilege of silence was born in the judicial system.
The Privilege of Silence contains the following connotations: First, the suspect has no obligation to say words which might be detrimental to his/her own, the prosecution agencies or the courts can not use inhuman or degrading methods to force him to say; Second, the suspect has the right to always keep silent during the interrogation, and the judge can not make the adjudication against him/her because his/her silence; Third, before the suspect says the favorable or unfavorable word to him/her, he/she has the right to know the consequences of these words. And he/she must be voluntary to say. If the suspect was forced to speak, the court cannot use these words as the evidence.
2. The Privilege of Silence in China
In China, the Privilege of Silence has not yet been established. This is inseparable with China's actual situation. In China’s judicial practice, on one hand, due to the comparatively poorly developed investigation technology, the testimony of the