The defendant's confession and justification were once regarded as the "king of evidence" in the criminal evidence system, and no matter how the criminal policy corrects the "supremacy of confession", the defendant's confession has always played an irreplaceable role in discovering the facts of the case, conviction and sentencing. Therefore, investigators strive to break through the confessions of criminal suspects, and even have a series of "investigative strategies", and some strategies will wander on the edge of law and morality, which must be taken seriously, and substantive justice cannot be obtained at the expense of procedural justice.
The defender believes that in the course of handling a criminal case, the following content should be emphasized in the review of the defendant's confession and justification:
1. The subject of interrogation
According to the Criminal Procedure Law, the interrogation of a criminal suspect must be conducted by investigators from the people's procuratorate or public security organ, and the number of investigators shall not be less than two during the interrogation. Requirements for the qualifications and number of interrogation subjects are the basic requirements for the legality of interrogation subjects. The subject of interrogation must be the people's police who have obtained a law enforcement certificate, and auxiliary police cannot be the subject of interrogation, otherwise they are suspected of procedural violations. If a police officer and an auxiliary police officer interrogate a criminal suspect, it is equivalent to an interrogation by a police officer, and the subject and number of people are not legal. When the defender reviews the interrogation record, he must check the identity of the interrogator, and at the beginning of the interrogation, the interrogator should also identify himself and present his or her documents, otherwise the procedure is illegal and the public security organ must make a reasonable explanation, and if a reasonable explanation cannot be made, an attempt may be made to exclude illegal evidence.
2. The place of interrogation
According to the Criminal Procedure Law, a criminal suspect should be sent to a detention center within 24 hours of detention, and the detention will be subject to all standardized procedures such as physical examination and monitoring, so as to better protect the rights and interests of the criminal suspect. In practice, there are generally the following types of interrogation locations: first, interrogation is conducted at the scene of the crime, at which point the interrogation is carried out immediately at the scene of arrest in order to apprehend the criminal suspect and avoid the destruction of evidence; Second, after the criminal suspect is detained and before he is sent to the detention center, the interrogation is usually conducted at the case handling center of the public security organ; third, interrogation in detention centers; Fourth, interrogation in a hospital when the suspect is injured or ill. In the first and second cases, there may be a possibility of illegal evidence collection due to interrogation outside the detention center; After being sent to the detention center, interrogation outside the detention center can only be done on the basis of physical condition, and interrogation outside the detention center cannot be carried out for reasons such as identifying the scene or seizing stolen goods. According to the principle of separation of residential and interrogation, interrogation should be conducted in the case handling center of the public security organ, so as to prevent the interrogation site from being used as the criminal suspect's living place in disguise. According to the "Opinions on the Prevention of Unjust, False and Wrongly Decided Cases", confessions obtained through interrogation outside the designated case-handling venue should be excluded. This provides a legal basis for criminal suspects, defendants, and defenders to apply for the exclusion of illegal evidence, and it is necessary to pay attention to the place of interrogation at this time.
3. Interrogation time
As for the interrogation time, the Criminal Law does not stipulate a specific interrogation time, and it also prohibits interrogation at night, but the Criminal Procedure Law's provisions on summons and summons ensure that criminal suspects have the necessary food and rest. The 2013 "Opinions on the Prevention of Unjust, False and Wrongly Decided Cases" stipulates that fatigue interrogation should not be exercised, but there is no unified standard for determining the criteria for fatigue interrogation, with some arguing that interrogation should be carried out for 8 hours continuously, some arguing that interrogation should be continuous for 12 hours, and some arguing that interrogation at night constitutes fatigue interrogation, etc. When such a situation is discovered, the defence lawyer should boldly apply for the interrogation of the suspected fatigue of the interrogation, which should be excluded. Defense lawyer ** has also successfully excluded the defendant's transcript more than a dozen times on the grounds of fatigue in interrogation. The interrogation time is not only an important clue in the legitimacy of the evidence, by comparing the time of the defendant's interrogation record with the time of the witness and the victim's record, we can roughly compare whether there is inducement or fraudulent confession, and when comparing the time of physical evidence and documentary evidence, we can roughly compare the "first confession and then evidence" or "first evidence and then confession", etc., and at the same time, there may also be interrogation questions of the same interrogator in different places at the same time, and there is also the interrogation time of three or four hours, if there are only two pages of interrogation records, then such a long time. Whether there are omissions or untruthful records, and whether there is illegal evidence collection of "ideological education"; Record five or six pages of questions in half an hour, whether the interrogator printed the transcript in advance for the suspect to sign, etc.;
IV. Safeguards for the right to interrogation
The protection of the right to interrogation can also be used as a guarantee of the legitimacy of the interrogation, and the time and place of the interrogation mentioned above are all regarded as rights protection, but this only refers to whether there is a need for auxiliary personnel to be present during the interrogation, such as the interrogation of a deaf-mute person or a person who does not understand the local common language, and the corresponding auxiliary personnel should be present; When interrogating minors, there should be a legal ** person present, etc.; At the same time, the defendant should also be informed of his rights and obligations during the first interrogation.
5. Methods of interrogation
During interrogation, they should be interrogated separately to prevent collusion; During interrogation, evidence must not be obtained by illegal methods such as extorting confessions by torture, freezing, starvation, sunburning, roasting, or fatigue, and interrogation must not be conducted by means such as threats, inducements, or deception. The use of blatant torture has been greatly reduced, but it is still not to be taken lightly; Covert torture is likely to continue to be extensive. At this time, the entire process of interrogation should be carefully verified with the suspect when reviewing the transcript and meeting with them. As for threats, seduction, deception, etc., they are still in a state of chaos with the investigation strategy, and common threats include "if you don't admit guilt, arrest your lover" and "if you don't admit guilt, go to school to find your son who is in high school"; Common temptations include "as long as you confess, you can be released on bail", "you can go home if you say so", etc.; Common deceptions include "you still don't admit it, your accomplices have already admitted it", "someone saw it at the time and has identified you", and so on. Investigative strategies are indeed necessary to crack down on crime, but they must be regulated, especially methods of collecting evidence that clearly cause mental anguish to defendants and criminal suspects, and should be prohibited, and their mouths should be excluded.
In addition to the above-mentioned aspects, it is also necessary to see whether there is a criminal suspect's signature in the record, whether it has been confirmed by the criminal suspect, whether the starting time is consistent with the actual situation, whether the record is highly consistent with the front and back of the record, whether there is a retraction of the confession, whether all of them are transferred, whether the interrogators have signed, whether the confession is corroborated with other evidence in the case, and so on. A good lawyer must conscientiously study theories, so that he can have a strategic height, especially in the discussion of difficult cases, and will be a step ahead; It is necessary to study the laws and regulations carefully, so that they can be justified, and the law is the best for lawyers; It is necessary to carefully study the classic cases, so that we can discover the ideas of accusation and trial, and know ourselves and the enemy; It is necessary to handle a large number of cases in person, accumulate experience in practice, and good lawyers are simmered with cases.