Electronic Recording of Custodial Interrogations with Chinese Characteristics: Tool for Transparency or Torture?
2015 45(3) Hong Kong Law Journal
25 Pages Posted: 28 Oct 2015 Last revised: 4 Nov 2015
Date Written: October 26, 2015
Electronic recording of custodial interrogations has emerged as a significant technique to identify instances of police mistreatment of suspects and use of coercion during questioning, to evaluate the voluntariness of purported confessions and to prevent improper conduct by police throughout the world. China’s top-down policy of recording appears comprehensive and laudably transparent, but is combined with a procedural system that gives police and prosecutors virtually all control over recording and the recordings themselves, and a legal culture in which the courts and police see themselves as close working partners of prosecutors. The article traces the three stages in which electronic recording of custodial interrogation has developed in China, from a limited pilot phase of prosecutorial policy beginning in 2005, through its heightened significance after the 2010 adoption of new rules of evidence and its 2012 inclusion in the revised Rule of Criminal Procedure. Next, the article shows how procedural aspects of the Chinese criminal justice system undermine the effectiveness of recording as a means of preventing police misconduct. The article then surveys recent Chinese scholarship, including empirical work, which criticises the implementation of recording. Finally, drawing on this scholarship and its suggestions for reform, as well as prior scholarship arguing that the presence of counsel is necessary to fully enforce many of the procedural rights of Chinese criminal defendants, the article shows how recording will not be effective as a means of deterring torture and police misconduct without the mandatory physical presence of an attorney during custodial interrogations.
Keywords: Interrogation, Custodial, Confession, Recording, Torture, Coercion, Criminal
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