A Comparative View of the Law of Interrogation

Published date01 March 2007
Date01 March 2007
Subject MatterArticles
A Comparative View of the
Law of Interrogation
Yue Ma
John Jay College of Criminal Justice, New York
Forty years ago, when the U.S. Supreme Court fashioned the Miranda procedure to safeguard
the rights of suspects subject to police interrogation, the procedure and its exclusionary rem-
edy were considered an American novelty. Few countries then required the police to issue
preinterrogation warnings, and it was rare for courts to exclude confessions on the grounds of
procedural violations. The past forty years have seen significant changes in the criminal jus-
tice landscape on the world scene. Today, the concept of preinterrogation warnings is widely
accepted, and failure to issue the required warnings in many countries constitutes a ground for
exclusion. This article explores the development in the law of interrogation in England,
Canada, France, Germany, Russia, and China. The American Miranda procedure is used as a
reference point to highlight the similarities and differences between American and other coun-
tries’ practices.
Keywords: police interrogation; preinterrogation warnings; England; Canada; France;
Germany; Russia; China; United States
Police interrogation is recognized as an essential and accepted part of law enforcement
in all legal cultures. The recognition of the value of confessions, however, has been
accompanied by concerns over the factual accuracy of statements and the fairness of the
manner in which they are obtained. The police interrogation process has been a subject of
controversy in all civilized nations. The central issue is not whether the police should or
should not be permitted to interrogate but, rather, how to balance the public interest in
crime control against individual interest in freedom from police coercive tactics.
In both common-law and civil-law traditions, it has long been recognized that only vol-
untary confessions can be admitted as evidence. By the 18th century, British law settled on
the voluntariness test as the standard for admitting confessions. As the court, in King v.
Warickshall (1783), eloquently explained,
A free and voluntary confession is deserving of the highest credit, because it is presumed to
flow from the strongest sense of guilt, and therefore it is admitted as proof of the crime to
which it refers; but a confession forced from the mind by the flattery of hope, or by the torture
of fear, comes in so questionable a shape when it is to be considered as the evidence of guilt,
that no credit ought to be given to it; and therefore it is rejected. (p. 235)
On the European continent, despite the early sanction of the use of torture as a means of
obtaining confessions in the inquisitorial system, the use of coercion was outlawed in the
criminal procedure revolution that swept the European continent in the wake of the French
Revolution (Bar, 1916; Esmein, 1913; Merryman, 1985; Mueller & Poole-Griffiths, 1969).
International Criminal
Justice Review
Volume 17 Number 1
March 2007 5-26
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Research Foundation, Inc.
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The American courts for a long time followed the common-law voluntariness test in
determining confession admissibility. The courts, acting on a case-by-case analysis basis,
excluded confessions that were deemed unreliable and untrustworthy. To underscore the
importance of voluntariness standard, the U.S. Supreme Court in Brown v. Mississippi
(1936) afforded the voluntariness test a constitutional status under the Fourteenth
Amendment due process clause. In the 1960s, however, the U.S. Supreme Court signifi-
cantly modified its jurisprudence of confession law. Convinced that the voluntariness test
was insufficient to provide necessary protection for suspects, the U.S. Supreme Court in
Miranda v. Arizona (1966) established the Fifth Amendment as the basis for determining
admissibility of confessions. After analyzing various police interrogation tactics, the Court
concluded that the process of in-custody interrogation contains “inherently compelling pres-
sures which work to undermine the individual’s will to resist and to compel him to speak
where he would not otherwise do so freely.” The Court reasoned that “to combat these pres-
sures and to permit full opportunity to exercise the privilege against self-incrimination, the
accused must be adequately and effectively apprised of his rights and the exercise of those
rights be fully honored.” The Court thus fashioned the procedural safeguards that later
become known throughout the world as the Miranda warnings.
When the U.S. Supreme Court established the Miranda warnings, the procedure, coupled
with its exclusionary remedy, was considered an American novelty. Few countries then
required preinterrogation admonitions, and no countries backed up the admonition requirement
by a mandatory exclusionary rule. Before the Miranda warnings came into being, England for
several decades had required the police to caution an accused of the rights to silence and coun-
sel through the Judges’ Rules. But the Judges’ Rules were not legally binding on either the
police or the courts. They were merely administrative directives to help police administer jus-
tice in a fair manner (Berger, 1990; Cho, 1999; Devlin, 1958; Toney, 2002).
The U.S. Supreme Court then seemed to lead the way in expanding the procedural safe-
guards for suspects. The past 40 years, however, have witnessed significant changes in the
criminal justice landscape on the world scene. Most notably, there has been a trend in the
direction of setting more restrictive standards for police behavior and granting more rights
to suspects at the pretrial stages. This trend is evident especially in Western industrial
nations. An examination of the criminal procedure law of major Western nations reveals
that almost all of them now require some warnings to suspects prior to interrogation and
that many use an exclusionary rule to ensure the police compliance with the warning
requirement (Bradley, 1993, 1999; Hatchard, Huber, & Vogler, 1996; Thaman, 2001;
Van Den Wyngaert, 1993).
This article examines the law governing police interrogation and confession admissibility
in several countries. To highlight the differences and similarities between the American prac-
tice and that of other countries, the article uses the American Miranda procedure as a refer-
ence point. Comparison will be made, whenever possible, between American Miranda
procedure and other countries’ comparable procedures. To provide a balanced treatment
of countries that belong to different legal cultures, the article includes in its analyses two
common-law countries, two civil-law countries, and two countries whose legal systems have
recently undergone significant changes. The two common-law countries are England and
Canada. The two civil-law countries are France and Germany. And the two other countries are
Russia and China.
6 International Criminal Justice Review

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