Sun, May 13, 2001 page8

• Forced confessions a danger for all

  • By Brian Kennedy
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  "Since there is no guarantee that the confessions were extracted lawfully, I have decided to deny the legality of the confessions, which I believe will help to correct this common but unlawful practice of evidence gathering." Those words are from Taipei District Court Judge Yeh Chien-ting's (葉建廷) recent ruling that excluded a confession that the judge felt had been involuntary (April 11, p.2).

  Yeh is to be highly commended on his attention to civil liberties and basic human rights. It is a courageous step in the right direction for a judge to directly rule against the police and although this is not the first confession ever excluded, hopefully it will not be the last. Judges in Taiwan need to follow Yeh's example of taking a closer look at the validity of confessions prior to admitting them into evidence.

  This particular case, which involved automobile theft, and the exclusion of the confession raises the issues of what are the purposes of an exclusionary rule and what criteria should judges look for in determining voluntariness. For the public to accept the introduction of exclusionary rules it is important to make the purposes and criteria of the rules clear to the public. To fail to do so may lead the public to feel that the exclusionary rules serve no end other than letting the guilty go free. In fact, exclusionary rules serve as fundamental guardians of all peoples' civil liberties.

  As to the direct purpose of the exclusionary rules, the California Peace Officers Legal Guide puts it succinctly "The exclusionary rule was created by the Supreme Court to encourage proper police conduct." This purpose is certainly what Yeh had in mind when he spoke of "helping to correct this common but unlawful practice."

  In line with this the exclusionary rule can be viewed as a "penalty" against the police for illegal procedures. Although as a practical matter here in Taiwan, it may not be much of a "penalty." The reason being, the system under which police get "credit" for promotions is based simply on arrest. What happens after the case is forwarded to the prosecutors' office is completely irrelevant to the police officer's "career climb."

  Crudely put, the name of the game for local cops is "arrest somebody, get a confession, send the file to the prosecutors office, case closed, bonus points earned." Whatever happens after that, the cops could care less. Obviously for the exclusionary rule to have its full impact the system by which police earn credit for cases must change.

  Having said that, the exclusion of involuntary confessions hopefully will send a signal to the National Police Administration that the courts will not accept "heavy handed" police practices. Whether the NPA cares what the courts think remains to be seen.

  In addition to serving, to a lesser or greater extent, as a carrot and stick to encourage proper police procedures, the exclusionary rule, particularly with regard to confessions, serves other purposes.

  Involuntary confessions are by their very nature untrustworthy. A suspect being coerced by the cops will say anything the cops want to hear. If this manufactured confession becomes the central piece of evidence that the court considers, as it often is in Taiwan, then on a very basic level the court is not getting the truth. What the court is getting out of a forced confession is simply what the cops wanted the suspect to say. A conviction based on an untrustworthy confession is not justice because it is not the truth. It is what the cops happened to find expedient at the time. The public ought to hope for a criminal justice system that finds at least an approximation of the truth. Untrustworthy confessions make this impossible and thus subvert one of the fundamental goals of any criminal justice system.

  There are two reasons why the public should care about this. The first is the basic moral reason that the public should want its criminal justice system to find the truth or a close approximation of it. The second reason is more practical. The public forgets that every time an innocent person is convicted for a crime they did not commit, that a guilty person has escaped justice. In essence, when the cops and the courts convict the wrong person, the real "bad guy" gets away free. That fact often eludes the general public as well as the legal community.

  It is a common misconception that the exclusion of illegal, involuntary confessions just benefits the defendant. In reality it benefits Taiwanese society at large and makes for better law enforcement and safer streets for us all. Kicking out "bad" confessions makes Taiwan a safer place for all of us.

  Brian Kennedy is an attorney who writes and teaches on criminal justice and human rights issues.
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