Taiwan's proposed adoption of the right to silence: A theoretical analysis and empirical study of the privilege against self-incrimination.

摘要

The current Taiwan Criminal Procedure Code, enacted in 1935 and partly amended five times since, has no provision regarding a criminal defendant's right to silence or right to refuse to answer incriminatory questions. Recognizing that the Code is out of date, the Taiwanese government drafted a new Code of Criminal Procedure (the "Draft") and sent it to the Legislative Yuan for consideration in 1993. The Draft grants the accused the right to silence and also requires the warning of the right at all stages of criminal procedure.; However, the Draft did not lay down the rationales of the right to silence. The only justification offered by the Drafting Committee was that most foreign countries, such as Japan, Germany, and United States, have such a provision. Furthermore, the Draft is unclear about many issues surrounding the right to silence. For example, the Draft does not state if the police must cease questioning when the accused asserts his right to silence, whether the confession must be excluded if it is obtained without a warning, or whether silence could be considered as evidence or as a factor in imposing sentence.; To clarify these issues, this dissertation explores the different rationales and practices of the privilege against self-incrimination in the United States and in selected civil law countries, namely, Japan and Germany. It starts with an overview of Taiwanese criminal procedure. Then, it examines the policies of the American privilege, the civil law's responses to those policies, the civil law's privilege of the non-defendant witness, and a comparison of the practices of defendant's sworn and unsworn statements. It also covers the laws of confession at the pretrial stage both in the United States and in civil law, including the voluntariness standard and Miranda rights. The paper contains an empirical study conducted in Taiwan. The empirical study aims to discover the real practice of the confession law in Taiwan and Taiwanese practitioners' reactions to and perceptions of the recent proposal of the right to silence. It ends with some proposals which the Taiwanese legislative body should consider in implementing the right to silence.