On Crime Cases Interpretation and Illegal Verbal Evidence Exclusion
The author introduces the concept of “Other Illegal Measures” by analyzing the definitions of “Interpretation/Interpreter” and “Illegal Verbal Evidence”, then examines the use of interpreters as an entry point to expound his views on “Other Illegal Measures” in foreign-related criminal cases. The author considers that Illegal Verbal Evidence should be excluded, while Physical Evidence shall be the basis for trial of foreign-related criminal cases. The author also proposes his suggestions on reforming interpretation work.
Gong Chu (Oscar)
Partner, DeHeng Law Offices (Shenzhen)
PhD. In Law, Renmin University of China
Practice scope: Dispute resolution
Mobile: 13590496399 (WeChat)
Article 108 of the Criminal Procedure Law of the People’s Republic of China states that “Participants in the proceedings” means the parties, legal representatives, agents ad litem, defenders, witnesses, expert witnesses and interpreters.
Accordingly, an interpreter is a legally regulated participant in the criminal proceedings, who enjoys relevant litigation rights and assumes relevant obligations, and who may violate Article 305 by intentionally giving false translation in order to frame another person or conceal criminal evidence and hence may assume the criminal liability of up to 7 years imprisonment.
B. Illegal Verbal Evidence
Article 50 of the Criminal Procedure Law of the People’s Republic of China states that all materials that prove the facts of a case shall be evidence and classifies evidence into eight categories. The eight categories of evidence are: (1) physical evidence; (2) documentary evidence; (3) testimony evidence; (4) statements of victims; (5) statements and exculpations of criminal suspects or defendants; (6) expert opinions; (7) Records of crime scene investigation, examination, identification and investigative experiments; and (8) audio-visual materials, and electronic data.
Article 52 of the Criminal Procedure Law of the People’s Republic of China regulates that it shall be strictly forbidden to extort confessions by torture and to collect evidence by threat, enticement, deceit or other unlawful means.
Article 1 of Regulations on Several Issues in Strictly Excluding Illegal Evidence in Processing Criminal Cases by the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice regulates that all confessions extorted by torture or acquired by other illegal measures shall be illegal verbal evidence.
Accordingly, a suspect’s statement is verbal evidence as well as one of the legally regulated evidences, while the suspect’s statement, if acquired by illegal measures, shall be illegal verbal evidence.
A suspect’s statement and exculpation are expressed both orally and personally by himself. Hence, the exculpation of a suspect shall be verbal evidence as well as one of the legally regulated evidences.
II. Other illegal measures
The above mentioned “Other Illegal Measures” concept is discretionary, and the author finds no specific provision that describes the scope of this concept. “Other Illegal Measures” in individual cases can vary in specific forms. Identification and exclusion of “Other Illegal Measures” in practice largely depends on the comprehensive consideration in regard of interests, combined with substantive justice and procedural justice.
The author holds that there are various different forms of “Other Illegal Measures” in foreign-related criminal proceedings. In this article, using Interpreters as an entry point, the author undertakes to clarify and define the concept of “Other Illegal Measures.”
Article 398 of Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China and Article 350 of the Provisions on the Procedures for Handling Criminal Cases by Public Security Organs, regulate that a foreign criminal suspect has the right to obtain translation provided by a judicial organ.
Generally, an interpreter can only be held liable as a co-party, and not as the primary party for extortion of confessions by torture, threat, enticement and deceit. Under most circumstances, an interpreter is only responsible for the language conversion of a foreign criminal suspect’s statement and exculpation. There are two ways of act by an interpreter in criminal proceedings; either by providing translation in cooperation with the justice according to law, and failing to provide translation according to law due to some objective cause.
The author believes that the concept of “Other Illegal Measures” in acquiring illegal verbal evidence in foreign-related criminal cases, can be observed by analyzing the two ways of act listed above.
The author emphasizes herein, that the sentence, “Be Mainly Observed By The Two Ways Of Act” listed above does not necessarily mean that the responsibility goes to the interpreters. It could also mean that the responsibility would rather go to the judicial organs under their criterion of choosing an interpreter and their practical use of an interpreter, while “Other Illegal Measures” can be made either subjectively or objectively; even going so far as to include threat, enticement or deceit.
III. Specific analysis
A. Providing translation in cooperation with the justice according to law
Interpreters are needed throughout the foreign-related criminal proceedings whose core task is to cooperate with the judicial organs to interrogate criminal suspects, and also to provide translations in other workings of criminal proceedings.
Taking criminal investigation as an example for retaining an interpreter, the police do not have a unified criterion regarding the professional qualification and quality of the interpreter they will retain. In individual cases, college students are frequently retained to provide interpretation. Foreign-related criminal action is extremely serious, and requires the interpreter in the proceedings to have sufficiently grasped a foreign language in the field of law, and its technical terms. The interpreter must be mature and rational, and must conduct himself adequately in front of the foreign criminal suspect; knowing what to interpret, what not to, and how to translate the statement or exculpation of the suspect appropriately for the police to take an accurate record. Additionally, at the beginning of an interrogation, the interpreter must translate and read out loud professional judicial documents such as "Notice of Litigation Rights and Obligations of Criminal Suspects”, “Notice on Leniency System of Confession and Punishment”, and “Notice of Legal Aid”, among other things. This task requires the interpreter to have a very high level of a foreign language efficiency.
Judging from the perspective of professional translation, college students tend to be semi-finished products; that lack a good quality of interpretation. Yet the translation qualification certificate issued by a translation company is almost always directly accepted by the public security organ, and these modest interpreters are used in the investigation of foreign criminal suspects. I think this is invalid and illegal. The reason being that at present, any natural person can register a translation company in China. A certificate of translation qualification opened by a translation company that can be set up by any natural person does not have any power of certification.
Even if translation companies send qualified translators to cooperate with public security organs to interrogate foreign criminal suspects, there are still major problems. For example, sending a person who holds a professional qualification certificate of translation to do an interpretation. A person whose written translation being up to the standard, does not necessarily mean that their oral interpretations are up to the standard. Otherwise, what's the significance of setting up professional interpretation qualification examinations and professional translation qualification examinations in China? Translation practitioners can even be deaf or mute, because there is no need to listen and speak in working as a translator.
Criminal interrogation requires interpretation in the whole process, except for the translation of the last signed sentence. Then, the statement and exculpation of the foreign criminal suspect are transferred into Chinese by these unqualified interpreters, and are recorded in the interrogation record. This kind of verbal evidence has the possibility of being highly unfaithful to the statement and exculpation of the suspect himself. The content of the interrogation record which is unfaithful to the statement and exculpation of the suspect cannot constitute legality. Thus, they are equivalent to illegal verbal evidence.
In one of the author’s cases, the foreign suspect was interrogated about his family and his wife's age. When I read the case file, I found that his wife's age was listed as 38, but I knew that his wife's age was actually 44. Even a suspect who has bad memory is unlikely to incorrectly state his wife’s age. In another foreign-related criminal case, the suspect said to the lawyer that his statement and exculpation was not properly interpreted by the interpreter to the police. The suspect also felt that the interpreter was translating randomly, because there were many times when the police's questions did not connect with his previous statement, the suspect also noticed that the police were repeatedly asking him the same question.
In addition, as mentioned before, foreign criminal investigation is a serious work, but in reality, many interpreters lack a sense of professionalism in interpretation work, some even going so far as to make small talk with suspects over issues that have nothing to do with the relevant case. During a visit, the author was told by a suspect that an interpreter once went to the custody house to work with the police to interrogate him. Upon seeing him, the interpreter approached him as an old friend and said personal things to him. He felt shocked. The policemen in charge of interrogation failed to stop her, because they could not understand the foreign language.
2.Illegal use of the interpreters by the justice
In addition to the various problems caused by the unprofessionalism of these interpreters, investigators may, for various purposes and reasons, threaten, entice or deceive the suspect through language; potentially forcing the suspect to make statements against his own will in mental pain. These threats, enticements, and deceits that are made verbally are definitely not recorded by the investigators.
A professional, neutral, mature, and rational interpreter, to some extent, can refuse to convey such words that violate the rules of case handling for the investigators, and can ensure the legitimacy of investigation materials such as interrogation records.
3.Inconsistency between the language and the interpreter
At present, in most stages of investigation, public prosecution and trial of foreign-related criminal cases in China, English translators are retained. Once the investigators find that a foreign criminal suspect speaks some English, they assign an English translator to him. Some English language training or learning does not equate to effective and proficient communication. With the exception of a few countries whose native language is English, for most foreigners, the degree of proficiency of English is not sufficient for a suspect to deal with criminal proceedings independently.
For example, one of the author’s clients is a person from a country in South Asia. Although English is relatively common in his country, his mother tongue is Pashto, and the official language of the country is Urdu. In his country, only about 10% of the population is proficient in English. The suspect was primarily educated in Urdu while in school, but did receive some formal English lessons for a few years. However, like the Chinese who also receive some formal English training in primary school or junior high school, the vast majority of citizens do not have the ability to adequately converse in English. The quality of English translation directly provided by the criminal investigators is certainly not as good as that of Urdu or Pashto.
The justice cannot interrogate all foreign criminal suspects in English or other main foreign languages in the world, just because minority language interpreters are difficult to retain. Also, the justice cannot simply communicate with a suspect in Chinese by finding that he could speak Chinese. After all, Chinese is extremely difficult for most foreigners to learn. Most foreigners can only speak simple words and cannot communicate in depth.
4.Practical use of translators
At present, when investigating foreign-related criminal cases, investigators use three or more translators for the same criminal suspect, and use one or more translators for several criminal suspects of the same crime case. There are hidden dangers in the disorderly use of so many translators. Firstly, different translators have different language levels and professional qualifications. Every translator needs to understand the background of the crime committed by the criminal suspect. An investigator’s work is doubled when he is forced to explain the case background to the translators. If an investigator does not ensure that the translator understands the merits of the case, the quality of the translation is at risk. Secondly, different translators may have different translation results in the interrogation, as well as the statement and exculpation of the suspects, which may lead to contradictions or differences in several interrogation transcripts. The most common risk occurs when different translators interpret the name of the same person mentioned by the suspect in different ways. Third, when a translator faces two or more suspects in the same case at the same time, it is easy for him to disclose the situation of one suspect to another during the interpretation process. For example, shortly after two accomplices were taken into custody, one of them was released for lack of evidence. If the suspect under custody knows that his accomplice has been released due to insufficient evidence through the translator’s unprofessional interpretation, he will immediately know that a certain criminal charge against him will not be investigated due to no confrontation, so he will immediately change his confession.
B. Failing to provide translation according to law due to some objective cause
Translation companies are private enterprises with the purpose of making profits who surely will cooperate to provide the judicial organs with translators. However, in criminal investigations and in other activities, due to a lack of experience in handling foreign-related crimes, and also due to the fact that judicial officials find that foreign suspects can sometimes simply communicate in Mandarin or some Chinese dialect, they do not ask for an interpreter from the translation companies to assist in non-interrogation work. This is relevant because, in addition to the interrogation record, there are a lot of documents and materials in the criminal investigation work that require the signature of the suspect. In the absence of an interpreter, suspects often sign documents without understanding the nature and content of the document. Examples include seizure records, on-site identification records, material evidence data, stolen goods, and weighing result records to name a few.
Additionally, criminal investigators will sometimes add words directly into the documents, in the absence of an interpreter. After a suspect signs and surrenders his fingerprint, the case file is transferred to the procuratorate and the court, and the two judicial organs will assume that the suspect has fully understood and recognized these words.
The author has encountered documents like these many times; where criminal investigators will add certain texts, and make the suspect sign the document without the signature of a translator.
IV. Comments and suggestions
A. Regarding interpreters
Professional interpretation work is very serious, and interpreters should strictly abide by professional norms; focusing at all times on processing a case according to law and being a good megaphone. Interpreters should faithfully convey the questions of the investigators, and should refuse to cooperate with the police in threatening, enticing and deceiving suspects. Interpreters should also attach great importance to the statements and exculpations of suspects. Most importantly, interpreters must translate truthfully and fully without embellishing or distorting.
The author suggests that:
1. At present, the selection criteria for oral translation workers should be set as: postgraduate students of foreign languages, and national interpretation qualification certificate holders.
2. In colleges and universities, interpretation and translation classes for legal foreign languages are to be set up with an emphasis on criminal, civil and other law specialties.
3. Establish a database of qualified legal foreign language translators/interpreters. Since the establishment of translation companies in China is not limited by special licensing, interpreters should be recruited from various sources, not only from translation companies. Independent interpreters can be retained directly, thus to prevent translation companies from sending low-level translators in order to earn the maximum price difference.
4. Once an interpreter is selected as a participant in the proceedings by the justice, his current working unit must cooperate unconditionally.
5. In order to improve the quality of case handling and ensure a smooth process, the same interpreter should be assigned for the duration of the case.
6. In order to avoid cross interference, several suspects of one crime should not be provided the same interpreter.
7. The multilanguage versions of the judicial documents shall be uniformly translated and provided to judicial organs at all levels of the country for downloading and use. Before interrogation, these documents should be read out to the suspect, or the suspect should be allowed to read the documents on his own, to ensure that he knows his litigation rights and obligations.
B. Regarding illegal verbal evidence
According to the author's work practice, many foreign-related criminal investigation files have translation problems, which pollute the statement and exculpation of the criminal suspects.
1. Exclusion of illegal verbal evidence according to law
The public security organ shall handle the case in accordance with the provisions of Article 66 of the Provisions on the Procedure of Handling Criminal Cases by the Public Security Organs. Article 66 states that if there is only the statement of the criminal suspect, and no other evidence exists; the facts of the case cannot be determined.
The procuratorate should actively strengthen the investigation work of illegal verbal evidence in accordance with the Guidance on Prevention and Correction of Unjust, False, and Wrong cases in Prosecutorial Work in Criminal Prosecution Enforcement.
The court shall try in accordance with the following documents: Paragraph 2, Article 187 of the Criminal Procedure Law of the People’s Republic of China, mentioning the "exclusion of illegal evidence"; Section 8, Article 95-103 of the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China, setting forth requirements of the "exclusion of illegal evidence"; Article 6 of the Opinion of the Supreme People's Court on the Establishment and Improvement of the Working Mechanism for Preventing Unjust, False and Wrong Criminal Cases that regulates: in any case that lacks insufficient evidence for a crime, the principle of "in dubio pro reo" shall be adhered to, the defendant shall be acquitted according to law, and a judgment of "leave room" shall not be made. If the evidence of conviction is true and sufficient, but the evidence affecting the sentencing is in doubt, it shall be dealt with in favor of the defendant during the sentencing.
2. Based on physical evidence
According to the Opinion of the Supreme People's Court on the Establishment and Improvement of the Working Mechanism for Preventing Unjust, False and Wrong Criminal Cases; the investigators should pay more attention to evidence, investigation and research, practically change the concept and practice of "confession first", and pay attention to the examination and application of physical evidence.
For example, in foreign-related drug trafficking crimes, the public security organ can file a case after a suspect is found carrying drugs on the spot. Even if verbal evidence is excluded according to law, the physical evidence is enough to convict him; being the case that the suspect has already been seized with the drugs.
With the deepening of China's opening up, the expansion of international exchanges, and the increase of foreign criminal cases, we need to reform and improve the current mode of investigation, prosecution, and trial. The first step is to straighten out translation problems in criminal proceedings, thereby putting an end to the pollution of statements and exculpations, and ultimately ensuring the legality of evidence and improving the quality of handling these types of cases.