Document Type

Article

Publication Date

2022

Publication Title

University of Pennsylvania Asian Law Review

Keywords

Miranda rule, Taiwan, interrogation, criminal justice system

Abstract

In 1997, the Taiwanese legislature amended the Code of Criminal Procedure to incorporate the core of the American Miranda rule into the legal system. The Miranda rule requires police officers and prosecutors to notify criminal suspects subject to custodial interrogation of their right to remain silent and their right to retain legal counsel. In subsequent amendments, the legislature enacted a series of laws to further reform interrogation practices in the same vein.

What happened next is a study in unintended consequences and the interdependence of law and culture. Using ethnographic methods and data sources collected over the past four years from 48 police officers and 99 prosecutors in metropolitan Taiwan, this Article relates a cautionary tale. Under Taiwan's abbreviated Miranda system, suspects are encouraged to cooperate and give statements under the perception that they have been, and will continue to be, treated with politeness, dignity, and respect. Police and prosecutors use the Miranda mechanism (providing dignity, respect, and voice to suspects) to build rapport with suspects and distract them from the actual consequences of their full cooperation. Such concerns were implicated at a high level in the indictment of former Taiwanese president Ma Ying-Jeou in 2018, when prosecutors publicly denounced Ma for his "bad attitude" in exercising his right to remain silent during prosecutorial interviews.

In short, Miranda in Taiwan has become a double-edged sword: it provides dignified and respectful treatment for suspects while simultaneously placing heavy extralegal burdens on them to cooperate with law enforcement agencies. Because Taiwan's criminal justice system is a combination of western legal concepts and traditional Chinese social and cultural notions, Miranda and related rules have led to ever-greater discrepancies between what is written in the law books and how police interrogate in practice, and ever-greater gaps between suspects' expectations and prosecutorial realities.

Taiwan is not alone: more than one-hundred jurisdictions around the world now require warnings similar to the Miranda rule. It is possible that they suffer similar unintended consequences. I thus explore the effectiveness of alternative innovations beyond Miranda that could potentially reduce false confessions and minimize the risks caused by current interrogation practices.

Volume

17

Issue

1

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