Research On Waivers Of Criminal Procedural Rights

The waiver of criminal procedural rights is an academic field that have been neglected for a long time in China.Now China is implementing the reform of treating criminal defendants with leniency who plea guilty and consent to the penalty,which indicates the importance of the waiver.Studying procedural rights and criminal procedure from the perspective of waiver made by the suspect and defendant contributes to urging the legislation and judiciary to maintain the subjective position of the suspect and defendant in criminal proceedings,to respect free wills and choices of the suspect and defendant,to deal with waiver carefully,and to safeguard rights of the suspect and defendant.A waiver is an intentional relinquishment or abandonment of known and understood procedural rights.A waiver which can be made by a suspect or defendant usually contains two preconditions: one is the fact that he enjoys the procedural right which is intended to waive,and the other is the fact that he knows and understands the procedural right and has the ability to effectively invoke it.To satisfy the needs of himself,the individual may sacrifice one kind of interest for another one based on his free will.Thus,a criminal suspect or defendant may voluntarily,knowingly and intelligently waive his procedural rights.When a suspect or defendant faces conflicting interests,he may make a reasonable choice which should be respected after calculating the pros and cons of invoking the right or abandoning it.Waiver made by the suspect and defendant is benefit to balance the relationship between crime control and human rights protection,equity and efficiency,or the fairness of the process and the fairness of the result.Moreover,waiver also serves to meet the demands of the judge,prosecutor and police.In America,waivers made by criminal suspects and defendants are not uncommon.The first ten Amendments to the United States Constitution and the Fourteenth Amendment Due Process Clause entitle ample fundamental procedural rights to criminal suspects and defendants,but all of these rights can be waived following the rules of waiver established by a great many constitutional cases of the US Supreme Court.Some of the waivers are fairly contentious and should be given more attention and discussion,such as waiver of Miranda Rights including the right to remain silent and right to have counsel present during interrogation,waiver of the Sixth Amendment right to have the assistance of counsel,waiver of the privilege against compulsory self-incrimination,and waiver of the right to jury and other fundamental procedural rights together by guilty plea.We should dialectically analyze the waiver of procedural rights in America,not only knowing that adversarial system emphasizes the respect of self-autonomy and right of choice,but also realizing that excessive and reckless waiver will do harm to the interests of criminal suspects and defendants.Therefore,waiver should be reasonably limited.In criminal proceedings of China,there are also waivers made by suspects or defendants.A defendant who pleaded guilty and consented to the punishment imposed on him waived his right to trial by due process,the right to present evidence in his favor,the right to examine evidence present by prosecutor,the right to rebuttal and argument,the right to motion to exclude illegal confession,the right to confront with witnesses against him and so on.Only if the defendants enjoy the privilege against compulsory self-incrimination which is effectively guaranteed and have an opportunity to choose the due process for trial which is designed precisely,he may plea guilty and consent to the penalty.To avoid compelled or false guilty plea,the trial court should carefully investigate and determine voluntariness and intelligence of the guilty plea,and ensure the defendant represented by acompetent defense counsel.The defendant has the right to self-representation followed by a voluntary and knowing waiver of right to defense lawyer.But in order to safeguard judicial justice,the trial court has power to reasonably limit self-representation,and make some special procedural arrangements for the defendant who prefers self-representation.In China,the right to remain silent and the right to have counsel present should be gradually entitled to the suspects who are subject to custodial interrogation,and permit them to waive these two rights.To prevent the detective's ability to lawfully obtain confessions and other evidence from being excessively impaired,the legislation and courts may design higher or lower standards of effective waiver according to practical circumstances,ensuring the value of crime control in harmony with the value of human rights protection.