Investigative tactics legitimacy theory
|School||Southwest University of Political Science|
|Keywords||Investigative Strategies Legitimacy Investigators Investigation Act University Press Suspects Law Suspected of a crime International Criminal Justice Standards Controlled delivery|
This paper includes four chapters and a conclusion, more than 160 thousand words.Chapter 1 elaborates investigative tactics’ psychological mechanism, practical necessity, structure, types and so on and research meaning on legitimacy of investigative tactics. Firstly, this chapter outlines the psychological mechanism of investigative tactics, pointing out that the choice which is helpful to investigation may be made by the relative person by applying mentality and emotion of the relative person. Secondly, from the point view of investigative techniques fit for the special case, the author argues criminal investigation practically necessitates investigative tactics. Thirdly this chapter explains the relationship between tactics and investigative action: the tactics is the psychological process, acting on the relative person through investigative action. Fourthly, the author sets forth the structure elements of investigative tactics and analyses their status, function and the inter-relationship. Fifthly, the chapter talks about the classifications of investigative tactics, pointing out that there are five common investigative tactics in this paper: showing schemed impression, showing benefit, showing harm, dissension and "roundabout". Lastly, the author indicates exploring legitimacy of investigative tactics is meaningful in theory and in practice: it can enrich the theoretical system of criminal procedure and criminal investigation and provide methodology for evaluating controversial investigative tactics in criminal justice practice.Chapter 2 comparatively studies legitimate standards of investigative tactics in guidelines of international criminal justice, researching legitimacy of tactics from authorizing and prohibiting provisions, pointing out that effective application of special investigative techniques authorized such as controlled delivery, electronic and other forms of surveillance and undercover operations needs common investigative tactics. The author also analyzes the tactics in prohibiting provisions mainly including three basic types: the tactics jeopardizing personal safety and freedom, the tactics in conflict with personal privacy and reputation and the tactics harmful to personal free will to judgment and determination. Then the paper examines the application and the legitimate standards of common investigative tactics in the UK, the US and Germany. In the UK, common investigation tactics are widely used, conforming to the relative person’s voluntariness and the due process in evidence obtaining. In the US, common investigative tactics are also widely used, complying with the rule of right to silence and the due process in evidence obtaining. In Germany, common investigative tactics are used in criminal investigation to some extent, following the relative person’s right to free statement while applying the tactics of showing schemed impression in evidence obtaining; the tactics of showing benefit and showing harm are only confined to legitimate benefits and harmful results. The author also points out that the legitimate standards in searching out and arrest tactics are not in violation of the due process provisions relating to arrest in these three countries. Lastly, this chapter examines the legitimate standards of investigative tactics in China, pointing out that there is a dual-standards of investigative tactics in China: the legitimate standards of investigative tactics are very strict on criminal procedure law provisions level and are less restrictions on criminal justice practice level.Chapter 3 explores basic theory of legitimate tactics from four aspects, providing general methodology for application and evaluation of investigative tactics. At first, the chapter points out that general requirements of legitimate tactics are to obtain evidence and seek out and arrest suspects while protecting individuals’ rights. Next, the author argues the principles, rules and procedural guarantee of legitimate tactics from static-structure, dynamic-process and procedural guarantee respectively. On the static-structure level, in order for tactics to be valid, four doctrines should be complied and suspects’ rights should be protected. The author points out emphatically that legitimate tactics in evidence obtaining should comply with voluntariness rule, and the relative person’s free will should be respected in evidence obtaining, but not so in searching out and arresting suspects. On the dynamic-process level, the author thinks that constructing investigative tactics should follow democratic and scientific principles; applying investigative tactics should follow flexible and changeable principles. On the procedural guarantee level, in order to solve the problem of the dual-standards of legitimacy of investigative tactics in China mentioned in Chapter 2, it is necessary to regulate comprehensively investigative action in criminal procedure law for restraining too extensive discretion of investigators and to establish prosecutor’s pre-examination of investigative action, judicial review of investigative action, nullification of illegal investigative action, exclusion of evidence illegally obtained and some other institutions. The author also argues that the internal review system of the investigative departments and the covert investigation review committee in the investigative departments specialized in reviewing covert investigative action should be established.According to the methodology set forth in Chapter 3, Chapter 4 studies on legitimate standards of five common investigative tactics. Showing schemed impression in interrogation is used as follows: concealing fact except for legally informed matters; falsely stating part of circumstances, statute and evidence. Showing schemed impression in interview is only used in the following situation in which witness refuses to tell the truth without probable cause and is indispensable to investigation. Showing schemed impression in "premeditated search" should obtain relative person’s consent and is required to be reasonable. Showing schemed impression in technological investigation should obtain relative person’s consent and is required to be reasonable in certain circumstances. Showing schemed impression in arrest is granted to hold back the truth and reasonably fabricate false statement. Showing benefit in interrogation and interview is confined to interests permitted by law and policy. Object of Showing benefit should not be specific and surpass jurisdiction on legal affairs. In response to object of showing benefit, investigators should offer interests. Suppose a suspect is schemed to act as an undercover agent, showing benefit to the suspect should be approved by prosecutor and not jeopardize national interests. Showing benefit in covert investigation should try to obtain evidence rather than to cause crime or fabricate evidence. When interests provided by investigator is beyond law, showing benefit should be confined to a reasonable extent. Showing benefit in which investigators offer opportunity to relative person with reasonable suspicious should be reviewed by courts. Showing benefit in sequential cases to potential relative person should be within normal resistance capacity. Showing false benefit in arrest is only used to arrestee. Showing harm adopted by investigators in interrogation, interview and search should be conformed to law. Once relative person doesn’t act on certain demand, investigator should impose legally detrimental effects on him. Suppose a suspect is schemed to act as an undercover agent, showing harm to the suspect should be reviewed by prosecutor and not jeopardize national interests. In order to protect undercover agents’ security and obtain evidence smoothly, showing harm beyond law is allowed. Dissension in interrogation and interview should make full use of real materials; false materials connecting with legitimate harm to the relative person is only adopted when really necessarily. Taking account of undercover agents’ security and other extreme cases, dissension with false materials is permitted. As to arrest, dissension with real materials is used to co-arrestee; dissension with false materials is used to separate arrestee. In order to search out arrestee, dissension with false materials is used to related insider. "Roundabout" should make use of legitimate interests that are not in conflict with law. In exigent and other necessary occasions, illegitimate interests reviewed by courts is permitted in "roundabout". "Roundabout" is permitted only when anticipate interests exceed "roundabout" interests.In Conclusion, the author thinks that substantial rules relating to the legitimate standards of investigative techniques should be established so that investigative techniques could be evaluated for legitimacy or illegitimacy. On this basis, a series of enforcement rules then must be established in order for the legitimate standards set out by the substantial rules to be effectively enforced in criminal justice practice.