Can You Remain Silent During A Police Investigation?

Today we shall discuss about a very serious and feared topic on criminal law and that is whether or not you have the right to remain silennt during a police interrogation. I will compare common differences between western and Chinese criminal legal systems, explain on the right of silence in China, and how arrests and detention works.

If you have watched any Hollywood movie, you have definitely heard this before in a scene when somebody gets arrested. The police officer will handcuff the suspect and say, You have the right to remain silent. Anything you say can and will be used in the court of law against you. You have the right to an attorney. If you cannot afford one one will be provided to you. The actor will then probably reply, I need a lawyer! Give me my phone call!

However this is not the case in China. Our slogan here is leniency to those who confess and severity to those who resist. Let’s take a quick look at article 118 of the criminal procedure law which reads: When interrogating a criminal suspect, the investigators shall first ask the criminal suspect whether or not he has committed a criminal act and let him state the circumstances of his guilt or explain his motions. Then, they may ask him questions. The criminal suspect shall answer the investigators questions truthfully but he shall have the right not to answer any questions that are irrelevant to the case.

Therefore, it is apparent that you do not have the rights to remain silent but the rights to refuse irrelevant questions, but who is entitled to define the relevancy? The police the prosecutor and the judge but not the suspect. You do not have the rights to be accompanied by a lawyer either

when being interrogated. However, do not confuse this with the rights to retain a lawyer/ I will elaborate more on hiring a criminal lawyer in our next staying out of trouble video as this is the whole other topic.

Another big difference between western and Chinese criminal laws is that detainees can only meet with their lawyers and consular officials. They cannot talk to friends or family members during detention and even after final sentencing. Prisoners can only be visited by family members and not friends.

Before official arrest, you can be detained for up to 37 days maximum before a prosecutor approves the arrest. After official arrest, up to 13.5 months of investigation and prosecution period is allowed by the law before formal charges must be laid so you might be stuck in a detention facility for quite a bit of time before even being convicted.

If you are detained, I would advice to ask for access to a consular representative first because that is your right under article 36 of the Vienna convention on consular relations. The police are not obligated to notify the consulate of your detention or arrest unless you ask them to do, so make sure that you ask!

One last thing that you must know is that if you break the laws of China you are subject to the judicial system of China. Being a foreigner or not knowing the local laws is not a get out of jail free card nor an acceptable excuse. Your embassy or consulate cannot protect you from the consequences of your actions, nor override the decisions of local authorities.

Therefore you should always seek legal advice before doing something that you are unsure of the legality of as something that is legal in your country might be illegal in China