A special panel of the Legislative Council, an advisory body for the justice minister, on Monday included the introduction of plea bargaining in its proposal for reforming criminal investigative proceedings. Because of the danger that plea bargaining will increase the incidence of false charges, the panel should reconsider its plan.
The panel was originally established to explore ways to prevent false charges, including electronically recording the entire interrogation process. But while it has failed to call for the full electronic recording of interrogations, it appears eager — apparently under pressure from investigative authorities — to expand the arsenal of investigation methods available to investigators, including the introduction of plea bargaining as well as the expansion of communication interceptions in criminal investigation.
The panel would better serve the cause of justice by focusing on the original purpose for which it was established.
The panel is thinking of introducing two types of plea bargains. The first envisages a suspect or a defendant making a confession or providing evidence implicating another person’s involvement in a crime, and the prosecutors dropping the charges against him or her in return.
Such deals could be made over crimes involving fraud, bribery, embezzlement and drugs, but not murder or battery and assault. A suspect or a defendant could make a plea deal only with the consent of his or her defense lawyers.
In the second type, a witness could make a confession in a trial in exchange for a promise from the prosecution that it would not be used against him or her.
The biggest problem with plea bargaining is the possibility of a suspect or a defendant making false confessions to reduce their punishment. A person who has nothing to do with the crime could be wrongly implicated. A principal offender could even concoct a story to make an accomplice appear as the main offender. An investigator also could use leading questions and offer plea bargains to get confessions in order to use the testimony against another person whom the investigator suspects is involved in another crime. In the United States, where plea bargains are common, quite a few cases have been reported in which innocent people are wrongly implicated.
Under the special panel’s proposal, the process in which a suspect or a defendant makes confessions for a plea bargain would not be electronically recorded. It would be almost impossible for the defense lawyers and the court judges to determine in what circumstances the plea bargaining was done and whether the confessions are credible. The whole direction of an investigation could be skewed by confessions wrongly implicating a third person. Plea bargaining would likely only increase the tendency of investigative authorities to rely on confessions rather than on solid evidence.
Instead of discussing the introduction of such a system, the special panel should work on measures to bolster the rights of people who become a target of investigation, to ensure that false charges are not made.
Currently the panel’s proposal for electronically recording the entire interrogation process only covers about 3 percent of criminal cases. It should call for the full recording of interrogations in all criminal cases, and address other issues such as allowing the presence of defense lawyers during interrogation and requirement of disclosure by the prosecution of all the evidence during a criminal trial.