【借鉴美国】林映谷／谈美国侦讯过程的律师辩护权
▲只要被留置讯问的人要求律师到场，警方的调查人员就不准再问任何问题。（示意图／取自免费图库pixabay）
（编按：在台湾嫌犯被侦讯时，虽可要求律师在场，但律师只能做安静的观察者。即使律师要做陈述也需在检、警、调的许可下，才能发言。否则，就会被以妨碍侦讯或意图串供为由，赶出侦讯室。本篇以实例说明英美法系刑事嫌犯的侦讯过程，若以此相比，在保障人权和追求正义方面，台湾恐怕还有漫长的改革路要走...）
●林映谷（Edgar Lin）／毕业于美国威斯康辛州大学 麦迪逊分校法律学院，拥有美国法律博士学位。专长刑事审判及移民法规，现任美国威斯康辛州州政府「司法正义改革会」成员。曾任职雷曼兄弟投资银行，威州公设辩护律师，2014年获威州杰出律师奖。
●译者林忠正／经济学博士，曾任立委、金管会委员、民进党副秘书长、中研院研究员、台大教授。
你因为一个罪名刚被逮捕。逮捕你的警官将你上了手铐，又从你的口袋里找到一卷来自犯罪现埸的钞票。你的脑子里一片空白！
小心制作笔录前与警察的「闲聊」
逮捕你的警官在开车到警察局的路上，都没有问你任何问题。他带你到一个没有窗户的房间 。天花板上，微弱的日光灯一闪一闪着，角落装有一个小摄影镜头。天气冷到冻人！
一个比较老的刑警走了进来，他人真的很好。他经常笑着脸，他给你香烟抽。他问你的背景，例如你名字？读哪里的学校？他就像在谈悄悄话一般，你紧绷的心开始有些放松了。
当他才得到你的信任时，他说他目前正在侦办昨天发生的一件抢劫案。他知道你曾在案发地点，因为监视器拍到车子的牌照了。他已经和汽车的主人─你的爸爸谈过了，他说你先前才向他借了车子。刑警说，发生抢案的店员被刀子捅了，刚刚已经死了！但他不认为你是杀人凶手。昨天到底是怎么一回事？他想听听你的说法。他认为在他听你对这事件的说法之前，他必须对你宣读你的权利。
律师在场权与缄默权
「这是一个标准的例行公事，没什么特别！你有权利保持沉默。任何你说的事情都可能会被拿到法庭，做为不利于你的事证。你有权利请律师到场。如果你没有钱请律师，会提供一位律师给你。你明白我为你宣读的权利吗？明白这些权利后，你还愿意告诉我吗？」
凶杀案？你真的被吓到了！你实在不知道有人在那商店里面被刀捅了。你突然觉得口干舌燥，眼睛的水也变多了。你深深地吸了一口气，并且提起精神。你问这位亲切的刑警，是不是你告诉他事情是怎么发生的，你就可以离开看守所？他说，诚实可以走长的路。他说，他有像你这种年纪的小孩，他能看出你是个好孩子。他没办法承诺你任何事，不过他一定会写些好听的文字给检察官看。
你开始起了疑心。你要求是否可以请律师来？你可以看出他试着藏住他的怒气。他说他不能告诉你，什么是你应该做、或不应该做的事。但是你若请了律师来，他就不能听到你这边的说法了。这个刑警的亲切感似乎是硬装出来的。
你还是决定要有一位律师，提供咨询的意见，所以你要求提供一个律师。只要被留置讯问的人要求律师到场，警方的调查人员就不准再问任何问题了。这个刑警不再掩饰他的愤怒，暴风似地离开了侦讯室。
过了不久，一位年轻但是自信的律师出现了。他告诉你，他是一个公设辩护人，公设辩护人就是刑事辩护律师。你问说，是不是要付他钱？他说，因为你没有任何收入，你有资格得到公设辩护律师，免费得到委任的服务。
他告诉刑警，他需要一间没监视器和录音的干净房间，你就被带到另一个房间去了。他告诉你，在这里即使有任何话被录了，检察官也永远不能拿到法庭上来使用，因为律师和当事人之间对话是受到法律特殊保护的。你的律师也永远不可以在法庭上，对你做出任何不利的陈述。
律师告诉你，你告诉他的任何事都是保密的，而且他还受律师伦理的规范，一定要保护你的秘密，即使你告诉他，几年前你杀了某个人。
你告诉律师，昨天真正发生了什么事。他问了你和你朋友关系的问题，接着又问了这个案情的每一个细节。你也告诉他一切你能记得的东西。你的律师说，他要去联络检察官，因为警察不能进行任何协商。
在侦讯室外，律师告诉刑警说，他需要和检察官谈一下话。刑警说，这案子还没走到刑事起诉，他才开始侦查而已！接着，律师告诉刑警，在他没先和检察官讲话之前，他的当事人绝不会做出任何陈述（自白书）。刑警失望地离开，说他会去找检察官。
当你的律师回到你所在的房间，向你说明你正处于严重的麻烦之中。检察官想要将你钉上「杀人重罪」和「持械抢劫」案子里的帮助犯和教唆犯。在威斯康辛州「杀人重罪」是指，犯罪过程中，有人死了。任何涉及这种重罪都可能被以「杀人重罪」起诉。「杀人重罪」加上「持械抢劫」，最高可被判处关押在监狱里55年的刑期。
笔录翻供的风险
他们会说，你是在「持械抢劫」中把风。监视器拍到你爸的车在那里，而且「持械抢劫」的收入就在你的口袋里。或许他们不能证明你在那地方，因为没有人看到你的脸。另一方面，你的「坏小孩」朋友也许被逮了，不但招了，而且还指认你在现场。而你爸爸说，你才借过那车子。至于钱吗？也许他们无法证明这些钱就是来自那家店的钱，但是看起来不妙！似乎合理的辩护理由越多，最后反会导致你非要到法庭接受审判的诘问不可，在法庭上说明你完全都不知道这件犯罪行为。
如果陪审团相信你，认为你的话可信，你被起诉的罪条就会得到「无罪」的认定。这一切都会落到「可信度」的问题。
你的律师告诉你，如果检察官要跟你谈话，而且要你合作的话，她可能会大辐度减轻对你的惩罚。最好的状况是，你完全不会被起诉。最坏的状况是，你的故事和检察官及警察握有的证据不同，他们还会因你说谎，而多惩罚你。你的律师再次强调，你必须对他诚实，他才能做出最适当的辩护。你的生命已经悬挂在一条细线上。如果你事先知道，你朋友会去抢劫 ，他不希望你告诉检察官，除非为了换取你的合作，检察官愿意提出一些减罪的协商、优惠的处遇、或某些种类的免诉处分。检察官为了交换你的合作，甚至会让你羁押在看守所的时间大幅缩水。
如果你真的不知道抢劫案，你最后可能会面对一个有审判团的法庭。无论在什么时候，你的故事都必须一致。不要到了法庭，你的故事就变了。 他们会抓住这个改变，说你是一个不可信的骗子！
你告诉他，你说的所有事情都是真的，而且你是完全无辜的人。律师接到一通电话，就离开了房间 。
在房间外头，检察官用电话和律师通话。她是一个出了名严格，但是公正的人。律师向检察官简述了情况的发展。他邀请她参与侦讯。他告诉检察官说，他的当事人已经宣示他是完全无辜的人，如果他被起诉的话，当事人愿意接受陪审团的审判。 律师向检察官建议，如果你是可以信任的人，就不要起诉你。检察官并没有立即做出承诺，但是表示会考虑所有的提议，包括不起诉这个案子。
律师告诉你，他和检察官的会谈内容。你问他，若是自己去和检察官谈谈，是否有利？律师分析了优点，也点出新的风险。听完你的各种选项，你决定继续进行侦讯的程序。律师表示，如果他打断了侦讯的问话，你就必须立刻停止说话。如果你觉得问题让你觉得不舒服，或者问题不清楚，你就请求暂停侦讯，并且要求和律师讲话。这些行为都是侦讯中常有的惯例。
随后，检察官和刑警一起走进了房间，刑警再次宣读了先前己经念过的权利。检察官告诉你，她要听你对这事情的说法。你就告诉她你的故事。检察官还问了一些延伸的问题。然后她问你，知不知道你朋友有偷窃和抢劫的历史？你心都凉了，因为你没有告诉你的律师整个故事 。
「据实陈述义务」的重要性
你原先告诉你的律师说，你的朋友是你小时候的朋友，除了知道他被一般人叫做「坏孩子」之外，你并不知道他有犯罪的记录。事实是，你知道你的朋友两年前因为抢劫案被捕，你还去看守所探望过他。
当你的律师感觉到你在侦讯中有些犹豫，他打断了检察官的问话，并且要求检察官和刑警离开房间，因为他需要和他的当事人谈一下话。他们离开后，他低声地问你，到底怎么一回事？你告诉他，你知道你朋友的纪录。你向他道歉，因为没有先告诉他，你真的是忘了。
你的律师充满了挫折感，再次警告你一定要完全诚实。他说，他会告诉他们，你不想回答这个问题，那就继续走到下个问题。但无论如何，即使你据实回答了这个问题，他也觉得这不是最糟的情形。而你也同意这看法。
他请检察官和刑警回来房间。他向他们解释，刚刚有点沟通上的问题，你忘了是因为先前心情很惊慌。不过，你知道你的朋友过去曾有抢劫的麻烦。检察官对你的诚实道了谢。她说，若有任何新的发展，她会和你的律师谈 。
现在检察官接下来的事，就是要决定是否起诉？。如果要起诉，那些相关文件又要如何撰写，才会恰当呢？
以下为作者原文：
Interrogation of the criminally accused
You were just arrested for a crime. The arresting officers handcuffed you and found a roll of money from the crime scene in your pocket. Your mind went blank.
The day before your arrest, your friend--a known “bad boy”, told you to pull your car over at the convenience store so he could grab a soda. You were driving your dad’s car. A few minutes later, he ran out with a bag full of cash. “Drive!” He yelled. You panicked and slammed on the gas, driving through a red light and knocking over an unoccupied Harley Davidson. Angry and bewildered, you dropped him off at his home. Your friend then threw a roll of money at you and left. It was your 18th birthday.
The arresting officer did not ask you any questions on your ride to the police station. He brought you to a windowless room. There was a dimly lit fluorescent light flickering on the ceiling and a small camera in the corner. It was freezing cold.
An older detective walked in. He was really nice. He smiled a lot. He gave you a cigarette. He asked you questions about your background like your name, where you went to school, etc. He was making small talk. You began to loosen up a bit.
As he began to gain your trust, he said he was investigating a robbery that happened yesterday. He knew you were at the robbery because a surveillance camera caught the license plate. He already spoke to the owner of the car, your dad, who said you borrowed the car earlier. He said the cashier at the robbery was stabbed and just died. He didn’t think you were the killer. He wanted to hear your version of what happened yesterday. He said that before he could hear your version of events, he must read you your rights.
“It’s just standard protocol, nothing special, okay? You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”
Murder!? You were terrified. You had no idea someone was stabbed in the store! Your mouth was dry and your eyes were watery. You took a deep breath and gathered yourself. You asked the nice detective if you could get out of jail if you told him what happened. He said honesty would go a long way. He said he has kids your age, and he could tell you are a good kid. He said he couldn’t promise you anything, but he would definitely put in a good word to the prosecutor.
You grew suspicious. You asked if you should talk to an attorney. You could see he was trying to hide his irritation. He said he could not tell you what you should or should not do, but if you asked for a lawyer, he could no longer hear your side of thestory. The detective’s niceness seemed contrived now. You decided that you would like a lawyer to advise you, so you asked for a lawyer. Once a detainee asks for a lawyer, the detective is not allowed to ask any more questions. The detective didn’t hide his irritation now and stormed out of the room.
Shortly after, a young but confident lawyer showed up. He told you he is a public defender, and public defenders are criminal defense attorneys. You asked if you needed to pay him. He said that because you did not have an income, you qualified for free representation.
He told the detective he needed a clean room with no audio or video recording. You were taken to another room. He told you that even if anything was actually recorded, the prosecutor could never use it in court because attorney-client privilege protects that conversation. Your lawyer can never testify against you in court.
He told you anything you told him was confidential, and he was ethically bound to keep your secrets, even if you told him you killed someone years ago. You told him exactly what happened. He asked questions about your relationship with your friend and followed up on the details of the event. You told him everything you could remember. Your lawyer said he’d reach out to the prosecutor, because police officers could not make deals.
Outside the interrogation room, the lawyer told the detective he needed to speak to the prosecutor. The detective said the case was not criminally charged yet and he was just starting the investigation. The lawyer told the detective his client would not make a statement without him first talking to the prosecutor. Frustrated, the detective said he would reach out to the prosecutor.
Your lawyer came back to your room and explained that you were in serious trouble. The prosecutor could likely pin you with felony murder and armed robbery, aiding and abetting. In Wisconsin, felony murder is when someone dies during a commission of a felony crime. Everyone involved in that felony can be charged with felony murder. The maximum penalty you faced is 55 years in prison. They would say you were a lookout in the armed robbery. Surveillance cameras showed your dad’s car, and you have the proceeds of the armed robbery in your pocket.
Your lawyer quickly discussed some potential defenses. Maybe they could not prove that you were there since nobody saw your face. On the other hand, your friend may get arrested and talk, placing you at the scene. Your dad said you just borrowed the car. The money, well, they probably couldn’t prove that it’s the same money from the store, but it looked bad. The more plausible defense, which would require you to ultimately testify in trial, was to explain that you had no knowledge that the crime was going to be committed. If the jury believed you and found you credible, you would be found Not Guilty on the charges. It would all come down to credibility.
Your lawyer told you that if the prosecutor wanted to talk to you, she might cut you a deal for your cooperation. The best-case scenario: you avoid being chargedcompletely. The worst-case scenario: your story failed to match whatever evidence the prosecutor and detective had and they punish you for lying. Your lawyer stressed again that you must be honest with him so he could properly defend you. Your life was hanging on the line. If you knew that your friend was going to commit the robbery, he may not want you to speak to the prosecutor unless you are offered a deal, a proffer, or some type of immunity for cooperation. In exchange for your cooperation, you would likely get a big reduction in jail time.
If you truly had no knowledge of the robbery, then you may ultimately have a jury trial. Your story must be consistent at all times. Otherwise, if you were to go to trial and your story changed, they would use it against you to show you were lying. You told him that everything you said was true and you are completely innocent. The lawyer received a call and left the room.
Outside the room, the prosecutor called the lawyer to talk. She has a reputation of being tough but fair. The lawyer told the prosecutor a summary of what happened, and offered her to be present at the interrogation. He told the prosecutor that his client was professing full innocence and would be willing to go to a jury trial if the case was charged. He suggested the prosecutor not press charges if she found you credible. The prosecutor made no promises at this point but is open to all options, including not charging the case.
Your lawyer told you about his conversation with the prosecutor. You asked him whether or not it would be good to talk to the prosecutor. He gave you the benefits and risks of opening up. After hearing your options, you decided to go forward with the interrogation. He said that if he interrupted during questioning, you must stop immediately. If you felt uncomfortable with a question or if the question was unclear, you need to pause and ask to speak to him. These are customary during interrogation.
The prosecutor and detective then came in the room. The detective read the same rights he read earlier to you again. The prosecutor told you she wanted to hear your version of events. You told her your story. The prosecutor asked some follow up questions. She then asked if you knew that your friend had a history of theft or robbery. You froze because you realized you did not tell your lawyer the whole story. You told your lawyer that your friend was a childhood friend, and other than generally being known as a “bad boy”, you were not aware that he has a criminal record. The truth was, you knew that your friend was arrested 2 years ago for robbery because you visited him in jail.
Your lawyer sensed your hesitation. He interrupted the questioning and asked the prosecutor and detective to leave because he needed a second to talk to his client. After they left, he quietly asked you what happened. You told him you knew about your friend’s record, and you apologized for not telling him. You just forgot. Frustrated, your lawyer warned you again about being completely honest. He said he could tell them you do not want to answer that question and move on. However, he felt it was not the worst fact even if you answered it. You agreed.
He called the prosecutor and detective back. He explained to them that there was some miscommunication and that you forgot because you were panicking earlier, but you knew that your friend was in trouble before for robbery. The prosecutor thanked you for being honest. She said she would talk to your lawyer about any updates.
Now the prosecutor has to decide whether charges would be filed or not. And if charges were filed, what would be appropriate?
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