“禁止倒果为因”原则:以沉默权的起源、功能为视角

Principle of"Prohibition of Post Hoc Ergo Propter Hoc":From the Perspective of the Origin and Function of the Right to Silence

沉默权和禁止倒果为因原则以及“调查—讯问”二元程序是犹太教和基督教血罪观念的产物。2世纪以降,为保护法官,犹太教奉行绝对沉默权。在基督教世界,随着神明裁判的废除和审前讯问程序的确立,为保护讯问官员,绝对沉默权被改造为附条件沉默权,审前正当程序也得以塑造。首先,无原告或公共恶名,不得启动调查,不得拘捕嫌疑人;达不到“嫌疑”标准,不得讯问嫌疑人,嫌疑人享有沉默权。其次,调查在先、讯问在后,禁止先行讯问;讯问事项不得超出调查范围;讯问之果不得反证讯问之因。再次,为防止供出余罪,嫌疑人有权知悉“被控具体罪行”,否则享有沉默权。最后,禁止倒果为因,所供余罪予以排除,这也成为现代非法证据排除的基石。在17世纪后期,英国将附条件沉默权上升为绝对沉默权,适用范围也从死刑案扩展到非死刑案,其功能相应地从保护官员转变为保护嫌疑人。

The privilege against Self-incrimination,the doctrine against effect being converted into cause and the Pre-Trial Dichotomous Structure are all the fruits of the guilt of blood shared by old Judaism and Christianity.The absolute privilege against self-incrimination existing in the 2th Century Judaic capital cases was to protect justices from the guilt of blood.In Christianity,with the abolishment of the Ordeal and the establishment of the Pre-trial interrogation in the inquisition,the absolute privilege against selfincrimination was transformed into the conditional privilege protecting the pre-trial magistrate from guilt of blood,and the due process of pre-trial interrogation was accordingly modelled:firstly,the general inquisition could not be activated and neither a criminal be arrested without an accuser or a public fame;No one could be examined without legally sufficient indication and he,if interrogated,had the right to silence.Secondly,the general inquisition preceded the special inquisition(interrogation),and the criminal would not be interrogated without the general inquisition;the interrogation had to stay within the parameters laid down by the general inquisition,and the effect of the interrogation would not be used as its cause.Thirdly,in order to anticipate the confession of an unexpected crime,the accused had the right to knowledge the articles against him,otherwise,he had the right to silence.Finally,the doctrine against effect being converted into cause was set up,and accordingly the confession of an unexpected crime was to be suppressed,which was the formula for the modern exclusionary rule.In the later 17th century England the conditional privilege against self-incrimination was promoted to the absolute privilege and its application was expanded from capital cases to non-capital cases,with its function shifting from protecting the magistrates to protection the criminal.