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China's Exclusionary Rule of Illegally Obtained Evidence
He Jiahong
2013年2期
China's Exclusionary Rule of Illegally Obtained Evidence
He Jiahong
Professor of Law, Vice Chairman of the Research Center of Criminal Legal Science

China's Exclusionary Rule of Illegally Obtained Evidence
  In a modern country under the rule of law, the exclusionary rule of illegally obtained evidence is an indispensible part of the criminal judicial activities. Such rule is necessary both from the standpoint of protecting the human rights and from the standpoint of investigating the facts. In recent years, the writer of this paper has been in charge of an empirical study on misjudged criminal cases. We have found out that there is a close link between the illegally obtained evidence and the misjudged criminal cases. For example, in all kinds of evidence, the leading cause of misjudged criminal cases is false confessions of the accused, which are mainly extorted by torture. In the questionnaire survey we conducted in 2007, 37% of the respondents chose the option that “the confessions of the accused” are the evidence most easily resulting in misjudged criminal cases; 60% of the respondents chose to believe that “extorting confessions by torture” is the factor most possibly causing the accused to make false confessions. In the 50 misjudged criminal cases we analyzed, which involve murder or manslaughter and were reported by the media, “extortion of confessions by torture” is certainly or probably involved in the cases with “false confessions of the accused”, which takes up 94%. The above-mentioned result indicates that false confessions of the accused are the leading cause of misjudged criminal cases, which is mainly resulted from torture. Thus, in order to prevent misjudged criminal cases, it is significant to establish and improve the exclusionary rule of illegally obtained evidence with the aim of excluding the evidence extorted by torture. The Regulations on Several Problems Concerning the Examination and Judgment of Evidence in Hearing Death Penalty Cases (hereinafter referred to as Regulations on Evidence in Death

  Penalty Cases), the Regulations on Several Problems Concerning the Exclusion of Illegally Obtained Evidence in Hearing Death Penalty Cases (hereinafter referred to as Regulations on Exclusion of Illegally Obtained Evidence), both of which were jointly issued in 2010 by the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice, together with the Amendments to the Criminal Procedural Law approved in 2012 by the National People’s Congress, put emphasis on the importance of the exclusionary rule of illegally obtained evidence. The complete exclusionary rule of illegally obtained evidence should include two fundamental aspects, or in other words, should answer two fundamental questions. The first one is the delimitation of illegally obtained evidence, that is to say, what is illegally obtained evidence; the second one is the disposition of illegally obtained evidence, that is to say, whether to exclude it and how to exclude it.

  A. Delimitation of illegally obtained evidence

  As the term implies, illegally obtained evidence is the evidence obtained in a way against the legal regulations. According to the relevant legal provisions in our country, there are two categories of illegally obtained evidence: one category includes the evidence obtained by means explicitly prohibited by law. For example: Article 50 of the Criminal Procedural Law provides: “It shall be strictly forbidden to extort confessions by torture and to collect evidence by threat, enticement, deceit or other unlawful means.” The evidence collected in violation of the provision in this Article is the illegally obtained evidence. Article 1 of the Exclusionary Rule of Illegally Obtained Evidence has the corresponding provision: “the statements of the criminal suspect or the accused extorted by illegal means of torture and the testimony of the witness or the statements of the victim obtained by illegal means of violence or threat are illegally obtained verbal evidence.” The differences between the provisions in the two Articles will be discussed by the writer in the following part of this paper. The other category of illegally obtained evidence includes the evidence that is not collected in accordance with the provision or requirement of law, including the subject, the proceedings or the means of collecting evidence, or the form of evidence is not in accordance with law. For example, Article 116 of the Criminal Procedural Law provides: “Interrogation of a criminal suspect must be conducted by investigators of the people’s procuratorate or the public security organ. During the interrogation, there must be no fewer than two investigators participating. After a criminal suspect is sent to the detention center for custody, the interrogation shall be conducted by investigators in the detention center.” According to such provision, if the interrogation is not conducted by the investigators, or only conducted by one investigator, not conducted in the detention center, the statements of the criminal suspect are illegally obtained evidence.

  At the first sight, the above delimitation of illegally obtained evidence is clear and definite. However, after careful study, we can find that there are still some unclear points. For example, what is torture? What is threat, enticement, or deceit? What is the other illegal means? Since the law fails to provide explicit answers or explanations to those questions, people can only interpret them with their common sense or even make guesses. However, common sense may vary from person to person; and the guesses of people may be entirely contrary to each other. Consequently, there is disagreement or different criteria in determining illegally obtained evidence. For example, some people think that leniency to those who confess is an inducement leading to confession and severity to those who resist is extortion of confession by torture; whereas some other people regard such opinions as nonsense. Some people think that “emotional distress” is also torture; whereas some other people do not praise such an opinion. Although this question was answered by the Judicial Interpretation on the Criminal Procedural Law issued by the Supreme People’s Court in Dec. 20, 2012, there are still some unclear points since it fails to enumerate the ways of inflicting emotional distress.

  In hearing individual cases, people also have different understanding of the legality of means or ways. For example, in the unjust case of Zhao Zuohai, the investigator kept questioning him day and night, and set up firecrackers above his head when he fell asleep. Is such a way of questioning extortion of confession by torture? While questioning Zhao Zuohai, the investigator said to him: if you don’t tell the truth, I will take you out by car, kick you off the car, give you a shot, and say you are escaping. Is that threat? In the unjust case of She Xianglin, since She Xianglin could not describe clearly the process of his killing his wife after he confessed that he killed his wife, the investigator gave him some hints by saying: even if you threw the body into the water, we would find it out after draining the pond. Is that enticement? It is well-known that even though many investigators haven’t obtained enough evidence, they may say to the criminal suspect: we have obtained enough evidence, other suspects have confessed, and now it depends on your attitude. Is that deceit?

  As the norm of people’s conduct, legal language should be precise to make the legal provisions definitely understood by the social members. In a certain sense, the preciseness of the legal language symbolizes the level of the development of legislative skills and the degree of perfection of the legal system. However, since the society is complicated and keeps changing constantly, the legal language has to be vague to a certain extent to make the legal provisions generally and lastingly applicable. That is to say, the legal language has two sides, preciseness and vagueness. Generally speaking, the main meaning of the legal language should be relatively clear and definite whereas the extensive meaning can be relatively vague. In other words, the legal language should be clear and definite at the abstract level and vague at the specific level. Take the above-mentioned “extortion of confession by torture” as an example, its meaning is clear and definite in general, but it is vague under special circumstances in specific cases. “The other illegal means” provided in Article 50 of the Criminal Procedural Law is a vague concept. The complexity in judicial practice makes the legislators adopt such a vague concept to make it generally applicable. The function of law as a norm of conduct requires for the preciseness of legal language, but on the other hand, the generally applicable principle demands for the vagueness of the legal language, which are contradictory. People cannot hope that the legislators will make all- embracing and perfect legal rules. Therefore, what can be done is let the judicators make interpretative application when facing specific problems in practice, and legal precedents are the best means of such application.

  B. Exclusionary rule of illegally obtained evidence

  The legislature faces different value choices while making the exclusionary rule of legally obtained evidence. If the need of cracking down crimes and investigating facts is simply taken into consideration, the less illegally obtained evidences are excluded, the better it is. If the need of safeguarding the rights of the criminal suspect and the defendant is simply taken into consideration, the more illegally evidences are excluded, the better it is. The legislators in different countries must manage to strike a balance among various value orientations, such as cracking down crimes and safeguarding human rights. Article 2 of the Criminal Procedural Law illustrates: “The aim of the Criminal Procedural Law of the People’s Republic of China is: to ensure accurate and timely ascertainment of facts about crimes, correct application of law, punishment of criminals and protection of the innocent against being investigated for criminal responsibility; to enhance the citizens’ awareness of the need to abide by law and to fight vigorously against criminal acts in order to safeguard the socialist legal system, to protect the citizens’ personal rights, their property rights, democratic rights and other rights; to guarantee smooth progress of the cause of socialist development.”

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