Renmin University Professor Chen Weidong recently put notes online from a conference he moderated on the current implementation status of the Two Evidence Rules, which were released in 2010. Participants from academia and practice, courts and law enforcement, all voiced their optimism about the new rules before airing their many concerns and complaints.  （barbarically translated from the original Chinese  , which was written by Chen Weidong and Chai Yufeng) 

For English language background on China’s exclusionary rules, click HERE.

‘Investigation of the Actual Implementation Status of the ‘Two Evidence Rules’

Current Operation and Obstacles to Implementation of the “Two Evidence Rules”

The ‘two evidence rules’: current operation and feedback.

From the statements of meeting participants, we learn that the operation of the two evidence rules has generally proceeded well since their promulgation: On the one hand, the quality of case management in both capital cases and ordinary criminal cases has increased noticeably, and in practice, exclusion procedures have been initiated and there have been cases of excluding evidence;  coerced confessions and other illegal evidence gathering activities have met a certain amount of restraint. At the same time, the legal outlook of personnel from the police, prosecutors and courts is continuously evolving and their evidence consciousness grows incrementally stronger.

At the local level, the Court President of the High People’s Court of Hainan Province, DONG Zhiliang, indicated that the Hainan court system has strictly applied and implemented the two evidentiary rules,  and the 2011 annual report stated that all death penalty cases sent to the Supreme People’s Court for final review were approved. Vice-President of the Hainan Intermediate Court, Feng Ming, stated that since “the two evidence rules” have come into effect, the rate of appeals from basic level court first-instance trials, the rate of corrections by intermediate courts of basic level courts’ first-instance cases, and the rate of corrections by the high court of intermediate level courts’ first-instance cases have all decreased. Vice-President Du Yusu of the Xi’an Intermediate Court and Chief Prosecutor Li Zhong of the Ningbo prosecutors’ office also said that the ‘two evidence rules’ were conceptually advanced and balance human rights protections and crime fighting, while also making clear the value of proper procedures.

Dai Changlin, Chief Judge of the Supreme People’s Court’s (SPC’s) third criminal tribunal, indicated that after  the’ two evidentiary rules’ took effect, the quality of evidence at investigation, indictment and trial coming from every level of judicial organ across the country showed improvement. For example, in the SPC’s final review of death penalty cases and other serious criminal cases, there was a clear decrease in the number of cases returned for further hearing because the facts were unclear and evidence insufficient .

Chen Guoqing, the director of the Supreme People’s Procuratorate’s (SPP’s) legal policy research room, indicated that the two evidentiary rules, particularly the exclusion of illegal evidence, play an important cautionary and guiding role in the legal collection of evidence.

While confirming the positive significance of the two evidence rules, experts from theoretical circles also raised pertinent criticisms.

First, the two evidence rules differ in the effectiveness of their implementation.  Professor Long Zongzhi  of Sichuan University and Vice-President Du Yusu of the Xi’an Intermediate Court both put forward that the implementation of the ‘Evidentiary Rules for Death Penalty Cases” was more effective than that of the “Rules on the Exclusion of Illegally Obtained Evidence”. The primary reason is that the former relates to operational standards on techniques for evidence gathering, examination of evidence, and approval of evidence, and is thus relatively easy for judges to understand, grasp and utilize; while the latter concerns the conflicting standards of the values of excluding evidence, which is difficult for judges to get a handle on and implement.

其次,《非法证据排除规定》在执行过程中存在诸多问题。根据海口、西安、廊坊、宁波等地与会法官、检察官代表的发言总结,实践中主要存在的问题是法院“不敢排、不想排、不能排、不会排、排不动”,检察院“有监督之名、无监督之实,事前无法预防非法取证,事后无法证明取证合法”等现象,其中既有条文规定的缺陷,也有实践方面的障碍。

Secondly, several problems exist in the course of implementing the “Exclusionary Rules.” According to meeting participants from Haikou, Xi’an, Langfang, Ningbo and other areas, and the summary statement of the procuracy representatives, the biggest problems in practice are that courts “don’t dare to exclude, don’t want to exclude, can’t exclude, won’t exclude, and exclude to no effect”; procurators “supervise in name only, but don’t actually supervise, have no ability to prevent the illegal collection of evidence before the fact, and have no ability to prove the legality of evidence collection later. “

Finally, there are problems with the use of evidence gathered through technological investigative methods.  Meeting participants began a discussion of provisions in the “Evidentiary Rules for Death Penalty Cases” and “Draft Amendments to the Criminal Procedure Law” relating to technological and covert investigation techniques, but the disagreement amongst courts, public security organs and scholars on the  use and rehabilitation[1] of evidence gathered through technological methods remained quite large.

Obstacles to the application of the “Exclusionary Rules”

First, judicial independence has not yet been realized. Participants widely felt that the basic reason that it is difficult for judges to exclude illegally acquired evidence is a lack of strong adjudicatory independence. As to ensuring institutional adjudicatory independence, Vice-President Du YuSu of the Xi’an Intermediate Court and Chief Judge Zheng Lanqing of the Hainan High Court’s first criminal tribunal, both felt that the structure of the current criminal procedure, and its weak position for the courts, leaves the courts with insufficient authority and capacity to lead; adjudicatory personnel generally don’t dare to exclude evidence.  As to updating the concept of adjudicatory independence, Professor Long Zongzhi  of Sichuan University raised the issue of judicial ethics, and Qinghua University Professor Zhang Jianwei felt that improper judicial practices should be abolished and not taken in and accepted as part of the national conditions.

Second: the relationship between public security organs, procuratorates and courts. According to article three of the  “Exclusionary Rules” , the people’s procuratorates when performing review for approval of arrests or indictment, also have a duty to exclude illegal evidence. Yet participants from the procuracy reported that they also face great pressure when excluding illegal evidence. For example, Chief Procurator Li Zhong, of the Ninbo City, Beilun District Procuratorate, put forward that the procuratorate is the bridge that connects the courts and the public security organs, but , procurators at once have no channel through which to supervise the investigatory organs’ evidence gathering activities, methods or procedures, and thus, when they are approving arrest or indictment , they have no idea, whether illegal evidence gathering occurred.  At the same time, the system of reporting between higher and lower courts also puts the procurators in truly weak position during the course of tiral that ultimately creates splits between investigation, approval of arrest and prosecution.

Third:  Pressure from performance evaluation indices and case time limits: Participants from the People’s Courts felt that trial time limits are another major reason that trial judges are unwilling to exclude evidence. Vice-President Feng Ming of the Haikou Intermediate Court expressed that judges spend a large amount of time investigating sentencing evidence, mediating attached civil suits, and verifying certain evidence, so that case time limits are extremely tight.  Vice president Du Yusu of the Xi’an Intermediate Court also expressed that the intermediate court judges have large case loads with little time to try them, and that case closure rates and case handling times are an important assessment indicator that effectively pressures judges to not actively initiate evidence exclusion procedures. But, Beijing University Professor Wang Jiancheng said that as a newly enhanced system, the exclusionary rules naturally require increased judicial investment, otherwise we’ll be confronted with the awkward situation of a decrease in lawsuit efficiency.

Fourth:  system of accompanying regulations for the exclusionary rules. Participants from practice and theoretical circles all readily emphasized the need to create a system of accompanying regulations for the exclusionary rules. From a big picture perspective, Professor Long Zongzhi of Sichuan University said that considering the current national conditions we should strengthen prevention measure to effectively prevent illegal evidence gathering behavior from happening, and not merely rely on the evidence exclusion procedures. Beijing Normal University Professor Song Yinghui specially emphasized the need to further refine and make more explicit the provisions of the Exclusionary Rules.  At the micro-level, The Ministry of Public Security’s Legal Affairs Bureau Director Sun Maoli said that the public security offices have spared no expense in their efforts to control and contain the use of torture to extract confessions, for example separating case handling and rest areas and having 24 hour continuous a/v recording in the case handling areas.

Scholars Wang  Jiancheng, Wang Minyuan, Song Yinghui  all mentioned that China should develop its system of guiding cases and that the National People’s Congress Legal Affairs Committee should make unifying legislative interpretations.

Deputy Director Shi Xianzhi of the SPP  case management office  and Chief Procurator Li Zhong of the Ningbo City, Beilun District Procuratorate felt the system for simultaneous a/v recording of interrogation should be further improved. ZheJiang Gongshang University  Professor Tan Shigui felt that we need to establish a system for allowing lawyers to be present during interrogations, clarify criminal suspects’ right to requrest a health examination,  and clarify methods of sanctioning investigatory personnel who don’t appear in court to testify. Professor Long Zhongzhi felt that the exclusionary rules should be used together with rules on hearsay evidence.

On Understanding the “Two Evidentiary Rules” and the Draft Criminal Procedure Law Amendments                        

The Substantive Rules on the Exclusion of Evidence

First, how should one understand the exclusionary rules? Unlike [their counterparts in] Western nations where the rule of law is advanced, China’s exclusionary rules were created under the weight of China’s unique history and seek to use exclusion of testimony to effectively contain the use of torture to extract confessions and the occurrence of unjust, wrongly-decided cases; and the exclusion of physical evidence is in no way at the center of the exclusionary rules. This results in the targets of exclusion being divided into testimony and physical evidence, the period of exclusion being extended across the investigation, approval of arrest, and indictment phases,  and the duty to exclude being entrusted to investigatory personnel and procurators. As to whether the above characteristics are reasonable and sensible,   meeting participants offered differing opinions.

On the one hand, the majority of those working in practice generally discussed the exclusionary rules in the context of Chinese criminal adjudication and were not yet aware of this issue, while expert scholars raise the differences between exclusion of evidence in China and abroad.

China Academy of Social Sciences (CASS) Researcher Xiong QiuHong said that we use exclusionary rules at three levels: Macro, middle and micro: The broad sense of exclusion of evidence is the same as admissibility of evidence; at the middle-level itss the same as prohibitions on evidence gathering found in German law; and the narrowest meaning is that found in the Fourth Amendment of the US Constitution’s  exclusion of physical evidence obtained through illegal searches and seizures. Professor Zhang Jianwei of of Qinhua University felt that we must not confuse the exclusionary rule with the voluntary confession rule and  Beijing University Professor Wang JianCheng expressed that exclusion of evidence only refers to exclusion by judges and that procurators are concerned with  the issue of ‘entry’ of evidence, not exclusion.

Secondly, how should we understand the exclusion of testimonial evidence? The Exclusionary Rules and the draft amendments to the CPL both regulate techniques for  obtaining illegal testimony. Representatives from practice had questions as to the definition and scope of “use of torture to extract confessions” and “threats, enticement, trickery”.  The academics offered an explanation and response.

Concerning “use of torture to extract confessions and other such illegal methods”, Sichuan University Professor Long Zhongzhi indicated that we need to make clear whether ‘disguised’ torture is  considered ‘use of torture to extract confessions’, and also that the scope of the ‘other such’ needs to be settled. China Renmin University Professor Chen Weidong and Beijing University Professor Wang Jiancheng felt that the phrase“other such” found in the Exclusionary Rules only includes physical punishment, threats, enticement and trickery, while the ‘other such’ found in the Draft CPL amendments could be interpreted  expansively, including physical punishment, cold, hunger, sun exposure, burning, freezing, boiling and other indirect or psychological torments.

Beijing Normal University Professor Song YingJun, however, feels that we cannot simply think that “use of torture to extract confessions and other such…” should include all of the above illegal evidence gathering techniques, but  we should still strictly delineate and specify what is meant by “other such”.

As to “threats, enticement and trickery,”  Professors Long Zongzhi and Song Yinghui discussed this question in detail. The former primarily summarized the problems in practice:  Since the two evidence rules came on the stage, ‘high-intensity’ torture to extract confessions has been somewhat reduced, but non-traditional torture and many forms of illegal evidence gathering have accumulated and increased so that in practice we now see threats and coercion, illegal methods of acquiring testimony that will always be difficult to eliminate. “Enticement and trickery”  occur in many forms,  and offering enticements is difficult to distinguish from ‘being lenient to those who confess’.  Use of ‘second confessions’ [confessions that repeat the content of a tainted confession but are not directly connected with illegal behavior[2]] is a regular occurrence.

The latter (Song Yihui) focused more on responding to the doubts of those in practice. If ‘threats’ reach the level of being inhumane and unethical, or enticement and trickery directly determine the content of a statement, then the confessions should all be excluded because they could lead to wrongfully decided cases. Also, there should be a absolute prohibition of repeat interrogation and ‘second confessions’.

Further, how should we understand the exclusion of physical evidence? Experts participating in the meeting largely felt that exclusion of physical evidence should proceed with caution. Researcher Wang Minyuan said that special caution is needed as to exclusion of physical evidence in capital cases. Professor Wang Jiancheng felt that the phrase “severely influence judicial fairness” found in the draft amendments to the CPL is too vague, illegal physical evidence is only limited to evidence acquired by illegal searches that violate citizen’s rights in their home[3] and unauthorized surveillance that violate’s citizens’ privacy rights.[4]

Finally, how should we understand exclusion of evidence and acquittal? Xi’an Intermediate Court Vice-President Du YuSu, Sichuan University Professor Long Zongzhi, and Langfang Intermediate court, Second Criminal Tribunal Chief Judge Xu Bing, all said that the relationship between excluding evidence and reaching a not-guilty verdict is difficult to get a handle on, even if the illegal evidence is excluded, it is very hard to announce an acquittal. Hainan High Court first criminal tribunal Chief Judge Zheng Lanqing, said that basic level court judges don’t really care whether evidence is illegal, but care only that the criminal acts were done by the defendant and that they can convict. China University of Politics and Law Professor Gu Yongzhong said that exclusion of evidence and its consequences needn’t all be addressed in a single strike, and that situations exceptions can be generated.

Procedural rules for the Exclusion of Illegal Evidence

Professor Fan Chongyi of the China University of Political Science and Law raised the problem of ‘situating’ the procedures for exclusion of evidence,  and participants had two types of view:  One view feels that this is a “trial within a trial” or ‘case within a case” and procedures should be constructed according to procedural rules. Zhang Zhihui, Director of the Department for Judicial Reform at the Supreme People’s Procuratorate, said that the problem addressed by evidence exclusion procedures is  whether or not evidence gathering activity was legal, trial procedures address the question of whether the crime was committed by the defendant, the two are qualitatively different and should proceed separately. Another view is that this is not an independent procedure and is just a component of the ordinary trial procedure.   Professor Gu Yongzhong felt that we don’t need to establish independent exclusion procedures- judicial resources and judicial customs don’t allow for it.  Professor Tan Shigui felt that Chinese courts don’t bear the burden of proof and that further, judges verify evidence either a piece at a time, in groups or altogether, and that if you want an independent approval procedure , making decisions would be quite difficult.

There was also controversy amongst participants  as to the timing of exclusion, and  there were three viewpoints: pretrial exclusion, exclusion during tiral, and exclusion after trial.

On the side of pre-trial exclusion, Professor Wang Jiancheng felt that an exclusion procedure should be setup before the start of the trial proper, which would allow consideration by the docketing judges.

On the side of exclusion during the trial, because article 181 of the draft amendments to the CPL has expanded the pretrial conference system, Professor Gu Yongzhong of the China University of Political Science and law and Director Zhang Zhihui of the Supreme People’s Procuratorate Department of Judicial Reform mentioned that the function of the pre-trial  conference is to help judges hear the comments of both parties before the start of adjudication, and to determine the key points and scope of in-court inquiry, to plan and design courtroom trial procedures before the fact, and is in essence just a type of preparation before holding court. As such, judges can begin investigating illegal evidence during the pre-trial conference, but cannot take any substantive actions. Illegal evidence should be excluded during the trial.

On the side of exclusion after trial, Zhang Zhihui, Director of the SPP’s Department of Judicial Reform felt that it should be clarified whether or not the parties have a right to request that evidence be excluded after the trial has concluded.  If a suspect or defendant has not requested that evidence be excluded throughout the indictment decision, the pre-trial conference and course of trial, he should be restricted from appealing on this basis after the conclusion of trial.

Participants also disagreed on the method of excluding evidence. The people’s courts and people’s procuratorates are both faced with the question of by what means to exclude evidence.

From the courts, Haikou Intermediate Court Vice-President Feng Ming and Langfang Intermediate Court second criminal tribunal Chief Judge Xu Bing said that the people’s courts have four methods for excluding evidence, the trial judges exclude evidence, collegial tribunals exclude evidence, department heads exclude evidence and adjudicatory committees exclude evidence. Exclusion takes three forms: oral exclusion, exclusion by judicial declaration and exclusion in the verdict. The law should offer clarification.

From the procuratorates, The SPP Case Mananagement Office Deputy Department head Shi Xianzhi and Ningbo City Beilun district procuratorate chief procurator Li Zhong said that the law should also clarify the method by which the people’s procuratorates should exclude evidence during the indictment decision, externally procuracy organs use direct exclusion and exclusion by hearing, while internally four methods are used, the exclusion by the procurator prosecuting the case, exclusion but the chief prosecutor, exclusion by people’s supervisors (人民监督员)and exclusion by the procuratorial committee. The law should offer clarification.

As to the burden of proof in exclusion of illegal evidence: regarding whether or not the defendant and his attorney bear the burden of proof. The Exclusionary Rules and the Draft Amendments to the CPL both dictate that when initiating procedures for the exclusion of evidence the defendant has the duty to provide ‘clues or evidence’. Professor Wang Jiancheng feels that this should not be understood and as a burden of proof, but should be understood as meaning that the suspect should provide clues and has the right to provide evidence.  Professor Tan Shigui however, feels that in practice courts essentially bear a certain burden to prove that the evidence gathering procedures were legal and that this burden should be carried by the prosecution.

The procuracy organs bear a burden of proving that evidence gathering procedures were legal during inquiries into illegal evidence, but whether the draft amendments to the CPL should clearly list the means by which the procuracy may prove this was controversial. Professor Chen Weidong of China Renmin University felt that the draft should clearly enumerate concrete methods by which the procuracy may make proof.

On the Standard of Proof, Haikou Intermediate Court Vice-President Feng Ming said that the standard is that the procuracy’s proof that evidence was legally obtained must be sufficient and reliable, not  that evidence proving exclusion must be sufficient and reliable. Langfang Intermediate Court second criminal tribunal Deputy-Chief Judge Xu Bing said that the law should make clear the relationship between ‘eliminating reasonable doubt’ and ‘inner faith’(内心确认)， to help basic level  court judges understand and master these two standards of proof.

Article35 of the ‘Rules of Evidence for Death Penalty Cases’ on the use of technological evidence in practice.

Public security Department, 12^th division, Section-head Jie Fang introduced the basis for the scope of technological investigations, the state of use in practice of evidence acquired by technological investigation methods, and the 12^th Division’s preliminary plans regarding the Draft Amendments to the CPL’s provisions on technologic investigations. Shanghai City public security technological investigation team, Deputy-team leader, Wang LinJin introduced the special characteristics of technologic investigatory evidence-gathering measures in practice, particularly explaining that these measures are a type of replacement for[other] investigative techniques and that technological evidence is a kind of fortifying evidence, and that further, its approval process is quite rigorous and its use quite cautious.

Expert Scholar participants widely agreed that  technological investigative methods have both a  political and secretive quality, but had differing opinions on how evidence gathered by these techniques should be used and “rehabilitated”.

Nanjing Normal University Professor Li Jianming felt that the draft amendments to the CPL should clarify ‘relevant regulations’, ‘strictly approve’ and other provisions’ meanings. Professor Chen Weidong felt that regular evidence and technologic evidence should be distinguished as they have different methods for examining the evidence. Research Fellow Xiong Qiuhong felt that the secret nature of technologic investigation methods doesn’t indicate that the evidence itself is at all mysterious, evidence obtained through technological evidence methods can apply the ‘two evidence rules’ just like any other evidence. Long Zongzhi, Wang Jiancheng, Fan Chongyi, Wang Minyuan and other professors all felt that technological investigation methods should be brought within the legal system, that public security organs should  approach technologic investigations from a legalistic perspective and separate them into internal work regulations and regular principle regulations, the former could be decided by the public security organs and needn’t be publicly disclosed while the NPC legal affairs committee would take the lead in formulating the latter.

From the Two Evidence Rules to the new Criminal Procedure Law。

Participants also commented on the integration of the ‘two evidence rules’ into this round of criminal procedure law reforms. Participants widely felt that the ‘two evidence rules provided useful reference and assistance for the CPL reforms.

CASS researcher Ji Xiangde said that the 1979, 1996 and now the current  CPL  reforms reflected three major transitions in the Chinese criminal procedure system and the gradually  establishment of exclusionary rules was a major manifestation of this. After the new CPL  is passed, we should continue to reform and perfect the relevant content in the two evidence rules in accordance with the revised law and use more concrete and more practicable interpretations to put the new CPL into effect.