On The Exclusionary Rules

This paper is about questions concerning the establishment of the exclusionary rules in China. The present Chinese Criminal Procedure Law does not include the rules (China has not made evidence law or rules yet). However, the Supreme People's Court and the Supreme People's Procuratorate have provided in their interpretations and opinions that the statements illegally obtained from witnesses, defendants, and victims should not be used as evidence in trial and prosecution. The problems are that the Supreme Court's decision concerning the exclusionary rules has not been followed in China's judicial practice for various difficulties. Therefore, it is controversial on these questions:Whether the exclusionary rules have been established in China, (if negative), Whether China needs the rules;When the rule can be established in China; " What kind of rule China may adopt;Which principle or doctrine related to the rules may be incorporated into China's Law;How the rule can be carried out in China's judicial practice.To solve these questions, it is necessary to study China's realities and the experiences and lessons in the establishment and applications of the rules of foreign countries. The exclusionary rule originated in the United States over a century ago. This paper describes the background and development of the rules, their hearing procedure and exceptions, analyses their values, and makes some comments and suggestions concerning their improvement.The paper makes a comparative study on the rules in the United States with that contained in the United Nations human rights documents, evidence or criminal procedure laws of the United Kingdom, Germany, Russia, Australia, Japan, France, Italy, etc. However, the primary subject of this paper is to study the possibility and problems in the establishment and implementation of the rules in the context of China's judicial practice. The author proposes three phases for China to incorporate the rules and makes suggestions on the scope of the rules at each phase.The paper contains ten chapters: the first five chapters include the author's researches and analyses on the exclusionary rules in the United States; chapter six analyses the values of the exclusionary; chapter seven studies the regulation on illegally obtained evidence in the United Nations human rights documents and in laws of various countries; chapter eight is about the regulations on unlawful evidence in China's Taiwan, Hong Kong and Macao; chapter nine, the biggest part of the paper, is about the questions in the establishment of the rules in China; chapter ten is the author's suggestions on how to establish the exclusionary rule in China and how to ensure its practice in China's judicial reality.Chapter One: IntroductionThe author discuses the different definitions of the exclusionary rules, thebackground of its establishment (at the early stage there was only the exclusionary rule on evidence obtained with the means violating the 4th Amendment of the US Constitution), studies the functions of different branches of the American Government in establishing and implementing the rules. Finally, the author analyses the connection between the rules and adversary model of criminal justice system.Chapter Two: Establishment and developmentThis chapter traces back main cases of the US Supreme Court credited with establishing and developing the rules, describes the constitutional requirements, explores the connection between new technologies used in investigation and the legal requirements of search and seizure.Chapter Three: Scope of the rulesThe scope of exclusionary rules is classified in this paper into the following categories: evidence illegally obtained through unlawful search and seizure, violating the principle on not compelling self-incrimination and due process. The paper also discusses the fruits of the poisonous tree doctrine and its exceptions.Chapter Four: Exceptions to the rulesExceptions (apart from the exceptions to the fruit of poisonous tree) to the exclusion...