| China added human rights protection clause to the constitution by the new amendment passed by the tenth National People's Congress on Mar.14, 2004. It's very necessary and urgent for China to rectify its criminal procedure law and criminal judicial system since criminal justice is one of the best approaches to protect human rights and also the target of China's judicial reform while so many law enforcement problems keep coming out and jeopardizing Chinese human rights. American criminal justice system is one of the best sources to refer during Chinese legal reform since it has already developed into a very efficient law enforcement and human rights protection system after more than two hundred years' baptism of liberty based on English law. Due to this system hasn't been introduced into China in a systematic way based on case law except some brief remarks on the right to remain silent which is only one tree in the forest of the criminal justices system, the author here is trying to introduce the rational, spirit, principles and application of this system including the laws on search, seizure and police interrogation and criminal trial into China on case law analysis base by finding the constitutional clue to it. This treatise includes the following five chapters excluding the preface and postscript:The first chapter discusses constitutionalization of American criminal procedure. State governments was not bound by Bill of Rights because it was initially promulgated to limit federal government power and protect civil rights and liberty. The Fourteenth Amendment changed this difference between the federal and state governments by saying:" All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." But the controversies concerning the relationship between Bill of Rights and the Fourteenth Amendment led to three different positions: (1) the "total incorporation" position holds that the Fourteenth Amendment incorporates all of the Bill of Rights guarantees, and thereby applies those guarantees to the states with the same content they are given in their application to the federal government; (2) the Fundamental Fairness Doctrine holds Bill of Rights guarantees should be measured by the Fundamental Fairness standard and only those fits in should be applied to the state government but this caused a constitutional uncertainty problem because different judged could have different understanding and interpretation of fundamental fairness, which could lead to violation of the equal protection clause of the U.S. Constitution. And therefore, the (3) position, Selective Incorporation, came out as a compromise between the first two positions holding those Bill of Rights guarantees once passed the Fundamental Fairness standard should be applied to the states without being varied by judges. Selective Incorporation was accepted and eventually almost incorporated all the Bill of Rights guarantees and contributed a lot to the application of Bill of Rights to states so that the Bill of Rights has been safeguarding the American people from government abuse of power.In the second chapter, by introducing the Fourth Amendment requirements on search and seizure which says:" the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The author discusses the warrant probable cause requirement, disinterested magistrate requirement and pr...
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