The Study On The Exclusionary Rule

The exclusionary rule has always been an inevitable issue of the criminal procedural law. However, as the development of democracy and as increasing requirement for protection of human rights, the exclusionary rule is being tabled. The United States is the first state to establish the exclusionary rule and the state to apply it thoroughly. Therefore, studies concerning the exclusionary rule are comparatively more thorough. However, in consideration of the differences between two nations about traditional legal culture and the reality, it is not advisable for China to establish an American exclusionary rule, for that the United States has not exercised feudal autocracy and from the beginning was established by those who apposed to autocracy and religious persecution under the principles of social contract. The concept, rule of law, rooted deeply in individualism, and the first task facing the law was how to refrain state organs from abusing police power, not to suppress the citizens. And as far as the criminal procedure was concerned, that was to exclude illegally obtained evidences. However, there were more than 2000 years when Chinese lived in the autocracy of feudality. Then the law was just undoubted by a tool for the rulers to suppress the people and punish criminals, and the ruled thought it was a tool, too. Therefore, procedural rights usually were not realized and it was common to illegally obtain evidences, such as extorting a confession by torture. At present, there are no definite provisions concerning the exclusionary rule and the criminal procedural law and discrepancies among the judicial interpretations by the supreme people's court, by the ministry of public security. The author prefers interpretations by the supreme people's court, which provide that when sentencing, oral evidences illegally obtained thorough extorting a confession by torture shall not be considered. However, neither in the criminal procedural law nor in the judicial interpretations, there are definite provisions respecting physical evidences and "fruit of the poisonous tree" derived from evidences illegally obtained. The author deems that whether the exclusionary rule is established or not shall not be different in legislation. In that case, what can be avoid is that when sentencing the judges are at a loss. In the author's opinion, oral evidences illegally obtained shall be excluded, and so shall physical evidences of this kind, but with certain exceptions when considering factors such as state safety and important social benefits.