Study On The Construction Of The System Of The Exclusionary Rule Of Unlawfully Obtained Evidence In China

The exclusionary rule of unlawfully obtained evidence is one of the topics frequently studied in China, which is related with the current situation of unlawfully obtaining evidence, and also with the current stage of the Criminal Procedure Law amendment and judicial reform. In our litigation practice, the phenomenon of unlawfully obtaining evidence seriously violates the constitutional rights of citizens and the requirements of due process of law. With China's reform of the system of criminal proceedings going on at this stage, due process and human rights protection in both the idea of criminal justice and the exclusionary rule of unlawfully obtained evidence, in essence, is the same.The exclusionary rule of unlawfully obtained evidence is a concentrated expression of the human rights protection theory, safeguarding human rights and preventing the use of illegal methods to obtain evidence including extorting a confession by torture during criminal proceedings. In the West, theories and regulations concerning the exclusionary rule of unlawfully obtained evidence are already quite mature. However, in China, the institutional structure of the exclusionary rule of unlawfully obtained evidence is still in its exploration stage. On the basis of relevant theories and practice about the exclusionary rule of unlawfully obtained evidence, the paper attempts to expound the legitimacy of the exclusionary rule of unlawfully obtained evidence and establish ties between its construction and the reality in China, providing some concrete ideas as to how to construct a legislative system of illegal documents exclusionary rule in China.In addition to introduction and conclusion, the paper consists of four parts. The first part presents the basic theory of the exclusionary rule of unlawfully obtained evidence, including the understanding of unlawfully obtained evidence, the types and characteristics of illegal evidence, "Fruit of poisonous tree" theory and "Miranda rules." According to the relevant theories of the United Nations Convention and the United States, evidence illegally obtained is judged from the perspective of the way the evidence is obtained, rather than the form or content of the evidence itself. Such evidence in criminal trials should not be accepted as evidence against the accused. As the exclusionary rule of unlawfully obtained evidence continued to be developed and improved, "Fruit of poisonous tree" theory and "Miranda rules" have emerged one after another. "Fruit of poisonous tree" theory operates effectively against evidence-obtaining actions that violate the Constitution or other laws, namely, excluding in theory derivative evidence obtained from illegal means, with the exception of four situations, that is, purged taint exception, inevitable discovery, independent source and attenuated connection exception. "Miranda rules" confirmed the applicability of the exclusionary rule of unlawfully obtained evidence to unlawfully obtained oral confession, which means that police at the first interrogation need to inform criminal suspects of Miranda warnings and render it with a constitutional right.The second part, on the basis of the development of the exclusionary rule of unlawfully obtained evidence in the United States and other countries, analyzes its validity and explains various factors that affect its establishment. In 1914, the exclusionary rule of unlawfully obtained evidence came into being in the United States, but at that time there were still many flaws. Not until 1961 were exclusionary rules fully established in the United States Federal government and every state government. During the later development, the establishment of "Miranda rules" and the constant improvement of "Fruit of poison tree" theory indicated the maturity of American exclusionary rules. The exclusionary rule of unlawfully obtained evidence in other countries in the world, including Britain, German, Japan and so on, developed under the influence of that of the United States and in the basis of human rights protection theory, and in the process, based on their national reality.Within a few decades, exclusionary rules were established in the United States, followed by Britain, France, Germany, Japan and other countries in the world. Through analysis we have acquired the legitimate value of the exclusionary rules: the logical requirement of the theory of procedure act; the requirement for protecting the constitutional rights of citizens; the embodiment of justice; the need for the reform of international justice. But the establishment of the exclusionary rules was influenced by historical tradition, current situation of society and the purpose of legislation of a specific country, and this is why exclusionary rules differ from country to country in specific design.Part III describes the present China and the exclusionary rule of unlawfully obtained evidence. The study on the exclusionary rule of unlawfully obtained evidence in China started as early as 1980s, which witnessed the emergence of three theories, negative, affirmative and compromising ones respectively. Not until after 1990 did the compromising one began to be accepted. It is on such basis that the spirit of procedural justice, judicial democracy and human rights protection demonstrated by the exclusionary rule of unlawfully obtained evidence were fully recognized. However, at present, in view of China's social situation, obstacles still exist in the establishment of the exclusionary rule of unlawfully obtained evidence, including institutional barriers in the course of justice, barriers in investigation conditions and barriers in understanding legal conceptions. Also, aiming at these obstacles, we presently propose corresponding countermeasures; from a long-term perspective, China also needs to eliminate these obstacles through in-depth reform of the judicial system and judicial mind-set.The fourth part offers a tentative plan on the construction of an integral system of the exclusionary rule of unlawfully obtained evidence in China. For the overall structure, legislative approach of the exclusionary rules in terms of basic procedural laws should be established; the range of exclusions includes the exclusion and exception of unlawfully obtained oral confession and unlawfully obtained substantial evidence; three principles should be followed: the principle of allotting the burden of proof appropriately, the principle of isolating unlawfully obtained evidence and the principle of acting on party's own. In evidence reviewing procedures, the application for proceedings by the accused, in principle, should be ruled accordingly by the court after the opening of evidence and before the application for the review of the legality of the evidence before the trial begins; the application for the review of the legality of the evidence during the trial and during the appeal procedures should proceeds in accordance with the principle of limited examination and with the procedures at the remedial stage. The establishment of the exclusionary rule of unlawfully obtained evidence requires the installment of a coordinated mechanism and the enforcement of three principles in criminal proceedings, which include the principles of due process, the principle of the presumption of innocence and the principle of judicial protection of human rights; and within a specific coordinated mechanism, the system of Right to Silence should be established, the right to the presence of council should be improved, the system of pending detention should be reformed, punitive measures against law-breaking officials and the relief system for those whose right have been infringed should also be established.