On Criminal Illegal Exclusionary Rule In China

The exclusionary rule of unlawfully obtained evidence is an evidence rule of standardizing credibility, its core problem is evidence potency. Although it has being argued since it was initially established in USA at the beginning of 20 century, after more than one hundred years of development and reform, it has been accepted by many countries and international rules in the world. Because of the influence of wrong judicial idea, till now we have not established strict sense of exclusionary rule of unlawfully obtained evidence, which has had much bad effect on our criminal justice activities. So now we have the necessary to study on exclusionary rule of unlawfully obtained evidence in light of the reality of China.The article first analyses the criminal illegal evidence concept and studies overseas theory and practice about it. In the second part the article evaluates the definition, the related regulation on the exclusionary rule in Chinese legal field and the practice, then points out the defects in these aspects and proposes the importance of constructing the rule; At last the author puts forward the theory of constructing the exclusionary rule in current state of China. The author suggests the illegally obtained oral evidence must be absolutely excluded, the illegally obtained objective evidence may be excluded on the basis of flexibility with a principled standard, whether "the fruit of poisonous tree" may be excluded or not is determined by the judge. In order to make the rule into practice we also should set up examining procedure on the validity of evidence and establish necessary measures of exclusionary rule.