The Explore Of The Exclusionary Rule’s Practical Application

Exclusionary rule of illegally obtained evidence originates fromAnglo-American law system. In the early20thcentury, America developed theexclusionary rule of illegally obtained evidence through cases of Weeks v.UnitedStates、 Mapp v. Ohio and United States v.Leon and applied it to each state.Afterwards, America established the “fruit of poisonous tree rule” and its exceptionrules in succession through cases such as Nardone v.United States、 Wong Sungv.United States、Murray v.United States and Nix v、Williams。As a representativenation of continent law system, Germany emphasizes in its criminal procedure lawthat the basis for judgment of facts of cases should be the evidences which are notprohibited. Besides, these evidences must go through strict proof procedure.Therefore, all the evidences used in German court for convicting and sentencing thedefendants are those which are qualified to be evidences and are proved through thestatutory proof procedure. Centering on rights and interests such as privacy rightsand personal rights, Germany has enacted characteristic exclusionary rule of illegallyobtained evidence.Exclusionary rule of illegally obtained evidence generally refers to that thecourt shall not use the evidences obtained by investigation personnel throughillegally methods. In criminal justice, the illegally obtained evidences shall not beused as basis for the conviction and sentencing of the defendants. Afterwards, therule is evolved to include that the illegally obtained evidences can’t be used as basisfor approval of arrest, initiation of public procedure, rummage or detaining as well.If the court uses illegally obtained evidences as the basis of verdict, the defendantcan also lodge an appeal.The criminal procedure law of China always requires the investigation organsto collect evidences of crime and the public prosecution organs to perform themission of prosecuting and fighting crimes. In recent years,the criminal procedurelaw also gradually require the judicial organs to perform procedural justice and guarantee basic human rights in investigation and prosecution process. In order tobecome a socialism country under rule of law, our country must establish exceptionrule of illegally-obtained evidences of its own. This set of rules intends to excludeextorting confessions by torture and collecting evidences by violence throughdeterrence. Thus, it can play a active rule in observing and guaranteeing humanrights and safeguarding judicial dignity and justice.As a judge, I encountered indeed circumstances in judicial practice that thedefendants present that they have suffered from extorting confessions by torture.Thus, confusion for exception process of illegally-obtained evidences has becomefocus of my attention in practice. In this paper, I will discuss a gang-relate caseswhich I was involved in trial, put forward the focus of contradictions among thedefendant, defender and public prosecution organ and analyze and respond to thedifficulties and doubts in theory and practice.In our country, illegally-obtained evidences mainly include the following: theillegally verbal evidences such as confessions of criminal suspects and defendants,statements of victims and testimonies of witnesses acquired through violence, threat,seduce, cheat and etc; illegally-obtained physical evidences which are not conformto legal procedure and may affect judicial fairness seriously. The public prosecutionorgans must take the burden of proof for the legality of the evidences provided bythem. And the evidences should be accurate and sufficient. The parties only need toprovide clues for that the evidences are indeed obtained illegally. When the courtdoubts the legality of the evidence, the evidence should be excluded as illegallyobtained evidence, that is to say, the evidence is not qualified and can’t be used asevidence. If the court is agree that the evidence has sufficient reasons to convincepeople and make judgment that the evidence is legal, the proof of the publicprosecution organ has excluded reasonable doubts and the evidences are accurateand sufficient.Once illegally obtained evidences are found, no matter in investigation stage orreview and prosecution stage, the investigation organ and procuratorate organ canexclude the illegally obtained evidence according to exclusionary rule of illegallyobtained evidences in criminal procedure law, in order to implement deterrent theory and guarantee human rights of the defendants. As for the time when the illegallyobtained evidence should be excluded in judicial process of the court, controversiesexist both in theory and practice. But my opinion is as the following: since the lawsets the investigation procedure of illegally obtained evidences, the collegiate benchshould carry out appraise immediately after the procedure has been finished andpublish the investigation result, or the illegally obtained evidence will must affectthe judge’s free evaluation of evidences.