Problems And Solutions In The Process Of Localization Of The Exclusionary Rule In China

In March 2012,the National People's Congress adopted the amendment to the Criminal Procedure Law,establishing the legal status of the exclusionary rule in China.Subsequently,the Supreme People's Court,the Supreme People's Procuratorate and the Ministry of Public Security,respectively issued new judicial interpretation,rules and regulations to ensure the effective implementation of the law.However,it did not produce the desired effect in judicial practice.Four years after the legislation,the exclusionary rule was merely successfully applied in a handful of cases.This situation is not only due to the inappropriate conception and definition of the rule,but is also resulted from the defective procedural system,which includes the initialization,hearing,judging as well as relief procedure.Taking the reexamination of theoretical issues of the exclusionary rule as a starting point,this article illustrates the basic framework of this rule based on the Criminal Procedure Law,relevant judicial interpretation and regulations.It then takes into consideration the logical sequence of the dynamic development of China's criminal procedure,combined with some empirical data provided by experts and trial courts,and analyzes main difficulties facing the exclusionary rule in its localization in each stage and put forward some solutions by referring to legislative models in the United States and Germany.This paper is divided into five chapters:The first chapter discusses some theoretical issues of the exclusionary rule.It advocates that the highest authorities of this rule are China's international obligations under the United Nations Convention against Torture as well as relevant provisions in China's Constitution.Additionally,it claims that the fundamental purpose of this rule is to deter the police,forcing the police to respect the Constitution during criminal investigation.In order to achieve this goal,the right against compelled self-incrimination,the right to counsel and regulations concerning search and seizure warrant should be added to the Constitution.Moreover,it emphasizes that the real exclusionary rule is only existed in the trial proceedings,since the correction and explanations given by the police and prosecutors during the pre-trial proceedings should be viewed as internal remedial actions,which is different from the decision to exclude the evidence made by the court as an external arbitrator.Chapter ? talks about the scope of the illegally obtained evidence as well as some problems and proposals.Firstly,for the illegally obtained verbal evidence,this chapter presents that it should be limited to illegally obtained confession of the accused;provisions of other illegal interrogation methods,such as fatigue,threats,lure and cheat,should be further explained;the repeated confession should be excluded unless the interrogator has been changed;the fruit of the poisonous tree should be applied in a limited exclusionary rule;and illegally evidence should be distinguished from the defective evidence and uncivilized behavior.Secondly,for the illegally obtained physical evidence,this chapter indicates that it should contain the audio-visual materials and the electronic evidence;and the illegal search and seizure of evidence should be compulsively excluded.The third chapter explains the initiation of the exclusionary rule.It reviews the preconditions and ways to initiate the procedure.It suggests that the court should be given the obligation to inform the defendant his right to apply for the application of this rule;clues or materials offered by the defendant should be redefined;the criteria for the preliminary review should be clearly listed.More importantly,it advocates that in principle,the application should be reviewed and decided by an independent judge in a separate pre-trial hearing proceeding,unless the defendant obtains clues and materials during the course of the trial and the trial activities should then be suspended and turned into a separate hearing managed by an independent judge.The next chapter describes the hearing proceeding of the exclusionary rule.It firstly discusses the burden of proof,means of proof as well as the standard of proof of the prosecution,the right to investigate of the court,followed by the analysis of advantages and disadvantaged of the interrogation transcripts,medical forms,recording and video materials,written materials offered by interrogators and interrogators' testimony.It then explains justifications why the prosecution should bear the burden of the highest standard of proof and suggests that the house of detention should establish a regular medical inspection system;provisions concerning production and submission of the recording and video materials should be given more details;the written materials offered by investigators should be denied;the standard that investigators must testify in court and legal consequences when they refuse to testify or refuse to cooperate with the court should be added.The final chapter studies the judging and relief proceedings of the exclusionary rule.It points out that it is inappropriate not to exclude the illegally obtained evidence in an independent and apparent manner and unreasonable to applying almost the same procedure in the second trial as in the first one.As a consequence,it advocates that the independent judge should make a written decision immediately after the hearing to exclude or not to exclude the evidence;both parties can exercise the right to put forward a middle appeal against the decision made during the hearing before the trial and to appeal against the decision made during the trial after the verdict;and the appeal court should employ different routines when the trial judge refuses to review the defense's application,the parties refuses to accept the judgment or the defense applies for the first time in the appeal court.