Exclusion of illegally obtained confessions in China
| Author | Zhiyuan Guo |
| DOI | 10.1177/1365712716674799 |
| Published date | 01 January 2017 |
| Date | 01 January 2017 |
Article
Exclusion of illegally obtained
confessions in China:
An empirical perspective
Zhiyuan Guo
1
China University of Political Science and Law, Beijing, China
Abstract
The exclusion of illegally obtained evidence has long been the focus of theoretical research
and legislative reform in China. After years of efforts, the exclusionary rule has finally found
a foothold in Chinese statute. However, after the exclusionary rule has been officially
established, the initial fervour for reform has given way to a difficult slog of changing actual
practice. This article is based on a comprehensive empirical survey on the implementation
of the exclusionary rule conducted by the author as the primary investigator. This article
will address three key issues that stood out in the empirical surveys: the definition and
scope of illegally obtained confession, proof of illegally obtained confession, and suppression
hearing. In addressing each issue, the author will follow the similar structure: first share the
empirical findings on the implementation of the exclusionary rule across the country, then
examine the contributing factors causing the failure of implementation and identify the
existing challenges that China encountered in implementing the new rules, and finally put
forward some potential solutions to these problems based on comparative study and
China’s special situation.
Keywords
burden of proof, multiple confessions, soft violence, standard of proof, suppression hearing,
the exclusionary rules, torture
1. Zhiyuan Guo is a Professor of Law at China University of Political Science and Law. This is a working paper that Professor Guo
has been writing during her visit to the Center for Rights and Justice at Chinese University of Hong Kong.
Corresponding author:
Zhiyuan Guo, China University of Political Science and Law, 25 Xitucheng Rd, Haidian, Beijing, China.
E-mail: Guozhiyuan@hotmail.com
The International Journalof
Evidence & Proof
2017, Vol. 21(1-2) 30–51
ªThe Author(s) 2016
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DOI: 10.1177/1365712716674799
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Introduction
Background
The exclusion of illegally obtained evidence has long been the focus of theoretical research and legis-
lative reform in China.
2
As early as 1998, a principle of excluding any statements
3
obtained through
torture, threats, inducement, deception or other illegal means was included in the judicial interpretations
for implementing the 1996 Criminal Procedure Law.
4
However, these interpretations did not go so far as
providing for a procedure to determine whether a confession was unlawfully obtained and, if so, that it
should be excluded from evidence. Therefore this principle was primarily hortatory and appears not to
have been implemented in practice.
After years of effort, a set of rules containing 15 articles was finally promulgated in June 2010
(hereinafter the ‘2010 Exclusionary Rule’),
5
right after the exposure of the wrongful conviction of Zhao
Zuohai.
6
The 2010 Exclusionary Rule is significant because, for the first time, the government has set
forth detailed, concrete procedures on the handling of evidence that is allegedly obtained through illegal
means. Then, a refined version of the exclusionary rule of illegally obtained evidence has been incor-
porated in the newly amended Criminal Procedure Law (hereinafter as CPL) in 2012, which was a
symbol of the official establishment of the exclusionary rule of illegally obtained evidence in a statute.
The 2012 CPL devotes only four articles to the exclusion of illegally obtained evidence. Article 54
defines the scope of both illegally obtained oral evidence and illegally obtained physical evidence and
suggests a compulsory exclusion model for oral evidence but a discretionary exclusion model for
physical evidence.
7
The other three articles set forth the suppression hearing. Article 56 endows the
parties and their legal represen tatives with the right to move for supp ression but requires them to
undertake a slight preliminary burden of providing evidence or clues.
8
Article 57 imposes the burden
of proof upon the prosecution and requests that the police take the stand when necessary to prove the
2. The codification of evidentiary rules in China started as early as the end of last century, and the exclusionary rule of illegally
obtained evidence was the first priority in China’s legislative agenda of the evidentiary rules. In contrast to the heavily
constitutionalised debate in the United States, the discussion surrounding the exclusionary rule in China is largely one of
policy. However, the Constitution does provide macro policy aspirations for the adoption of the exclusionary rule. The 2004
amendment to Constitution included the phrase ‘the state respects and guarantees human rights’, which was widely cited by
Chinese reformers promoting the exclusionary rule.
3. The ‘statements’ here refer to the oral evidence including confession, testimony and victim statement. For this reason, the
early version of this exclusionary principle was called the ‘exclusionary rule of illegally obtained oral evidence’.
4. See 1998 Supreme People’s Court Judicial Interpretation Article 61 and 1999 Supreme People’s Procuracy Judicial Inter-
pretation Article 265. Article 61 of SPC Interpretation provides: ‘It shall be strictly forbidden to use unlawful methods to
obtain evidence. Any testimony of a witness, victim or defendant obtained by coercion, enticement, deception or other illegal
method cannot be the basis for conviction.’ Article 265 of SPP Interpretation provides: ‘It is strictly forbidden to use unlawful
methods to collect evidence. Statements obtained from suspects, defendants or witnesses by coercion, threats, enticement or
deception or other unlawful means cannot form the basis of an accusation of a criminal offense.’
5. Rules on Certain Issues Relating to the Exclusion of Illegal Evidence in Criminal Cases (the 2010 Exclusionary Rules).
6. Zhao Zuohai’scase is the latest in a series of wrongfulconvictions that have receivedtremendous public attention.After serving
11 years in prison, Zhao Zuohaiwas exonerated by the most persuasive evidence possible: after more than a decade’s absence,
the alleged murder victim, Zhao Zhanshang (no relation), returned to their home village still very much alive to claim social
welfare benefits.Years earlier, the two Zhaos had been seen quarrellingbefore Zhao Zhanshang disappeared. A headlessbody
was found shortly thereafter and the police suspected Zhao Zuohai of murdering Zhao Zhanshang. They arrested him and
subjected him to physical and mental abuse for weeks until he finally confessed to the ‘murder’. SeeBelkin (2013).
7. Article 54 reads: ‘Confessions by a suspect or a defendant obtained through torture and extortion and other illegal means and
witness testimonies and victim statements obtained through the use of violence, threats and other illegal means should be
excluded. Where physical or documentary evidence is collected in ways violating legal procedures and severely affecting
judicial justice, corrections should be made or justifications provided. Where no correction or justification is provided, such
evidence should be excluded.’
8. Article 56 reads: ‘Where, in a court hearing, an adjudicator is of the opinion that illegally obtained evidence under Article 54
may exist, a court enquiry should be conducted into the legality of such evidence.A party and his defender or an agent ad litem
Guo 31
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