Unpacking the exclusionary rule of repeated confessions in China
| Published date | 01 April 2024 |
| DOI | http://doi.org/10.1177/13657127231212228 |
| Author | Luye Mou,Li Chen |
| Date | 01 April 2024 |
Unpacking the exclusionary rule
of repeated confessions in China
Luye Mou
Zhejiang University Guanghua Law School, Hangzhou, China
Li Chen
Fudan University Law School, Shanghai, China
Abstract
While Chinese law recognises that repeated confessions following an initial confession procured by
illegal means should be excluded from trial, the legal doctrine by which China excludes such evi-
dence differs significantly from other jurisdictions. China’s approach to the exclusion of repeated
confessions is premised on what this paper loosely terms a ‘principle plus exceptions’model, in
which a general exclusionary rule for repeated confessions is supplemented with a closed list of
exceptions. A study of the 113 cases on China Judicial Documents Network highlights the difficulties
in the operationalisation of the ‘principle plus exceptions’model, with the result that the law on
repeated confessions is inconsistently applied. In response, this paper proposes that China should
adopt a flexible and open-ended case-specific analysis, whereby courts examine the admissibility of
the repeated confession based on the circumstances of each case and various factors. In the end,
this paper advocates for essential institutional reforms aimed at bolstering the judicial authority of
the Chinese judiciary and facilitating the advancement of evidence law reform in China.
Keywords
case-specific analysis, derivative evidence, fruit of poisonous tree doctrine, ‘principle plus
exceptions’model, repeated confession
Introduction
While it is clear following the ‘Two Evidence Rules of 2010’(Guo, 2017: 31–32; Zhang and Zheng,
2014: 109)
1
that confessions obtained through compulsion by illegal means are inadmissible as a
Corresponding author:
Li Chen, Fudan University Law School, Room 404, Fudan University Leo Koguan Law Bld, Shanghai, 200438, China.
Email: lichen@wustl.edu
1. The Provisions on Several Issues Concerning the Examination and Judgmentof Evidence in Death Sentence Cases and the Provisions
on Several Issues Concerning the Exclusion of Illegal Evidence in Criminal Cases, jointly issued by SPC, the Supreme People’s
Procuratorates, the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice in 2010.
Article
The International Journal of
Evidence & Proof
2024, Vol. 28(2) 111–128
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/13657127231212228
journals.sagepub.com/home/epj
matter of Chinese criminal procedure,
2
the status of repeated confessions is less clear. For the purposes of
this paper, a repeated confession refers to a subsequent confession or confessions following an initial con-
fession procured by a breach of a suspect’s rights.
The problem of repeated confessions has been identified as one of the most salient issues in Chinese
criminal procedure after the implementation of the ‘Two Evidence Rules of 2010’(Long, 2013: 22).
Repeated confessions may nullify procedural protections against forced confessions in the criminal
process—for instance, if an investigator could use torture to procure a confession, and then subsequently
use the fruits of that initial confession to pressure the accused into making a repeated confession, then the
effect of the exclusionary rule against evidence obtained by torture is moot; an investigator could simply
arrange for a repeated confession to be made (Guo, 2017: 39; Wang, 2008: 170). However, from a policy
perspective, a broad-brush exclusion of repeated confessions may undermine the work of law
enforcement.
To resolve this conundrum, the Supreme People’s Court (SPC), the Supreme People’s Procuratorate,
the Ministry of Public Security and Other Departments (the ‘Two Supreme Bodies and Three Ministries’)
issued a set of guidelines in June 2017 proposing to address, among other things, the issue of repeated
confessions. Article 5 of the ‘Provisions on the Several Issues concerning the Strict Exclusion of the
Illegally Collected Evidence in the Handling of Criminal Cases’(hereinafter the ‘Provisions’) created
a general exclusionary rule for repeated confessions. This general rule is balanced by two exceptions.
First, a repeated confession is admissible when the repeated confession is not made in the presence of
the original questioner or, second, if the case proceeds to a different stage, repeated confessions are
admissible if the suspect voluntarily confesses after being informed of their procedural rights and the
legal consequences of making a confession.
3
This paper is organised in the following manner. The next section compares and summarises foreign
practices by examining the English and American laws and cases on repeated confessions. The next
section provides a normative analysis of the ‘principle’and ‘exceptions’in Article 5 of the
Provisions. The following section analyses how the ‘principle plus exceptions’model has been
applied in practice, based on the 113 judgments involving repeated confessions on China Judicial
Documents Network that were made after the promulgation of the Provisions. The next section proposes
that China should instead adopt a ‘case-specific analysis’to benefit from the foreign and domestic experi-
ence in both theory and practice, to avoid the pitfalls of the ‘principle plus exceptions’model.
The status of repeated confessions in England and the United States
The English approach: A two-tier exclusionary rule of illegally obtained evidence and
repeated confessions
4
sets out a two-tier framework by which illegally obtained
evidence is excluded from the criminal process. First, under s. 76(2) PACE, a mandatory exclusionary
rule applies to confessions made either by ‘the oppression of [the person making the confession]’,or
made in consequence of ‘anything said or done’that is likely to render the confession unreliable.
5
2. Criminal Procedure Law 2018, art. 43 and art. 56 clause 1. This is also enshrined in national and international human rights law.
See e.g. the International Covenant on Civil and Political Rights, art. 14(3); US Constitution, Fifth Amendment.
3. This position is further confirmed by Article 1.2 of the Rules for the Exclusion of Illegal Evidence in the Handling of Criminal
Cases by People’s Courts (for Trial Implementation), issued by SPC at the end of 2017. Given that the Provisions jointly issued
by the Two Supreme bodies and three Ministries are broader in scope and more authoritative than its implementing instruments,
this paper takes Article 5 of the Provisions as the applicable rule for repeated confessions.
5. PACE, s. 76(2)(a)(b).
112 The International Journal of Evidence & Proof 28(2)
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