Exclusive focus: Why China’s exclusionary rules won’t stop police torture.

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背景

新规则

  1. 重复供述:
  2. 体验记录、讯问录音录像
  3. 侦查人员出庭作证

 

日进中国发布了 new document aimed at deterring police abuses by strictly excluding coerced confessions and other illegal evidence from criminal trials.

效果不会很好的。

虽然有一些有趣的新内容,但其却被重大问题一些和依然未能解决问题所掩盖。 problems that have long plagued China’s exclusionary rules重大问题之一是新的是该规定莫名其妙地明确阻碍辩护律师查阅、获得最关键的有关非法证据排除的资料,这将不可避免地令人怀疑整个诉讼过程的合法性。

背景

首先要做一个简单地概述。非法证据排除规则自2010年以来一是中国防止冤错案判的重要程序。尽管其在2012年被正式写入刑事诉讼法,而且随后通过司法解释以及部门规则细化,可测量的影响已经微乎其微。

“排除证据”基本上是指以刑讯逼供以及其他的非法手段提取的陈述不能作为定罪的依据。物证、文政时被违法获取时,控告放必须对这些瑕疵作出解释才可作为证据; 法院在决定该解释是否成立有较大的自由裁量权。一旦法院对证据的合法性有疑问,控方有责任证明证据的合法性。

中国的“排除规则”被普遍认为有两个种功能。[i]:

(1) 威慑警方(侦查员)的不当行为 让警察明知不会从非法行为获得任何利益。

(2) 防止错案 排除不可核实、不可靠的证据来保护无辜者

第一个目标,去激励不当行为,也是美国法系排除非法搜查、扣押所获得的证据的理由。简单地说,理念是警察之所以违反正当程序 (还侵犯嫌疑人的合法权益),是因为他们想要破案、胜诉;但如果警察知道这类不当行为会实际上的结果 是会失去 定罪的目标,那他们会更有动力一丝不苟地遵守规则。然而,为了使这一战略有效,警察必须从非法行为的使用中根本得不到任何好处。这就是为什么美国法律制度采用“毒树之果”的规定,不仅排除了通过不当行为直接获得的证据,而且排除了由于最初的非法行为而获得的任何派生证据。

中国的非法证据排除规则没有等效的原则,所以即使规则经常被严格执行,刑讯逼供仍然可能让控方获取证据。偶尔可能有一些非自愿的供述被排除,但被排除的供词可能仍然包含一些线索,例如谋杀凶器的位置或者其他犯罪嫌疑人的身份,能够让警方真名犯罪事实。在一些真是的案件中,警察或者检察官知道供述应该被排除后,干脆重新进行了一次“合法“的讯问,为获得一份可以在法庭上使用的供述。只要能发现足够的补强证据,进行刑讯逼供不太可能改变案件的结果。

The rules have always been more clearly focused on the second possible goal, which is preventing wrongful convictions. Several such cases have recently been overturned by China’s government, although not always in time to save the accused’s life. Wrongful convictions are not only unjust, but also threaten the legitimacy of the entire criminal process and inflame public passions leading to unrest. Releasing someone who is factually guilty on procedural grounds is likely also viewed by many as equally unjust and harmful to the system’s legitimacy. Torture of someone who ultimately appears to be guilty, however, seems to be something many are prepared to overlook.

Preventing wrongful cases is obviously an important goal, but it should be distinguished from the question of regulating police. This kind of exclusion is more about the reliability of evidence, than deterrent value. While unfortunately there remain advocates of coercive interrogation techniques, the global consensus has long been that information given under extreme duress is simply unreliable. This is the main grounds for excluding ‘involuntary’ confessions in the U.S. A healthy skepticism of confessions, apart from exclusionary rules, is also codified in Article 53 of China’s Criminal Procedure Code, which provides that they must not be the sole basis for conviction.

If Chinese exclusion of evidence is most concerned with reliability, other systems should be put in place to stop police misconduct. The use of torture to extract confessions is a crime in China, of course, and prosecutions of torturers might more directly deter such abuses, but in practice such prosecutions are even less common than invocations of the exclusionary rules. Were police abuses pursued with even half the vigor and public attention put into China’s anti-corruption campaign, the situation might be different.

新规则

在研究新规则时,最突出的问题涉及律师和学术界经常认讨论的几个问题:

1.重复供述: As mentioned above, China’s exclusionary rules do not contain a ‘fruit of the poisonous tree’ doctrine excluding all evidence derived from an initial violation. This means that even after a confession is excluded as coerced; it may still be replaced by a new confession that was conducted under better conditions. Of course, once an accused’s rights have been violated, perhaps violently, he may well believe that he will be harmed again should he now recant. Also, having confessed once, it is just easier to do so a second time, especially where the suspect or defendant may well not understand the ramifications of the first confession having been excluded.

The new document attempts to address this situation with a very narrow rule blocking the use of some derivative evidence. Article 5 begins by saying that where an initial confession is excluded as the product of torture, similar subsequent confessions are to be excluded as well, if also made due to the influence of that initial torture. This is a good rule, if difficult for courts to apply, but it should stop there, with all such confessions being considered unreliable.

Instead, the rule goes on to provide exceptions allowing that a new confession may still be admitted so long as the interrogation is conducted by new questioners who inform the accused of their rights and potential liability before the accused makes a new similar confession. It simply isn’t realistic to think that any degree of warnings could ensure the voluntariness and reliability of such a confession. By the terms of the exception, it applies only to an actual victim of torture, again approached by authorities questioning them on the subject that resulted in their torture before. Regardless of whether it is new police officers, prosecutors, or judges who now questions them, it is impossible to believe that the new confession is not entirely the product of the earlier torture.

It should be repeated that Article 5 applies only to situations of confessions extracted through torture, and not to those resulting from other illegal interrogation tactics. This means that where the violation is improper confinement, or methods such as subjecting the accused to cold, hunger, sunlight, heat, or fatigue during interrogation, a new confession is not impacted.[ii]

2。体验报告、讯问录音录像。 While the State bears the ultimate burden of showing that evidence was lawfully obtained, the defense will want to provide evidence refuting this. Among the most obvious pieces of evidence for demonstrating physical abuse are records of accused’s medical inspections performed by the detention center, and recordings of the interrogations, if any.

Detention centers are required to create physical inspection records during intake, including photos of any existing injuries, providing a valuable record showing whether new injuries appeared while in custody. [iii]Interrogators are required to make A/V recordings of interrogations in major cases, and are allowed to do so in other cases.[iv] These systems are in place specifically for the purpose of preventing torture and other coercion, but lawyers have previously indicated difficulties in accessing these materials. Medical records are often not provided at all, and viewing of the often very lengthy tapes of multiple interrogations must often be done in judges’ chambers, during work hours, rather than at the lawyers’ convenience.

Rather than fix these problems, the new rules essentially codify them. Article 21, provides that lawyers are to have full access to several important pieces of evidence as soon as the investigation is with the prosecutors at the end of investigation. The available evidence includes any official decision to restrict the accused’s freedom, written records of interrogations, logs of their being brought for interrogation, etc. The most critical evidence regarding abuse in custody, the recordings of interrogation and the medical inspections reports, however, can expressly be withheld.

Where the prosecution does not hand over medical inspection report or recordings in its possession, the defense may apply to the court to collect them. Article 22 provides that the court is to conduct a review before giving them to the defense, however, and give them to the defense only where it finds that these materials are relevant to proving the legality of the evidence gathering. Even assuming the courts earnestly and fairly perform their duties, whenever the evidence is not provided; failure to disclose the materials in a case about government misconduct will cast a shadow over the entire proceedings.

The court is required to explain why it has not given the materials, but the explanation may well begin and end with a recitation of the law- they were not provided because they are not relevant- without further clarification. Frankly, it is difficult to imagine when the medical inspections of a party alleging physical abuse would not be directly relevant. It is also difficult to understand what legitimate goal could be served by denying a detainee access to his own medical records or interrogation footage when he requests it to prepare for trial.

3. 侦查员出庭作证。 The investigators alleged to have perpetrated misconduct in investigations rarely testify at court. This means that the defense is unable to question them in court to challenge their testimony. The courts have discretion to summon investigators to court where they find it is necessary to resolve doubts about the legality of the investigation tactics. It rarely happens. Other reforms are encouraging greater appearance of witnesses in criminal trials, but nothing in the new rules helps clarify when an appearance is necessary and when investigators should appear.

Investigators appearance in court is critical to a fair trial, but is also an important opportunity for policing reforms. The trial can expose abuses, and also become a forum for investigators, the court, and defense to discuss the propriety of investigative conduct through specific examples. This feedback is essential to changing practices, and refining concepts of fairness.

与上述的调查人员出庭问题一样,这个问题也限制了律师的作用。两个问题都透露‘非法证据排除规则’并非旨在发挥律师制衡警察不当行为或作为避免错案的的作用,

 

 

 

 

[i] Other possible justifications for exclusion invoked in other nations have rarely been mentioned in China, including protection of the integrity of the courts, which would be blemished by implicit condoning of illegal evidence gathering if such evidence was allowed to support convictions.

[ii] 第8项 SPC opinion – a previous refinement of prohibited interrogation tactics, listing these conditions as separate from the use of torture to extract confessions.

[iii] 第13条

[iv] 第10条

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