People's Court Rules for Handling the Exclusion of Illegal Evidence in Criminal Cases (Provisional)

Title: The Supreme People's Court Notice on the Release of the "People's Court Rules for Conducting Pretrial Conferences in Criminal Cases (Provisional)" , "People's Court Rules for Handling the Exclusion of Illegal Evidence in Criminal Cases (Provisional)" and the "People's Court Rules for Handling Courtroom Investigation of in First-instance Criminal Trials Under the Ordinary Procedures (Provisional)".
Promulgating Entities:Supreme People's Court
Reference number: 法发〔2017〕31号
Promulgation Date: 2017-11-27
Expiration date: 
Source of text: http://www.court.gov.cn/fabu-xiangqing-75652.html

These rules are formulated on the basis of provisions of law combined with actual judicial experience, so as to implement the Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice 'Opinions on Advancing the Trial-centered Reforms of the Criminal Procedure System" and "Provisions on Several Issues on Strict Exclusion of Illegal Evidence in Handling Criminal Cases" to regulate the procedures for the exclusion of illegal evidence, correctly punish crime, truly safeguard human rights, and effectively prevent unjust, false and wrongfully decided cases.

Article 1: Defendants' confessions extracted through the following illegal methods shall be excluded.

(1) Where made by defendants against their own will due to unbearable suffering caused by the employ of the egregious tactics of using violent methods such as hitting, the unlawful use of restraints, or covert corporal punishment.

(2) Where made by defendants against their own will to unbearable suffering caused by methods using violence, or carrying out threats through means such as seriously harming the lawful rights and interests of the person or their families.

(3) Defendants' statements gathered by the use of unlawful confinement or other illegal restrictions of physical liberty shall be excluded.

Where extortion of confessions by torture is used to make defendants confess, and the defendant makes subsequent repeat confessions similar to that confession because of the influence of that [prior] use of torture to extract confessions, they shall all be excluded together, with the following exceptions:

(1) Where, during the investigation period, the investigating organs confirm, or cannot rule out, that evidence was gathered by illegal means, and they therefore change investigators; and when other investigators again conduct interrogation, they give information on procedural rights and on the legal consequences of admitting guilt, and the defendant voluntarily confesses;

(2) Where, during the periods of review for arrest, review for prosecution, and trial, prosecutors or adjudicators give information on procedural rights and the legal consequences of admitting guilt when conducting interrogations, and the defendant voluntary confesses.

Article 2: Witness testimony and victim statements gathered through the use of violence, threats and unlawful restrictions of physical liberty, or other unlawful means, shall be excluded.

Article 3: Where illegal searches, seizures or methods violating legally-prescribed procedures are used to gather of physical or documentary evidence, and might seriously influence judicial fairness, supplements and corrections or a reasonable explanation shall be provided; and where supplementary evidence or a reasonable explanation cannot be provided, the evidence shall be excluded.

Article 4: Illegal evidence that is to be excluded in accordance with law, must not be read out or debated, and must not be the basis of a judgment.

Article 5: Defendants and their defenders applying for the exclusion of illegal evidence shall provide relevant leads and material "Leads" refers to specific content and clear indicated persons, times, places, measures, and so forth suspected of involvement with the illegal collection of evidence; "materials" refers to photos, physical examination records, hospital records, interrogation records, interrogation recordings, or testimony of others in the same cell that can reflect the harm of the illegal collection of evidence.

Defendants and the defenders applying to exclude illegal evidence shall provide a written application to the people's court. Where defendants truly have difficulty writing, they may make an oral application, but it shall be recorded in the case file, and the defendant shall sign it or leave a mark.

Article 6: The people's procuratorate bears the responsibility of presenting evidence on the the legality of evidence gathering

Where the people's procuratorate has not provided evidence, or the evidence it provided cannot prove the legality of evidence gathering, and upon trial, circumstances of evidence gathering are confirmed or cannot be excluded, the relevant evidence shall be excluded.

Article 7: Before court opens for trial, the presiding judge shall read the case file and conduct a review of the legality of evidence collection:

(1) Whether the defendant applied for the exclusion of illegal evidence during the investigation or review for prosecution phases; and where they did apply, whether they provided relevant leads or materials;

(2) Whether the investigating organs and people's procuratorates conducted a review and verification of the legality of evidence collection, and if they did, whether they reached an investigation conclusion;

(3) In major cases, whether the procurator of the people's procuratorate who is based in the detention center verified the legality of the interrogation before the conclusion of investigation,and whether the verification was simultaneously recorded; and where there was a verification inspection, whether they reached a conclusion;

(4)Whether illegal evidence excluded during the people's procuratorate's review for arrest or review for prosecution phases was transferred with the case and labeled as lawfully excluded illegal evidence.

Where after the the people's courts conduct a review of the legality of evidence gathering, they find that it is necessary to supplement the evidence, they shall informed the people's procuratorate to send the supplement within three days.

Article 8: When people's courts deliver a copy of the indictment to defendants and their defenders, they shall inform them of the right to apply for the exclusion of illegal evidence before court opens for trial, and to simultaneously provide leads or materials. The circumstances above shall be recorded in the case.

Where defendants apply for the exclusion of illegal evidence, but do not have a defender, the people's courts shall inform the legal aid institution to appoint a lawyer to provide them a defense.

Article 9: Defendants and their defenders' applications for the exclusion of illegal evidence shall be submitted before the court opens for trial, except in circumstances such as where leads or materials are discovered during the trial period.

Article 10: Where defendants and their defenders apply for the exclusion of illegal evidence and provide relevant leads or materials, the people's procuratorate shall convene a pretrial conference and send a copy of the written application and relevant leads or materials to the people's procuratorate three days before the pretrial conference convenes.

Where defendants and their defenders apply for the exclusion of illegal evidence before court opens for trial, but do not provide leads or materials, the people's courts shall inform them to supplement their submission. Where the defendant and their defender are unable to so supplement, the people's court is not to accept the application, and is to inform the defendant and their defender before opening court for trial. The circumstances above shall be recorded in the case.

Article 11: In cases that might receive a sentence of indefinite detention or death, or major cases such as crimes by underworld criminal organizations or serious drug crimes,when defendants clearly express to the procurators based in the detention centers who are conducting an inquiry to verify the legality of interrogations that there was no extortion of confessions by torture or other circumstances of illegal evidence gathering during the investigation phase, but then submit an application for the exclusion of illegal evidence during the trial phase, they shall explain the reasons. Where upon review the people's courts have no doubt about the legality of evidence gathering, they may reject the applications.

Where the procurator based in the detention center did not verify the legality of the interrogation before the investigation concluded in a major case, or did not make an audiovisual recording of the verification process, and the defendant and their defender apply for the exclusion of illegal evidence during the trial phase and provide relevant leads or materials, and the people's court has doubts about the legality of the evidence gathering, it shall conduct an investigation.

Article 12: Where during the pretrial conference, the people's courts conduct a review of the legality of evidence collection, it is usually conducted according to the following steps:

(1) defendants and their defenders explain the application for exclusion of illegal evidence and the relevant leads or materials;

(2) The prosecutor provides evidence materials showing the legality of evidence gathering;

(3) the prosecution and defense express their opinions on the legality of evidence gathering;

(4) Where the prosecution and defense cannot reach consensus on the legality of evidence gathering, the adjudicators are to identify the points of contention.

Article 13: During the pretrial conference, the people's procuratorates shall make focused explanations of the legality of evidence gathering through means such as the presentation of relevant evidence materials. The people's courts may conduct verification of the relevant evidence materials; and upon the application of the prosecution and defense, may play the audio and video recordings of the interrogation in a focused manner.

Article 14: During the pretrial conference, the people's procuratorate may withdraw the relevant evidence. Evidence that is withdrawn must not be presented in court absent new grounds.

Defendants and their defenders may withdraw applications for the exclusion of illegal evidence. After the withdrawal of the application, they must not again submit an application for the exclusion of the evidence, absent new leads or materials.

Article 15: Where the prosecution and defense reach a consensus opinion on the legality of evidence collection during the pretrial conference, the court shall verify this with the prosecution and defense at trial, and confirm it at court. Where one side recants at trial, the court will usually not conduct further review without legitimate reason.

Where the prosecution and defense fail to reach consensus on the legality of evidence collection at pretrial conference, the people's court shall conduct an investigation at trial, but where the evidence provided by prosecution is credible and sufficient and can rule out circumstances of illegal evidence gathering, and where there are no new leads or evidence showing that there might be illegal collection of evidence, the presentation and debate of evidence in courtroom investigation may be simplified.

Article 16: Adjudicators shall explain the review of the legality of evidence gathering in the pretrial conference reports, primarily explaining content such as the key areas of dispute between the prosecution and defense, as well as matters on which they have reached a consensus opinion.

Article 17: Where defendants and their defenders do not apply for the exclusion of illegal evidence before court opens for trial, but make an application during the course of trial, they shall explain the reasons. Where upon review the people's courts have doubts as to the legality of evidence gathering, an investigation shall be conducted; but where there is no doubt, the application shall be rejected.

Where, after the people's court rejects an application for the exclusion of illegal evidence, the defendant and his defender make another application on the same grounds without new leads or materials, the people's court is not to review it again.

Article 18: Where the people's courts decide conduct a court investigation of the legality of evidence gathering, they shall first conduct an investigation at court. In situations such as where the evidence for which exclusion has been applied is unrelated to the criminal facts, to prevent excessive delays of trial, other criminal facts may be investigated first, and and then conduct an investigation into the legality of evidence gathering.

Before the conclusion of procedures for the court investigation on the legality of evidence gathering, relevant evidence must not be read out or debated.

Article 19: Where the courts decide to conduct an investigation of the legality of evidence collection, it is usually conducted according to the following steps:

(1) In cases convening a pretrial conference, after the indictment is read,the court shall announce the circumstances on the review of the legality of evidence gathering and the points of contention between the prosecution and defense;

(2) defendants and their defenders explain the application for exclusion of illegal evidence and the relevant leads or materials;

(3) The prosecutor is to present evidence materials showing the legality of evidence gathering, and the defendant and their defender may conduct debate over the relevant evidence, and upon approval of the chief judge, the prosecutor and defender may question investigators or other persons appearing in court;

(4) the prosecution and defense conduct debate over the legality of the evidence collection.

Article 20: Public prosecutors adding proofs of the legality of evidence collection may present evidence materials such as interrogation records, registry of removal for interrogation, physical inspection records,legal documents for employing compulsory measures or investigative measures, and materials from reviews of the legality of evidence gathering done before the conclusion of the investigation; and may also play the interrogation recordings in response to objections , or through requesting the court notify investigators or other personnel to appear in court to explain the situation. Investigators' signing or affixing an official seal to explanatory materials must not replace investigators appearance at court.

Where during trial the prosecutor cannot present evidence at court or needs to supplement investigation in order to provide new evidence, and recommends extending the trial period, the court may consent.

Article 21: Defendants and their defenders may present relevant leads and materials, and apply for the court to play specified moments of the interrogation from interrogation recordings.

Where the defendant and their defender apply to the people's court for the collection of evidence materials not provided by the investigating organs or people's procuratorate, such as interrogation recordings or physical examination records, and upon review the people's court finds that the evidence materials are related to the legality of evidence collection, the court shall collect it; where it finds that the evidence is unrelated to the legality of the evidence collection, it shall decide not to collect it, and explain the reasons to the defendant and the defender.

Where defendants and their defenders apply to the people's court to notify investigators or other personnel to appear in court, and the people's court finds that it is truly necessary, it may notify the persons above to appear in court.

Article 22: Where the court conducts an investigation of the legality of evidence gathering, it shall emphasize review of audio or visual records of the interrogation, focusing on the following content:

(1) Whether the A/V recordings of the interrogation were made in accordance with law. In cases that might give a sentence of indefinite detention or death, or in other major criminal cases, whether an audiovisual recording of the interrogation process was made.

(2) Whether the audiovisual recordings of the interrogation are complete. Whether each interrogation was recorded, whether the recordings are complete and uninterrupted, whether there is selective recording,editing, deletions, or other such circumstances;

(3) Whether production of the A/V recordings of the interrogation were made synchronously. Whether the audio and video recording is made from the beginning of the interrogation through to the criminal suspects' verification and signing of the interrogation record; whether the start and end times recorded in the interrogation record are consistent with the starting and ending time as reflected in the a/v recording of the interrogation.

(4) Whether there is any discrepancy between the contents of interrogation recordings and interrogation record. Whether there are substantive differences in the content of interrogation records and audio/visual recordings of interrogations related to the verdict and sentencing; where there are discrepencies the audio/visual recordings are controlling.

Article 23: Where investigators or other personnel appear in court, they shall explain the process of gathering evidence to the court and take questions on the relevant circumstances. The court will stop questioning that is inappropriate or the content of which is irrelevant to the legality of evidence gathering.

Where upon notification by the people's courts, investigators do not appear at court to explain the circumstances, and the illegal gathering of evidence cannot be excluded, the relevant evidence shall be excluded.

Article 24: Where a people's court has doubts about the sources or content of evidence provided by the prosecution and defense, the court may inform the prosecution and defense to supplement the evidence or make explanations; When necessary, an adjournment may be announced and the examination and verification of the evidence conducted. The may notify the prosecution and defense to appear for the court investigation and verification of evidence, and the verification process is to be recorded in the case file.

Supplemental evidence from the prosecution and defense and evidence that obtained by the court during external court investigation, that has not been presented and debated at court and verified through other court investigation procedures, must not be the basis for showing the legality of evidence gathering.

Article 25: After the people's court conducts an investigation on the legality of evidence gathering, it shall make a decision at court on whether or not to exclude the evidence. When necessary, it may announce an adjournment, and have the collegial panel deliberate or submit it to the adjudication committee for discussion, and then convene court to announce the decision.

Article 26: Where, upon trial, there are any of the following circumstances, the relevant evidence shall be excluded.

(1) it is confirmed that the evidence was gathered by illegal means;

(2) Where in cases that the law provides the course of interrogation shall be recorded, the A/V recording of the interrogation is not provided, or where the interrogation recording has selective recording, editing, deletions, or other such circumstances, and the available evidence cannot rule out illegal evidence gathering;

(3) Where, other than in an emergency situation, the investigating organs did not interrogate in designated case-handling facilities, and the available evidence cannot rule out illegal evidence gathering;

(4) Where the procurator based in the detention center does not conduct a verification of the legality of interrogations before investigation concludes, or not make an A/V recording of the verification process, or where the recording has selective recording, editing, deletions, or other such circumstances, and the available evidence cannot rule out illegal evidence gathering;

(5) Other situations where the existence of illegal methods of evidence collection cannot be excluded.

Article 27: For people's courts' review or investigation of the legality of evidence gathering, such as for witness testimony, victim statements, physical evidence, or documentary evidence, consult the provisions above.

Article 28: People's courts shall specify review and investigation conclusions on the legality of evidence gathering in written judgments, and explain the reasoning.

Article 29: Where people's procuratorates, defendants, or their legal representatives raise a procuratorial counter-appeal or appeal, raising objections to the first-instance trial court's review or investigation conclusions on the legality of evidence gathering, the second-instance trial court shall review it.

Article 30: In any of the following circumstances, where defendants and their defenders did not apply for the exclusion of illegal evidence during first-instance trial procedures, and make an application in the second-instance trial procedure, the people's court for the second-instance trial shall review it:

(1) The first-instance trial people's court did not lawfully inform the defendant of the right to apply for the exclusion of illegal evidence.

(2) The defendant and his defender discover relevant leads or materials on the alleged illegal collection of evidence after the first-instance trial.

Article 31: The prosecutor shall fully present evidence materials showing the legality of evidence gathering during the first-instance trial procedure.

Where people's procuratorates did not present evidence in the first-instance trial procedures showing that evidence was gathered legally, the first-instance trial court is to exclude the relevant evidence in accordance with law, and the people's procuratorate must not present evidence at the second-instance trial that they did not present previously, except for that discovered after the first-instance trial procedures.

Article 32: For the second-instance trial court's investigation of the legality of evidence gathering, consult the provisions above on the first-instance trial procedures.

Article 33: Where first-instance trial courts do not review applications of the defendant and his defender for the exclusion of illegal evidence, and the relevant evidence is the basis of the verdict and it might influence the justness of the judgment, the second-instance trial court shall rule to revoke the original judgment and remand to the original people's court for new trial.

Article 34: Where the first-instance trial court does not exclude illegal evidence that should be excluded in accordance with law, the second-instance trial court may exclude the relevant evidence in accordance with law. After excluding illegal evidence, a disposition shall be made in accordance with the following separate situations:

(1) Where the facts verified and law applied in the original judgment are correct and the sentence is proper, the appeal or prosecutorial counter-appeal shall be rejected and the original judgment maintained;

(2) where the facts verified in the original judgment are not in error, but the law was applied incorrectly or the sentence is improper, the judgment shall be changed;

(3) Where the facts in the original judgment are unclear or the evidence insufficient, the judgment may be changed after clarifying the facts; it may also be ruled to revoke the original judgment and remand to the original people's court for new trial.

Article 35: For review and investigation of the legality of evidence gathering during the judgment supervision procedures or death penalty review procedures, consult the above procedures.

Article 36: These Provisions take provisional effect from January 1, 2018.