China has just released a new document aimed at deterring police abuses by strictly excluding coerced confessions and other illegal evidence from criminal trials.
It won’t work.
While there is some interesting new content, it is overshadowed by major problems and the failure to resolve problems that have long plagued China’s exclusionary rules. Among other major issues, the new rules inexplicably impede defense attorneys’ access to some of the most critical evidence for requesting exclusion, which will inevitably cast doubt on the legitimacy of the entire process.
By way of quick overview, rules for the exclusion of illegal evidence have been the centerpiece of China’s struggle to prevent wrongful convictions since 2010. Despite being formally incorporated into China’s Criminal Procedure Law in 2012 and refined in subsequent interpretations and rules, their measurable impact has been minimal.
‘Exclusion of evidence’ essentially means that statements extracted by torture or other abusive techniques cannot be used as the basis of a conviction. Where physical evidence or documents are collected in violation of procedures, an explanation must be given for those defects before they may be used as evidence- and courts have discretion in deciding when the explanation is adequate. The burden is on the State to convince the court of the legality of evidence collection once it is cast into doubt.
China’s “exclusionary rules” have been generally viewed as playing two possible roles[i]:
(1) Deterring police misconduct by making clear that police will not derive any benefit from illegal conduct; and
(2) Preventing wrongful convictions of innocents by excluding unverifiable or untrustworthy evidence.
The first of these goals, de-incentivizing misconduct, is how the U.S. justifies excluding evidence gained through illegal searches and seizures. The idea, put simply, is that police violate procedures (and suspects’ rights) because they want to solve cases and secure convictions, but that if police knew such misconduct would actually result in losing convictions, they would be more motivated to meticulously follow the rules. In order for such a strategy to be effective, however, police must truly receive no benefit at all from the use of illegal practices. This is why the U.S. legal system employs a “fruit of the poisonous tree” doctrine to exclude not only the evidence acquired directly through the misconduct, but also any subsequent evidence gained as a result of that initial illegality.
China’s exclusionary rules have no equivalent doctrine, so even if the rules were routinely and rigorously enforced, torture might still yield admissible evidence. A confession might occasionally be lost when found to be coerced, but the excluded confession might still contain clues as to the location of a murder weapon, the identities of additional suspects, or other evidence sufficient to gain a conviction. In some actual cases, police or prosecutors who knew that a confession should be excluded have simply conducted a new ‘lawful’ interrogation to get a confession they could use in court. So long as sufficient collaborating evidence is found, the use of torture during investigations is unlikely to alter the case outcomes.
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.
In looking at the new rules, the most prominent problems relate to several issues routinely identified by lawyers and academics:
1. Repeat confessions: 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. Medical Inspection Records/ Interrogation Recordings. 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. Investigator appearances at court. 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.
Like the preceding problem, barriers to investigators’ appearances, this problem also limit the role of lawyers. Both show that the exclusionary rules are not intended to empower lawyers as an independent check on police misconduct, or an equal force in the prevention of wrongful convictions.
[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.
[iii] Article 13
[iv] Article 10
如果中国的非法证据排除更多考虑的是定罪证据的可靠性，那么就应当建立其他机制来遏制警察的非法行为。刑讯逼供也是中国刑法规定的一项罪名，追究刑讯逼供者的刑事责任可能会更直接地威慑类似的侵权犯罪行为。 但是，刑事逼供罪的案件非常少，甚至比排除非法证据的案子还要少。如果中国政府拿出“反腐”的一半决心和 一半精力来解决警察滥权的问题，情况可能会有不同。
相反，第5条随后规定了采信重复供述的例外情形，允许在更换讯问主体后， 由其他侦查人员进行讯问并告知诉讼权利和认罪的法律后果的，嫌疑人自愿作出的重复供述可以被采纳。但是，我们有理由怀疑， 任何程度的警告是否都可以保障重复供述的自愿性和可靠性。此外，例外条款仅仅适用于实际遭受刑讯逼供的受害者，即使更换了讯问主体来再次讯问同一个问题，我们也难以相信新的供述不是在之前刑讯逼供行为的影响下作出的。