On June 25, the Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice formally published two sets of rules regarding the use of evidence in capital cases and the procedure for excluding confessions by criminal suspects that had been obtained through illegal means such as torture. First announced at the end of May, these new rules have been the subject of much discussion in recent weeks.
To make the content of these new rules available to a broader audience, Dui Hua is producing English translations of the texts, to be released in three separate blog posts.
Part 2 is below. The original Chinese is here.
*
Rules Concerning Questions About
Exclusion of Illegal Evidence in Handling Criminal Cases
In order to standardize legal practices and promote fairness in the execution of the law, these rules are established in accordance with the Criminal Procedure Law and relevant judicial interpretations and in combination with the actual work of the people’s courts, people’s procuratorates, public security organs, state security organs, and judicial administration organs in handling criminal cases.
Article 1 The category of illegal oral evidence includes statements by criminal suspects or defendants obtained through illegal means such as coerced confession as well as witness testimony or victim statements obtained through illegal means such as use of violence or threats.
Article 2 Oral evidence that has been determined to be illegal in accordance with the law shall be excluded and may not serve as the basis for conviction.
Article 3 In the course of examining whether to approve arrest or initiate prosecution, the people’s procuratorates shall exclude illegal oral evidence in accordance with the law and may not use it as the basis for approving arrest or initiating prosecution.
Article 4 If, between the time that a copy of the indictment has been delivered and the time the trial commences, a defendant alleges that his or her pretrial confession was obtained illegally, he or she should submit a written motion to the people’s court. If the defendant has real difficulties with writing, he or she may make the accusation orally to be recorded by a people’s court employee or the defendant’s defense counsel, a copy of which the defendant shall sign or affix with his or her thumbprint.
The people’s court shall deliver the defendant’s written motion or record of accusation to the people’s procuratorate prior to the commencement of the trial.
Article 5 If, prior to commencement of the trial or during the trial, a defendant or his or her defense counsel alleges that the defendant’s pretrial confession was obtained illegally, the court should conduct an investigation in court immediately following the prosecutor’s recitation of the indictment.
If, prior to the conclusion of courtroom debate, the defendant or his or her defense counsel alleges that the defendant’s pretrial confession was obtained illegally, the court shall also conduct an investigation.
Article 6 If a defendant or his or her defense counsel alleges that the defendant’s pretrial confession was obtained illegally, the court shall request that he or she provide relevant leads or evidence with respect to the alleged illegal obtaining of evidence, such as the person(s), time, place, manner, and content.
Article 7 If, upon investigation, the court has questions about the legality of the way the defendant’s pretrial confession was obtained, the prosecutor shall provide interrogation transcripts, original audio or video recordings of the interrogation or other evidence and request that the court notify other individuals present at the interrogation or other witnesses to provide testimony before the court. If it is still not possible to eliminate suspicion of coerced confession, [the procuratorate shall] request that the court notify the interrogator(s) to provide testimony before the court and confirm that the confession was obtained legally. If the prosecutor cannot provide evidence at the time of the hearing, he or she may recommend that the court postpone the trial proceedings in accordance with Article 165 of the Criminal Procedure Law.
Having been notified in accordance with the law, interrogators or other individuals shall testify before the court.
If the prosecutor submits an officially sealed [written] explanation that has not been signed or sealed by the interrogator(s) concerned, the document may not serve as evidence that the evidence was obtained legally.
Prosecution and defense may cross-examine evidence and carry out debate with regard to the question of whether the defendant’s pretrial confession was obtained legally.
Article 8 If the court has questions about the evidence submitted by either the prosecution or defense, it may adjourn the proceedings and conduct investigation and verification of the evidence. If necessary, the court may notify the procurator or defense counsel to be present.
Article 9 If, in the course of the trial, the prosecutor recommends postponement of the trial proceedings in order to submit new evidence or conduct additional investigation, the court should agree.
If the defendant or his or her defense counsel requests [that the court] notify an interrogator, other individuals present at the time of interrogation, or other witnesses to appear in court and the court determines it to be necessary to do so, the court may announce postponement of the trial proceedings.
Article 10 Following the court’s investigation, the defendant’s pretrial confession may be read in court and subjected to cross-examination under one of the following circumstances:
(1) The defendant or his or her defense counsel do not provide leads or evidence of illegally obtained evidence;
(2) The defendant or his or her defense counsel has provided leads or evidence of illegally obtained evidence, [but] the court has no questions about the legality of the way the defendant’s pretrial confession was obtained;
(3) The prosecutor provides credible and sufficient evidence that is able to eliminate [questions about whether] the defendant’s pretrial confession was obtained illegally.
A defendant’s pretrial confession that is read in court should be considered together with the defendant’s statement in court and other evidence before determining whether it may serve as the basis for conviction.
Article 11 If the prosecutor does not provide evidence to confirm the legality of the defendant’s pretrial confession or the evidence provided is not credible or sufficient enough, that confession may not serve as a basis for conviction.
Article 12 If a defendant or his or her defense counsel alleges that the defendant’s pretrial confession was obtained illegally and the people’s court of first instance does not investigate [the allegation] and uses the defendant’s pretrial confession as a basis for conviction, the people’s court of second instance shall conduct an investigation into whether the defendant’s pretrial confession was obtained legally. If the procurator does not provide evidence to confirm [legality] or the evidence provided is not credible or sufficient enough, the defendant’s confession may not be used as a basis for conviction.
Article 13 If, in the course of the trial, the procurator, the defendant, or his or her defense counsel alleges that written testimony of a witness who has not appeared in court or a written statement by a victim who has not appeared in court was obtained illegally, the party who submitted the evidence shall verify that the evidence was obtained legally.
With regard to the evidence mentioned in the preceding paragraph, the court should carry out an investigation with reference to the relevant provisions of these rules.
Article 14 If material or documentary evidence is obtained in a manner that clearly violates the law and may have an impact on the fairness of an adjudication, redress or some reasonable explanation should be made, otherwise that material or documentary evidence may not serve as a basis for conviction.
Article 15 These rules are effective from July 1, 2010.
Article 1 The category of illegal oral evidence includes statements by criminal suspects or defendants obtained through illegal means such as coerced confession as well as witness testimony or victim statements obtained through illegal means such as use of violence or threats.
Article 2 Oral evidence that has been determined to be illegal in accordance with the law shall be excluded and may not serve as the basis for conviction.
Article 3 In the course of examining whether to approve arrest or initiate prosecution, the people’s procuratorates shall exclude illegal oral evidence in accordance with the law and may not use it as the basis for approving arrest or initiating prosecution.
Article 4 If, between the time that a copy of the indictment has been delivered and the time the trial commences, a defendant alleges that his or her pretrial confession was obtained illegally, he or she should submit a written motion to the people’s court. If the defendant has real difficulties with writing, he or she may make the accusation orally to be recorded by a people’s court employee or the defendant’s defense counsel, a copy of which the defendant shall sign or affix with his or her thumbprint.
The people’s court shall deliver the defendant’s written motion or record of accusation to the people’s procuratorate prior to the commencement of the trial.
Article 5 If, prior to commencement of the trial or during the trial, a defendant or his or her defense counsel alleges that the defendant’s pretrial confession was obtained illegally, the court should conduct an investigation in court immediately following the prosecutor’s recitation of the indictment.
If, prior to the conclusion of courtroom debate, the defendant or his or her defense counsel alleges that the defendant’s pretrial confession was obtained illegally, the court shall also conduct an investigation.
Article 6 If a defendant or his or her defense counsel alleges that the defendant’s pretrial confession was obtained illegally, the court shall request that he or she provide relevant leads or evidence with respect to the alleged illegal obtaining of evidence, such as the person(s), time, place, manner, and content.
Article 7 If, upon investigation, the court has questions about the legality of the way the defendant’s pretrial confession was obtained, the prosecutor shall provide interrogation transcripts, original audio or video recordings of the interrogation or other evidence and request that the court notify other individuals present at the interrogation or other witnesses to provide testimony before the court. If it is still not possible to eliminate suspicion of coerced confession, [the procuratorate shall] request that the court notify the interrogator(s) to provide testimony before the court and confirm that the confession was obtained legally. If the prosecutor cannot provide evidence at the time of the hearing, he or she may recommend that the court postpone the trial proceedings in accordance with Article 165 of the Criminal Procedure Law.
Having been notified in accordance with the law, interrogators or other individuals shall testify before the court.
If the prosecutor submits an officially sealed [written] explanation that has not been signed or sealed by the interrogator(s) concerned, the document may not serve as evidence that the evidence was obtained legally.
Prosecution and defense may cross-examine evidence and carry out debate with regard to the question of whether the defendant’s pretrial confession was obtained legally.
Article 8 If the court has questions about the evidence submitted by either the prosecution or defense, it may adjourn the proceedings and conduct investigation and verification of the evidence. If necessary, the court may notify the procurator or defense counsel to be present.
Article 9 If, in the course of the trial, the prosecutor recommends postponement of the trial proceedings in order to submit new evidence or conduct additional investigation, the court should agree.
If the defendant or his or her defense counsel requests [that the court] notify an interrogator, other individuals present at the time of interrogation, or other witnesses to appear in court and the court determines it to be necessary to do so, the court may announce postponement of the trial proceedings.
Article 10 Following the court’s investigation, the defendant’s pretrial confession may be read in court and subjected to cross-examination under one of the following circumstances:
(1) The defendant or his or her defense counsel do not provide leads or evidence of illegally obtained evidence;
(2) The defendant or his or her defense counsel has provided leads or evidence of illegally obtained evidence, [but] the court has no questions about the legality of the way the defendant’s pretrial confession was obtained;
(3) The prosecutor provides credible and sufficient evidence that is able to eliminate [questions about whether] the defendant’s pretrial confession was obtained illegally.
A defendant’s pretrial confession that is read in court should be considered together with the defendant’s statement in court and other evidence before determining whether it may serve as the basis for conviction.
Article 11 If the prosecutor does not provide evidence to confirm the legality of the defendant’s pretrial confession or the evidence provided is not credible or sufficient enough, that confession may not serve as a basis for conviction.
Article 12 If a defendant or his or her defense counsel alleges that the defendant’s pretrial confession was obtained illegally and the people’s court of first instance does not investigate [the allegation] and uses the defendant’s pretrial confession as a basis for conviction, the people’s court of second instance shall conduct an investigation into whether the defendant’s pretrial confession was obtained legally. If the procurator does not provide evidence to confirm [legality] or the evidence provided is not credible or sufficient enough, the defendant’s confession may not be used as a basis for conviction.
Article 13 If, in the course of the trial, the procurator, the defendant, or his or her defense counsel alleges that written testimony of a witness who has not appeared in court or a written statement by a victim who has not appeared in court was obtained illegally, the party who submitted the evidence shall verify that the evidence was obtained legally.
With regard to the evidence mentioned in the preceding paragraph, the court should carry out an investigation with reference to the relevant provisions of these rules.
Article 14 If material or documentary evidence is obtained in a manner that clearly violates the law and may have an impact on the fairness of an adjudication, redress or some reasonable explanation should be made, otherwise that material or documentary evidence may not serve as a basis for conviction.
Article 15 These rules are effective from July 1, 2010.
