Translation: China's New Rules on Evidence in Criminal Trials (Part 3 of 3)

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 has produced English translations of the texts, releasing them in three separate blog posts.

Part 3 is below. The original Chinese text is here.

Part 1 of the translation is here. 
Part 2 of the translation is here.

Read all three translations on Dui Hua's website (www.duihua.org).

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 Rules Concerning Questions About Examining and Judging Evidence

in Death Penalty Cases

     In order to handle death penalty cases, punish crime, and protect human rights with fairness and caution and in accordance with the law, these rules are established in accordance with the provisions of the Criminal Procedure Law of the PRC and other relevant legal provisions and in combination with legal practice.

I.   General Provisions

Article 1   The Criminal Law and Criminal Procedure Law must be strictly implemented in handling death penalty cases in order to ensure the cases’ quality and that the facts are clear, the evidence is credible and sufficient, procedures are legal, and the law is applied correctly.

Article 2   The facts used to determine guilt in a case must be based on evidence.

Article 3   [Police] investigators, procurators, and judicial officers shall stringently obey legal procedure and fully and objectively collect, examine, verify, and make determinations about evidence.

Article 4   Only evidence that has been examined and verified to be true through an investigation process in court involving presentation, identification, and cross-examination may be used as a basis for conviction and determining sentence.

Article 5   In death penalty cases, determination of the facts of the defendant’s crime must be based on credible, abundant evidence.
    Credible, abundant evidence means:
     (1)    All of the facts used to convict and determine sentence are proven by evidence;
     (2)    Each item of evidence used in conviction must have undergone a legal process [by which it is] examined and verified to be true;
     (3)   There is no contradiction between items of evidence or between an item of evidence and the facts of the case, unless the contradiction can be reasonably ruled out;
     (4)   In cases involving offenses committed jointly, a defendant’s position and role [in the crime] have been fully examined;
     (5)   The process of determining the facts of the case based on evidence comports with logic and empirical rules, and the conclusion drawn from the evidence is the only one [possible].
    In handling death penalty cases, proof of each of the following facts must be based on credible, abundant evidence:
     (1)   [Whether] the crime charged was committed;
    (2)  [Whether] a defendant committed the criminal act and the time, place, manner, consequence, and other details of the criminal act committed by that defendant;
     (3)   Circumstances regarding a defendant’s identity that have an influence on conviction;
     (4)   [Whether] the defendant possesses criminal responsibility;
     (5)   The defendant’s culpability;
     (6)   Whether the offense was committed jointly and what the defendant’s position and role was in that joint offense;
     (7)   Facts warranting heavier punishment for the defendant.

II.   Examination and Determination of Different Types of Evidence

1.   Physical and Documentary Evidence

Article 6   In examining physical or documentary evidence, emphasis shall be placed on the following:
     (1)   Whether the physical evidence is the original object or the documentary evidence is the original document; whether photographs, video recordings, or replicas of physical evidence or duplicates or facsimiles of documentary evidence match the original items or documents; whether physical or documentary evidence has been identified and verified; whether photographs, video recordings, or replicas of physical evidence or duplicates or facsimiles of documentary evidence were reproduced by more than two people; whether the producer has a signed, written explanation concerning the production process and the location of the original document or item.
     (2)   Whether the procedure and methods of collection for physical or documentary evidence are in compliance with the law and relevant regulations; whether physical or documentary evidence that was obtained through on-scene investigation, inspection, search, or confiscation have corresponding records or invoices; whether the records or invoices are signed by [police] investigators, the persons who possessed the items, and witnesses, and whether an explanation is provided if the signature of the person who possessed the items is absent; whether the distinguishing features, number, quality, and names of the items are clearly described.
     (3)   Whether physical or documentary evidence was damaged or altered in the process of collection, storage, or authentication.
     (4)   Whether physical or documentary evidence has any relation to the facts of a case. Whether biological evidence, traces, or items left at the scene and related to the crime, such as bloodstains, fingerprints, hair samples, or bodily fluids, that satisfy the conditions for testing have undergone DNA testing, fingerprint analysis, or other testing methods, and whether they have been determined to match relevant biological samples, biological characteristics, or items from the defendant or victim.
    (5)   Whether all physical or documentary evidence related to the facts of a case has been collected in full.

Article 7   If any bloodstains, fingerprints, footprints, handwriting samples, hair samples, bodily fluids, human organs, or other traces or items possibly related to the facts of a case are discovered through on-scene investigation, inspection, or search and either ought to have been recovered but were not or ought to have been tested but were not, with the result being that there remain doubts about the facts of the case, the people’s court shall explain the situation to the people’s procuratorate, and the people’s procuratorate may additionally collect or obtain evidence and produce a reasonable explanation or return the case to the investigating organ to conduct additional investigation or obtain relevant evidence.

Article 8   Physical evidence used as a basis for conviction should be the original item. Only when the original item is inconvenient to transport or difficult to preserve, or, in accordance with the law, must be kept in storage or disposed of by the relevant department or returned may a photo or video recording be shot or a replica produced that reflects the original likeness or content. A photograph, video recording, or replica of physical evidence may serve as a basis for conviction only after having been compared with the original item and found to have no errors, subjected to authentication as true, or undergone some other method able to prove it to be a true [copy]. Any photograph, video recording, or replica that does not reflect the original likeness and distinguishing features of the original may not serve as a basis for conviction.
     Documentary evidence used as a basis for conviction should be the original item. Duplicates or facsimiles may only be used when there is real difficulty in obtaining the original document. Duplicates or facsimiles of documentary evidence may serve as the basis for conviction only after having been compared with the original items and found to have no errors, subjected to authentication as true, or undergone some other method able to prove it to be a true [copy]. Any documentary evidence that has been altered or shows traces of alteration that cannot be reasonably explained or any duplicate or facsimile of documentary evidence that does not reflect the original document and its content may not serve as a basis for conviction.

Article 9   Any physical or documentary evidence obtained through on-site investigation, inspection, search, or confiscation that is not accompanied by a record of on-site investigation or inspection, a search record or record of requisition, or an invoice of items confiscated may not serve as a basis for conviction if its origins cannot be verified.
     If there are any of the following flaws in the procedures or methods used to collect physical or documentary evidence, [the evidence in question] may be used if the relevant officer rectifies [the error] or provides a reasonable explanation:
     (1)   For physical or documentary evidence that has been collected or obtained, the record of on-site investigation or inspection, search record, record of requisition, or invoice of items confiscated is not signed by the investigator, the person who possessed the items, or witness, or the distinguishing features, number, quality, or names of the items are not clearly described;
     (2)   For photographs, video recordings, or replicas of physical evidence or duplicates or facsimiles of documentary evidence that have been collected or obtained, there is no notation that they have been checked against the original items and found to be identical, the time of production is not noted, or the signature (chop) of the person (unit) from whom [the evidence] was collected or obtained is missing;
     (3)  Photographs, video recordings, or replicas of physical evidence or duplicates or facsimiles of documentary evidence do not have a written explanation from the person who produced them about the production process and the location of the original document or item or that explanation has not been signed.
     (4)   There are other flaws in the procedures or methods [used to] collect physical or documentary evidence.
     If there are questions about the source of or collection procedures for physical or documentary evidence and no reasonable explanation is given, that physical or documentary evidence may not serve as a basis for conviction.

Article 10   Physical or documentary evidence that satisfies the conditions for identification should be identified by a party to the case or a witness, or, if necessary, submitted for authentication.

2.   Witness Testimony

Article 11   In examining witness testimony, emphasis shall be placed on the following:
     (1)   Whether the testimony is [based on] the direct perception of the witness;
     (2)   Whether at the time given the testimony of the witness might be influenced by his or her age, cognitive level, capability of recollection and expression, or physiological or psychological state;
     (3)   Whether the witness has an interest with respect to a party in the case or the outcome of the case;
     (4)   Whether the testimony was obtained using procedures and methods in compliance with the law and relevant regulations; whether violence, threats, inducements, deception, or other illegal methods of obtaining evidence were used; whether there were violations of regulations requiring witnesses to be questioned individually; whether the transcript was checked for accuracy by the witness and a signature (chop) or fingerprint affixed; whether in questioning a juvenile witness his or her legal representative was called to appear and whether the legal representative did appear or not;
     (5)   Whether the witness testimony corroborates other testimony or evidence or whether there are contradictions;

Article 12   Witness statements obtained through violence, threats, or other illegal means may not serve as a basis for conviction.
     Testimony by witnesses who are clearly under the influence of alcohol, narcotics, or psychotropic drugs such that they cannot properly express themselves may not serve as a basis for conviction.
     Witness testimony involving conjecture, opinion, or inference may not be used as evidence, except empirical judgments based on daily life that accord with the facts.

Article 13   The following kinds of witness testimony may not serve as a basis for conviction:
     (1)   Testimony obtained without questioning witnesses individually;
     (2)   Written testimony that was not checked for accuracy by the witness and a signature (chop) or fingerprint affixed;
     (3)   Questioning of a deaf-mute or a member of an ethnic minority or foreigner who does not understand the local common vernacular or written language, when a translator should have been provided but was not.

Article 14   If there are any of the following flaws in the procedures or methods used to obtain witness testimony, [the testimony in question] may be used if the relevant officer rectifies [the error] or provides a reasonable explanation:
     (1)   The [record] does not provide the name of the questioner, recorder, or legal representative or the start and stop time or place of the interview;
     (2)   The location where the witness was interviewed does not comply with regulations;
     (3)   The interview record does not note that the witness was told that he or she should give a truthful statement and that intentionally giving false testimony or withholding evidence of a crime is punishable under the law;
     (4)   Interview records show that the same interviewer was interviewing a different witness at the same time.

Article 15   Under the following circumstances, the people’s court should call a witness to give testimony before the court. Written testimony from a witness who has been summoned in accordance with the law but who does not testify in court may not serve as a basis for conviction if there is no way to verify it under cross examination:
     (1)   The people’s procuratorate and the defendant and his or her defense counsel disputes the testimony of a witness and that witness testimony [will have] a major impact on conviction or sentencing;
     (2)   Others the people’s court determines should appear in court to give testimony.
     When the testimony of a witness in court contradicts his or her pretrial testimony, if the witness can provide a reasonable explanation in court for recanting his or her [earlier] testimony and there is related evidence to corroborate it, [the court] should accept the testimony given in court.
     [The court] should listen to the opinions of the procurator appearing in court and the defendant and his or her defense counsel regarding the written testimony of a witness who does not appear in court and make a general determination in consideration of other evidence. If contradictions appear in the written testimony of a non-appearing witness and those contradictions cannot be ruled out and there is no corroborating evidence, [the testimony] may not serve as a basis for conviction.

Article 16   When witness testimony concerns state secrets or individual privacy, it should be kept secret.
     When a witness testifies in court, the people’s court may, if necessary, take protective measures such as restricting the publication of the identity of the witness, limiting questioning, shielding the face, or altering the voice.

3.   Victim Statements

Article 17   The aforementioned provisions for witness testimony should be applied as relevant for the examination and determination of victim statements.

4.   Defendant Declarations and Defense Statements

Article 18   In examining a defendant’s declarations and defense statement, emphasis shall be placed on the following:
     (1)   Whether the time and place of the interrogation and identity of the interrogator was, at the time of interrogation, in compliance with the law and relevant regulations; whether there were fewer than two investigators interrogating the defendant; whether defendants were interrogated individually;
     (2)   Whether the interrogation record was produced and revised in compliance with the law and relevant regulations; whether the interrogation record noted the start and stop times and location of the interrogation; whether at the first interrogation the defendant was told of his or her procedural rights such as [the rights] to request recusal or engage a lawyer; whether the defendant checked [the interrogation record] for accuracy and affixed a signature (chop) or fingerprint; whether fewer than two interrogators signed [the interrogation record];
     (3)   Whether a person proficient in sign language or a translator is present for interrogations of individuals who are deaf-mute, ethnic minorities, or foreigners; whether, in an interrogation of a juvenile accomplice, his or her legal representative was called to appear and whether or not the legal representative did appear;
     (4)   Whether a defendant’s declaration was obtained through illegal means such as coercing confession; if necessary, [the court] may request a defendant’s medical examination records from the time of entry in the detention center;
     (5)   Whether a defendant’s declarations have been consistent or, if the statements have changed, whether reasons for the changes were given; whether all of the defendant’s declarations and defense statements have been included in the case file; and, if all of the declarations and defense statements that ought to be in the file are not, whether an explanation has been provided;
     (6)   Whether the defendant’s defense statement comports with the circumstances of the case and common sense, or whether there are contradictions;
     (7)   Whether the defendant’s declaration and defense statement is consistent with the declarations and defense statements of co-defendants, or whether there are contradictions.
     In the aforementioned situations, if the investigating organ has provided audiovisual documentation, it ought to be examined in combination [with the relevant declarations].

Article 19   If a defendant’s declaration has been obtained through use of illegal means such as coercing confession, it may not serve as a basis for conviction.

Article 20   Defendant declarations may not serve as a basis for conviction under the following circumstances:
     (1)   The interrogation transcript has not been checked for accuracy by the defendant and a signature (chop) or fingerprint affixed;
     (2)   Interrogation of a person who is deaf-mute or does not understand the local common vernacular or written language without providing the required person proficient in sign language or a translator.

Article 21   If there are any of the following flaws in the interrogation record, it may be used if the relevant officer rectifies [the error] or provides a reasonable explanation:
     (1)   The interrogation times, interrogators’ names, or name of the legal representative are recorded in error or there are contradictions;
     (2)   The interrogators did not sign their names;
     (3)   The record of the first interrogation does not note that the person being interrogated was informed of his or her procedural rights.

Article 22   [The court] should examine a defendant’s declaration and defense statement in consideration of all of the evidence submitted by the prosecution and defense as well as all of the defendant’s declarations and defense statements.
     If a defendant’s pretrial declarations are consistent but he or she retracts the declaration during the trial proceeding without providing a reasonable explanation for the retraction or if the defense statement contradicts the totality of the the evidence in the case, when the pretrial declaration is corroborated by other evidence [the court] may accept the defendant’s pretrial declaration as reliable.
     If a defendant has repeatedly changed his or her pretrial declaration or defense statement but admits guilt during the trial proceeding, [the court] may accept the declaration made at trial as reliable if there is other evidence that can corroborate that declaration. If a defendant has repeatedly changed his or her pretrial declaration or defense statement and does not admit guilt during the trial proceeding, without other evidence to corroborate the pretrial declaration [the court] may not accept the declaration made at trial as reliable.

5.   Expert Opinions

Article 23   In examining expert opinions, emphasis shall be placed on the following:
     (1)   Whether the expert should have recused himself or herself but did not;
     (2)   Whether the expert and his or her organization possess legal qualifications;
     (3)   Whether the expert evaluation procedures were in compliance with the law and relevant regulations;
     (4)   Whether the [processes for] sourcing, obtaining, storing, and transporting the specimen were in compliance with the law and relevant regulations; whether the record of how the evidence was obtained or the invoice of items seized is in order; whether the specimen is sufficient and reliable;
     (5)   Whether the procedures, methods, and analytical process [used in] the expert evaluation satisfy the required professional inspection and evaluation procedures and techniques;
     (6)   Whether the formal criteria for the expert evaluation have been satisfied; whether the explanation includes identification of the subject for evaluation, the party requesting the evaluation, the institution conducting the evaluation, the evaluation requirements, the evaluation process, the inspection methods, and the date of the certification report; whether the expert institution has affixed the appropriate chop and the expert conducting the certification has signed [the report] and affixed a chop;
     (7)   Whether the expert opinion is clear;
     (8)   Whether the expert opinion is relevant to a fact of the case needing to be proven;
    (9)  Whether the expert opinion contradicts other evidence; whether the expert opinion contradicts the inspection record or relevant photographs;
    (10)   Whether relevant persons were notified of the expert opinion [results] in a timely manner in accordance with the law; whether the parties to the case dispute the expert opinion.

Article 24   Expert opinions may not serve as a basis for conviction under the following circumstances:
     (1)  The expert institution lacks the legal qualifications and capacity or the matter for certification exceeds the institution’s area of expertise or capabilities;
     (2)  The expert lacks the legal qualifications and capacity, lacks the relevant professional technical skills or job title, or violates the regulations on recusal;
     (3)   There are errors in the evaluation procedures or methods;
     (4)    The expert opinion has no relevance to the subject needing confirmation;
     (5)   The subject being evaluated is not the same as the specimen or sample that was sent for inspection;
     (6)   The source of the specimen or sample sent for inspection is unclear or was contaminated such that it does not meet the conditions for evaluation;
     (7)   There are violations of specific evaluation standards;
     (8)   The expert report lacks a signature or chop;
     (9)   Other violations of relevant regulations.
     If there are questions about an expert opinion, the people’s court should call on the expert to give testimony in court or prepare an appropriate explanation, or it may also order additional evaluation or a new evaluation.

6.   Records of On-Site Investigation and Inspection

Article 25   In examining records of on-site investigation and inspection, emphasis shall be placed on the following:
     (1)   Whether the on-site investigation or inspection was conducted in accordance with the law; whether the record was produced in compliance with the requirements of the law and relevant regulations; whether the officers conducting the on-site investigation or inspection and witnesses signed the report or affixed their chops;
     (2)   Whether the record of on-site investigation or inspection is complete, detailed, accurate, and standard in format; whether the subject, time, place, persons on the scene, scene location, and surrounding environment of an on-site investigation or inspection are recorded accurately; whether the location and characteristics of the scene, items, individuals, and corpses, as well as the process of on-site investigation or inspection are accurately recorded; whether the written description matches physical objects or drawings, video recordings, or photos; whether the manner and methods used to fix [the location] of evidence is scientific and standard; whether the crime scene, items, or traces were damaged or fabricated and whether the crime scene was in its original state; whether distinguishing features or injuries of individuals were disguised or altered;
     (3)   When additional on-site investigation or inspection is carried out, whether there are contradictions with [earlier] investigations and whether reasons can be provided to explain the need for additional on-site investigation or inspection;
     (4)   Whether the record of on-site investigation or inspection corroborates or contradicts other evidence, such as the defendant’s declaration, the victim’s statement, or the expert opinion.

Article 26   If a record of on-site investigation or inspection clearly does not comply with the law and relevant regulations and no reasonable explanation is provided, it may not be used as evidence.
     If a record of on-site investigation or inspection does not list any witnesses, if the investigating officer(s) or witnesses did not sign [the record] or affix a chop, or if the investigating officer(s) violated the regulations on recusal, [the court] should consider other evidence in the case in examining the authenticity and relevance [of the record in question].

7.   Audiovisual Materials

Article 27   In examining audiovisual materials, emphasis shall be placed on the following:
     (1)   Whether the source of the audiovisual materials is legal and whether threats, inducements, or other violations of the law and relevant regulations were used against the party in the course of production;
     (2)   Whether the identity of the producer or the possessor and the time, place, and conditions of production are clearly stated;
     (3)   Whether [the material] is the original or, if a reproduction, how many copies there are; if the audiovisual material obtained is a reproduction, whether an explanation is provided regarding the inability to obtain the original, the process of reproduction, and the location of the original; whether the signature or chop of the reproducer and the person in possession of the original audiovisual material [has been provided];
     (4)   Whether the content and production process are authentic or whether [the material] has undergone rearrangement, addition, deletion, editing or other fabrication or alteration;
     (5)   Whether the content is relevant to the facts of the case.
    If there are questions about audiovisual materials, an expert evaluation should be conducted.
    The authenticity and relevance of audiovisual materials should be examined in consideration of other case evidence.

Article 28   Audiovisual materials may not serve as a basis for conviction under the following circumstances:
     (1)  The authenticity of the audiovisual materials cannot be established following examination or expert evaluation;
     (2)   There is dispute about the production of the audiovisual materials or the time, place, and manner with which they were obtained and no reasonable explanation or requisite proof can be provided.

8.   Other Provisions

Article 29   In examining electronic evidence such as electronic mail, electronic data exchange, online chat transcripts, blogs, mobile telephone text messages, or electronic signatures or domain names, emphasis shall be placed on the following:
     (1)   Whether electronic evidence stored on a storage medium such as a computer disk or CD has been submitted together with the printed version;
     (2)   Whether the time, place, target, producer, production process, and equipment for the electronic evidence is clearly stated;
     (3)   Whether production, storage, transfer, access, collection, and presentation [of the electronic evidence] were carried out legally and whether individuals obtaining, producing, possessing, and witnessing the evidence affixed their signature or chop;
     (4)   Whether the content is authentic or whether it has undergone cutting, combination, tampering, or augmentation or other fabrication or alteration;
     (5)   Whether the electronic evidence is relevant to the facts of the case.
     If there are questions about electronic evidence, an expert evaluation should be conducted.
     The authenticity and relevance of electronic evidence should be examined in consideration of other case evidence.

Article 30   Under the following circumstances, identification [of evidence] arranged by the investigating organ shall be carefully examined and may not serve as a basis for conviction if their authenticity cannot be verified:
     (1)   The identification was not conducted under the direction of the investigating officer(s);
     (2)   The person doing the identification was shown the target of identification beforehand;
     (3)   Persons doing the identification did not carry out the identification process individually;
     (4)   Except specifically in the identification of corpses and locations, the identification target was not placed in the midst of other targets with similar distinguishing characteristics, or the number of targets provided for identification did not comply with regulations;
     (5)   The person doing the identification was clearly given a hint or there is suspicion that he or she was instructed about what to identify.
     Identification results may be used as evidence under the following circumstances if the relevant officer rectifies [the error] or provides a reasonable explanation:
     (1)   The identification was directed by fewer than two investigators;
    (2)   The person doing the identification was not asked detailed questions about specific distinguishing characteristics of the identification target;
     (3)   No standardized identification record was produced specifically to document the process and results of identification or the investigator(s), person doing the identification, or witness did not sign or affix a chop to the identification record;
     (4)   The identification record is too simple, with only results and no [record of the] process; 
     (5)   The case file has only the identification record and no photos or video of the investigation target, so that there is no way to know whether the identification was authentic.

Article 31   In examining documents such as the investigating organ’s record of how a case was solved, it should be noted whether the explanatory document is signed by the officer(s) in charge and the chop of the organ in charge affixed.
    If there are questions about how a case was solved or there are questions about the basis by which suspicion of a defendant was determined to be major, additional explanation from the investigating organ shall be requested.

III.    General Examination and Use of Evidence

Article 32   The probative force of evidence shall be examined and judged in combination with the specifics of the case, the degree of relevance between each item of evidence and the fact to be proven, and the relationship between items of evidence.
     Only pieces of evidence that are intrinsically related, that together point toward a fact to be proven, and that reasonably rule out contradictions may serve as a basis for conviction.

Article 33   If no direct evidence exists to prove that a criminal act was committed by the defendant, the defendant may still be convicted if the following conditions are met:
     (1)   Indirect evidence to be used as the basis for conviction has been examined and verified to be true;
     (2)   Indirect evidence to be used as the basis for conviction is mutually corroborating, there are no contradictions that cannot be rule out or questions that cannot be explained;
     (3)   Indirect evidence to be used as the basis for conviction forms a complete body of proof;
     (4)   The facts of the case established by the indirect evidence lead to only one conclusion and can rule out all reasonable doubt;
     (5)   The reasoning with which the indirect evidence is used comports with logic and empirical judgment.
     Extreme caution should be used in imposing the death penalty for a conviction based on indirect evidence.

Article 34   Deeply concealed physical or documentary evidence uncovered through a  declaration or identification made by the defendant may [be used] to convict if it is corroborated by other evidence proving the fact of the crime and the possibility that the statement was based on collusion, coercion, or inducement can be ruled out.

Article 35   Physical, documentary, and other evidence collected by the investigating organ using special investigative measures in accordance with relevant regulations may serve as a basis for conviction if the court has verified it to be true.
     The court shall, in accordance with the law, not reveal procedures and methods [used in] special investigative measures.

Article 36   Once the defendant has been convicted, the people’s court should examine the following circumstances having an influence on sentencing, in addition to those that are specified by law:
     (1)   The cause of the crime;
     (2)   Whether the victim was at fault and the degree of fault and whether [the victim] was responsible for exacerbating a conflict and the degree of responsibility;
     (3)    Whether the defendant’s immediate family members assisted in apprehending the defendant;
     (4)   The defendant’s normal behavior and whether he or she has shown remorse;
     (5)   Whether the victim filed an associated civil suit for compensation and whether the victim or the victim’s immediate family have shown understanding toward the defendant;
     (6)   Other circumstances influencing sentencing.
     If there are circumstances that warrant lenient or reduced punishment as well as circumstances that warrant heavier punishment, [the court] shall consider the circumstances in their entirety in accordance with the law.
     If circumstances warranting lenient or reduced punishment cannot be ruled out, extreme care should be used in imposing the death penalty.

Article 37   Evidence should be used with care in the following circumstances and accepted as reliable if other evidence can corroborate it:
     (1)   Statements, testimony, or declarations made by victims, witnesses, or defendants who are physically or mentally handicapped, who have definite difficulty in understanding or expression with respect to the facts of the case but who have not [fully] lost their ability to understand and express themselves properly;
     (2)   Testimony benefiting a defendant given by a witness who is a relative or having other close ties to that defendant, or testimony harmful to a defendant given by a witness having a conflict of interest with that defendant.

Article 38   If the court has questions about evidence, it may call on the appointed procurator or the defendant and his or her defense counsel to produce additional evidence or provide an explanation. If it is necessary to conduct verification, [the court] may call a recess in order to investigate and verify evidence. If the court conducts an external investigation outside the courthouse, it may, if necessary, call on the appointed procurator and defense counsel to be present. If either the appointed procurator or the defense counsel or both parties are not present, the court’s record shall become part of the case file.
     The court may solicit opinions from the appointed procurator and defense counsel regarding evidence supplemented by the people’s procuratorate or defense counsel or obtained through the court’s external investigation and verification. If the two sides are not in agreement and one side requests that the court hold a hearing to investigate, the court shall hold a hearing.

Article 39   If a defendant and his or her defense counsel claim [that the defendant] voluntarily surrendered but the relevant organ has not established this fact, [the court] shall request that the relevant organ provide documentation or request that the relevant personnel testify and judge, in consideration of other evidence, whether [the claim of] surrender is valid.
     If there is incomplete documentation to prove whether or how a defendant assisted in the apprehension of other co-defendants such that it is impossible to determine whether the defendant rendered meritorious service, [the court] shall request that the relevant organ provide documentation or request that the relevant personnel testify and judge, in consideration of other evidence, whether [the claim of] meritorious service is valid.
     If a defendant reported or exposed crimes committed by another person, [the court] should examine whether or not the veracity [of the report] has been investigated; if it has not been investigated, it shall be investigated at once.
     If there is incomplete documentation to prove whether the defendant is a repeat offender, [the court] shall request the relevant organ provide documentation.

Article 40   Generally, [the court] shall use household registration records as a basis of proof in examining whether a defendant was at least 18 years old at the time the crime was committed. If there is a dispute over the household registration records and investigation finds there to be valid documentation of birth or testimony from an uninterested party confirming that the defendant was not at least 18 years old, [the court] should find that the defendant was not 18 years old. If there is no household registration record or documentation of birth, [the court] shall make a general judgment based on census records, testimony from an uninterested party, or other evidence; if necessary, [the court] may conduct an investigation of skeletal age and use the results as a reference in judging the defendant’s age.
     When contradictions between items of evidence cannot be ruled out and there is insufficient evidence to prove that a defendant was at least 18 years old at the time the alleged crime was committed, if there is truly no way to determine [the truth, the court] may not determine that he or she was at least 18 years old.

Article 41   These rules take effect on July 1, 2010.

Translation: China's New Rules on Evidence in Criminal Trials (Part 2 of 3)

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.

Part 1 of the translation is here.
Part 3 of the translation is here.

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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.

Translation: China's New Rules on Evidence in Criminal Trials (Part 1 of 3)

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 1 is below. The original Chinese is here.

Part 2 of the translation is here. 

Part 3 of the translation is here.

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Notice from the Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice  

Regarding the Issue of "Rules Concerning Questions About Examining and Judging Evidence in Death Penalty Cases" and "Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases"

     To the Higher People’s Courts, People’s Procuratorates, Public Security Departments (Bureaus), State Security Departments (Bureaus), Justice Departments (Bureaus) of each province, autonomous region, and municipality; the Military Court, Military Procuratorate, and Security Department of the General Political Department of the People’s Liberation Army; and the Production and Construction Corps Division of the Xinjiang Uyghur Autonomous Region Higher People’s Court and the People’s Procuratorate, Public Security Bureau, Justice Bureau, and Prison Management Bureau of the Xinjiang Production and Construction Corps:

     In order to further perfect our nation’s criminal procedure system and in accordance with the central government’s general plan for deepening reform of legal institutions and work mechanisms, the Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice have recently, following extensive investigation and research, jointly established “Rules Concerning Questions About Examining and Judging Evidence in Death Penalty Cases” and “Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases” (hereafter the “two sets of rules”), which we hereby issue to you and request compliance and implementation.

    So that the two sets of rules may be stringently and thoroughly implemented in the course of executing the law, we hereby issue the following opinions:

I.   Fully recognize the enormous significance of the establishment and implementation of the two sets of rules

     The two sets of rules set higher standards and stricter demands on law enforcement organs’ handling of criminal cases, especially death penalty cases. As such, they are extremely significant for the perfection of our nation’s criminal procedure system, increasing the quality of law enforcement and handling cases, and promoting socialist rule of law construction. The central government places a high priority on these two sets of rules, and Comrade Zhou Yongkang, member of the CPC Politburo member and secretary of the Central Politics and Law Committee, led a full session of the Central Politics and Law Committee that also served as a briefing on reform of the legal system [at which] serious discussions of the two sets of rules [took place]. He called on people’s courts, people’s procuratorates, public security organs, state security organs, and judicial administration organs at all levels to carry out their duties in accordance with the law; strictly implement the two sets of rules; pay attention to facts, evidence, the law, and responsibilities; guarantee quality in handling cases; punish crime, protect human rights, and uphold justice in accordance with the law; and ensure that each criminal case handled can withstand scrutiny of the law and history. Relevant organs in each province, autonomous region, and municipality must implement national laws fully and correctly, carry out the criminal justice policies of the Party and state at a high level, and actively increase publicity work in order to give full recognition to the enormous significance of adopting the two sets of rules.

II.   Resolutely arrange and begin training for the two sets of rules

     People’s courts, people’s procuratorates, public security organs, state security organs, and judicial administration organs should seriously and immediately begin training and study of the two sets of rules, taking practical circumstances into consideration and employing different channels and methods. Care must be taken to arrange specialized training sessions for relevant personnel in order to ensure that each person involved in handling criminal cases fully grasps the details of the two sets of rules.

III.   Stringently and thoroughly implement the two sets of rules

    These two sets of rules not only fully set out the fundamental principles for evidence in criminal procedure and detail standards of proof; they also further specify with respect to the collection, fixing, examination, judgment, and use of evidence. They not only establish the meaning and extended meaning of illegal evidence, but also standardize in detail the procedures and burden of proof [used] in investigating and excluding illegal evidence. Truly implementing these two sets of rules will inevitably play a major role in raising the standards of law enforcement and improving the quality of law enforcement personnel. Each unit concerned should stringently and thoroughly implement the two sets of rules in their practice of executing the law and firmly establish the equal importance of punishing crime and protecting human rights and the equal importance of substantive and procedural law. Evidence must be collected, examined, and judged fully, objectively, and in accordance with the law, facts and evidence must be checked in order to raise the quality of criminal adjudications, and ensure that the two sets of rules are implemented so that each criminal case can be handled in an ironclad manner. Summing up and reporting in a timely manner to central bodies in charge any new situations and problems encountered in the course of implementation, as well as new experiences discovered, must be resolute.

     Finally, “Rules Concerning Questions About Examining and Judging Evidence in Death Penalty Cases” may be used as a reference for implementation in handling other criminal cases.

Supreme People’s Court, Supreme People’s Procuratorate,
 Ministry of Public Security, Ministry of State Security, 

Ministry of Justice
June 13, 2010

Zhejiang Daily Compiles Morose Compendium of “Unnatural Deaths” in Detention

Voices in the Chinese public, from common netizens to prominent legal experts, are increasingly strengthening calls for greater accountability in the country's criminal justice system, like with the recent case of Zhao Zuohai. Criticisms of how China's criminal justice and law enforcement organs function—and official government responses—have sparked debate about whether popular opinion is driving the development of rule of law in China or simply contributing to digital-age mob justice.  

The cases that may have attracted the most public ire are those in which a miscarriage of justice is compounded by an inept administrative cover-up. In an early 2009 case of "death by 'blind man’s bluff,'" for example, citizens ridiculed local officials who claimed that a detainee in Yunnan Province died after bumping his head while playing a game with his cellmates. The naming convention that has emerged around these cases—such as, among several others, "death by nightmare," "death by picking at acne," and "death by drinking water"—is a glib poke at the official line that time and again accompanies these tragedies, a line that clumsily obfuscates the most commonly suspected cause of the deaths, which is abuse at the hands of detention center personnel.

On June 24, the Zhejiang Daily published a spread (translated below) that compiled accounts from other sources of "unnatural deaths" in Chinese detention centers. Certainly not exhaustive, this list is accompanied by a graphic (below, click to enlarge) that depicts the victims as anonymous figures labeled with their official cause of death. It is then followed by a piece of reportage that focuses on the Detention Center Management Bureau of the Ministry of Public Security and efforts to curb abuses in detention. 

From “Blind Man’s Bluff” to “Face Washing”

Urgently Awaiting the End of Unnatural Deaths in Detention Centers 

Zhejiang Daily, June 24, 2010

Key points: 

     Detention centers are said to be a touchstone for testing the rule-of-law progress of a nation or region. 

     A series of unnatural deaths in recent years have thrust these facilities, once shrouded in mystery, before the public view and placed them at the center of a storm. 

Countless varieties of unnatural death

     Many netizens have commented extensively on the series of unnatural deaths in detention centers over recent years and given each one an accordingly bizarre name.

• Death by "blind man’s bluff": In February 2009, when Li Qiaoming died in the detention center of the Puning County (Yunnan) Public Security Bureau, police said that he had suffered serious injuries from bumping into a wall while playing "blind man’s bluff" with fellow inmates. Subsequent investigation determined that he had been beaten to death by prison bullies.
• Death by showering: In March 2009, a 57-year-old Hainan man died in the Danzhou (Hainan) Number One Detention Center. Police said that the incident arose when a suspect told him to undress and shower; he refused and was beaten to death.
• Death by falling out of bed: In March 2009, 20-year-old Fujian youth Wen Longhui died suddenly in the Fuzhou (Fujian) Number Two Detention Center. The detention center said he had fallen out of bed as a result of sudden death or illness.
• Death by nightmare: In March 2009, the Jiujiang (Jiangxi) Detention Center said that a Hunan man named Li Wenyan died suddenly in the middle of the night after having a nightmare.
• Death from sleeping in an improper position: In April 2009, a Fuzhou student surnamed Chen died suddenly in the Fuqing City (Fujian) Public Order Lockup. Police said his sleep position was improper and that he was unresponsive to efforts to awaken him and died after efforts to revive him were unsuccessful.
• Death by going crazy: In June 2009, when a youth named Lin Lifeng died in the Wuchuan City (Guangdong) Number Two Detention Center, police said he had “died after going crazy.” The procuratorate ultimately ruled the death as “sudden cardiac arrest.”
• Death by picking at acne: In November 2009, Yu Weiping from Gaocun Town, Wendeng City, Shandong, died while being held in a detention center. Upon inspecting the body, his family found small holes on his chest, which the detention center claimed were caused by his picking at acne. A subsequent autopsy revealed that the death was caused by cardiac rupture following repeated stabbing with a sharp, needle-like object.
• Death from agitation: In December 2009, a Shaanxi woman named Wang Huixia was taken away by police and died an unnatural death after 20 hours of questioning. Police said her death was triggered by agitation and anxiety.
• Death by drinking water: In February 2010, a young Henan man died in a detention center in Lushan County. Police said that he suddenly took ill and died from drinking boiled water during an interrogation.
• Death by tripping: In February 2010, criminal suspect Chen Xujin died in the detention center in Xiushui County, Jiujiang, Jiangxi. Police said that he tripped in the toilet and died suddenly. A doctor claimed he was forced to make a false [report].
• Death by going to the toilet: In March 2010, a major criminal offender died under mysterious circumstances in Tuoketuo County, Hohhot, Inner Mongolia. Police explained that [the death] happened when he fell going to the toilet in the middle of the night.
• Death by insufficient evidence: In 2010, after two trials no verdict was returned in the case of Pu Zemin from Mianyang, Sichuan, because of insufficient evidence. Pu Zemin ultimately died under mysterious circumstances in the detention center.
• Death by face-washing: In April 2010, a man died a bizarre death in the administrative lockup of Gong’an County, Jingzhou, Hubei. Police said that the man had drowned in the face-washing basin.

When will bizarre deaths end? 

     ”I listen and think it’s ridiculous, because it’s simply impossible,” said a former director general of the Detention Center Management Bureau of the Ministry of Public Security (MPS) about the series of unnatural deaths such as “death by nightmare,” “death by drinking water,” “death by going to the toilet,” “death by face-washing.” “Most are [the result of] beatings.” First is coerced confessions during the investigation stage. Police hit someone and initially it doesn’t seem like a big problem, but then [the suspect] is locked up and doesn’t [receive] immediate treatment and [the injury] spreads and leads to death. Second is when the detention center tries to solve a case: the eagerness for quick results and unrealistic expectations [leads to] disregard for roughing someone up. Third is handing over management authority to inmate enforcers, who wield a great deal of power. If you give this authority to someone ruthless like a murderer, it’s very possible he’ll beat someone to death.

     In April of this year, the Supreme People’s Procuratorate held a tele-linked meeting at which it was revealed that this year 15 cases of unnatural detainee deaths in 12 provinces had been reported to the Procuratorial Department for Prisons and Detention Centers. Three were reported as suicides, seven had been beaten to death, two died as a result of accidents, and three deaths were still under investigation. An official from the department said that unnatural deaths in detention centers were the result of both lax management by the public security organs and weak oversight by procuratorates.

     ”The complexity of the problems in detention centers are owing to many years of long-standing abuses,” says Chen Weidong, professor at the Renmin University School of Law. “Looking back at the past 60 years of the development of detention centers [in China], one can see that there have essentially been no changes in detention center management or mechanisms to protect rights.” He said that this whole time, detention centers overemphasized the guarding and reform of detainees, as well as even uncovering crime and assisting in the punishment of crime. However, the function of protecting human rights has never been demonstrated, making it difficult to adapt to the demands of modern rule of law. 

Reform is only possible solution 

     MPS Detention Center Management Bureau Director Zhao Chunguang says: “Public security detention work has to open up more to the public in order to eliminate the feeling of mystery. We should let the public know and see that it’s not the least bit hidden from view.” If the public does not trust public security detention work, it is to some extent the fault of public security detention being closed, secret, and insufficiently transparent.

     Since 2009, the MPS Detention Center Management Bureau has opened 150 detention centers to the public in two batches. Public security detention facilities all over have been opening up to the public in all sorts of ways, including inviting the media to conduct interviews; arranging inspections by Party and government leaders, delegates to the people’s congresses and political consultative conferences, and specially invited monitors; and hosting detainees’ family members and lawyers and holding roundtable meetings.

     The death of Sun Zhigang brought about reform of the custody and repatriation system. Now, people all over are watching to see whether the string of unnatural deaths occurring throughout the country will bring about new changes for detention centers.

     In the view of some scholars, the real way to cure [the problems facing] detention centers is to separate [criminal] investigation from [suspect] custody, with public security departments exercising the authority to investigate and authority over detention being transferred to judicial administration departments.

     Professor Gu Yongzhong of China University of Politics and Law points out that even if public security organs managed [detention facilities] better, suspicions would always remain. Tsinghua University Law School Professor Zhang Jianwei believes that, compared to the current system that relies on internal monitoring, [a system of] external [monitoring] would be more significant and valuable.

     In April of this year, Specially Appointed MPS Monitor, National People’s Congress Deputy, and Furun Holdings Group Board Chairman Zhao Linzhong participated in an detention center inspection program organized by the MPS. He believes that the fundamental cure must involve revision of detention center regulations as soon as possible. “Those regulations haven’t been changed in 20 years, and some of the provisions aren’t in accord with developments or the progress of the nation’s legal institutions.”

     Presently, the nation’s public security organs are undergoing a focused effort to repair the damage and bring an end once and for all to incidents involving the unnatural deaths of criminal suspects during the law enforcement process. [New] regulations clearly state that, in cases in which the unnatural death of suspects is due to an official’s failure to pay attention or carry out [the necessary] work, those officials with direct or shared responsibility will without exception be suspended from duty and, pending thorough investigation of the facts, handled according to disciplinary [rules] and the law.

Chinese Lawyer Interviewed on New Measures to Prevent Torture: “Key to Stopping Torture Is Presence of Counsel, Right to Silence”

Over the past ten days, the Chinese media have been reporting on the recent adoption of two new sets of rules by China’s five main law enforcement institutions—the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of State Security, and the Ministry of Justice. The "Regulations on Several Questions Concerning the Investigation and Judgment of Evidence in Handling Capital Cases" and "Regulations on Several Questions Concerning the Exclusion of Illegal Evidence in Handling Criminal Cases" (referred to below as "the regulations") set out new procedural standards aimed at preventing criminal cases from being decided on the basis of illegally obtained evidence, especially evidence obtained through physical torture.

As one might imagine, the coverage has been overwhelmingly positive, with several respected legal scholars endorsing the adoption of the regulations as major progress in China’s legal reform. The announcement of the rules could not be more timely considering the scandalous discovery last month that a man named Zhao Zuohai had served 11 years of a death sentence commuted to life imprisonment for a murder he did not commit, all because of a confession that had been extracted through police torture. But true assessment of the impact the new rules will likely have on preventing future cases of injustice must await their publication—at the time of this writing, the actual texts had not yet been released—and, more importantly, consideration of how thoroughly and enthusiastically they will be enforced.

While acknowledging the importance of the new regulations as a first step, some Chinese lawyers in particular have pointed out that the problem of torture and use of illegal evidence is a systemic problem in China’s criminal justice system and that the new regulations might not be strong enough medicine to cure the disease. In a lengthy interview (translation below) with the Beijing News published on June 5, well-known criminal defense lawyer Xu Lanting argues that giving suspects the right to remain silent and, even more importantly, the right to have a lawyer present during questioning, would have a much greater impact on curbing the problem of coerced confessions.

[Translator's note: Chinese texts rarely refer to "torture" (kuxing) in discussions of the domestic context. China’s Criminal Law prohibits the use of corporal punishment or "disguised" corporal punishment to obtain a confession from a suspect or a witness statement, and this is the primary basis upon which China claims to prohibit torture. To reflect this practice, the text below routinely translates xingxun bigong literally as "coercion of confession," rather than extrapolating with the word "torture."]

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1. Having interrogators appear in court is of great significance

Beijing News (BN): Media reports on the regulations have universally focused on the sections concerning coerced confessions. How do you rate this content?

Xu Lanting: Each country primarily uses “rules on the exclusion of evidence” to stop coerced confessions, for example by ruling that evidence obtained through coerced confessions is illegal and cannot be used. This forces the investigating organ to stop relying on coerced confessions to obtain evidence.

     The enactment and thorough enforcement of these new regulations are of major significance in [the effort to] stop the coercion of confessions and other illegal methods of obtaining evidence, as well as in the protection of human rights.

     First of all, they overcome past limitations that excluded only illegal statements and clarify that illegally obtained physical evidence and documentary evidence will also be excluded. "When physical evidence or documentary evidence is clearly obtained in violation of the law and could possibly have an impact on the fairness of the adjudication, [the court] should order redress or make a reasonable explanation; otherwise, the physical evidence or documentary evidence in question may not be used to determine a case."

BN: I understand that in some countries any evidence obtained through coerced statements is categorically excluded. Are there loopholes in our regulations?

Xu: In the United States, this kind of evidence is called “fruit of the poisonous tree” and is categorically excluded. There’s debate about this among Chinese academics. Some advocate that consideration be made of specific circumstances on a case-by-case basis, [and so] if the violations of law involved in obtaining some physical evidence is not too serious or it can be used after making redress, it shouldn’t be excluded.

     My own view is that any physical evidence obtained in ways that violate the law—especially through leads provided in coerced confessions—should also be excluded. Otherwise, there will be no way to eliminate coerced confessions. [The investigator] will think, "I’ll beat you first to get a confession. I might not be able to use that confession, but I can then rely on that confession to find other evidence."

BN: What breakthroughs do the regulations have in the area of procedures for excluding illegal evidence?

Xu: The regulations establish five procedural stages: initiation of the proceedings, preliminary court investigation, the prosecution’s presentation of proof, examination of the evidence by both sides, and the court’s decision. In the past, provisions in this area only took the form of principles or slogans. Now there is a big improvement because there is a clear procedure that is more practicable.

     It’s worth pointing out that, unlike in the past, investigators will give testimony in court. Also, if the prosecution’s evidence is not credible or sufficient enough to rule out that a defendant’s pre-trial statements were obtained illegally, the court may rule those statements to be illegal and exclude them. On a certain level, this can be seen as "inverting the burden of proof" and forcing the investigating organ to preserve the interrogation [process] through audio and video recording.

BN: But this so-called [requirement that] investigators give testimony in court is still passive, being initiated only after defendants or their defense attorneys make allegations of coerced confessions. Why can’t China do like some other countries and make court appearances by investigators routine?

Xu: It’s true that in some countries it’s routine for investigators to testify in court. In countries that follow the Anglo-American system of law, investigators are treated as witnesses and all witnesses must appear in court or else their testimony is treated as hearsay and cannot be used. I’ve also observed that some European countries’ trial systems make their investigators appear in court, even if only to state how they originally took the suspect into custody.

     Our regulations can only be considered a "limited principle on court appearance," but this is realistic and reasonable. First, it’s probably impossible at present to make investigators in each case appear in court, and it’s not necessary. If there’s no argument over the records and statements, then there’s no need [for investigators] to appear in court.

     But even if there’s a limited [requirement] to appear in court, it will pressure and deter investigators. Just think: if an investigator is always being called to testify in court over allegations of coercing confessions, he will become passive and embarrassed.

2. There’s often no way to prove coerced confessions

BN: Can these breakthroughs in the regulations be written into the Criminal Procedure Law?

Xu: It should be possible to integrate them. We can say that these regulations are the fundamental rules regarding evidence in criminal cases, but that the current Criminal Procedure Law’s provisions regarding things like how to examine and judge evidence, how to accept evidence, how to establish the facts of a case, and precisely how to set the standard of proof are all very crude and difficult to carry out in practice.

BN: How does this crudeness primarily manifest itself? Why do you say it’s difficult to carry out in practice?

Xu: For example, in cases I’ve represented some defendants have alleged their confessions were obtained by coercion or disguised coercion—in other words, illegally obtained evidence [of the type] described in the new regulations—but they couldn’t prove it. This is where the difficulty lies.

BN: Why couldn’t they prove it?

Xu: First, if the lawyer is not present when a suspect is interrogated, there is no way to monitor and provide evidence. Defendants themselves are even less able to produce evidence. Even if there is bodily injury, how does one prove it is the result of an investigator’s beating? It is very possible to blame it on a cellmate or struggle during arrest.

     Moreover, the investigation period often lasts a long time, with several months to half a year before trial. Any wounds can heal [during that length of time].

BN: Then what do you recommend to defendants about whether to speak out or not?

Xu: I tell them to tell the truth. If something like that happened, you can and should speak up. But often there’s no way to confirm the allegation.

BN: If the “victim” in the Zhao Zuohai case hadn’t returned alive, to this day there would probably be no way to prove [that Zhao’s confession had been coerced through torture].

Xu: Why didn’t Zhao Zuohai petition [the court to rehear his case because his confession had been coerced]? Because petitioning was useless and the case couldn’t be overturned. Even the judge couldn’t confirm [the allegation], because he wasn’t present at the interrogation, either.

3. The crux of the interrogation [problem] is lack of a third-party monitor

BN: Based on your experience with criminal cases, why do you think that time and again it has been impossible to prohibit coercion of confessions?

Xu: The reasons are many. The first is because of mindset and ideas. Even though the law provides for a presumption of innocence, some investigators still operate with a presumption of guilt, thinking, "I’ve caught you, so you must be guilty." So, some investigators start off by asking suspects, "Do you know why we’ve arrested you?" or "If you say you’re innocent, show us proof."

     Also, many law enforcement agents still focus on fighting crime and ignore the protection of human rights. They worry that they won’t be able to solve a case without a confession and will be too soft on a true criminal.

BN: Isn’t fighting crime most important?

Xu: According to the provisions of the Criminal Law and the Criminal Procedure Law, law enforcement agencies ought to fight crime as well as protect human rights, putting equal focus on each. Moreover, given a choice between being too soft and wrongly convicting someone, I’d rather be too soft on the occasional criminal than wrongly convict an innocent person. When a criminal is let off the hook, the violation is only one-way. But if you wrongly convict a good person, not only have you let the real criminal off the hook, you’ve also unjustly punished an innocent person, causing double the harm to society.

BN: What are the systemic and institutional causes of [the failure to eliminate coerced confessions]?

Xu: There are some specific systemic problems such as [emphasis on] the rates at which cases are solved, arrests are approved, and convictions are handed down, or [on] requiring that all capital cases be solved or that cases be solved within a particular period of time. Because of criteria for [performance] assessment, it seems as if the procuratorate must approve all arrests reported to it or all cases prosecuted at court must result in conviction—otherwise, it affects work [performance] results. This has a negative impact on the thorough implementation of the presumption of innocence and the exclusion of illegal evidence.

     As for the justice system, the law requires the public security, procuratorate, and courts to cooperate through division of labor and also to mutually check each other. But currently there’s more cooperation and the monitoring and checking functions aren’t really brought into play. For example, the public security organs all do their own investigation and interrogation. They take someone into custody and interrogate them, too. No approval is needed to place someone under criminal detention, and this detention can last up to more than 30 days. During detention, acts of illegally seeking evidence are common, such as repeated interrogation sessions lasting several dozen hours.

BN: It seems as if all television crime series show suspects being subjected to overnight interrogation as soon as they are taken into custody. Even when striking a blow to the suspect’s face, the investigator’s face is serious, both dignified and devoted.

Xu: Many countries don’t allow nighttime interrogations and prevent interrogations from exceeding a certain number of hours. We don’t have any regulations on this point. What’s more, many interrogations don’t take place in the detention center, but rather in the police station or some other location. At least there are many other people who can observe in the detention center, making coercion difficult. In the end, it’s a matter of not having the attorney present, not having a neutral third-party monitor.

4. Time is ripe for granting suspects right to remain silent

BN: Can enactment of these regulations stop the coercion of confessions?

Xu: Stopping the coercion of confessions is a systemic project that requires comprehensive management. My personal view is that the best way is to grant defendants the right to remain silent and the right to have an attorney present.

BN: Don’t the Law on Lawyers and the Criminal Procedure Law already provide for lawyers to intervene [in a case] during the investigative stage?

Xu: The law allows a suspect to hire and meet with a lawyer from the moment of first interrogation or being placed under coercive measures. But in practice, lawyers are not present during the interrogation. If lawyers were present to monitor and witness, obtaining evidence illegally through coercion, fraud, or inducements would be impossible.

BN: In other words, if the lawyer is not present, the suspect could refuse to answer?

Xu: Right. This is the suspect’s right. Such provisions are primarily to ensure that confessions are made voluntarily. I’m even in favor of invalidating the record of a confession if the lawyer isn’t present.

BN: Then the right to have a lawyer present should be provided for simultaneously with a suspect’s right to remain silent.

Xu: Correct. The right to remain silent and the right to have a lawyer present (also known as the right to a lawyer’s assistance) are inseparable. The suspect’s right to remain silent is an international standard to prohibit forcing self-incrimination. A suspect has a right to an attorney’s assistance, and, if he has no money to hire a lawyer, the state should appoint an attorney to provide legal aid.

     If we could enact both of these rights simultaneously, it would be even better, but if they cannot be enacted simultaneously we should at least provide the right to have a lawyer present. A lawyer must be present especially when a confession of guilt is being made (except when the suspect voluntarily waives [the right]), in order to guarantee the voluntary and true nature of that confession of guilt.

BN: Isn’t it a bit premature to have a right to remain silent as far as China is concerned? It’s still written [on the walls of] some detention centers: "Come clean and be treated leniently, resist and be treated severely."

Xu: Actually, it’s not premature. Many countries in the world have such provisions. It’s okay to require suspects to answer [questions] in a forthcoming way, but the problem is when the suspect truthfully answers with a defense that he is innocent and the officer handling the case believes that he is not answering truthfully.

BN: Some investigators have complained that many cases won’t get solved if you enact a right to remain silent.

Xu: In short, they still put too much emphasis on confessions. In fact, even some judges feel unsure [about how to handle a case] if there’s no confession or no one pleading guilty. Actually, the right to remain silent doesn’t encourage suspects to refuse to confess; rather, it emphasizes voluntary confessions in order to ensure their truthfulness and prevent unjust or error-filled cases. In countries [following] the Anglo-American [legal system], a trial is not even necessary if there’s a voluntary admission of guilt—they can go straight to sentencing. This shows they, too, place an emphasis on confession, but only if the confession is made with the assistance of an attorney and is made voluntarily, rather than being obtained through coercion.