Comment - Rules on excluding illegal evidence in criminal cases

(comments on the other set of rules coming up on Sunday)

Its biggest concern seems to be ensuring the well functioning of the formal criminal justice system.

No doubt, rights of defendants and witnesses may enjoy a greater protection. However, this outcome results from concerns about judicial efficiency, rather than individual rights as such. This is a significant fact - at least from a conceptual point of view.

The Rules on criminal cases place an overwhelming emphasis on oral evidence and written testimonies, mirroring the weight attached to confessions.

Claiming that a confession was coerced through torture is now easier. Such claims can be made before and during trial proceedings (art. 4, 5). Any such claims are to be examined by the court either before trial or after the public prosecutor reads out the bill of indictment (art. 5). Examination involves transcripts and recordings of questioning sessions, testimonies of interrogators or other persons who witnessed the interrogation.

If the court cannot form a conclusive opinion about the way evidence was obtained, then the public prosecutor can ask the court to hear interrogators (art. 7), and this is truly unprecedented.

However, no ideal balance has been achieved between the interests of defendants and prosecutors. Prosecutors can request an adjournment of trial proceedings in order to submit new - and presumably untainted - evidence, whenever the evidence they presented it excluded. The court cannot refuse to grant such an adjournment, but an adjournement can be denied discretionally if it is requested by the defense (art. 9).

Defense lawyers can raise the claim that statements were obtained through torture between receipt of a bill of indictment and court proceedings (art. 4, 5), but if the bill of indictment is issued too short before court proceedings, then it will be more difficult to collect evidence about the "persons, time, place, methods" involved in coercion (art. 6 ). Not to mention that art. 306 CL can still be used to prosecute the defense on grounds of false testimony:

Article 306 If, in criminal proceedings, a defender or agent ad litem destroys or forges evidence, helps any of the parties destroy or forge evidence, or coerces the witness or entices him into changing his testimony in defiance of the facts or give false testimony, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years.

Where a witness's testimony or other evidence provided, shown or quoted by a defender or agent ad litem is inconsistent with the facts but is not forged intentionally, it shall not be regarded as forgery of evidence.

Material and documental evidence are addressed only passingly (art. 14) and no precise criteria are set out to evaluate whether they have been acquired legally or not. In principle, it is still possible to conduct illegal searches, illegal wiretappings and videorecordings, or to torture those who may provide material evidence (no fruits of the poisonous tree doctrine).

Last but not least, the Rules on criminal cases refer only to formal criminal proceedings. The PRC criminal justice system is composed of multiple arenas: an area where formal criminal proceedings take place, and several different "zones of exception", where investigation, detention and "sentencing" take place in derogation to formal proceedings.

The Rules on criminal cases do not set evidentiary rules on:

  1. Re-education through labour
  2. shuanggui
  3. drug rehabilitation
  4. shelter and education
  5. short detentive punishments under the Security Administration Punishment Law
  6. short detentive measures used before the beginning of criminal or administrative proceedings.
The introduction of more stringent rules on evidence may ironically lead to an increased use of RETL and other forms of administrative detention.

Once the police will realize that illegal evidence cannot be actually used in court, administrative detention may be used as a convenient substitute for criminal punishment, given that legislation on RETL covers most behaviours proscribed by the Criminal Law, and evidence rules are quite flexible.

Police behavior is shaped by populist crime-control policies as much as by contractual incentives. If bonuses and carreer opportunities are linked to the achievement of crime-control targets, and if the police is supposed to punish crimes severely and swiftly, administrative detention may still be regarded as a faster and easier option than criminal proceedings.

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