Scholars Discuss China’s First Case under the‘Provisions on the Exclusion of Illegal Evidence’

• Author: Chen Xiao et al

This is the first case in which a court has issued a ruling based on the ‘Provisions on the Exclusion of Illegal Evidence.’ In the past, courts either simply ignored defendants’ requests for the suppression of illegally-obtained evidence or, if they had received a written statement submitted by the prosecution from the government investigators in charge of the case, would regularly rely on the investigators’ statement to deny that there were any problems with the illegally-obtained evidence. But in this case, a court of first instance found that the prosecution should turn over all of their interrogation video records and notify the interrogators of the defendant to appear in court to testify. When the prosecution refused to comply with the order, the court could conclude that the prosecution lost the case. “If the investigators think that they can simply refuse to appear in court to testify or to produce a statement to prove that there is no torture in the process of investigation, they will find this tactic no longer effective.”

--Chen Guangzhong, professor at the China University of Political Science and Law

The judge who wrote the opinion in this case divided the opinion into distinct substantive and procedural parts. It was precisely in the first part of the opinion, which relates to the procedural issues, that the court ordered the suppression of Zhang Guoci’s confession, retrieved by the investigative organ before the trial.

The Provisions on the Exclusion of Illegal Evidence sets a conditional burden-shift rule and the highest standards for the prosecution to rebut the defendant’s initial evidence, which means that as long as a defendant produces a sufficient threshold of evidence to the possibility that his testimony may have been coerced, the court can require the prosecution to prove that its evidence was obtained legally. Furthermore such proof must be clear in fact and conclusive and sufficient in evidence.

In Zhang Guoci’s case, the court of first instance invoked the above-mentioned rules. After Zhang had produced the threshold of evidence necessary to raise the possibility that his confession had been extracted under torture, the court obtained a copy of Zhang’s medical file from the detention facility where he had been held, which indicated that Zhang had scars and lesions that appeared on his body...