The Exclusionary Rule In The United Kingdom, United States And China

 

Kuo-Hsing Hsieh

BIO: Ph.D. candidate, School of Law, the University of Edinburgh.

I. Introduction

The traditional Chinese criminal justice system emphasized substantial justice and truth-finding. From Qin dynasty (221-207 B.C.), torture was part of the ordinary criminal procedure. Not only the suspects, but also the informant and witness may be suffered from torture. In the Qing dynasty (1644-1912), the magistrates were allowed to apply torture to find the “truth.” The traditional legal culture, to some extent, has influenced the law in practice, for example, reliance on confession from torture, excessive periods of detention and witnesses’ reluctance to testify. In my view the ancient Chinese criminal justice system approximates fairly closely the dictates of the crime control model.

There are two goals of regulating the criminal process: first is to bring suspected offenders to trial so as to produce accurate determinations, and to ensure that fundamental rights are protected in those processes.[1] People’s Republic of China has undergone significant legal changes in criminal justice systems. The Chinese criminal justice system appears to comply with many international requirements. The Chinese Criminal Procedure Law provides the right to independent tribunal,[2] the presumption of innocence,[3] the right to an adequate defense,[4] and the prohibition of torture, threat, enticement, deceit or other unlawful means.[5] In addition, the Chinese Judges Law provides judges the right to be free from external inference in their work.[6] However, the “gap problem”, the huge gap between how law is written in the books and how it is practiced by legal actors, is serious in China.

In 1988, China ratified the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Since 1996, under the external and internal pressure, China has made substantial strides in formalizing its criminal justice system by amending, enacting new laws and creating new policy agencies. Many amendments were made to the Chinese Criminal Procedure Law and Criminal Law to ensure the protection of defendants’ rights. In 1997, China signed the International Covenant on Economic, Social, and Cultural Rights, the International Covenant on Civil and Political Rights (ICCPR) had been signed next year. In 2002, China entered the World Trade Organization (WTO). In 2004, Chinese Constitution Article 33, for the first time, provides “the country respect and protect human rights.”

A decade later, however, according to the 2006 Supreme People’s Procuratorate’s report to the National People’s Congress presented in March 2006 (covering the year 2005), 599 civil servants had been investigated for suspected criminal activity in cases involving “illegal detention, coercion of confessions, using violence to obtain evidence and abuse of detainees.” These official figures are clearly the tip of the iceberg in a country according to the size of China.

Overall speaking, legal scholars have paid limited attention to criminal justice reforms in China. Nor have political scientists, sociologists, or anthropologists devoted much time to analyzing developments in related issues.

The Article therefore begins by comparing the interesting similarities and differences about the exclusionary rule issues in the United Kingdom and United States in Part II and III. Part IV explores the insufficiency of the previous research. The important rationales of the exclusionary rule will be discussed in Part V. Finally, and crucially, Part VI concludes that the separation of powers principle and exclusionary rule are two effective ways to solve the “gap problem” in China.

II. We are very much alike

The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter; the rain may enter – but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.

                                                     William Pitt[7]

The power of a police officer in conducting a search is enormous. He or she is entitled forcibly to enter the citizen’s home, even at midnight, to wake a person from sleep, rummage in his or her drawers, papers, letters and most private possessions, or upset the entire building. Although the particularity clause of the warrant defines the scope of a search, it is heard that the police allegedly abuse their search authority.[8] Some people have even lost their lives during police searches in the United States. For example, in 2006, a police SWAT team in Atlanta stormed a house and shot a 92-year-old woman, Kathryn Johnston, who lives alone in the roughest neighborhood in Georgia. The police claimed that they had made a drug buy at the home from a man known only as Sam and were returning to search the residence.[9]

In 1761, a group of Boston merchants retained Attorney James Otis, Jr. to challenge the legality of the writs of assistance for the first time. The writs were general search warrants that permitted the authorities to search whoever and wherever they pleased for any reason – or for no reason. Section 5(2) of the Act of Frauds of 1662 provided:

And it shall be lawful to or for any Person or Persons, authorized by Writ of Assistance under the Seal of his Majesty’s Court of Exchequer, to take a Constable…. or other publick Officer inhabiting near unto the Place, and in the Day-time to enter…. Any House…. Or other Place, and in Case of Resistance to break open Doors, Chests, Trunks and other Package, there to seize, and from thence to bring, any Kind of Goods or Merchandize whatsoever, prohibited, and to put and secure the same in his Majesty’s Store-house.[10]

    Otis attacked the writs:

It appears to me the worst instrument of arbitrary power, the most destructive of English liberty, and to the fundamental principles of law that was ever found in an English law book. It is the power that places the liberty of every man in the hands of every petty officer…. One of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle; and whilst he is quiet, he is well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom house officers may enter our houses when they please – we are commanded to permit their entry – their menial servants may entry – may break locks, bars and everything in their way – and whether they break through malice or revenge, no man, no court can inquire – bare suspicion without oath is sufficient.[11]

    Although the Superior Court upheld the legality of the writs, John Adams had seen Otis’s speech as the prologue to the American Revolution.[12]

There were two most famous related English cases decided by Lord Charles Pratt Camden.[13] The first is Wilkes v. Wood. In 1763, John Wilkes, a member of the House of Commons, published a pamphlet series vehemently attacking the British government. Lord Halifax, the Secretary of State, issued a general warrant and ordered four messengers to search for, arrest and seize the authors, printers, and publisher, as well as their papers. Wilkes’ bureau was thoroughly ransacked, and all his books and private papers were seized and taken away. Forty-nine persons were arrested in three days on the strength of that single warrant. Wilkes challenged the legality of the general warrant in civil damage suits. Chief Justice Charles Pratt held the general warrants were null and void and that Wilkes could recover damages for the illegal search and seizure:

To enter a man’s house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition; a law under which no Englishman would wish to live an hour…. If such a power is truly invested in a secretary of state, and he can delegate this power, it certainly may affect the person and property of every man in this kingdom, and is totally subversive of the liberty of the subject.[14]

    The second is Entick v. Carrington. In 1762, according to the executive warrant issued by the Earl of Halifax, the secretary of state, the defendants Nathan Carrington and others, with force and arms broke and entered John Entick’s dwelling-house, broke open the doors, chests, drawers, searched and examined all the rooms in his dwelling, house and all the boxes, and took away hundreds of printed charts, pamphlets and papers. Entick was suspected of publishing seditious libels. He sued the defendants for trespass. The jury found that the defendants did trespass and awarded him three hundred pounds. This judgment exercised great influence on the subsequent cases of search law in England as well as in the United States. Lord Camden found the warrant was wholly illegal and void:

If this point should be determined in favor of the jurisdiction, the secret cabinets and bureaus of every subject in this kingdom will be thrown open to the search and inspection of a messenger, whenever the secretary of state shall think fit to charge, or even to suspect, a person to be the author, printer, or publisher of a seditious libel…. If this is the law it would be found in our books, but no such law ever existed in this country. Our law holds the property of every man so sacred that no man can set his foot upon his neighbour’s close without his leave. If he does, he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law…. We can safely say there is no law in this country to justify the defendants in what they have done; if there was, it would destroy all the comforts of society, for papers are often the dearest property a man can have.[15]

As news spread about the ruling, Lord Camden was hailed both on England and America for his bold and clear-eyed expression of the common law and the rights of Englishmen.[16]

The United Kingdom (except Scotland) and United States share the same common law roots from England. In the past, English judges have often prided themselves as protectors of citizens’ rights.[17] At first sight, the similarities of two respective criminal justice systems are particularly striking in many ways, for example, the emphasis on adversary system, the presumption of innocence, and the sense of fundamental fairness required for a just procedure. Equally striking, however, is the lack of similarities between the two systems in significant areas, for instance, the admissibility of illegally or improperly obtained evidence in criminal trials.

III. But oh the difference

Courts and scholars have not formulated a universal definition of the exclusionary rule of evidence. My definition is “a rule that excludes evidence obtained by illegal or improper methods,” for example, by illegal search or torture. There are at least three differences about the exclusionary rule between the two criminal justice systems.

First, the English judges seemed reluctant to exclude illegal evidence from 1978.

From the 1960s, English courts have increasingly extended police powers, especially in search and seizure and pre-charge detention for investigation.[18] Since 1978, courts were almost unwilling to exercise their discretion to exclude illegally or improperly obtained evidence. For instance, in R v. Houghton and Franciosy,[19] the Court ruled that a judge was right not to exclude a confession even though the defendant had been unlawfully arrested, unlawfully detained incommunicado for five days, and questioned without caution. In general, judges in postwar England and Wales became increasingly accommodating to police demands for additional powers: they retreated from control of police, while senior American (in the 1960s) and Australian (in the 1980s) judges attempted to advance.[20] In the leading case of R v. Sang, as Lord Diplock noted:

[The trial judge] has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained.[21]

In the United States, under the exclusionary rule of evidence, evidence which is obtained by an unlawful search and seizure is excluded from admissibility in accordance with the Fourth Amendment to the United States Constitution. This provision provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In 1914, the United States Supreme Court first held that “in a federal prosecution the Fourth Amendment barred the use of evidence secured through an illegal search and seizure” in Weeks v. United States, in which Justice Day noted:

The effect of the Fourth Amendment is to put the courts of the United States…. against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not.[22]

Second, the rationales for the exclusionary rule are very different.

The English courts have repudiated the idea of using exclusion of illegally obtained evidence as a deterrent against police misconduct. In Sang, Lord Diplock observed:

It is no part of a judge’s function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used at the trial is obtained by them.

Lord Scarman pointed out:

The role of the judge is confined to the forensic process. He controls neither the police nor the prosecuting authority.[23]

In Hughes, Lord Taylor emphasized that:

It has been said more than once in this court that the object of a judge in considering the application of section 78 is not to discipline or punish police officers or customs officers for breaches of the code.[24]

In contrast, the United States Supreme Court first recognized that the only effective way to deter police misconduct is to exclude illegal evidence in Weeks.[25] Since 1961, the Court has systematically ignored all but the deterrence rationale for the rule. The essence of the rationale is that it allows the courts to control the activities of the law enforcement agencies and dissuade them from encroaching unjustifiably on the civil liberties of citizens. For example, in United States v. Calandra, Justice Powell observed:

A judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect.[26]

Third, the judicial attitudes towards evidence obtained in undercover police operations are different.

“Entrapment” refers to the state entice its citizens into committing crimes, by its agents, in order to prosecute them for doing so. Under English criminal law, there is no substantive entrapment defence, but that entrapment can be taken into account in mitigation of sentence.^[27] Professor Ashworth also observed that “the English courts have been excessively coy about entrapment.”^[28]

In Sang, Lord Scarman said succinctly:

If a crime is brought about by the activities of someone who can be described as an agent provocateur, although that may be an important matter in regard to sentence, it does not affect the question of guilty or not guilty.[29]

  In R v. Looseley; Attorney General’s Reference (No 3 of 2000), Lord Hoffmann stated:

The fact that the accused was entrapped is not inconsistent with his having broken the law. The entrapment will usually have achieved its object in causing him to do the prohibited act with the necessary guilty intent. So far as I know, the contrary view is held only in the Federal jurisdiction of the United States.[30]

In contrast to the British approach, the United States Supreme Court first recognized the entrapment defense in Sorrells v. United States in 1932. In the words of Chief Justice Hughes:

Such a gross abuse of authority given for the purpose of detecting and punishing crime, and not for the making of criminals, deserves the severest condemnation.[31]

Two decades ago, Professor Robinson, one of the world’s leading scholars on criminal law, has noted that “nearly every American jurisdiction now recognizes some form of the entrapment defense.”[32] The defense is now codified in twenty-six states.[33] In other states, the defense is a judicial creation.

Fourth, there is a difference about the admissibility of derivative evidence from illegally obtained real evidence and inadmissible confessions. For example, an illegal search may find out a key to a railway station locker where the money of a robbery is being kept. Or a confession obtained by torture may reveal the whereabouts of the murder knife.

Under English law, evidence derived from an illegal confession is admissible. In R. v. Warickshall,[34] Warickshall was charged with being an accessory after the fact to theft and with receiving the stolen property. The issue was the admissibility of stolen goods which had been found in her bed to which her confession had led the authorities. The confession was made after the defendant was promised that she would not be prosecuted if she confessed. After she made a full confession, however, a prosecution took place. Her confession was excluded as evidence, but the real evidence was included.

In addition, Section 76(4) of the Police and Criminal Evidence Act (PACE) 1984 explicitly rejects the admissibility of derivative evidence and provides:

The fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence – (a) of any facts discovered as a result of the confession; or (b) where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so.[35]

In contrast to English approach, in the United States, the derivative evidence should be excluded, if there is close connexion between the initial illegality and subsequently discovered evidence. In addition, Justice Frankfurter first coined the phrase “fruit of poisonous tree” in Nardone v. United States in 1939 and stated:

[T]o forbid the direct use of methods [but] to put no curb on their full indirect use would only invite the very methods deemed inconsistent with ethical standards and destructive of personal liberty.[36]

IV. Further examination

The exclusionary rule is one of the most difficult,[37] controversial[38] and complex doctrines in criminal procedure and evidence law. This rule is multifaceted and ever-changing. Professor Dennis has also noticed that “[t]he law in this area is complex and still developing.”[39]

There are several types of evidence to be considered for exclusion. For instance, confessions obtained by torture or oppression; non-confessional evidence obtained by illegal search and seizure; entrapment obtained by inducing or participating in the commission of the crime, evidence obtained by deception, trick, intercepting, recording of communication, undercover police and electronic surveillance.

Some of the previous studies are insufficient and incomplete in terms of their scope and depth; they over-simplified this complicated issue in three ways.

First, Professor Tapper notes that “in England, illegally obtained evidence is admissible as a matter of law, provided that it involves neither a reference to an inadmissible confession of guilt, nor the commission of an act of contempt of court.”[40] Professor Duff says that “the issue of the admissibility of improperly obtained real evidence bedevils most jurisdictions…. solutions range from almost always admitting such evidence – the historical position in England law – to almost always excluding it – the recent approach in the USA.”[41]

As a matter of fact, in the past two decades, there has been a trend in Europe to expand the use of the exclusionary rule,[42] including the United Kingdom. In 1984, the English criminal justice system began a process of reconstruction. There are four grounds of exclusion under of the PACE. Section 76(2) requires exclusion of confession (a) obtained by oppression or (b) likely to have been rendered unreliable by anything said or done by anyone.[43] Section 78(1) provides that: “the court may refuse to allow evidence…. if it appears…. that…. the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”[44] In addition, Section 82(3) saves “pre-existing common law powers…. to exclude evidence whose prejudicial effect outweighed its probative value.”[45]

For the first time in the history of British criminal justice, the judiciary were given statutory power to exclude improperly obtained non-confessional evidence.[46] Judges don’t need to consider whether they have discretion to exclude relevant evidence.

In the United States, the intense debate of the exclusionary rule has been lasted for almost one hundred years. In 1922, Dean John H. Wigmore had stated bluntly:

[The exclusionary rule] puts [courts] in the position of assisting to undermine the foundations of the very institutions they are set there to protect. It regards the over-zealous officer of the law as a greater danger to the community than the unpunished murderer or embezzler or panderer.[47]

Since 1970s, the Supreme Court has limited the scope and application of the rule and has repeatedly created exceptions. Presently, there exist the following exceptions: independent source,[48] good faith,[49] inevitable discovery,[50] purged taint,[51] impeachment,[52] harmless error exception[53] and rule of attenuation.[54]

The rule is very controversial. Some judges, including the Chief Justice, opposed the rule. For example, in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,[55] F.B.I. agents raided a suspect’s home, handcuffed him in front of his family, and searched for drugs. Finding none, they took him to the station house where he was strip searched, interrogated, and eventually released. The suspect, Bivens, then brought a civil action against the federal government.

 Although the Court held that the plaintiff was entitled to recover money damages for any injuries he had suffered as a result of the agents’ violation of the Fourth Amendment, in Chief Justice Burger’s dissent, he totally rejected the exclusionary rule and attacked the rule for inadequately protecting the rights of suspects, failing to sanction the officer who conducted the illegal action, and wrongfully punishing prosecutors, who are powerless to correct police misconduct.

In 1995, the Senate was considering to completely eliminate the exclusionary rule in the proposed Violent Crime Control and Law Enforcement Improvement Act of 1995, although it didn’t succeed, which stated that:

Evidence which is obtained as a result of a search or seize shall not be excluded in a proceeding in a court of the United States, on the ground that the search or seizure was in violation of the Fourth Amendment to the constitution of the United States, if the search or seizure was carried out in circumstances justifying an objectively reasonable belief that it was in conformity with the Fourth Amendment.[56]

Second, there has been little analysis of the exclusionary rule and its related issues in Scotland. The Scottish decisions perceive themselves to be steering somewhat of a middle course between the automatic exclusion and the unquestioned admissibility.[57] It is a topic that requires further examination.

Third, although much has recently been written on the issue of the prohibition of torture[58] in the context of terrorism, the discussion has expended very little attention on the question of whether evidence obtained by torture would be admissible.

Additionally, there are still many profound, important and difficult questions unanswered. These questions are full of conflicts and dilemmas.

(1)   Does and should the exclusionary rule not only just apply to ordinary criminals, but also to terrorists, murderers and rapists? Should we carve out categories of people, the full force of the rule do not apply? The conclusion is that I believe strongly the rule must apply to everyone.

(2)   How to bridge the gap between confessional and non-confessional evidence? There is a huge gap between them. As a matter of law, the general rule about non-confessional evidence is “it matters not how you get it; if you steal it even, it would be admissible.”[59] In other words, “the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible, and the court is not concerned with how the evidence was obtained.”[60] If reliable evidence exists, it would be regrettable not to use it, and to risk the acquittal of a guilty person; why cannot we apply the rule to confessional evidence to obtain more evidence and apprehend more criminals? If an involuntary confession is corroborated and there is no doubt about its trustworthiness, can the criminal justice system make use of it? In general, if a confession had been obtained by police methods that rendered it involuntary or coerced – and thus violated due process law – it had to be excluded, however verifiable. It was so clear and simple. But why is it not that simple when non-confessional evidence is obtained in violation of due process, when the police have violated a constitutional protection that is basic to a free society.[61]

(3)   Why some of the police prefer using illegal or improper methods to procure evidence? Whether police should be permitted to use deception to extract confessions from suspects? If it is not a judge’s function to discipline the police conduct, who should take responsibilities of regulating police misconduct? According to my research and ten years’ prosecutor and criminal judge experience, I firmly argue that the police system will not seriously discipline their “brothers” who go beyond permissible limits in their eagerness to secure valuable evidence against the “bad guys.”[62] Some high-ranking police officers who ordered that pain be inflicted on the suspect even considered themselves crime fighters.[63] It is rather a naive view of depending on the police to safeguard civil rights.

(4)   How should we apply constitutional protections from the eighteenth century to today’s computerized world? For instance, can the police use infrared thermal imaging device at a suspect’s home? Searching and seizing computers are common during criminal investigation nowadays. How does the exclusionary rule govern the steps that an investigator takes when retrieving evidence from a personal computer?

(5)   The exclusionary rule reveals the fundamental tension between the social need for order and individuals’ desire for privacy and liberty. Can both ideologies be pursued simultaneously without compromise? In the leading case of Lawrie v. Muir in Scotland, Lord Justice-General Cooper highlighted that:

The law must strive to reconcile two highly important interests which are liable to come into conflict – (a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from Courts of law on any merely formal or technical ground.[64]

The crucial question is, “How to balance the two conflicting interests?” The dilemma is the gravity of serious crimes always will by definition exceed the gravity of almost any illegal or irregular invasions of citizens’ liberties. It seems always worse to be murdered or raped than to have one’s house searched without a warrant or to have a suspect to be tortured, no matter how serious the latter violation.

(6)   What is the admissibility of evidence obtained in breach of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Rights (ECHR)?

    The British Parliament incorporated the ECHR in its domestic law by the Human Rights Act 1998, which became effective in 2000. The Act requires British courts to act in accordance with rights protected by the Convention. For example, Article 3, which guarantees freedom from torture and inhuman and degrading treatment, is relevant to the possible exclusion of a confession. Article 6 offers sophisticated protections for the right to a fair trial.

    Many of the covert and intrusive methods used by police violated the suspect’s right to respect for a private life, in breach of Article 8. In Khan v. UK,[65] the European Court of Human Rights (ECtHR) held that the admission of evidence obtained by means of a listening device in breach of Article 8 did not automatically render the proceedings unfair. However, first, does it make a fair trial where evidence is relied on which was obtained in breach of the human rights guaranteed by the Convention? Second, is such evidence admissible? I argue that the security of one’s privacy against intrusion by the government is inextricable from the conception of fair trial.

V. The rule in China

Between 2002 and 2006, international organizations issued at least six reports in China.[66] Each of these reports analyzed some aspects of Chinese criminal process. All described a system with arbitrary arrest and lengthy detention of suspects, the systematic use of torture and other coercive measures by police authorities to obtain confessions, the routine use of coerced confessions to obtain convictions and denial of due process.

All of the reports have concluded with recommendations for improving the Chinese criminal justice system and its compliance with international human rights laws. Proposals include enhancing professionalism, efficiency, transparency; raising the status and independence of judges within the Chinese legal system. All these studies, however, are too broad and general.

First of all, some of the previous studies are questionable. For example, Professor Conner claims that “confessions have remained central to the criminal justice system in the PRC, and it seems that few cases now could end without one… The result is a system seemingly more arbitrary than that of the Qing – and less subject to the rule of law.”[67] However, first, she didn’t analyze any case at all. Second, she didn’t provide any convincing evidence to support that the system in China is arbitrary than that of the Qing.

In the second place, previous research has focused almost entirely on the ethical aspects of general human rights and broad description of the Chinese legal system operation.[68] They completely ignored the key question, namely, how to solve the “gap problem”?

I argue that the separation of powers and exclusionary rule are two effective ways to solve the “gap problem.” Furthermore, the separation of powers is the basis of the exclusionary rule.

This is not merely a problem in the evidence law. We should elevate the exclusionary rule to a new level of Constitution law. The Chinese Constitution, to some extent, also recognize the separation of powers principle requiring each branch to respect the constitutional responsibilities that have been assigned to the rival branches. Article 126 of the Chinese Constitution provides:

The People’s Courts shall, in accordance with the law, exercise judicial power independently, and are not subject to interference by any administrative organs, public organizations or individuals.

In addition, the “legal foundation” of torture in China is Article 93 of the Chinese Criminal Procedure Law (CCPL), which provides:

When interrogating a criminal suspect, the investigators shall first ask the criminal suspect whether or not he has committed any criminal act, and let him state the circumstances of his guilt or explain his innocence; then may ask him questions. The criminal suspect shall answer the investigators’ questions truthfully, but he shall have the right to refuse to answer any questions that are irrelevant to the case.

Traditionally, a suspect who refuses to confess receives harsh treatment; however, a defendant who confesses often receives lenient punishment. The defendants’ cooperation with the police in investigations is highly expected. There was no right to silence for the accused in China. Under strike-hard campaigns, launched in early 1996 and has been an ongoing annual campaign, police usually are given a quota for how many suspects will be caught for various crimes.[69] If the suspects do not answer the investigators’ questions “truthfully”, in practice, according to the Article 93 of CCPL, some police will seek confessions at virtually all costs and use whatever techniques they can to extract them. This is the main reason why the police torture detainees in China. Any rationalizations of torture will help the practice thrive. Torture must be vigorously denounced under any circumstance.

As regards the rationales of the exclusionary rule, there are three reasons for excluding the confessions procured by torture. First, such statement is often unreliable. The police seek the suspect’s confession they believe the “bad guy” has committed. The victims often choose to tell the police whatever they want to hear in order to relieve their suffering.

Even the police was tortured. In 1994, Yu Xiang Lin’s wife Zhang Zai Yu left their home because of her mental illness. Yu was a police in Jing Shan County in Hu Bei Province, China. Zhang’s family suspected that their daughter, Zhang was murdered by Yu and they decided to inform the police. Three months later, an unidentified female dead body was found in a pond near Yu’s home. Yu was arrested because Zhang’s brother claimed the dead body looked like his sister.

Over a fortnight of police interrogation, Zhang only ate two meals a day; drank very little and was deprived of sleep. Yu was seriously tortured and was forced to confess the murder. Yu suggested four ways to “kill” his wife and let the police to pick one among them.

Yu was given a death penalty by the Jing Zhou Intermediate Court. He appealed. The Hu Bei Province High Court quashed the conviction because of insufficient evidence. After the intervention of the City and County Political-Legal Committees,[70] the case was transferred to the Jing Shan County Basic Court. The PLC asked the Jing Shan County Basic Court and Jing Zhou Intermediate Court to imprison Yu for fifteen years. Surprisingly, Zhang returned home one day in 2005. The Jing Shan County Basic Court retried and said Yu was completely innocent.[71]

Article 126 of the Chinese Constitution authorizes the courts to have independent judicial power. The Chinese Judges Law provides judges the right to be free from external inference in their work.[72] Article 8 Section 2 of the Law on the Organization of the People’s Courts also has regulations concerning the right of judges to adjudicate the case according to the law with no interference from administrative organizations, social groups or individuals. The judicial power must be separated from the executive, for instance, the Political-Legal Committee; otherwise the life and liberty of people would be exposed to arbitrary control.

It is the judges that are the chief guarantors of equal justice under the law. Most importantly, courts are in a position to educate the legislative and executive branches of government and to compel legislators and bureaucrats to respect the rights and legitimate interests of individuals.

In Yu case, why nobody, including judges, uses the DNA to identify the crucial dead body? The technological and forensic advances can prevent the police from using torture to obtain confessions. In many criminal cases, the scientific evidence alone proved enough. It is totally unnecessary to extract confessions by torture from the suspects.

Second, by excluding such evidence in court proceedings can establish a fair trial and preserve the integrity of the judicial process.

One of the most important global legal developments is the growing recognition that the suspect will be given a right to a fair trial in both international and domestic law. For example, the Universal Declaration of Human Rights (UDHR) Article 10 and 11,[73] the European Convention for the Protection of Human Rights and Fundamental Rights (ECHR) Article 6,[74] ICCPR Article 14[75] and the Police and Criminal Evidence Act (PACE) 1984 Section 78(1).[76] It is unacceptable to use the confessions obtained by torture in court. The rule must exclude these statements in order to uphold the integrity of the administration of justice.

Some skeptics argue that the changes in the CCPL represent nothing more than a porous facade enacted to attract foreign investment.[77] Those changes will never be carried out in practice. In my view, contrary to some scholars’ gloomy predictions, China is striving for the creation of a relatively complete criminal code, intended to improve its criminal justice system.

In 1996 and 1997, China amended its CCPL and CCL respectively. The changes included the arrest and detention, presumption of innocence, lawyer participation, prosecutorial discretion and trial proceedings. These amendments are intended to protect the defendants’ rights. The Draft Uniform Rules of Evidence for China is now being drafted that will not only clarify evidentiary issues, including the exclusionary rule of evidence, but also address procedural rights issues.

Additionally, top court officials started to admit that coercive measures were used and increasingly focused on adhering to due process. In 1998, the President of the People’s Supreme Court Ren Jianxin stated that police misconduct represents a grave problem and said some law-enforcement officials have taken advantage of legal loopholes, intentionally misinterpreted the law, distorted evidence and broken the law they enforce.[78] In 2007, the President of the People’s Supreme Court Xiao Yang stated that “the court should endeavour to enforce the human rights protection in judicial arena and protect the defendants’ procedural rights.”[79]

My central argument is that the rule and fair trial are inextricably intertwined: their relationship is interactive; one cannot be understood without the other.

Third, prohibiting evidence obtained under torture could prevent torture from occurring.

    The history shows that when governments trade suspects’ rights with “truth-finding”, most often they get neither. The lesson of history is that, when the law is not there to keep watch over the illegal methods used by the investigators, the practice is always at risk of being resorted in one form or another.

VI. Conclusion

In China, the criminal procedure law has come a long way in a short period of time. The separation of powers and exclusionary rule are two crucial elements for China in the development of its fair administration of justice. The exclusionary rule will occupy the central place in the criminal justice system in China.

First, the separation of powers is the cornerstone of the exclusionary rule.

The British constitution is firmly based on the separation of powers doctrine. Parliament has the power to pass and repeal laws. The executive carries on the administration of the country. The courts interpret the laws. The separation of powers is the major principle of the United States Constitution. In addition, to some extent, the doctrine is also recognized by the Chinese Constitution.

    In the context of criminal justice system, in theory, the legislature passes criminal procedure laws; the executive enforces the laws; and the court interprets and applies the laws. Article 37 of the Chinese Constitution provides that:

The freedom of person of citizens of the People’s Republic of China is inviolable. No citizen may be arrested except with the approval or by decision of a people’s procuratorate or by decision of a people’s court, and arrests must be made by a public security organ. Unlawful deprivation or restriction of citizens’ freedom of person by detention or other means is prohibited; and unlawful search of the person of citizens is prohibited.

That means the police must obtain search warrants from judges before they invade the homes of people. When the police bypass the warrant application procedure, the exclusion of illegally obtained evidence is necessary.

Second, China needs to continue in its efforts to prohibit torture, whether physical or mental, without any exception whatsoever, and any evidence obtained by torture would be inadmissible in court proceedings.

Finally, and crucially, the exclusionary rule extends to any statement which is established under torture including preventive torture. If China leaves the window open a crack and the wind chilled to the bone in imperial China will soon fill the whole room. Preventive torture can not switch off a ticking bomb. It is, per se, a bomb that will explode the whole criminal justice system.