Difference between revisions of "Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases"

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(Created page with '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 j�')
 
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handling criminal cases.
 
handling criminal cases.
  
Article 1 The category of illegal oral evidence includes statements by criminal suspects or
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'''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
 
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.
 
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
+
'''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.
 
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
+
'''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
 
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.
 
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
+
'''Article 4'''
trial commences, a defendant alleges that his or her pretrial confession was obtained illegally, he or
+
 
 +
If, between the time that a copy of the indictment has been delivered and the time the
 +
t'''Bold text'''rial 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
 
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
 
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
 
the defendant's defense counsel, a copy of which the defendant shall sign or affix with his or her
 
thumbprint.
 
thumbprint.
 +
 
The people's court shall deliver the defendant's written motion or record of accusation to the
 
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.
 
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
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'''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
 
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
 
should conduct an investigation in court immediately following the prosecutor's recitation of the
 
indictment.
 
indictment.
 +
 
If, prior to the conclusion of courtroom debate, the defendant or his or her defense counsel
 
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
 
alleges that the defendant's pretrial confession was obtained illegally, the court shall also conduct
 
an investigation.
 
an investigation.
  
Article 6 If a defendant or his or her defense counsel alleges that the defendant's pretrial
+
'''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
 
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,
 
evidence with respect to the alleged illegal obtaining of evidence, such as the person(s), time,
 
place, manner, and content.
 
place, manner, and content.
 +
'''
 +
Article 7'''
  
Article 7 If, upon investigation, the court has questions about the legality of the way the
+
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,
 
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
 
original audio or video recordings of the interrogation or other evidence and request that the court
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time of the hearing, he or she may recommend that the court postpone the trial proceedings in
 
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.
 
accordance with Article 165 of the Criminal Procedure Law.
 +
 
Having been notified in accordance with the law, interrogators or other individuals shall testify
 
Having been notified in accordance with the law, interrogators or other individuals shall testify
 
before the court.
 
before the court.
 +
 
If the prosecutor submits an officially sealed [written] explanation that has not been signed or
 
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
 
sealed by the interrogator(s) concerned, the document may not serve as evidence that the
 
evidence was obtained legally.
 
evidence was obtained legally.
 +
 
Prosecution and defense may cross-examine evidence and carry out debate with regard to the
 
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.
 
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
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'''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.
 
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.
 
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
+
'''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
 
proceedings in order to submit new evidence or conduct additional investigation, the court should
 
agree.
 
agree.
 +
 
If the defendant or his or her defense counsel requests [that the court] notify an interrogator,
 
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
 
other individuals present at the time of interrogation, or other witnesses to appear in court and the
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proceedings.
 
proceedings.
  
Article 10 Following the court's investigation, the defendant's pretrial confession may be read in
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'''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:
 
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
+
#The defendant or his or her defense counsel do not provide leads or evidence of illegally obtained evidence;
obtained evidence;
+
#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;
(2) The defendant or his or her defense counsel has provided leads or evidence of illegally
+
#The prosecutor provides credible and sufficient evidence that is able to eliminate [questions about whether] the defendant's pretrial confession was obtained 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
 
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
 
defendant's statement in court and other evidence before determining whether it may serve as the
 
basis for conviction.
 
basis for conviction.
  
Article 11 If the prosecutor does not provide evidence to confirm the legality of the defendant's
+
'''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
 
pretrial confession or the evidence provided is not credible or sufficient enough, that confession
 
may not serve as a basis for conviction.
 
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
+
'''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
 
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
 
allegation] and uses the defendant's pretrial confession as a basis for conviction, the people's court
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as a basis for conviction.
 
as a basis for conviction.
  
Article 13 If, in the course of the trial, the procurator, the defendant, or his or her defense counsel
+
'''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
 
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
 
a victim who has not appeared in court was obtained illegally, the party who submitted the evidence
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an investigation with reference to the relevant provisions of these rules.
 
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
+
'''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
 
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
 
explanation should be made, otherwise that material or documentary evidence may not serve as a
 
basis for conviction.
 
basis for conviction.
  
Article 15
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'''Article 15'''
 +
 
 
These rules are effective from July 1, 2010.
 
These rules are effective from July 1, 2010.

Revision as of 17:03, 1 July 2010

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 tBold textrial 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.