Legal Daily Examines New Sichuan Rules on Criminal Evidence

May 9, 2005

Although a positive development, a new Sichuan province opinion on criminal evidence does not address key problems in criminal procedure and evidence, according to a recent article in the Legal Daily. In mid-April, Sichuan law enforcement and judicial authorities issued a joint opinion that reportedly prohibits the use of illegally obtained evidence such as coerced confessions in criminal trials (see related story here). As the article notes, Chinese judges have always had the independent authority to consider the quality of evidence and exclude evidence obtained through torture. The new opinion, however, gives defendants a legal basis upon which to revoke or seek the exclusion of coerced testimony at trial. Prominent criminal law scholars interviewed about the new opinion expressed conflicting opinions about its validity, scope, and potential effectiveness (for details, see below).

The article indicates that debate over the She Xianglin case and other recent wrongful conviction cases (see related stories 1, 2, 3) has focused attention on the need to revise criminal evidence rules and amend the CPL. The author characterizes Mr. She's case as a "typical case" and notes while such "unjust cases" are in part the product of China’s legal tradition, concepts, and judicial system, they are most directly the result of criminal evidence rules.

The article suggests that the new Sichuan opinion, which becomes effective May 1, may be more extensive than early reports suggested. According to the report, in addition to discussing the need for excluding illegal evidence and to tape interrogations, the opinion addresses the use of DNA evidence, prohibitions on the alteration of evidence, and the admissibility of hearsay evidence.



The Legal Daily article includes interviews with two prominent criminal law scholars. Professor Chen Weidong observes that such local evidence rules may have a positive impact by spurring the NPC to amend the Criminal Procedure Law and develop new national evidence rules more quickly. However, he argues that provincial authorities do not have the power to issue local rules on criminal evidence and expresses concern that a flurry of local evidence rules could undermine the unity of the law. (Chen notes that Jiangsu province adopted a similar rule in 2003).

Professor Song Yinghui argues that as long as local evidence rules expand defendant rights and do not conflict with national law, they should be permitted. He notes that only 2% to 3% of witnesses appear in court in Chinese criminal cases, and that the new opinion will strengthen the requirement in the CPL that they do appear (giving defense lawyers the opportunity to cross-examine them).

Both professors express disappointment at the scope of the rules. Chen argues that they fail to address the most important problems in evidence and criminal procedure. Song notes with concern that the rules emphasize internal constraints and top-down supervision, rather than the empowerment of lawyers and the creation of other external external checks on law enforcement.