Sichuan Provincial Government Issues New Rule Excluding Illegally Obtained Evidence

September 20, 2005

The Sichuan province high court, procuratorate, and public security bureau have issued a joint opinion that in theory prohibits the use of oral evidence obtained through illegal means and strengthens other protections for criminal defendants, according to a Procuratorial Daily article. The announcement comes in the wake of a national uproar over recent revelations that courts wrongfully convicted two Chinese men of murder in part on the basis of confessions obtained through torture (see related stories on the Nie Shubin and She Xianglin cases - 1, 2, 3). The cases have sparked widespread criticism of China’s criminal justice system and the continuing problem of torture there.

According to various Chinese sources, the new Sichuan opinion, entitled "Certain Opinions on Standardizing Criminal Evidence Work," provides: (1) that oral evidence obtained through torture, threats, and other illegal means shall not be used as evidence; (2) that courts shall presume the innocence of defendants when the evidence supporting guilt and innocence is difficult to weigh or when there are clues suggesting innocence that police and prosecutors have not investigated; and (3) that investigators tape all interrogations in major cases. The Opinion also provides that when defendants or witnesses allege coercion and change their statement or confession at trial and investigative organs either (a) cannot provide a reasonable explanation to the court of the facts related to the alleged coercion or (b) refuse to investigate the claim of coercion, courts may not use the original oral statement as evidence. This last provision, which in practice will apply to many cases involving coerced statements, may obscure the general prohibition on using illegally obtained statements and appears to leave open the possibility that investigative organs could explain their way out of evidence exclusion. (For a translation of the apparent text of the opinion, see below).

Although Chinese law prohibits torture, national Chinese regulations currently in force do not require courts to exclude illegally obtained evidence and provide only that such evidence shall not be used as the "basis" of a judgment. Thus, even with the limiting language noted above, the Sichuan opinion clearly strengthens defendant rights in that province. Legal experts are debating amendments to China’s Criminal Procedure Law that could provide similar protections, and the Sichuan opinion may reflect an effort to experiment with them at the local level before amending national law. The opinion is also the first concrete evidence that the national outcry over the Nie Shubin and She Xianglin cases has strengthened the hand of reformers. The Procuratorial Daily article states explicitly that coerced confessions are not reliable and that Sichuan issued the new circular against the backdrop of the controversy over Nie and She.

Selected Provisions of “Sichuan Province High People’s Court, People’s Procuratorate, Public Security Office, Certain Opinions Regarding Standardization of Criminal Evidence Work (Trial)

This opinion is formulated in order to progressively standardize criminal proof activities, resolve problems that exist in criminal evidence work, ensure the correct determination of criminal facts, raise case handling quality, and, according to the “PRC Criminal Procedure Law,” the Supreme People’s Court’s “Interpretation on Several Problems in Implementing the ‘PRC Criminal Procedure Law,’“ the Supreme People’s Procuratorate’s “People’s Procuratorates Criminal Procedure Rules,” the Public Security Ministry’s “Provisions on Public Security Organ Criminal Case Handling Procedures,” and other related provisions, harmonize our province’s criminal evidence work in practice.

Basic Requirements of Criminal Evidence Work

1. In the course of evidence collection work, people’s courts, people’s procuratorates, and public security organs, shall place equal emphasis on justice and efficiency, and on punishing crime and protecting human rights. Extorting confessions through torture and collecting evidence through threats, enticement, fraud or other illegal means is strictly prohibited.

2. In the course of criminal evidence work, people’s courts, people’s procuratorates, and public security organs, shall divide their labor, work in coordination, and provide check on each other. Public security organs shall collect evidence strictly, shall not transfer cases for prosecution examination when criminal facts are unclear, evidence is insufficient, and the conditions are not appropriate for transferring the case for prosecution examination. People’s procuratorates shall strictly examine prosecutions and must not issue an indictment when, after examination, it determines the facts are unclear, the evidence is insufficient, and the conditions are not appropriate for prosecution. Courts must strictly try cases, and, in cases in which courts determine through trial that the facts are unclear, the evidence is insufficient, and they are not able to find the defendant guilty, must, in accordance with the law, issue a judgment of not guilty indicating that the evidence is insufficent and that charged crime cannot be established, or permit the people’s procuratorate to withdraw the indictment in accordance with law before a judgment is declared. When people’s courts and people’s procuratorates propose to return a case for supplementary investigation, and require arrangements such as a survey of the evidence, collection of evidence, notifications to appear in court, etc., the relevant organs shall strictly carry them out in accordance with law.

3. Investigative organs have the dual professional duties of punishing crime and ensuring that the innocent are not criminally punished.

Investigative organs shall comprehensively collect all types of evidentiary material that may prove the guilt of the suspect, how serious the crime is, the innocence of the suspect, or how light the crime is.

Investigative organs shall comprehensively transfer all evidentiary material that may prove the guilt of the suspect, how serious the crime is, the innocence of the suspect, or how light the crime is. When criminal suspects and witness give multiple statements and they conflict, the investigative organ shall transfer complete all statements of the criminal suspect and all depositions of the witnesses in their entirety.

4. In the course of the criminal process, if people’s procuratorates undertake the evidentiary responsibility of proving the suspect’s guilt, they also have the professional responsibility to ensure that the innocent are not criminally punished.

With respect to the new evidence that is discovered in the course of prosecution, has not yet been collected, is sufficient to influence the punishment for the crime, the people’s procuratorate may return the case to the investigative organ for supplementary investigation or may conduct a supplementary investigation itself. With respect to supplementary evidence that must be furnished to the court in order for a judgment or supplementary investigations in the course of the trial, the people’s procuratorate shall collect the evidence itself or conduct the investigation and, when necessary, can require the public security organ to provide assistance. When a defendant subject to the death accuses another person of major crimes or informs on another person’s major crimes and that information must be verified, the people’s procuratorate shall, according the quality of the information, contact the department with jurisdiction and, prior to judgment, clearly verify its accuracy.

When required, supplementary investigation shall be completed within one month.

With regard to cases in which the hearing is extended due to supplementary investigation, if the investigation has not cleared the matter within the time limit for supplementary investigation, the people’s procuratorate may withdraw the charges. If the charges are not withdrawn and the relevant supplementary evidentiary materials are not transferred, it shall be handled as if the people’s procuratorate withdrew the charges.

5. Examination and verification of evidence that the people’s court carries out outside of the hearing should focused primarily on evidentiary materials produced by the prosecution and defense. When necessary, the people’s court may obtain evidentiary materials that need to be examined and verified from the people’s procuratorate. The people’s court may also, upon application by a defendant or defense counsel, obtain from the procuratorate relevant evidentiary materials on the defendant’s innocence or light crimes that are collected during the investigation or prosecution examination. With respect to relevant evidence that the people’s court obtains in the course of the trial, the people’s procuratorate should transfer it within three days. When the people’s court, in the course of acquiring and examining the evidence, discovers new evidence, it should immediately given notification and transfer it to both the prosecution and defense.

6. People’s courts, people’s procuratorates, and public security organs shall fully safeguard the right of suspects and defendants to collect and provide evidence and clues proving their innocence or that the crime is light. Except when the law provides otherwise, suspects and defendants must not be required to assume the responsibility of proving that they are innocent.

When suspects, defendants, or defense counsel provide evidence and clues that may prove their innocence, that the crime was light, or other evidence beneficial to the suspect or defendant to public security or procuratorial organs and request that it be verified, public security and procuratorial organs shall immediately check and verify it clearly. When there are clear clues of innocence or a light crime, but public security and procuratorial organs have no way to check and verify them or refuse to furnish investigative results, all of the other circumstances of the case can be synthesized and an inference in favor of the defendant made.

During the trial process, defendants or defense counsel have the right to provide new evidence, make applications for the notification of new witnesses to appear in court, obtain new material evidence, or make application for new appraisals or examinations. The people’s court shall decide whether approve the applications in accordance with the law.

Problems Concerning Material Evidence

9. Material evidence includes physical evidence and documentary evidence. Investigative organs shall comprehensively collect and gather all original physical evidence and documentary evidence that may be relevant to the case and avoid losing important original evidence because of errors in evidence collection.

11. The material or documentary evidence that is presented should be the original article or document. In any of the following circumstances, a photograph, videotape, copy, or reproduction of the original article or document may be presented:

(i) the original article is inconvenient to transport, is unsuitable for preservation, or should be returned to the victim in accordance with law;
(ii) the original article should not be transferred with the case;
(iii) there is real difficulty in obtaining the original document or other proper reasons.

Photos, and videotapes taken of material evidence, and copies or reproductions made from documentary evidence, shall be made by no fewer than two people, and an explanation of the process of making them and the location where the original articles or documents are deposited should be attached and signed or stamped by the person who made them.

12. If there is an objection that the photo, videotape, reproduction, or copy does not conform to the original article or document, the party producing the evidence shall proves whether or not it confirms with the original article or document and whether or not the production process was legal.

Problems Concerning Oral Evidence

21. Oral evidence includes witness depositions, victim accounts, and criminal suspect and defendant confessions and explanations. Witnesses, victims, criminal suspects, and criminal defendants may only testify about facts they observed in person. When witnesses, victims, criminal suspects, and criminal defendants make statements that rely on hearsay and do not have other evidentiary support, these statements may not by themselves be relied upon as evidence to prove the truth of the matters asserted in them.

22. Oral evidence shall be collected by a lawful entity, and must have be in the correct form provided by law. Investigative organs shall, according to procedures and methods in the appropriate legal provisions, comprehensively collect oral evidence that relates to the case.

Questioning/interrogation records should accurately and completely reflect the words and meaning of the person questioned/interrogated. Alteration of the records without the consent of the person questioned/interrogated is strictly prohibited.

Questioning/interrogation records shall record the time that each interrogation started and finished. There may not be fewer than two investigative personnel at a questioning/ interrogation, and the questioning/interrogation record shall be signed or stamped by the questioner/interrogators, the persons being questioned/interrogated, and the recorder.

23. People’s courts, people’s procuratorates, and public security organs, when questioning witnesses or victims or interrogating suspects or defendants in the course of evidence collection work, may not use threats, insults, or inappropriate leading language and methods. Extorting confessions through torture is strictly prohibited. Oral evidence collected through the use of torture, threats, enticement, fraud, or other methods may not be used as evidence.

Oral evidence obtained through the use of methods of extracting confessions through torture in disguised form, measures not permitted by law that constitute threats, refusals of or limitations on benefits conferred by law that constitute threats, promises to confer a benefit not permitted by law that constitutes enticement or fraud, and other corresponding threats, enticement, or fraudulent methods, cannot be used as evidence.

24. When defendants and witnesses change their confession or statement during the trial phase because investigative organs extracted a confession through torture or used threats, enticement, fraud, or other illegal means to collect evidence, if one of the following circumstances is present, a confession or statement of guilt made before the hearing may not by itself be used as evidence to prove that the charge has been established:

(i) Investigative organs cannot provide a reasonable explanation for the concrete facts of illegal evidence collection raised by the defendant or witness.

(ii) People’s procuratorates or public security cannot eliminate the possibility of illegal evidence collection because they refuse to investigate and verify it.

26. When conducting an interrogation of criminal suspects in major cases, public security organs and procuratorates shall make sound and video recordings of the entire evidence collection process.

Problems Concerning Appearances in Court to Give Evidence

27. In the following circumstances, witnesses shall appear in court to give evidence, and shall accept questioning by the prosecution, defense, and the court:

(i) There are major conflicts in multiple depositions given by a witness prior to the hearing and it is necessary to ascertain their truthfulness;

(2) There are relatively large disputes about the facts of the case, and the depositions of the witnesses are critical to the determination of the case facts;

If witnesses who conform to the conditions in the provisions above do not appear in court to give evidence, and when there is no other independent source of evidentiary materials to confirm the evidence, the written depositions of that witness may not by themselves constitute a basis for deciding the case.

28. In major cases, in any of the following circumstances, investigative personnel responsible for arresting the suspect, investigating, searching, examining, seizing, questioning, or interrogating shall appear in cout to give evidence and shall accept questioning by the prosecution, defense, and the court:

(i) Either the prosecution or defense, after going through explanatory materials, has major suspicions about the arrest made by the investigative personnel; or

(ii) Either the prosecution or defense has major suspicions about the investigation or examination record or the search, collection, and seizure record, leading to confusion about the source of material evidence or documentary evidence. Investigative organs may not refuse to appear in court to give evidence without a legal basis.

30. Where the prosecution or defense raises rational doubts about the source, collection, production process, production methods, or technical factors for material evidence, documentary evidence, audiovisual data or other material presented in court, the party that presented the evidence shall offer the necessary explanation in response to the inquiry of the other party. In major cases, when the prosecution or defense applies for evidence collectors, evidence producers, or witnesses to appear in court to give evidence, and the court determines after examination that such an appearance is necessary, it may give notification to the evidence producer, evidence collector, or witness to appear in court to be questioned directly.

On Examination and Judgment of the Strength of the Evidence

33 (last phrase)
In situations where the amount of evidence supporting guilt and innocence or a light crime and a heavy crime is difficult to distinguish, innocence or a light crime on the part of the defendant is inferred.

34. When the evidence is insufficient, or is not sufficient to prove that the defendant is guilty, public security organs, people’s procuratorates, and courts shall withdraw the case in accordance with law, decide not to prosecute, or issue a judgment that the evidence is insufficient and the charged crime cannot be established.

The evidence should be considered insufficient in each of the following circumstances:

(i) Critical evidence for determining the case is unreliable;
(ii) Important criminal facts for the charge do not have the necessary evidentiary proof;
(iii) There are major contradictions in the evidence or between evidence for determining the case and facts still to be proved and no way to resolve them.

Supplemental Provisions

36. When adjudication, procuratorial, or investigative personal do not carry out their legal duties or violate their legal duties in the course of criminal evidence work and such failures lead to serious consequences, the persons directly responsible and their superiors shall be punished according to the relevant provisions. If a crime is involved, criminal responsibility shall be pursued according to the law.