Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases (Chinese and English Text)
Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases 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 trial 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.
The following translation was retrieved from the Dui Hua Web site on July 1, 2010. The Chinese text was retrieved from the Supreme People's Procuratorate Web site on July 1, 2010.
Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases
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 trial 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.
关于办理刑事案件排除非法证据若干问题的规定
为规范司法行为，促进司法公正，根据刑事诉讼法和相关司法解释，结合人民法院、人民检察院、公安机关、国家安全机关和司法行政机关办理刑事案件工作实际，制定本规定。
第一条 采用刑讯逼供等非法手段取得的犯罪嫌疑人、被告人供述和采用暴力、威胁等非法手段取得的证人证言、被害人陈述，属于非法言词证据。
第二条 经依法确认的非法言词证据，应当予以排除，不能作为定案的根据。
第三条 人民检察院在审查批准逮捕、审查起诉中，对于非法言词证据应当依法予以排除，不能作为批准逮捕、提起公诉的根据。
第四条 起诉书副本送达后开庭审判前，被告人提出其审判前供述是非法取得的，应当向人民法院提交书面意见。被告人书写确有困难的，可以口头告诉，由人民法院工作人员或者其辩护人作出笔录，并由被告人签名或者捺指印。
人民法院应当将被告人的书面意见或者告诉笔录复印件在开庭前交人民检察院。
第五条 被告人及其辩护人在开庭审理前或者庭审中，提出被告人审判前供述是非法取得的，法庭在公诉人宣读起诉书之后，应当先行当庭调查。
法庭辩论结束前，被告人及其辩护人提出被告人审判前供述是非法取得的，法庭也应当进行调查。
第六条 被告人及其辩护人提出被告人审判前供述是非法取得的，法庭应当要求其提供涉嫌非法取证的人员、时间、地点、方式、内容等相关线索或者证据。
第七条 经审查，法庭对被告人审判前供述取得的合法性有疑问的，公诉人应当向法庭提供讯问笔录、原始的讯问过程录音录像或者其他证据，提请法庭通知讯问时 其他在场人员或者其他证人出庭作证，仍不能排除刑讯逼供嫌疑的，提请法庭通知讯问人员出庭作证，对该供述取得的合法性予以证明。公诉人当庭不能举证的，可 以根据刑事诉讼法第一百六十五条的规定，建议法庭延期审理。
经依法通知，讯问人员或者其他人员应当出庭作证。
公诉人提交加盖公章的说明材料，未经有关讯问人员签名或者盖章的，不能作为证明取证合法性的证据。
控辩双方可以就被告人审判前供述取得的合法性问题进行质证、辩论。
第八条 法庭对于控辩双方提供的证据有疑问的，可以宣布休庭，对证据进行调查核实。必要时，可以通知检察人员、辩护人到场。
第九条 庭审中，公诉人为提供新的证据需要补充侦查，建议延期审理的，法庭应当同意。
被告人及其辩护人申请通知讯问人员、讯问时其他在场人员或者其他证人到庭，法庭认为有必要的，可以宣布延期审理。
第十条 经法庭审查，具有下列情形之一的，被告人审判前供述可以当庭宣读、质证:
(一)被告人及其辩护人未提供非法取证的相关线索或者证据的;
(二) 被告人及其辩护人已提供非法取证的相关线索或者证据，法庭对被告人审判前供述取得的合法性没有疑问的;
(三)公诉人提供的证据确实、充分，能够排除被告人审判前供述属非法取得的。
对于当庭宣读的被告人审判前供述，应当结合被告人当庭供述以及其他证据确定能否作为定案的根据。
第十一条 对被告人审判前供述的合法性，公诉人不提供证据加以证明，或者已提供的证据不够确实、充分的，该供述不能作为定案的根据。
第十二条 对于被告人及其辩护人提出的被告人审判前供述是非法取得的意见，第一审人民法院没有审查，并以被告人审判前供述作为定案根据的，第二审人民法院 应当对被告人审判前供述取得的合法性进行审查。检察人员不提供证据加以证明，或者已提供的证据不够确实、充分的，被告人该供述不能作为定案的根据。
第十三条 庭审中，检察人员、被告人及其辩护人提出未到庭证人的书面证言、未到庭被害人的书面陈述是非法取得的，举证方应当对其取证的合法性予以证明。
对前款所述证据，法庭应当参照本规定有关规定进行调查。
第十四条 物证、书证的取得明显违反法律规定，可能影响公正审判的，应当予以补正或者作出合理解释，否则，该物证、书证不能作为定案的根据。
第十五条 本规定自二O一O年七月一日起施行。