The Progress and Deficiencies of the New Rules for Excluding Illegal Evidence An Analysis of the New"Rules for Excluding Illegal Evidence in Handling Criminal Cases"
The Supreme People's Court,the Supreme People's Prosecutorate and the other three ministries jointly published the"illegal evidence exclusion regulation,"which introduces a procedure for procuratorial organs to verify the legality of interrogations before the conclusion of major cases,acknowledging the evidentiary status of interrogation recordings and videos,and making the application for excluding illegal evidence a prerequisite for convening pretrial confer-ences and the defendant's attendance at such conferences,among other provisions,showing cer-tain progressive aspects.However,the examination and investigation procedures and substantive rules for illegal physical and documentary evidence are excluded from the scope of these regula-tions,and the criterion of"experiencing unbearable suffering"for excluding illegal confessions lacks practicality.Moreover,the definition of"major cases"in the context of verifying the legali-ty of interrogations is unclear,and the noticeable retreat in the position on the exclusion of inter-rogations not conducted in designated locations or without full synchronous recording.These points indicate clear setbacks.During the implementation of the regulations,it is important to guard against the misuse of judges'discretion when they have"doubts",which could result in the refusal to initiate a court investigation into the legality of evidence that should be conducted.Issues that need attention include the standards and procedures for"substantially affecting judi-cial fairness"within the exclusion rules for illegal physical and documentary evidence,as well as the standards and procedures for correction and reasonable explanation.The exclusion of illegal evidence in cases of duty-related crimes handled by supervisory organs should be applied in liti-gation in accordance with these regulations.In order to effectively implement the procedure,it is crucial to alter the mindset of"placing more emphasis on punishment than on protection",to re-form the current dynamics of cooperation and constraint among the public security,procuratorial,and judicial organs,to establish a criminal justice system centered on the trial process,and to grant defense lawyers the right to access and copy recording and video materials.Additionally,detectives and investigators personnel must not refuse to answer questions from the defense when providing explanations in court.
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