While the Duihua Foundation releases the second and third post on the ‘Two Sets of Rules’ on the exclusion of illegally obtained evidence (translations here), here’s the main points of the Rules Concerning Evidence in Death Penalty Cases.
The entry into force of the Rules on evidence in death penalty cases (July 1) could mark a further step towards procedural equality between the Defense and the Prosecution. The Rules set provisions about the admissibility of:
- Material and documental evidence
- Oral and written testimonies
- Defendants’ statements and explanations
- Experts reports
- Records of investigation
- Audiovisual materials
- Electronic evidence
and can be used as a reference in the adjudication of other criminal cases, thus filling in some of the loopholes in the Rules on excluding illegal evidence in criminal cases (Chinese – comment). In theory, defendants in criminal cases enjoy the same procedural safeguards of death penalty defendants.
First, the principle that both the Defense and Prosecution must have access to evidence, and enjoy a chance to challenge it has been clearly articulated.
Second, evidence obtained in violation of relevant procedures, or through torture, threat, deceit cannot be used to judge on the merits of a case. Two additional mechanisms to avoid convictions or death sentences based on false confessions involve: (1) a chance for the defendant to retract his testimony and the statements he made before trial, and to explain the reason why statements made before trial may contradict statements made in court, or other evidence; (2) the use of kanshousuo medical inspection records.
[At this point, it will be important to: (a) record questioning sessions, and possibly install security cameras in kanshousuo cells, to avoid torture by proxy; (b) ensure that medical inspections are actually – and accurately – performed once suspects enter detention centres; (c) increase the autonomy of forensic pathology institutes, which are still closely linked to the police; (d) enhance the medical documentation of torture, and device measures to avoid complicity between medical doctors and interrogators]
Third, witnesses and interrogators shall testify in court if one of the parties, or the court, question their testimony, or contend that hearing a witness is necessary in order to better modulate the penalty.
Fourth, all organic trace evidence should undergo DNA testing.
The Rules’ high level of detail testifies to the will to avoid wrongful convictions, and reduce the number of death penalty sentences. Concerns about a greater judicial efficiency, and protection of life seem to go hand in hand. While this move towards adversarial procedure will contribute to a greater judicial fairness, a couple of loopholes can be noticed.
The use of evidence gathered through “special investigative measures”, as shuanggui or counterterrorism and counterespionage investigations will still be allowed. Even though the Rules state that evidence is to be obtained according to the law, investigative procedures used in these cases are notoriously flexible. Also, information about the ‘extraordinary measures’ concretely used is not to be disclosed during courtroom proceedings.
The Prosecution can still produce the following evidence:
- Interrogation records that contain mistakes or contradictions regarding the length of interrogations, interrogators’ and lawyers’ identity
- Interrogation records that have not been signed, or do not indicate that the suspect was informed of his procedural rights
- Interrogation records proving how a single interrogator questioned two different suspects at the same time
- Unsigned records of searches
- Records of searches that omit to specify the features, quantity, quality of seized objects
- Unauthenticated documental or electronic evidence
- Material evidence obtained through problematic methods, etc.
This evidence will be admitted if the Prosecution can correct it (补正) or provide a reasonable explanation of the reasons why it does not meet the requirements set by the Rules.
The Rules allow the court to adjourn a trial to order collection of further evidence by the Defense or Prosecution. Either party can also challenge the evidence thus collected, and require its examination by the court. However, the chance to produce incomplete records and unauthenticated evidence seems to belong first and foremost to the Prosecution.