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By Elizabeth M. Lynch, September 25, 2012

Part 2 of a two part interview series with Margaret K. Lewis.  Click here for Part 1. 

Prof. Margaret K. Lewis

After 16 years and a world of changes, China finally revised its Criminal Procedure Law (“CPL”).  Implementation is set to take place in three months.  So the question remains, is China ready for these changes?  Are the lawyers aware of how these changes will impact their practice?  Will we see a different landscape?

As Margaret K. Lewis, associate professor of law at Seton Hall University and Chinese criminal law expert, explained on Monday, the revised CPL was a compromise between two powerful dueling interests – reformers and the security apparatus.  But who wins out?  In Part 2 of this interview, Prof. Lewis continues to explain some of the major changes, including the inclusion and legalization of the public security’s use of residential surveillance.  Is it better that the rules are finally written down?  Read below to find out.

Click here to listen to Part 2 of this two part interview series with Prof. Margaret K. Lewis, or read below for a transcript of Part 2 of the interview.
Length: 16:02 minutes

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Will Witnesses Appear in Court?

EL:  Going from confessions, which form the basis of most convictions in China, I want to switch to another aspect of the CPL that I just find really, really confusing which is witness testimony.  Right now, under the current CPL, or just as a general practice, witnesses usually don’t appear in court, is that right? 

ML: That is right.  Although we don’t have an official statistic, I regularly hear that witnesses appear in less than 10% of cases, and even that is likely being generous. The more common practice is to read written statements that witnesses gave to the police or prosecutors. Once when visiting a court in China, the group I was with toured an empty courtroom. It was beautiful: beautiful polished wood, it was gorgeous. The judge giving us the tour pointed out where the defendant would sit and where the lawyers would sit. We asked, “Where does the witness sit?”  There was an awkward pause and then it was said, “Well, a chair would be brought up here for the witness.”  But it was clear that this was not common practice.  Again, hopefully that will change but, to date, witnesses have played a very limited role when it comes to the actual trial process.

Coming soon to a Chinese court near you - Live witness testimony?

EL:   So with the new CPL, in reviewing the added provisions, I have noticed that there are a lot of provisions that talk about witnesses: compensating them for attending a trial and forbidding employers from docking pay or injuring an employee who has to go to court.  I think you find that in Article 63.  But then later on when I was looking through the amended CPL, we see Article 181, which seems to imply that only in rare circumstances will a witness be required to appear and if the court thinks they have to appear.  Do you think based on some of these additions, but yet the retention of Article 181, do you think we will start to see greater in-court witness testimony under the new CPL? 

ML:  As you note, on paper, the revised CPL puts greater emphasis on witnesses appearing in court. But I share your skepticism that these provisions will lead to a marked increase in witness participation.  We need buy-in from the prosecutors, from the judges in particular to welcome this change in the actual courtroom.

Again, a related issue is that lawyers remain restricted both in law and practice.  The scarcity of lawyers who handle criminal cases in China combined with the highly constrained scope of publicly funded representation means that the majority of criminal defendants proceed without any counsel whatsoever. Having witnesses appear is generally of little use to the defendant unless there is competent counsel to examine, or cross-examine, the witness depending on whose witness it is.

EL:  This is all really interesting because I think it shows—the fact that there is a tremendous reliance on confessions and there aren’t witnesses in court—it shows how different the Chinese criminal court system or how a trial is performed in China from the United States.  If you don’t have witnesses and you have confessions, what is really going on in a Chinese criminal trial? What else happens? Or is there anything else that happens?

ML:  I have only seen parts of a few trials in China—my blonde hair and white face doesn’t help—and I know those trials were selected as appropriate for foreign visitors. As a result, I cannot speak much from personal experience.  Instead it is anecdotes and talking to people who have a much more intimate understanding.

But what we do know is that, the further a case progresses, the more likely that a suspect will be found guilty. China’s approximately 99% conviction rate emphasizes the need for early advocacy on behalf of suspects if there is any hope of avoiding criminal liability. The trial itself routinely focuses on whether the defendant merits lenient punishment instead of whether the evidence is sufficient to support a guilty verdict.

I believe in giving criticism where criticism is due. People should realize that here in the U.S. cases seldom go to trial. Most cases are resolved by way of a guilty plea, not a dramatic Law & Order episode in the courtroom. That said, China is still even more dramatic in its conviction rate and how trials have always been of relatively little importance.

The Controversial Provisions on Residential Surveillance

When your home becomes your prison: residential surveillance

EL:  Switching gears let’s go back to what goes on before the trial during the investigation phase.  I think this is perhaps one of the biggest changes to the CPL and most people think for the worse—is the codification of what’s known as “residential surveillance.”  Can you first explain a little bit what is residential surveillance and how the new CPL addresses it?

ML:  The government’s ability to deprive people of liberty prior to conviction or even charging really was a focal point of the debates surrounding the revisions. This deprivation can occur, as you know, through [1]“residential surveillance” [jianshi  ju zhu – 监视居住] though not necessarily at the suspect’s own residence, or [2] through “detention” [juliu – 居留] at what’s known as a detention house or a kanshousuo  [看守所].

Following release of the draft revised CPL last summer, critics quickly pointed to the provision in the law that allowed police to hold suspects under residential surveillance in cases involving crimes of endangering state security, terrorist activity, or serious bribery. Nor would the police have to notify the suspect’s family.

But after [the draft’s release], there was really potent criticism both from people inside China and outside China, the final law was revised and first to limit use to “especially” serious bribery and second to cabin the initially sweeping lack of notice provisions by changing it to “except where notification cannot be processed that there should be notification to the family.”  But critics continue to raise concerns that notice might not include the actual location of the suspect or other crucial information.

With respect to detention, there is a provision that provides that a detainee’s family needs to be notified within twenty-four hours unless again notification cannot be processed or where the detainee is involved in crimes endangering state security or crimes of terrorist activities, and notification may hinder the investigation. What these exceptions to the standard rule of family notification actually mean in practice, this will only be apparent over time.

EL:  Just to follow up and to clarify a little bit, can anyone be placed under residential surveillance for any crime?  How do they distinguish or is it just left totally in the prosecutor and public security bureau’s hands?

ML:  It is limited to certain crimes and types of suspects by law but I can’t verify how it will be used in practice and some of those categories are quite broad. Other [provisions] are more direct saying that for certain categories of people for whom residential surveillance can be used when the conditions for arrest have been satisfied, such as people who are seriously ill or pregnant women…so I’d currently be eligible for residential surveillance.  If you see residential surveillance as an alternative to locking someone up in what could be a very harsh jail-type setting, it comes across as a positive thing.  If you’re pregnant or breast feeding, to have you in a comfortable place, albeit secured and you’re being watched.  But if it becomes a sweeping way to have suspects being held for long extended periods of time, it starts to look a little less rosy.

EL:  When exactly are the police or the prosecutor allowed to put someone under residential surveillance?  Do they have to be arrested?  Or can it be before that, during the interrogation stage?

ML: It can be used both for suspects during the investigation stage or for people who have been formally arrested.  The term “arrest” [daibu – 逮捕] in China often occurs much later than how we colloquially think of arrests in the U.S. People in China can be in custody without being formally arrested.  Bottom line is its scope is quiet broad as far as when it can be invoked in the criminal process.

EL:  We do know there are time limits to detention but is there a time limit under which one can no longer be under residential surveillance or is it not clear at this stage? 

ML: The law provides that the period for residential surveillance shall not exceed six months. Again, only time will tell whether this time limit is followed in practice.  It’s unclear at this point whether there might be some ways to reset the clock, some new charges, how this might be massaged, but the law does at least provide a clear time limit that might give lawyers and families something to work worth.

EL:  When the draft first came out back in 2011, I think the majority of China’s legal academics were rather alarmed by the legalization of residential surveillance.  But there were a few that did argue that in a way it was a positive development, that residential surveillance was happening anyway and now at least there are rules governing the process that must be followed.  What do you think of that argument, do you think there is any validity to that?   

ML:  I agree that there is something to be said for honesty instead of simply codifying an ideal system that has no basis in reality. That said, I personally am worried that the procedural limits on residential surveillance and other liberty-depriving mechanisms will not be strictly enforced; they’ll take the power that the law gives them without the restrictions. As implementation proceeds, a question to watch is whether these new provisions merely expand the tools available to police without providing any concrete safeguards against their unfettered use.

Training on the New CPL

Police training

EL:  I think that brings us to an issue that I think has been floating under the surface during this whole interview which is that at least on paper there seems to be better protect the rights of criminal suspects.  But it seems like a lot of the initiative in protecting criminal suspects has to come from the police and the prosecutor’s offices.  Since the new law was passed in March 2012, do you know if there have been any training for the police and/or the prosecutors to prepare them for January 1, 2013, implementation, when it takes effect?

ML:  As was done after release of the 2010 evidence rules and all sorts of prior declarations, there are reports of course that police, prosecutors, and judges are undergoing various trainings in preparation for the new law taking effect.  Of course we are also waiting for this guidance that should come not only from the Supreme People’s Court but similarly guidance from [1] the Supreme People’s Procuratorate to the prosecutors, and [2] the Ministry of Public Security, to the police, some of which could be public some of which might not.

Even with the new CPL, it is important to emphasize that it does not address the full criminal process. The law spans the life of the case from its initial filing through appeals and execution of punishments. The law does not comprehensively address procedures for the earliest handling of a case by the police prior to involvement by the procuratorate. This entirely police-dominated phase remains the least understood aspect of China’s criminal justice system and, arguably, the most crucial.  So there is still a lot we don’t know and that is important to recognize.

EL:  Right, right.  That is very interesting that you bring that up, that there are no changes with what’s going on with the police and we don’t know. But in that regard, what about with the criminal defense bar.  Has there been any efforts for the criminal defense bar to better learn the new law and to perhaps strategize how to use it to better protect their clients? 

ML:  There are many dedicated, and even fearless, defense lawyers in China who are hard at work to figure out how best to use the new law. As is

Courtesy of the Illustrated Guide to Criminal Law: http://thecriminallawyer.tumblr.com/

the case currently, a lawyer’s good relations with the local authorities handling a case is what’s truly critical when advocating for a client.

I commend anyone who takes on the difficult task of being a defense lawyer in China. The long complaint of the defense bar is that they have the “Three Difficulties”— the difficulty in meeting with clients, the difficulty in getting access to the prosecution’s case files, and the difficulty in carrying out investigation and collecting evidence.  But lawyers have been recently expanding this critique to the “Ten Difficulties”— you take the original three and then we add on the difficulties of obtaining bail, getting witnesses to appear, obtaining a hearing for an appellate trial, pleading innocent, participating in the process of death penalty review, abolishing the criminal law that criminalizes when lawyers specifically encourages witnesses to change their testimony, and also the difficulties in proving that evidence was illegally obtained.

There are so many barriers and perhaps this new law will diminish those barriers, but I think there is a sense of being beleaguered amongst the defense bar right now.

EL:  What’s interesting too is what you mentioned before, that most criminal defendants aren’t actually represented in court or in any part of the proceedings. Has there been anything done to guarantee that those defendants without lawyers, which is probably the majority, know about their rights?  Have there been any public education campaigns? At the very least, does China have any TV shows like Law & Order? I feel like everybody in the United States knows their rights through Law & Order.

ML:  Even more interesting is that people in China watch our TV shows. When I was over there earlier this summer I got a number of questions about whether plot lines on The Good Wife were actually reflecting what happens in courtrooms, and I don’t watch the show so I was at a bit of a loss. But obviously that’s hit the DVD stands as well.

The revised CPL mentions an increased role for legal aid and that raises hopes that the revisions could usher in some meaningful changes, though I am again withholding much in the way of praise until we see changes in practice.

I think the bigger force for change will be weibo and other technologies that can quickly and broadly spread word of cases like Zhao Zuohai’s where there has been a clear miscarriage of justice. That would have been swept under the rug a matter of years ago but, once that was out there in the public sphere and spread like wildfire, there was no way to put that toothpaste back in the tube. So really the most effective push for real change will likely come from large-scale public outcries based on real cases rather than government slogans.

EL:  Right, and that Zuo….what’s his name?

ML:  Zhao Zuohai.

EL:  Zhao Zuohai.  A lot of people think that’s what brought about the 2010 exclusionary rules.

ML:  And there are other cases that continue to come out, and I think that when you put a real face on the injustice it does a lot more than having slogans painted on a bulletin board.

EL:  Well, okay.  There is still a lot to talk about with the new CPL and I think you’re right, a lot of it we won’t really know what happens until it is actually implemented and starts going into use, but I do want to thank you very much Prof. Lewis for sitting down with us today and explaining a lot of the new developments with China’s new Criminal Procedure Law.  Thank you. 

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By Elizabeth M. Lynch, July 21, 2010

Zhao Zuohai, freed after 11 years in jail for a murder that never happened

May 2, 2010 was the day that Zhao Zuohai got his life back.  It was also the day that China was forced to re-examine its criminal justice system and deal with the very real fact that many innocent people in China are in jail.

In 1999, after being tortured for 33 days, including being handcuffed to a chair, beaten with sticks and denied eating and sleeping for long periods of time, Zhao Zuohai, a poor farmer from a village in Henan Province, confessed to killing a fellow villager who had gone missing.  Although only a behead body was found, its identity not 100% certain, Zhao was convicted of murder.  But after Zhao served 10 years of his 29-year sentence, the “murder victim” turned up alive, returning to his village to obtain his social security benefits.  On May 10, 2010, a court threw out Zhao’s conviction and Zhao returned to his village.

Zhao’s wrongful conviction led to a very open critique of the Chinese criminal justice system and produced changes.  At least on paper.  A month after Zhao was freed, China passed its first rules to exclude during a trial any confessions obtained through torture.  While the regulations had been a work in progress for at least the past year, Zhao’s case likely sped up their issuance.  Then, on Friday, the Supreme People’s Procuratorate  took action, upgrading its compensation scheme for wrongful conviction from 111.99 yuan (approximately $16.50) to 125.43 yuan (approximately $18.50) for every day of a person’s sentence.

Although the recent police investigation into the circumstances surrounding Zhao’s detention has been surprisingly candid, with the public release last week of the police’s investigation (in the form of a “prosecution recommendation proposal” as required by Article 129 of China’s Criminal Procedure Law (CPL)), actual repercussions for the perpetrators remain to be seen.  While five police officers have been charged with “forcing a confession,” all remain free out on China’s equivalent of bail.  Unlike in the U.S., bail is notoriously uncommon in China, where suspects remain in custody up until trial.  The example of Australian national Stern Hu is typical – denied bail even though he posed little to no flight risk.

The decision to release a suspect on bail is usually made by a high official in the police or the prosecutor’s office.  And if the recent case of Xu Zhiyong is any guide, bail means that the case will likely never go to trial.  While it creates a legal limbo for the suspect, the suspect remains free, which beats sitting in a Chinese prison.

The fact that the five police officers responsible for the torture of Zhao Zuohai are on bail means that a trial against them is unlikely.  Additionally, a recent article by Shen Bin, a Shanghai lawyer, questions if a case can even be brought against the police (English translation courtesy of the Dui Hua Foundation).  Article 87 of the Criminal Law (CL) sets a statute of limitation for criminal prosecutions; for crimes that receive a sentence of five years or less, the statute of limitations is five years. In this case, the maximum sentence the police could receive is three years (CL Article 247), making the statute of limitations for bringing a case five years, which Zhao Zuohai’s case has long surpassed. Article 88 of the CL permits the statute of limitations to be ignored if the victim brought a charge of prosecution and the prosecutor ignored it, but it is unclear if Zhao Zuohai’s complaints of torture soon after his conviction are sufficient to rise to the level of “charge of prosecution.”

Zhao Zuohai’s wrongful conviction case confirms a criminal justice system that has a lot of failings.  But it also shows a somewhat more open Chinese government willing to confront some of these issues and a populace seeking to better protect criminal suspects.  However, with the fact that the police who tortured Zhao remain free on bail with little risk of prosecution, China still has a way to go before the danger of wrongful convictions is minimized.

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By Elizabeth M. Lynch, June 2, 2010

China’s new criminal justice regulations or a paper tiger? You decide

It is rare to wake up in the morning, turn on the computer and find that China just made huge changes to its criminal procedures, and in a positive way.  But that was exactly where I found myself Tuesday morning when I saw that China passed two new criminal justice regulations, one of which attempts to stem the tide of the increasing use of confessions obtained through torture.

Torture of criminal suspects in order to obtain a confession remains a common practice in China as the confession is usually the key piece of evidence in criminal trials.   But as a signatory to the United Nations’ Convention Against Torture, such action is nominally illegal in China.  Article 43 of China’s Criminal Procedure Law (“CPL”), forbids the use of torture or coercion in obtaining statements or evidence and in the Supreme People’s Court’s Interpretation of the CPL (“SPC Interpretation”) – a document meant to provide greater detail to the vaguely drafted CPL – Article 61 states that evidence obtained through torture cannot be used as the verdict’s basis.

But neither of these provisions directly discusses the actual admissibility of this illegally obtained evidence, and the SPC Interpretation is only applicable to judicial bodies, not administrative organs such as the police or the state security bureaus.  Because current law is silent on its admissibility, confessions obtain through torture, while nominally illegal, are routinely used in criminal cases.  And the danger associated with such methods, namely the risk of sentencing an innocent person to prison or even death, have been increasing.  Just this month, Henan farmer Zhao Zuohai was released from his 11-year prison sentence when the man he was found guilty of killing, returned alive to their village.

Zhao’s story is not a one-off event, and such occurrences usually receive a tremendous amount of media attention, causing the Chinese public to be critical of the criminal justice system, question its validity, and, as a result, frighten the Chinese government.  There have been rumors of reform for the past few years, and on Monday morning such reforms were adopted.  The SPC, the Supreme People’ Procuratorate (SPP), the Ministry of Public Security (MPS), the Ministry of State Security (MSS), and the Ministry of Justice (MOJ) released two new regulations: “Regulations on Examining and Evaluation Evidence in Capital Cases” and “Regulations on the Exclusion of Illegally Obtained Evidence in Criminal Cases.” The Regulations on the Exclusion of Illegally Obtained Evidence goes the furthest in providing greater protection of criminal suspects and, through various procedural safeguards, attempts to eliminate the use of torture in obtaining confessions.

The reforms, which seem to be taken directly from a Law & Order episode, are rather sweeping and sophisticated, and

Forget about LA. Next Stop, Law & Order: China!

if implemented, can successfully eliminate torture and provide for greater justice.  But that’s the catch: in a system where more than 70% of defendants go without counsel and in the few cases with counsel, obstacles to effective representation abound, will such reforms really mean anything?  Because the regulations have yet to be publically published, the analysis below is based upon a summary provided to the Chinese media by Prof. Fan Chongyi, noted criminal law professor at the China University of Politics and Law and participant in drafting the reforms.

(1) Oral testimony that is the result of torture may be excluded from evidence.    Oral testimony that was the result of improper procedures, such as when only one investigator partakes in an interrogation [the law requires at least two interrogators], does not necessarily have to be excluded if it can be corrected.

Although this regulation certainly clarifies that courts may exclude confessions obtained through torture, the new regulation in no way creates an absolute “exclusionary rule.”  Instead, by using the term “may,” the regulation largely leaves it in the hands of the courts to decide whether to admit evidence obtained through torture.  Given the lack of judicial independence and the power of local security bureaus in China, it is questionable if local courts, when pressed by more powerful forces, will in fact exclude confessions based on torture.  Additionally, in cases where improper procedure was used, it is unclear what would need to be done to “correct” the issue and allow for the testimony to be admissible.  Perhaps the regulations, when officially issued, will clarify this.

(2) The defendant and his attorney have the right to request a pre-trial hearing concerning an illegally obtained confession.  The court may request that the defendant or his lawyer provide the names of the alleged officer involved in the illegality, the place, the time, the method used, the content of the illegality, and anything else related to the claim.

In a society with few rights for defendants, this regulation explicitly providing for the right to raise the issue of admissibility is rather extraordinary.  Additionally, the regulation calls for a pre-trial hearing to determine whether illegally obtained evidence should be admitted.  By separating the decision concerning the admissibility of the evidence from the actual trial, the regulation attempts to guarantee that the illegally obtained evidence in no way influences the final verdict.

By giving the defendant the right to question the admissibility of evidence, the regulation raises a bigger issue: when most defendants are not represented by counsel, who will inform the defendant of his or her rights?  Presumably in a situation of a confession obtained through torture, neither the police nor the prosecutor has much interest in informing the defendant of his right to attempt to invalidate the confession they just worked hard to obtain.  The alternative, that the court informs the defendant of his or her right, does not appear to be mandated by the regulations, making it questionable if the court will, on its own initiative, inform the defendant.  Given the pressures on the court as discussed in point 1 above, such action appears unlikely.

But even with a lawyer, a defendant will still have difficulty in raising the issue of a coerced confession.  A defendant’s changing his testimony, even if the prior confession was in fact the result of torture, is not in the self-interest of his attorney.  Article 306 of China’s Criminal Law (CL) provides criminal liability, and a prison term of up to seven years, to lawyers who entice their clients to change their testimony in opposition to the facts or to give false testimony.  While the overarching purpose of the sanction – to ensure that lawyers do not encourage their clients to lie – is laudable, Article 306 has been used by police and prosecutor as a way to intimidate defense counsel from questioning the validity of any confession, even when torture is obvious.  And this is not an idle threat.  This past year, after a high-profile case representing an organized crime syndicate in Chongqing, criminal defense attorney Li Zhuang was charged with violating Article 306 by advising his client to recant his confession on the basis that it was obtained through torture.  Li was eventually found guilty and sentenced to one year and six months in prison.  Thus, as long as there is Article 306, there remains an incentive for lawyers to advise their clients NOT to recant their confession.

Finally, while the regulation’s designation of a pre-trial hearing to determine the admissibility of illegally obtained evidence is a step in the right direction, such a pre-trial hearing is meaningless if the judge deciding the admissibility of the evidence is the same judge that will determine the guilt or innocence of the defendant (in China, judges determine guilt; there are no juries).  Having the same judge decide both would defeat the purpose of attempting to prevent illegally obtained evidence from influencing the trial portion.  It will be interesting to see if the officially published regulations will clarify this issue.

(3) After the defendant or his lawyer raises the issue of illegally obtained evidence and provides the details required by the court [see point 2 above], the burden of proof then switches to the prosecutor to show that the evidence was obtained legally.

This regulation is perhaps the most impressive in that it is also the most sophisticated.  Burdens of proof are

Prosecutors await trial in China

difficult concepts to understand, and knowing when to switch the burden from one party to another, can give an otherwise ineffective rule teeth. The law seeks to switch the burden of proof to the party that has the greatest opportunity to determine the truth.  Here, as China correctly notes, that party is the prosecutor.  The prosecutor, in working with the police and at times as part of the interrogation, has the best opportunity to demonstrate the admissibility of the confession.

Additionally, switching the burden of proof can also create an entirely new incentive structure to prevent the illegal behavior from ever occurring.  Here, China utilizes this concept.  Once the prosecutor has the burden of proof to show that evidence was obtained legally, he or she will seek to have procedures in place to guarantee that the police do not violate the law in obtaining evidence so that if the defendant raises the issue, the prosecutor can win.  For example, while there has been a few cities in China that have experimented with videotaping police interrogations, this practice has largely remained isolated.  But, with the switched burden of proof, prosecutors all across China will seek to implement methods to guarantee that confessions are obtained legally, and may seek to pressure their police counterparts to begin recording all interrogations. This regulation could potentially change the way interrogations are performed and recorded, reducing the risk that torture is used.

However, it is still subject to the criticism noted in points 1 and 2 above: will the court decide to exclude evidence even if illegally-obtained since it is not required to do so and will the defendant even know to act upon his or her rights?  If the answer is no, then the incentives created by the switched burden of proof remain irrelevant.

(4) The interrogator (usually the police or the prosecutor) must appear in court and testify.

While this might seem mundane to most Americans, as Prof. Fan notes, for China, this is pioneering.  In China, there is very little live testimony during criminal trials.  Just forcing someone to actually appear and testify in court is radical.  Having that person be a police officer is even more shocking.  In China, the state security apparatus is a powerful body and far outranks the courts or the nascent criminal defense bar.  The fact that the MSS and the MPS agreed to this regulation is certainly surprising and raises a red flag: has the MSS and MPS really agreed to give the courts power over their employees?

Again, the criticism of the new regulations noted in point 1 and 2 are applicable here as well.  Will we even reach the point that there is a hearing questioning the legality of evidence?  Likely not.  But regardless of those issues, the regulation itself seems to be without any bite.  Unless the officially published version expounds upon this regulation, there are no procedures in place to determine which party can call the police office to testify or whether defense counsel will be permitted to cross-examine the police officer, both necessary to guarantee that the regulation is effective.

(5) In regards to illegally obtained physical evidence, if the illegally obtained evidence has the potential to influence the fairness of the trial, then it should be excluded unless there is a reasonable reason for the illegality or it can be corrected.

This regulation is perhaps the vaguest, and thus weakest of them all; it appears to be inspired by the U.S.’ “fruit of the poisonous tree” (FPT) doctrine.  Under the FPT doctrine, other evidence discovered as a result of an illegal search or interrogation is also excluded.   For instance, after an illegal search of a house (the poisonous tree) a key to a locker is found and in that locker is the murder weapon (fruit), that murder weapon will also be excluded.  An exception exists if it can be shows that the discovery would have been inevitable or the discovery would have been made through an untainted source.

China’s regulation here seems to adopt the spirit but not the substance of the FPT doctrine, by only looking to the FPT exceptions.  In the U.S., the exceptions to the FPT doctrine are only applied to the fruit; no exception is made for the poisonous tree.   Here, China applies similar exceptions to the actual tree, to the evidence that was obtained directly as a result of the illegal violation.

This regulation is further weakened by the fact that these terms “reasonable reason” and “corrected” are left completely undefined.  Courts are left to their own devices to determine what these terms mean, a situation that was suppose to be avoided by these new regulations.

China’s “Regulations on the Exclusion of Illegally Obtained Evidence in Criminal Cases” is impressive and provides the architecture necessary to guarantee greater fairness in China’s criminal trials by excluding evidence obtained illegally.  The sophistication of some aspects of the new regulations reflects China’s increasing understanding of the need for effective procedures in order to give meaning to its legal principles.  However, these regulations should be viewed as a step toward greater progress; China has only stuck its foot in the water; it has yet to jump fully in.  China needs to find solutions to the systemic problems plaguing its criminal justice system. Unless China makes efforts to foster a vibrant criminal defense bar, provide access to attorneys early in criminal investigations, and takes steps to create a judiciary independent from the state security and Party apparatus, the new regulations will likely have little impact in the short-term.