International Perspectives on Exclusionary Rules

Jacob Stock. Jacob is a JD candidate (2022) at the Sandra Day O’Connor College of Law.  He is interested in international law and criminal law. He is an IRLS Fellow during the 2019-2020 academic year.

Exclusionary rules prevent the government from using evidence that was obtained in violation of the rights of the accused person for the purposes of criminal proceedings. There are various justifications for adopting exclusionary rules, including ensuring the quality of evidence admitted, upholding the integrity of the courts, and protecting the rights of individuals accused of crimes.1 Many countries have implemented some version of an exclusionary rule; China formally enacted such rules in 2010.2 This post will explore the implementation of the modern exclusionary rule in China. 

In 1999, Zhao Zuohai was arrested for the murder of his neighbor.3 The two had been observed quarreling, and when an unidentified body was found in a well, Zhao was immediately suspected of foul play. He was arrested, tortured, and forced to confess to the killing. Zhao narrowly escaped a death sentence on appeal of his case, and was instead sentenced to twenty-nine years in prison. After he had been incarcerated for eleven years, the person he was accused of killing was seen in their village, alive and well. Zhao was released, but his story garnered international attention.

In 2010, China enacted a two-part set of rules governing the exclusion of evidence. The first part dealt with evidence in death penalty cases.4 Rules contained in this section provide for the categorization of evidence and give judges criteria by which to assess the reliability of the admitted evidence. Importantly, Article 12 prohibits convictions based on “statements obtained through violence, threats, or other illegal means.”5

The Article 12 provisions regarding death penalty cases can be understood in the context of several of the justifications for exclusionary rules, principally the protection of individual rights. For the accused, this protection is twofold: first, if evidence obtained as a result of a forced confession is inadmissible in court, police would presumably be deterred from using torture, meaning accused persons are less likely to be tortured in the first place. 

Second, the rights of the accused are further preserved by prohibiting a conviction based on testimony obtained as a result of a forced confession, which is generally regarded as unreliable.6 This concern for protecting the rights of the accused by safeguarding the reliability of evidence admitted in court complements a closely-related rationale for the implementation of an exclusionary rule: upholding judicial integrity.7 Exclusionary rules help ensure judicial officers are not complicit in violations of the law by prohibiting introduction of evidence gained through illegal means. The goal of ensuring the integrity of the courts “tends to support robust, categorical approaches to exclusion.”8 

Following the provisions governing death penalty cases, the second portion of China’s exclusionary rule enactment includes standards that apply in all criminal cases.9 The standards of the second section mirror those described in the first, particularly with respect to the categorical prohibition on oral evidence obtained through illegal means. By contrast, the general criminal case provisions require that physical evidence should be excluded “unless redress or some reasonable explanation should be made.”10 This suggests a sort of “weighing” of the impact of evidence on a proceeding, along with the manner it was obtained, in deciding whether to exclude it. Physical evidence remains reliable even if obtained illegally; the difference in its treatment by the Chinese rules reveals the emphasis placed on justifying exclusion in order to preserve the quality of evidence. This is distinguished from US case law, which places a more prominent emphasis on privacy rights as a justification for exclusion.11  

While a review of the theoretical underpinnings of exclusionary rules sheds some light on their implementation in China, they paint an incomplete picture. Cases such as Zhao’s rightfully resulted in a demand for reform by citizens concerned with a system that put them at risk for police misconduct and wrongful conviction. This demand made by the people of China is a testament to the importance of exclusionary rules as a guarantor of the legitimacy of courts and criminal justice system in the eyes of those they are meant to serve.  

  1. Jenia Iontcheva Turner & Thomas Weigend, The Purposes and Functions of Exclusionary Rules: A Comparative Overview, 74 IUS Gentium 255, 257-59 (2019).
  2. Margaret K. Lewis, Controlling Abuse to Maintain Control: The Exclusionary Rule in China, 43 N.Y.U. J. Int’l L. & Pol. 629, 630 (2011).
  3. Id. at 629
  4. Id. at 642
  5. Id.
  6. Turner & Weigend supra note 1, at 256
  7. Id. at 257
  8. Id.
  9. Lewis supra at 642
  10. Id. at 642
  11. Id.

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