File #2764: "2019_Book_TheExclusionaryRuleOfIllegalEv.pdf"
Testo
1|Preface|6
2|How to Enforce the Exclusionary Rule of Illegal Evidence Strictly?|6
2|Opportunity and Preparation for the Reform|6
2|Principles and Methods of the Reform|8
2|Outcomes and Visions of the Reform|10
1|Contents|12
1|1 The Emergence and Development of the Exclusionary Rule|17
2|1.1 Inner Impetus and Historical Background of the Exclusionary Rule’s Emergence|18
3|1.1.1 Main Methods of Restraining Torture from 1979 to 1996|18
3|1.1.2 Legislative Attempts to Restrain Torture from 1996 to 2010|20
3|1.1.3 The Exclusionary Rule Established by the Two Evidence Provisions 2010|25
2|1.2 Development of the Exclusionary Rule|28
3|1.2.1 The Exclusionary Rule Established in the Criminal Procedural Law 2012 and Relevant Judicial Interpretations|28
3|1.2.2 Strict Enforcement of the Exclusionary Rule and Supporting System Reform|34
2|References|44
1|2 The Nature and Orientation of the Exclusionary Rule|45
2|2.1 The Definition of Illegal Evidence|45
3|2.1.1 The Essence of Modern Evidence Rules: Rules of Admissibility|46
3|2.1.2 Illegal Evidence Bears no Admissibility|48
3|2.1.3 Illegal Evidence is Absent of Admissibility Due to Violation of Legal Procedure and Infringement of Human Rights During Evidence-Collecting Process|48
2|2.2 The Nature of the Exclusionary Rule|50
3|2.2.1 Traditional Evidence Rules: Focusing on Truthfulness|50
3|2.2.2 The Exclusionary Rule: Focusing on Due Process and Human Rights Protection|52
3|2.2.3 General Evidence Rules Provided in Provisions on Evidence in Death Penalty Cases 2010|54
3|2.2.4 The Conditional Exclusionary Rule of Defective Evidence|56
2|2.3 The Orientation of the Exclusionary Rule|59
3|2.3.1 Main Theories About the Orientation of Exclusionary Rule|59
3|2.3.2 Orientation of the Exclusionary Rule of Illegal Evidence in China|68
3|2.3.3 The Influence of the Exclusionary Rule on Criminal Procedure|76
2|References|78
1|3 The Types, Identification Standards and Exclusionary Modes of Illegal Evidence|81
2|3.1 The Types and Exclusionary Modes of Illegal Evidence|81
3|3.1.1 Types of Illegal Evidence|82
3|3.1.2 The Modes of Excluding Illegal Evidence|89
2|3.2 Identification Standards and Exclusionary Modes of Illegal Evidence|91
3|3.2.1 Identification Standards and Exclusionary Modes of Torture|91
3|3.2.2 The Identification Standards and Exclusionary Modes of Threat, Inducement and Deception|99
3|3.2.3 The Identification Criteria of Illegal Restriction of Personal Freedom and Exclusionary Mode of Relevant Evidence|108
3|3.2.4 The Identification Criteria of Indication and Exclusionary Mode of Relevant Evidence|109
3|3.2.5 The Exclusionary Rule of Successive Confessions|110
3|3.2.6 The Exclusionary Rule of Confessions Obtained by Means of Seriously Violating Legal Procedure|114
3|3.2.7 The Exclusionary Rule of Witness’s Testimony and Victim’s Statement Obtained by Illegal Means Such as Violence and Threat|119
3|3.2.8 The Exclusionary Rule of Illegally Obtained Material Evidence|120
3|3.2.9 The Exclusionary Rule of Evidence Obtained by Illegal Technical Investigation|124
3|3.2.10 The Exclusionary Rule of the Fruit of Poisonous Tree|126
2|References|128
1|4 The Procedure of Excluding Illegal Evidence|131
2|4.1 The Procedure of Excluding Illegal Evidence at Criminal Investigation Stage|131
3|4.1.1 Exclusion of Illegal Evidence at Criminal Investigation Stage|132
3|4.1.2 Exclusion of Illegal Evidence by the Procuratorate upon Request at Criminal Investigation Stage|133
3|4.1.3 The Exclusion of Illegal Evidence by Preliminary Review Department of the Investigative Organ|134
2|4.2 The Procedure of Excluding Illegal Evidence at Arrest Review and Prosecution Review Stage|136
3|4.2.1 General Provisions in the Provisions on Exclusion of Illegal Evidence 2010|136
3|4.2.2 The Procedure of Excluding Illegal Evidence at Arrest Review and Prosecution Review Stage|137
3|4.2.3 The Outcome of the Case After Excluding Illegal Evidence at Arrest Review and Prosecution Review Stage|143
2|4.3 Resolution of the Motion to Exclude Illegal Evidence at Pretrial Procedure|145
3|4.3.1 To Initiate the Procedure of Excluding Illegal Evidence|145
3|4.3.2 Notification of the Motion Right and Its Time Limit|146
3|4.3.3 Preliminary Burden of Proof When Filing a Motion|147
3|4.3.4 Review and Resolution of the Motion to Exclude Illegal Evidence|149
3|4.3.5 Resolution of the Motion to Exclude Illegal Evidence in Pretrial Conference|150
2|4.4 Investigation Procedure for the Legality of Evidence During the Trial|155
3|4.4.1 Linkage Between the Pretrial and Trial Procedure|156
3|4.4.2 Review and Decision on the Motion of Excluding Illegal Evidence Filed During the Trial|157
3|4.4.3 Nature and Design of the Investigation Procedure for the Legality of Evidence|159
3|4.4.4 Burden of Proof and Means of Proof for the Legality of Evidence|163
3|4.4.5 Standard of Proof for the Legality of Evidence|173
3|4.4.6 Means of Decision on Dispute Over the Legality of Evidence|179
3|4.4.7 Exclusionary Procedure for Witness Testimony and Victim Statement Obtained Illegally|184
3|4.4.8 Review and Investigation of the Legality of Material Evidence|186
3|4.4.9 Reasoning of Adjudication on the Legality of Evidence|187
2|4.5 Remedial Procedure for Adjudication on the Legality of Evidence|190
3|4.5.1 Remedy for the Prosecution and Defense Against the Decision on the Legality of Evidence in the First Instance|191
3|4.5.2 Resolution on the Motion for Excluding Illegal Evidence Filed for the First Time on Appeal|193
3|4.5.3 Time Limitation for the Procuratorate to Provide Evidence|194
3|4.5.4 Investigation and Resolution on the Legality of Evidence on Appeal|195
2|References|196
1|5 The Exclusionary Rule and the Reform of Pretrial Procedure|198
2|5.1 Future Reform of the Interrogation Procedure|198
3|5.1.1 Significance of Standardizing the Interrogation Procedure|199
3|5.1.2 Reform Requirements for the Interrogation Procedure|201
2|5.2 To Improve the Mechanism of Proving the Legality of Evidence by the Investigative Organ|213
2|5.3 To Improve the Unified Examination and Approval Mechanism at Investigation Stage|215
2|5.4 To Improve the Mechanism of Supervising the Legality of Investigation by the Procuratorate|217
3|5.4.1 To Examine Arrest Request and Opinion of Prosecution Substantially|218
3|5.4.2 Simultaneous Supervision on Evidence Collection|223
2|5.5 To Improve the Guarantee Mechanism of the Suspect’s Defense Right in Pretrial Procedure|225
3|5.5.1 To Safeguard the Suspect’s Motion Right to Exclude Illegal Evidence in Pretrial Proceeding|226
3|5.5.2 To Safeguard the Suspect’s Right to Obtain Evidence Regarding Illegal Behaviors of Investigators|228
3|5.5.3 To Explore for Improvement on Legal Aid System in the Non-confession Cases|230
2|References|231
1|6 The Exclusionary Rule and Trial Procedure Reform|232
2|6.1 The Exclusionary Rule and Reform of Pretrial Preparation Procedure|232
3|6.1.1 Anticipated Functions of the Pretrial Preparatory Procedure|233
3|6.1.2 Procedure Design of the Pretrial Conference|234
2|6.2 The Exclusionary Rule and the Reform of Evidence Examination Procedure at Trial|239
3|6.2.1 Significance of the Investigation Procedure for the Legality of Evidence|239
3|6.2.2 Two-Step Evidence Examination Procedure at Court Investigation Stage|240
2|6.3 The Exclusionary Rule and the Procedure of Procedural Adjudication|242
3|6.3.1 The Significance of Procedural Adjudication|242
3|6.3.2 Basic Procedure of the Procedural Adjudication|244
2|6.4 The Exclusionary Rule and the Substantialness of Trial|247
3|6.4.1 Significance of the Exclusionary Rule in Advancing the Substantialness of Trial|247
3|6.4.2 Boost the Substantialness of Trial by the Exclusionary Rule|248
3|6.4.3 Void Procedural Justice: Its Influence on the Trial and Relevant Remedies|252
2|References|255
1|7 Selected Cases Concerning Legality of Evidence|256
2|How to Enforce the Exclusionary Rule of Illegal Evidence Strictly?|6
2|Opportunity and Preparation for the Reform|6
2|Principles and Methods of the Reform|8
2|Outcomes and Visions of the Reform|10
1|Contents|12
1|1 The Emergence and Development of the Exclusionary Rule|17
2|1.1 Inner Impetus and Historical Background of the Exclusionary Rule’s Emergence|18
3|1.1.1 Main Methods of Restraining Torture from 1979 to 1996|18
3|1.1.2 Legislative Attempts to Restrain Torture from 1996 to 2010|20
3|1.1.3 The Exclusionary Rule Established by the Two Evidence Provisions 2010|25
2|1.2 Development of the Exclusionary Rule|28
3|1.2.1 The Exclusionary Rule Established in the Criminal Procedural Law 2012 and Relevant Judicial Interpretations|28
3|1.2.2 Strict Enforcement of the Exclusionary Rule and Supporting System Reform|34
2|References|44
1|2 The Nature and Orientation of the Exclusionary Rule|45
2|2.1 The Definition of Illegal Evidence|45
3|2.1.1 The Essence of Modern Evidence Rules: Rules of Admissibility|46
3|2.1.2 Illegal Evidence Bears no Admissibility|48
3|2.1.3 Illegal Evidence is Absent of Admissibility Due to Violation of Legal Procedure and Infringement of Human Rights During Evidence-Collecting Process|48
2|2.2 The Nature of the Exclusionary Rule|50
3|2.2.1 Traditional Evidence Rules: Focusing on Truthfulness|50
3|2.2.2 The Exclusionary Rule: Focusing on Due Process and Human Rights Protection|52
3|2.2.3 General Evidence Rules Provided in Provisions on Evidence in Death Penalty Cases 2010|54
3|2.2.4 The Conditional Exclusionary Rule of Defective Evidence|56
2|2.3 The Orientation of the Exclusionary Rule|59
3|2.3.1 Main Theories About the Orientation of Exclusionary Rule|59
3|2.3.2 Orientation of the Exclusionary Rule of Illegal Evidence in China|68
3|2.3.3 The Influence of the Exclusionary Rule on Criminal Procedure|76
2|References|78
1|3 The Types, Identification Standards and Exclusionary Modes of Illegal Evidence|81
2|3.1 The Types and Exclusionary Modes of Illegal Evidence|81
3|3.1.1 Types of Illegal Evidence|82
3|3.1.2 The Modes of Excluding Illegal Evidence|89
2|3.2 Identification Standards and Exclusionary Modes of Illegal Evidence|91
3|3.2.1 Identification Standards and Exclusionary Modes of Torture|91
3|3.2.2 The Identification Standards and Exclusionary Modes of Threat, Inducement and Deception|99
3|3.2.3 The Identification Criteria of Illegal Restriction of Personal Freedom and Exclusionary Mode of Relevant Evidence|108
3|3.2.4 The Identification Criteria of Indication and Exclusionary Mode of Relevant Evidence|109
3|3.2.5 The Exclusionary Rule of Successive Confessions|110
3|3.2.6 The Exclusionary Rule of Confessions Obtained by Means of Seriously Violating Legal Procedure|114
3|3.2.7 The Exclusionary Rule of Witness’s Testimony and Victim’s Statement Obtained by Illegal Means Such as Violence and Threat|119
3|3.2.8 The Exclusionary Rule of Illegally Obtained Material Evidence|120
3|3.2.9 The Exclusionary Rule of Evidence Obtained by Illegal Technical Investigation|124
3|3.2.10 The Exclusionary Rule of the Fruit of Poisonous Tree|126
2|References|128
1|4 The Procedure of Excluding Illegal Evidence|131
2|4.1 The Procedure of Excluding Illegal Evidence at Criminal Investigation Stage|131
3|4.1.1 Exclusion of Illegal Evidence at Criminal Investigation Stage|132
3|4.1.2 Exclusion of Illegal Evidence by the Procuratorate upon Request at Criminal Investigation Stage|133
3|4.1.3 The Exclusion of Illegal Evidence by Preliminary Review Department of the Investigative Organ|134
2|4.2 The Procedure of Excluding Illegal Evidence at Arrest Review and Prosecution Review Stage|136
3|4.2.1 General Provisions in the Provisions on Exclusion of Illegal Evidence 2010|136
3|4.2.2 The Procedure of Excluding Illegal Evidence at Arrest Review and Prosecution Review Stage|137
3|4.2.3 The Outcome of the Case After Excluding Illegal Evidence at Arrest Review and Prosecution Review Stage|143
2|4.3 Resolution of the Motion to Exclude Illegal Evidence at Pretrial Procedure|145
3|4.3.1 To Initiate the Procedure of Excluding Illegal Evidence|145
3|4.3.2 Notification of the Motion Right and Its Time Limit|146
3|4.3.3 Preliminary Burden of Proof When Filing a Motion|147
3|4.3.4 Review and Resolution of the Motion to Exclude Illegal Evidence|149
3|4.3.5 Resolution of the Motion to Exclude Illegal Evidence in Pretrial Conference|150
2|4.4 Investigation Procedure for the Legality of Evidence During the Trial|155
3|4.4.1 Linkage Between the Pretrial and Trial Procedure|156
3|4.4.2 Review and Decision on the Motion of Excluding Illegal Evidence Filed During the Trial|157
3|4.4.3 Nature and Design of the Investigation Procedure for the Legality of Evidence|159
3|4.4.4 Burden of Proof and Means of Proof for the Legality of Evidence|163
3|4.4.5 Standard of Proof for the Legality of Evidence|173
3|4.4.6 Means of Decision on Dispute Over the Legality of Evidence|179
3|4.4.7 Exclusionary Procedure for Witness Testimony and Victim Statement Obtained Illegally|184
3|4.4.8 Review and Investigation of the Legality of Material Evidence|186
3|4.4.9 Reasoning of Adjudication on the Legality of Evidence|187
2|4.5 Remedial Procedure for Adjudication on the Legality of Evidence|190
3|4.5.1 Remedy for the Prosecution and Defense Against the Decision on the Legality of Evidence in the First Instance|191
3|4.5.2 Resolution on the Motion for Excluding Illegal Evidence Filed for the First Time on Appeal|193
3|4.5.3 Time Limitation for the Procuratorate to Provide Evidence|194
3|4.5.4 Investigation and Resolution on the Legality of Evidence on Appeal|195
2|References|196
1|5 The Exclusionary Rule and the Reform of Pretrial Procedure|198
2|5.1 Future Reform of the Interrogation Procedure|198
3|5.1.1 Significance of Standardizing the Interrogation Procedure|199
3|5.1.2 Reform Requirements for the Interrogation Procedure|201
2|5.2 To Improve the Mechanism of Proving the Legality of Evidence by the Investigative Organ|213
2|5.3 To Improve the Unified Examination and Approval Mechanism at Investigation Stage|215
2|5.4 To Improve the Mechanism of Supervising the Legality of Investigation by the Procuratorate|217
3|5.4.1 To Examine Arrest Request and Opinion of Prosecution Substantially|218
3|5.4.2 Simultaneous Supervision on Evidence Collection|223
2|5.5 To Improve the Guarantee Mechanism of the Suspect’s Defense Right in Pretrial Procedure|225
3|5.5.1 To Safeguard the Suspect’s Motion Right to Exclude Illegal Evidence in Pretrial Proceeding|226
3|5.5.2 To Safeguard the Suspect’s Right to Obtain Evidence Regarding Illegal Behaviors of Investigators|228
3|5.5.3 To Explore for Improvement on Legal Aid System in the Non-confession Cases|230
2|References|231
1|6 The Exclusionary Rule and Trial Procedure Reform|232
2|6.1 The Exclusionary Rule and Reform of Pretrial Preparation Procedure|232
3|6.1.1 Anticipated Functions of the Pretrial Preparatory Procedure|233
3|6.1.2 Procedure Design of the Pretrial Conference|234
2|6.2 The Exclusionary Rule and the Reform of Evidence Examination Procedure at Trial|239
3|6.2.1 Significance of the Investigation Procedure for the Legality of Evidence|239
3|6.2.2 Two-Step Evidence Examination Procedure at Court Investigation Stage|240
2|6.3 The Exclusionary Rule and the Procedure of Procedural Adjudication|242
3|6.3.1 The Significance of Procedural Adjudication|242
3|6.3.2 Basic Procedure of the Procedural Adjudication|244
2|6.4 The Exclusionary Rule and the Substantialness of Trial|247
3|6.4.1 Significance of the Exclusionary Rule in Advancing the Substantialness of Trial|247
3|6.4.2 Boost the Substantialness of Trial by the Exclusionary Rule|248
3|6.4.3 Void Procedural Justice: Its Influence on the Trial and Relevant Remedies|252
2|References|255
1|7 Selected Cases Concerning Legality of Evidence|256