Regulating the power of Chinese police through the exclusionary rule – an empirical study

Abstract

ABSTRACTLittle research has addressed the effectiveness of measures to control abuse of Chinese police power in the course of criminal investigations. The present research examined three sets of data from 90 wrongful conviction cases, responses of 557 lawyers to a survey questionnaire, and 125 adjudicative documents related to exclusion of illegal confessions to investigate the effectiveness in stemming police misconduct of the newly established exclusionary rule in China. The findings demonstrate that while the written exclusionary rule represents great progress in Chinese criminal procedure, Chinese police interrogations are still largely unrestrained in practice. Legislative, contextual, ideological, and political factors may account for the disparity between law and practice: first, the police are able to misinterpret vague legal norms so as to minimise the scope of the exclusionary rule; second, the police act in the context of a high burden of proof and poor evidence-collecting tools, which make the usually illegally-obtained confession indispensable; third, the criminal justice agencies are more ideologically tied to the notion of fighting against crime than to the value of due process of law, resulting in the reluctance to exclude illegally obtained evidence; and fourth, the underdeveloped political check-and-balance mechanism among the criminal justice agencies makes the review of police misconduct unrealistic.