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

ABSTRACT

Little 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.

KEYWORDS:

• Police power
• police misconduct
• interrogation
• exclusionary rule
• China

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1 It is usually referred to as violent assault in criminal justice practice.

2 It is usually referred to as the three types of interrogation measures mentioned in section IV.

3 The number of criminal cases awaiting initial trial in China was 1066 in 2006, rising to 5741 in 2011, rising rapidly to 10,219 in 2012 and continuing to rise to 27,700 in 2015. For the data source, see China Legal Yearbook 2006–2015.

Additional information

Funding

This work was funded by the Fundamental Research Funds for the Central Universities [grant number 16JXRZ10], the Funds for Distinguished Young Scholars, Shanghai, and Philosophy and Social Sciences Foundation of Shanghai [grant number 2017BFX001].