Something fundamental has changed in China’s legal system. Like most discussions of the law, my explanation starts with a story.
A man named Zhao Zuohai quarreled with his neighbor, who then disappeared. Eighteen months later, a decomposed and headless body was found. After an interrogation that seems to have involved beatings, firecrackers, and being forced to drink water spiced with chili, Zhao confessed to murder. He was convicted and sentenced to death. The sentence was commuted, but while he was in jail, his wife divorced him and several of his children were adopted.
And then, nearly a decade later, the neighbor turned up alive and well.
Mr. Zhao has been awarded compensation, and three policemen have been arrested, according to Xinhua. But this case, along with other recent events, appears to have struck a nerve in China. Five bodies of the Chinese justice system have just issued new rules to address the matter, and they’re getting some attention worldwide.
The BBC headline is typical of most Western reporting I’ve seen: China bans evidence from torture. It’s easy to leap from that to the conclusion that China has just banned torture. But, as the BBC article states, “Laws banning torture are already in place, but analysts say they are widely disregarded.” A close reading of the details shows that the change is less dramatic, but more revolutionary.
According to the China Daily (which follows Xinhua), two sets of regulations were issued on Sunday, May 30:
One rule is highly theoretical: it sets out an evidentiary standard for capital cases. It states the principle that “the facts must be determined according to evidence”, replacing the former requirement that convictions must be “based on facts and judged according to law”.
The other is more practical, dealing with what kind of evidence is admissible in criminal trials as a whole. As the China Daily article says, “facts and evidence must be indubitable and sufficient, and evidence in doubt or obtained illegally must be excluded.” Evidence obtained through torture (which is illegal) is inadmissible under that clause, as is anonymous evidence, testimony “made under violence or threat”, unqualified expert witness testimony, and unsubstantiated conjecture. Defendants can request an investigation into whether the evidence against them was properly obtained.
This second regulation defines what an American would call the exclusionary rule. The main role of the exclusionary rule in Western jurisprudence is to reduce the temptation of authorities to break the law and violate citizens’ rights in pursuit of evidence by making said evidence useless in court. I’d rate it as middling effective, on the whole, but even its worst incarnation is better than its absence.
Apparently, and rather astonishingly, there was no such thing in the Chinese legal system before Sunday. According Bian Jianlin, the law professor quoted in the China Daily article, “no previous law or regulation clearly stated that when evidence may have been acquired through forced confession it must be excluded”. Even with the NYT article as confirmation, I’m having trouble believing this; I’d almost be relieved to hear that I was wrong.
Mind you, there are plenty of loopholes left. Officials don’t always follow the stated laws (or the prohibition on torture would be enough). Also, I don’t see anything about fruit of the poisonous tree: evidence obtained using illegally obtained evidence. So one could still use inadmissible techniques to generate leads to admissible evidence. And statistics-driven policing is global, motivating and excusing the breaking and bending of rules.
But coming from societies where we’ve had the exclusionary rule long enough to take it for granted, where Jack Bauer and DCI Gene Hunt get a kind of sneaking respect for transgressing it, it’s refreshing to see one of the foundations of our legal systems reaffirmed, rediscovered, reestablished.
I am not a lawyer. I am not an expert on international relations. I am not an expert on China, Chinese law, or American jurisprudence. I know just enough to be dangerous. Fear me, but don’t rely on me.