The Exclusionary Rule of Illegal Obatianed Co-defendant Confession in China

Jun SHAO

Abstract


The co-defendant refers to defendants that get involved in the same criminal procedure and the merger investigation, prosecution and trial, or any other defendants who share implicated relationship due to additional prosecution. In practice, there is a problem that whether the defendant can motion the exclusionary rule of the illegally obtained co-defendant confession. Even though the current exclusionary rule had positive improvement in these years, there are still blank areas, among which the problem doesn’t get a clear answer in the legislation. The question contains a preposed key point: how to define the character of co-defendant confession? Regarding that the part of the co-defendant confession about other co-defendants is often an important and unfavorable evidence against them, from the perspective of a fair trial, this confession should be regarded as witness testimony against other co-defendants. And it is necessary to give other defendants the right of cross-examination. For the purpose of deterring and curbing the state organs from illegal investigation in criminal proceedings, the accused should be fully given the qualification to motion the exclusionary rule within a reasonable range. Therefore, based on the intrinsic attribute of witness testimony in the co-defendant confession, the defendant should be entitled to the right to motion, if and only if the part of the co-defendant confession related to him is obtained by illegal torture.


Keywords


Co-defendant confession; Witness testimony; Exclusion of illegal obtained evidence

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References


Dressler, J., & Michaels, A. C. (2008). Understanding criminal law (p.349), In H. Y. Wu (Trans.). Peking University Press.

Hu, S. (2012). Rigorous proof in criminal procedure (p.171). Beijing: People’s Court Press.

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Lin, Y. X. (2008). Coercive measures and criminal evidence (p.250). Yuanzhao Press.




DOI: http://dx.doi.org/10.3968/10690

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