Controlling Abuse to Maintain Control: The Exclusionary Rule in China

70 Pages Posted: 10 Sep 2010 Last revised: 23 Aug 2011

Margaret K. Lewis

Seton Hall University - School of Law

Date Written: July 1, 2011

Abstract

In July 2010, the People’s Republic of China took the unprecedented step of implementing detailed, concrete rules on the handling of illegally obtained evidence. This reform was not prompted by a shift in political power, nor was it the result of an independent push from the judiciary. Rather, sixty years into the continuous leadership of the Chinese Communist Party, the highest ranks in government appear to recognize that endorsing an exclusionary rule can serve their interests in maintaining power. This Article argues that the PRC Government is adding a new chapter to the international diffusion of exclusionary rules as an authoritarian government that is harnessing the rule to bolster its legitimacy. Often touted as a means of enhancing “judicial integrity,” the exclusionary rule in China is better viewed as holistically addressing “governmental integrity.”

After situating reforms in China within the comparative criminal procedure literature by examining developments in the United States, Germany, Russia, and Taiwan, this Article turns to China and fills a gap in English-language scholarship, which until now has discussed the exclusionary rule almost entirely in the European and Commonwealth contexts. It analyzes how a confluence of domestic pressures complemented by international influences facilitated reforms in China and argues that, at present, the exclusionary rule appears more symbolic than revolutionary. In order for the new reforms to function as more than a mere symbolic integrity-enhancing device, assertive actors in the criminal justice system must gain a toehold and gradually move the rule from the realm of gloss to substance.

Keywords: China, Criminal Procedure, Exclusionary Rule

Suggested Citation

Lewis, Margaret K., Controlling Abuse to Maintain Control: The Exclusionary Rule in China (July 1, 2011). New York University Journal of International Law and Politics, Vol. 43, p. 629, 2011. Available at SSRN: https://ssrn.com/abstract=1674509

Margaret K. Lewis (Contact Author)

Seton Hall University - School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States

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