The Predicament of Proof in China’s Exclusionary Rule
DOI:
https://doi.org/10.24203/ex2jzw97Keywords:
the exclusionary rule; burden of proof; asymmetrical proof; the selectivity of proofAbstract
According to the principle of the distribution of burden of proof, the logical premise that a court excludes illegally obtained evidence for prosecution is either a defense party can prove that a prosecution party has unlawful investigations, or the prosecution party fails to prove the legality of evidence collection. Although the illegal investigations have become a repeated phenomenon, because of the prosecution party’s selectivity of proof and the asymmetrical proof between prosecution and defense, an investigation regarding the legality of evidence for the prosecution initiated by the court often fall into the predicament of proof that the court fails to ascertain whether there are illegal investigations. Given that the defense party cannot directly prove the illegal investigations and is difficult to challenge the legality of evidence for the prosecution, it is impossible for the court to exclude illegally obtained evidence in the light of the defense party’s application.
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