On Exclusionary Rule About Repeated Confessions

The exclusion of illegal confession is the core of the exclusionary system of illegal evidence in our country,but because repeated confessions can not be excluded,illegal confession is excluded on the surface and can not play its due function of procedural sanctions.On June 27,2017,Article 5 of the "provisions on the strict exclusion of illegal evidence in Criminal cases" put an end to the adjudication situation that had no rules to follow in the past.For the first time,it is clear at the normative level that repetitive confessions should be excluded,the scope of exclusion and exceptions.This rule breaks through the scope of the previous identification of illegal confessions,has a certain creative significance,provides normative guidance for judicial practice to identify and exclude repetitive confessions,and helps to curb illegal confession at the institutional level.In view of the initial establishment of the rule,there is an urgent need to analyze the repetitive confession exclusion rule from the theoretical and normative levels.At the same time,the repetitive confession exclusion rule has been established for more than two years,and its application needs to be investigated based on judicial practice.Therefore,this paper analyzes the exclusionary rule of repetitive confession from the perspectives of theory,standardization and practice,analyzes its existing problems and puts forward corresponding suggestions.In addition to the introduction,the full text consists of four parts.The first part studies the theoretical basis of the exclusion of repetitive confession.It mainly includes two aspects: one is the inherent logic of the exclusion of repetitive confessions.Under the influence of the shadow of pain caused by illegal methods such as extorting confessions by torture,the repeated confessions made by criminal suspects and defendants are lack of legitimacy,authenticity,voluntary and other evidentiary attributes should be excluded.At the same time,the exclusion of repeated confession helps to deter the illegal behavior of the police through procedural sanctions and ensures the implementation of the illegal confession exclusion system represented by the suffering rule.Only the principle plus exception exclusion mode can realize the unity of protecting human rights and punishing crimes under the premise of ensuring the rigidity of exclusion,which is reasonable and operable.The second is to briefly describe the three modes of repetitive confession exclusion combined with foreign experience.Through the analysis,it is found that the exclusion scope of the absolute exclusion mode is too wide,and the discretionary exclusion mode can easily lead to the false repetitive confession.Only the principle plus exception exclusion mode can realize the unity of protecting human rights and punishing crimes under the premise of ensuring the rigidity of exclusion,which is reasonable and operable.The second part interprets the repetitive confession exclusion rules in the normative text based on the principle plus exception exclusion mode.Repetitive confessions affected by extorting confessions by torture,which are related to the substance of previous illegal confessions and are similar in content,should be strictly excluded.The exception should meet the following three conditions at the same time: the change of the subject in the investigation stage or the litigation stage,the notification of litigation rights and the consequences of pleading guilty,and the subsequent voluntary confession.Through normative analysis,it is found that the exception of subject change in the investigation stage is out of proportion to that in the litigation stage,so it is necessary to carefully determine the voluntary confession in the exception case of subject change in the investigation stage.The third part takes 86 samples of effective adjudication documents retrieved on the Internet as an example to investigate the practice of repetitive confession exclusionary rules and analyze the achievements and existing problems since the establishment of repetitive confession exclusionary rules.Generally speaking,the defense has a high enthusiasm in making repeated confessions to exclude applications,most of the repetitive confessions affected by extorting confessions by torture are excluded,and some cases decide that part of the charges do not constitute a crime because they exclude repetitive confessions.At the same time,it also exists that the previous illegal interrogation methods were limited to extorting confessions by torture,and when applying exceptions,they only examined whether they met the formal elements such as the change of investigators,the change of litigation stage,the notification of litigation rights and the consequences of confession,while ignoring the substantive standard of voluntary standard,repeated confessions affected by illegal methods during discipline inspection and supervision investigation could not be excluded due to the lack of legal provisions.Previously,the illegal confession was not transferred so that the repetitive confession could not be identified.The fourth part puts forward some suggestions to improve the problems existing in the application of the exclusionary rule of repetitive confession.First of all,the scope of illegal interrogation methods should be revised to "illegal methods such as extorting confessions by torture,serious threats,illegal detention",in order to enumerate and generalize the scope of previous illegal interrogation methods.At the same time,judges can conduct "hierarchical inspection" on illegal methods such as seduction and deception.Secondly,reconstruct the exception of the exclusion rule of repetitive confession,emphasize the review of voluntary standard on the premise of matching the exception of subject change in the investigation stage with the exception in litigation stage,refine the considerations of voluntary standard identification,and force the judge to comprehensively judge whether the subsequent repetitive confession conforms to the voluntary standard by strengthening the judge’s reasoning.Thirdly,it is clear that the supervision and investigation should follow the relevant provisions of the Supervision Law and the Criminal procedure Law at the same time,and make it clear that the seduction and deception methods used in the supervision and investigation stage of job-related crimes should be directly included in the scope of previous illegal methods.in the stage of supervision and investigation,the exception of change in the litigation stage can only be applied,but not the exception of the change of subject,and the synchronous audio and video recording transfer system of job-related crimes should be established and improved.Finally,improve the illegal evidence transfer system,make it clear that the public prosecution refuses to transfer the previous illegal confession can directly exclude the follow-up repetitive confession,illegal evidence volume is only for the examination of repetitive confession and separate volume can not be used as the basis for determining the case.