According to the “Regulations on the Procedures for Handling Criminal Cases by Public Security Organs” (hereinafter referred to as the “Criminal Case Procedures Regulations”) and the “Strict Provisions on the Exclusion of Illegally Obtained Evidence,” “threats, inducements, and deception” directed at criminal suspects and defendants are also considered illegal methods on a par with torture and coercive interrogation. However, in conjunction with other relevant provisions—especially other articles within the “Strict Provisions on the Exclusion of Illegally Obtained Evidence”—in practice, only evidence obtained through severe “threats” is likely to constitute illegally obtained evidence that “must be excluded” in the narrow sense.

For example, confessions obtained by investigators through threats—such as threatening to hold the close relatives of a suspect or defendant criminally liable or subjecting those close relatives to coercive measures like criminal detention—should also be excluded as illegal evidence, as such actions violate the suspect’s and defendant’s fundamental human sentiments and free will.

In the case of Zheng Moumou’s embezzlement, bribery, and abuse of power (Criminal Trial Reference No. 1140), In the first-instance trial, the court found that the details of the bribery provided by the briber did not match the statements made by the defendant, Zheng Moumou. Moreover, at the trial, Zheng Moumou denied having accepted bribes and claimed that the investigators had used the lure of bail pending trial and threatened to arrest his children in order to obtain his guilty confession. The prosecution failed to present any evidence demonstrating that the guilty confession had been legally obtained. Therefore, according to law, the relevant guilty confession should be excluded. After the procuratorial organ filed an appeal, the second-instance court nevertheless ruled to dismiss the appeal and uphold the original judgment.

The court’s reasoning in this case also makes it clear that the determination of whether a threat has reached a serious level must be made by taking into account the specific circumstances of each individual case. Generally speaking, verbal threats alone—when they merely restrict or deprive the suspect or defendant of their freedom of will to a limited extent—will not significantly influence the suspect or defendant’s decision. If, after weighing the relevant interests, the suspect or defendant concludes that confessing is more advantageous to them than resisting and thus admits the criminal facts, the likelihood that such confession is false is lower than if obtained through torture or coercive interrogation. However, if the method of threat exceeds certain bounds—for example, by seriously harming the legitimate rights and interests of the suspect or defendant himself or his close relatives, or by employing methods prohibited by law or practices that are morally intolerable in society—such threats should be deemed to have reached a serious level and fall within the category of “other methods causing mental suffering to the defendant” as defined in the Interpretation of the Criminal Procedure Law. Confessions obtained through such methods must therefore be excluded.

However, in practice, confessions obtained through threats that merely harm the legitimate rights and interests of the suspect himself and his close relatives remain relatively difficult to exclude outright. In a “black society” case that the author handled in Chongqing, investigators threatened the defendant: if he failed to make a confession exactly as instructed, his family members would be arrested; but if he complied with the instructions, he could be released on bail pending trial. Under these circumstances, the defendant ended up making a guilty confession as requested by the investigators. Although the defendant and his defense counsel filed a motion to exclude this record and any subsequent repetitive statements derived from it, the court of first instance nonetheless refused to initiate the relevant procedure, citing simply that “there were no grounds warranting the initiation of an investigation into illegally obtained evidence.”

According to the existing regulations, whether a suspect’s or defendant’s statement “should be excluded” hinges on whether it was obtained through unlawful means that caused them severe physical or mental pain or suffering, thereby inducing intense psychological fear and compelling them to make the statement against their will.

In this regard, confessions obtained solely through “enticement or deception,” if made by criminal suspects and defendants based on a mistaken belief but without causing them severe physical or mental distress, do not constitute “psychological coercion” and do not violate their fundamental human rights; thus, they do not fall within the narrowly defined category of “illegally obtained evidence that must be excluded.” Generally, such evidence is unlikely to be directly excluded during the course of litigation. Instead, its admissibility as a basis for reaching a verdict must be determined in conjunction with a review of its legality. Even more commonly, these pieces of evidence will be further evaluated in light of other available evidence, with a comprehensive assessment of the authenticity of the relevant evidence content ultimately determining whether it can serve as a basis for the final verdict.

However, if the suspect or defendant is induced—by fabricating claims that they or their close relatives are suffering from terminal illnesses—to make a guilty confession according to specified requirements, taking advantage of their desire to secure bail as soon as possible in order to receive treatment or care for a loved one, this practice no longer constitutes mere deception. Rather, it amounts to a threat that exploits fundamental human rights and emotional bonds, potentially constituting psychological coercion. Consequently, any statements obtained under such circumstances should also be excluded as illegally obtained evidence.

In the case involving Zheng Moumou’s embezzlement, bribery, and abuse of power, the court’s reasoning also held that Zheng Moumou’s confession of accepting bribes was influenced not only by the threat that his daughter and son-in-law had been detained by the procuratorial authorities, but also by the investigators’ promise to release him on bail pending trial once he confessed to accepting bribes—thus, the investigators simultaneously used the promise of bail as a form of inducement toward Zheng Moumou. Zheng Moumou’s defense was corroborated by materials such as interrogation transcripts. This method of combining inducement with threats to some extent intensified the coercive effect, causing the defendant considerable mental anguish.

In summary, evidence obtained through violent methods, disguised forms of corporal punishment, or threats involving violence or serious harm to the legitimate rights and interests of the suspect or defendant and their close relatives—methods that inflict severe physical torture on the suspect or defendant or cause them intense psychological suffering—clearly constitute a direct violation of their fundamental human rights and run counter to basic moral principles. Given that the illegality of these methods is sufficient to compel the suspect or defendant to make a statement against their will, regardless of whether the specific content of such a statement is true or false, the evidence should be categorically excluded precisely because of the cruel and inhumane nature of the means used to obtain it.

Moreover, if the suspect or defendant has been unlawfully detained, the environment and circumstances in which they find themselves are already sufficient to evoke serious fear. Under such circumstances, regardless of whether other illegal practices—such as torture or coercive interrogation—have occurred, and irrespective of the severity of those other illegal methods, any statement obtained under these conditions should be directly excluded, given the fundamental illegality and violation of human rights that constitute the very basis for obtaining such evidence.

About the Author

.