When Is a Confession Excluded in a Chinese Criminal Case? Fourteen Situations

1. Confessions obtained by torture

Under Article 123(1) of the SPC Interpretation, a confession must be excluded where it was made against the defendant's will after violence, such as beating or unlawful use of restraints, or cruel methods amounting to disguised corporal punishment, caused unbearable suffering.

This is what Chinese law calls xingxun bigong (刑讯逼供), "extracting confessions by torture." The forms vary widely: punching, kicking, tying with ropes, electric batons, overtightened handcuffs, suspension and more. Any physical or disguised physical punishment that causes unbearable suffering can qualify.

Most of the wrongful convictions uncovered in China in recent years involved torture. It violates the suspect's rights, destroys trust in the justice system and produces unreliable confessions. That is why such confessions are excluded outright.

Note that only confessions are excluded, not exculpatory statements. A defendant's statements in their own defense are not subject to exclusion, because they protect the defendant's interests. The same applies to every situation below.

2. Confessions obtained by threats

Under Article 123(2), a confession must be excluded where it was made against the defendant's will after threats of violence, or threats of serious harm to the lawful interests of the defendant or their close relatives, caused unbearable suffering.

Three kinds of threat are covered: threats of violence; threats of serious harm to the defendant's own lawful interests; and threats of serious harm to close relatives, such as "if you don't talk, we'll arrest your children." The last is common in practice.

While outright torture has declined, threats appear to be increasing. They leave no marks and are harder to detect and prove. And some people who could withstand any beating will give in at the thought of their family's safety.

Many suspects believe that only confessions obtained by beating can be excluded, and do not know that threats and the other situations below are also covered. Part of the defense lawyer's job is to explain this, so that grounds for exclusion are identified.

3. Confessions obtained through unlawful detention

Under Article 123(3), a confession obtained by unlawfully restricting the defendant's liberty, such as illegal detention, must be excluded.

Examples include holding someone without any legal procedure, keeping them after the criminal detention period has expired, or, arguably, holding them after the period of custody following arrest has run out. Any confession of guilt obtained during unlawful detention must be excluded; unlike situations 1 and 2, there is no need to show unbearable suffering or that the confession was involuntary.

4. Repeated confessions influenced by earlier torture

Under Article 124, where torture produced a confession, later confessions with the same content made under the influence of that torture must also be excluded.

A repeated confession is one in which, after confessing under illegal interrogation, the defendant gives the same confession again in later questioning by investigators, prosecutors or judges [1].

In practice, investigators often take several records on the same facts. Once a suspect has confessed under torture, they will often repeat the same account later without further torture. Excluding only the record made under torture would do little to deter illegal methods. So the later, repeated confessions are excluded as well.

Two conditions apply: the original method must be torture (not, at present, threats, unlawful detention or other illegal methods), and the later confession must have been influenced by it.

There are two exceptions, in which the later confession need not be excluded:

1. during the investigation, the supervisory commission or investigating authority, acting on a complaint, report or its own discovery, confirms or cannot rule out illegal methods and replaces the investigators; the new investigators inform the suspect of their rights and the legal consequences of confessing; and the suspect confesses voluntarily; or
2. during review of arrest, review of prosecution or trial, prosecutors or judges inform the defendant of their procedural rights and the consequences of confessing, and the defendant confesses voluntarily.

Both require questioning by different people and notice of rights, after which a voluntary confession can be used. The first applies during investigation, after the authority itself has confirmed or could not rule out illegal methods; the second applies at the later stages.

5. Confessions without the required audio-video recording

To deter torture and make it possible to check confessions, Chinese law requires simultaneous audio-video recording of interrogations in certain cases.

Under Article 27(2) of the 2024 Procedures for Excluding Illegal Evidence in Criminal Cases (the "2024 Procedures"), where a case required recording but no recording is provided, or the recording was selectively made, cut or altered, and, taking all the evidence into account, illegal methods cannot be ruled out, the confession must be excluded.

Under Article 4 of the Ministry of Public Security's Provisions on Audio-Video Recording of Interrogations of Criminal Suspects, recording is required in major cases, including:

• cases that may carry life imprisonment or the death penalty;
• serious crimes against public safety or against the person causing serious injury or death;
• organized crime cases;
• serious drug offenses; and
• other intentional crimes that may carry ten years or more.

Under Article 6 of the same provisions, recording is also required where, among other things:

• the suspect is blind, deaf or mute, a minor, a person with a mental illness who has not completely lost the ability to understand or control their conduct, or does not understand the local language;
• the suspect is likely to retract their statements, or makes an innocence claim or the lawyer may argue for acquittal;
• the parties' accounts of the facts differ significantly, or responsibility among co-defendants is hard to separate; or
• the case is major, difficult or complex, or attracts significant public attention.

For foreign suspects, the language ground means that interrogations of anyone who does not understand Chinese should be recorded.

6. Confessions obtained outside a lawful place of interrogation

Under Article 27(3) of the 2024 Procedures, where investigators, other than in an emergency, did not question the suspect at the designated place, and, taking all the evidence into account, illegal methods cannot be ruled out, the confession must be excluded.

The Criminal Procedure Law requires interrogation at lawful locations. Once a suspect has been sent to a detention center, for example, interrogation must take place inside the detention center, where it is subject to some oversight by detention staff and is usually recorded. Interrogation elsewhere carries a high risk of abuse; in practice, torture has repeatedly occurred before a suspect reached the detention center or after being taken out of it irregularly.

7. Major cases without the required legality check

The earlier 2017 Procedures (Trial) expressly listed this as a ground for exclusion: in a major case, the prosecutor stationed at the detention center did not verify the legality of the interrogation before the investigation ended, or did not record that verification, or the recording was selective, cut or altered, and the existing evidence could not rule out illegal methods.

The 2024 Procedures keep the verification system. Under Article 4, in cases that may carry life imprisonment or death and other major cases, the investigating authority must notify the prosecutor stationed at the detention center in writing before the investigation ends. The prosecutor must question the suspect, check for torture or other illegal methods, and record the whole check on audio and video. Under Article 13(3), the court must examine, before the pretrial conference, whether this check was carried out and recorded.

However, the list of exclusion grounds in Article 27 of the 2024 Procedures no longer mentions this situation separately. A missing or unrecorded check is therefore an important lead in examining whether evidence was lawfully obtained. Where, taking all the evidence into account, illegal methods cannot be ruled out, the defense can seek exclusion under the general clause in Article 27(4): "other situations in which the use of illegal methods to collect evidence cannot be ruled out."

8. The defendant did not check and confirm the record

Under Article 94(1) of the SPC Interpretation, an interrogation record that the defendant did not check and confirm cannot be used as a basis for the judgment.

Suspects have the right to read the record and to add to or correct it if anything is missing or wrong. A record that was never checked by the defendant may have been fabricated or altered, or may simply contain errors, and its truth and legality cannot be verified.

The interrogation record and the defendant's confession are not the same thing; the record is only one way the confession is captured. In practice, records sometimes depart from what the defendant actually said, intentionally or not. That is why the defendant's own confirmation is the starting point for checking it.

For foreign suspects, this is closely tied to situation 10: a record in Chinese that was not properly translated back has not, in substance, been checked by someone who cannot read Chinese.

9. No sign-language interpreter for a deaf or mute person

Under Article 94(2), a confession from a deaf or mute defendant obtained without a person who understands sign language, where one was required, cannot be used as a basis for the judgment.

The law requires a sign-language interpreter to take part in questioning a deaf or mute suspect and that this be noted in the record. Without one, there is no assurance that the suspect understood the questions or could give an accurate account. The violation is serious and can produce false confessions, so the confession is excluded.

10. No interpreter for someone who does not understand the local language

Under Article 94(3), a confession from a defendant who does not understand the local spoken or written language, obtained without the required interpreter, cannot be used as a basis for the judgment.

Under Article 9 of the Criminal Procedure Law, the courts, procuratorates and police must provide interpretation for any participant in the proceedings who does not understand the local language.

Without an interpreter, the defendant cannot properly understand the questions, cannot give an accurate account, and cannot check whether the record is accurate. The record may be untrue, and the procedure seriously violated. The confession is therefore excluded.

This is the provision most directly relevant to foreign nationals. In practice, the questions to ask include: Was an interpreter present at every interrogation? In which language? Was the interpreter competent? Was the Chinese record read back in that language before it was signed?

11. A minor questioned without a guardian or appropriate adult present

Under Article 94(4), a confession from a minor obtained without the minor's legal representative or an appropriate adult present cannot be used as a basis for the judgment.

The "appropriate adult" system is a special protection for minors. The adult oversees the questioning, helps calm the minor and helps communication with the interviewers. Under the Criminal Procedure Law, the appropriate adult is usually another adult relative, or a representative of the minor's school, employer, local community organization or a child protection organization. Article 281 of the Criminal Procedure Law requires that the legal representative or an appropriate adult be notified to attend when a minor is questioned.

This exclusion was new in the 2021 SPC Interpretation. Earlier law required the adult's presence but attached no consequence to their absence; without a remedy, the right had little practical effect.

12. Errors or inconsistencies in the record

Under Article 95(1) of the SPC Interpretation, this applies where the time, place, interviewer, recorder, legal representative or similar details in the record are wrong or inconsistent.

Such errors may point to an unlawful interrogation, but they are less serious than the situations above, so the law allows them to be corrected.

13. The interviewer did not sign

Under Article 95(2), this applies where the interviewer did not sign the record. The Criminal Procedure Law requires investigators to sign. Without a signature it is hard to verify the record later, but the violation is less serious than those in Groups 1 and 2, so the correctable rule applies.

14. The first record does not show that rights were explained

Under Article 95(3), this applies where the record of the first interrogation does not show that the suspect was told of their rights and the relevant law.

Most people do not know their procedural rights, especially in criminal law, and are at risk of having them violated during questioning. That is why Article 120 of the Criminal Procedure Law requires investigators to inform the suspect of their procedural rights. If the first record does not show this, it is likely that it was not done.