If there is any fixed star in our constitutional and criminal procedure constellation, it is that torture is illegal and torture-introduced evidence is inadmissible. The purposes of this research are to (1) assess the exclusionary rule in the United Kingdom and United States; (2) explore the theoretical constitutional foundation of the rule; and (3) establish the Chinese exclusionary rule. Currently, there is no exclusionary rule explicitly in the Chinese Code of Criminal Procedure. If the wrongful conviction of the innocent is a pressing issue in China today, police torture is the flashpoint. Police torture in China is the prevalent evil not the isolated anecdote. This thesis combines diagnosis and prescription – the problem of police torture in China and the solution of the exclusionary rule. The ultimate goal of the research is to find a suitable exclusionary rule for China to solve the serious problem of police torture and wrongdoing. At the level of theory, my exclusionary rule framework is grounded in the separation of powers. Previous research about the separation of powers doctrine has focused almost entirely on constitutional law and political theory. They completely ignored the special role that the doctrine plays in the criminal justice system, a role consisting of the exercise of a reviewing function to ensure executive compliance with the criminal law. Separation of powers is a core component of the constitution’s system of checks and balances, a system in which each branch of the government is endowed with a constitutional control over the others. Without any judicial supervision or due process, the potential for arbitrary enforcement is high. The alternatives to the exclusionary rule are mainly illusory and of no practical avail. Past history also demonstrates that the very idea of protecting the defendant’s right is completely empty unless it is linked to an efficient mechanism. China grants the police too much power and has too little judicial supervision over police investigations. It creates imbalance in the existing Chinese criminal justice system. It is such an imbalance and the lack of separation of powers in the criminal justice system that poses a significant and growing threat for the protection of defendants’ rights.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:563298 |
| Date | January 2011 |
| Creators | Hsieh, Kuo-Hsing |
| Contributors | Bankowski, Zenon. : Chalmers, James |
| Publisher | University of Edinburgh |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Source | http://hdl.handle.net/1842/6183 |
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