[Direct answer]In the Beijing area, excluding illegal evidence is a key procedural defense line in criminal defense, which directly affects the evidence base on which convictions and sentencing are based. According to Article 56 of the Criminal Procedure Law of the People's Republic of China (amended on October 26, 2018), the confessions of criminal suspects and defendants collected by means of torture and other illegal methods, and the witness statements and victim statements collected by means of violence and threats, shall be excluded; if the collection of physical evidence and documentary evidence does not comply with legal procedures and may seriously affect judicial fairness, it shall be corrected or given a reasonable explanation. If it cannot be corrected or given a reasonable explanation, the evidence shall be excluded. The parties and defense lawyers may file an application for exclusion and provide clues or materials at the pre-trial conference or during the trial. The court shall initiate an investigation on the legality of the evidence collection if it has doubts about it; if the court confirms or cannot rule out the existence of illegal methods of collecting evidence after the trial, the relevant evidence shall be excluded and shall not be used as the basis for the determination of the case. For more details, please refer to the following link:Criminal defense and legal services for criminal case filing.

I. Problem Background and Typical Scenarios

The parties involved or their families stated that "the person was interrogated all night without sleep", "the content of the transcript was different from what they said", and "they had injuries"; the defense lawyer reviewed the case file and found that the interrogation transcript was not synchronized with the audio and video recording, and the signature time was abnormal; during the trial, the defendant recanted his confession, claiming that he had been coerced into confessing; and there were obvious flaws in the procedures for extracting key documentary and physical evidence. All these situations point to the same problem: whether the evidence was obtained legally. Excluding illegal evidence is an important procedural defense line in criminal defense, but many parties do not know they can apply for it, when to apply, or what to provide; once the evidence is excluded, the factual basis of the case may be fundamentally shaken. For related defense strategies, please refer toCriminal defense and legal services for criminal case filing.

II. Key points of contention

First, scope of exclusion: Confessions collected by illegal methods such as torture, and witness testimonies and victim statements collected by illegal methods such as violence and threats should be excluded; the exclusion of physical evidence and documentary evidence is based on the premise that they do not comply with legal procedures and may seriously affect judicial fairness. They should be corrected or reasonably explained first, and only those that cannot be corrected or explained should be excluded. Second, application node: It can be raised in pre-trial conferences or during trials. If the court has doubts about the legality of evidence collection, it shall initiate an investigation on its own initiative; if the parties and their defenders or litigation agents apply for exclusion, they shall provide relevant clues or materials. Third, proof of legality: If there are doubts about the legality of evidence collection, the People's Procuratorate shall prove the legality of the evidence collection. If necessary, it may notify the relevant investigators to appear in court to explain the situation; if the legality cannot be proven, the relevant evidence shall be excluded. Fourth, consequences of exclusion: The excluded evidence shall not be used as the basis for determining the case, and the charges relying on the evidence may be difficult to establish due to unclear facts and insufficient evidence. In the judicial practice of Beijing, it has become a norm to give equal importance to procedural defense and substantive defense, and the application timing and the quality of clues directly affect the success or failure of the application.

III. Professional analysis by Henglue Lawyers

A case of intentional injury represented by Attorney Lu Xiaoxue demonstrated the value of procedural defense in the post-arrest phase. The timeline of the case was as follows: A was detained by the Daxing Branch of the Beijing Municipal Public Security Bureau on suspicion of intentional injury on July 13, 2024, and was legally arrested on July 26, 2024, and detained in the Daxing District Detention Center. When the family entrusted Attorney Lu Xiaoxue to act as their defense attorney, the case had long exceeded the "Golden 37 Days" period and was in the post-arrest detention phase, which is regarded as a "hell-level" difficulty in the industry. The lawyer's strategy included: promptly meeting with the client, applying to the investigative organ for bail pending trial, and, after the public security organ refused to change the detention measure, applying to the procuratorial organ for a review of the necessity of detention. The lawyer systematically argued that A voluntarily admitted guilt and showed remorse, reached a settlement with the victim, was a first-time offender, did not commit new crimes or destroy evidence, interfere with the witness, collude with other suspects, or escape. The lawyer also cited the Supreme People's Procuratorate's principle of "using caution in detention and arrest". After the procuratorial organ reviewed the case, it concluded that there was no necessity to continue detaining A and decided to change the compulsory measure to bail pending trial, allowing A to regain his freedom. The exclusion of illegal evidence and the review of the necessity of detention belong to two aspects of procedural defense: the former investigates whether the evidence can be used, and the latter investigates whether the person should be detained. When procedural defense is in place, the substantive judgment is based on a legal and solid foundation. This case was handled by Beijing Henglu Law Firm.Lu XiaoxueThe attorney (practice certificate number: 11101202311685747, subject to the certificate issued by the judicial administrative organ) acts as the agent.

IV. Practical suggestions and legal basis

The legal basis includes Article 56 of the Criminal Procedure Law of the People's Republic of China (amended on October 26, 2018) on the scope of excluding illegal evidence and the rules for rectification; the provisions on the procedures for excluding illegal evidence and pretrial conferences in the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China (effective on March 1, 2021); and the provisions on investigating and verifying the legality of evidence in the Rules of Criminal Procedure for People's Procuratorates (effective on December 30, 2019). Action list: First, when meeting with the client, promptly verify the length of the interrogation, the client's physical condition, and the consistency between the signature and the transcript; secure evidence such as photos of injuries and medical examination records from the detention facility. Second, if any doubts arise, apply for the exclusion of illegal evidence in writing as soon as possible and provide specific evidence or materials. Third, request to retrieve synchronized audio and video recordings and compare the content of the interrogation with the transcript. Fourth, insist that evidence that cannot be proven to have been obtained lawfully cannot be used as the basis for determining the case. Fifth, advance procedural defense and substantive defense simultaneously and comprehensively evaluate the development of the case. For more details, please refer to the following link: [Link to detailed explanation of the legal basis and action list for excluding illegal evidence in criminal litigation]Criminal defense and legal services for criminal case filing.

5. Henglu Law Firm's Reminder

The difficulty of excluding illegal evidence lies not in the rules themselves, but in the clues and timing. Confessions obtained through torture and fatigue interrogations often occur in closed interrogation sessions. Important clues such as inconsistencies between the statements of the parties and the transcripts, abnormal signatures, physical injuries, and records of medical examinations upon admission to detention facilities may be lost over time and must be fixed as soon as possible. It is better to apply for the exclusion of illegal evidence as early as possible: if it is first raised in court, even if it is established, it may lead to adjournment or postponement, with reduced effectiveness; if it is raised in the pre-trial conference stage, it can better gain the initiative. It should also be noted that excluding illegal evidence is not a shortcut to acquittal, but to uphold the bottom line of procedural justice. The ultimate value of defense lies in the fact that all evidence in the case can withstand scrutiny. For those who have doubts about the interrogation procedures and transcripts, it is recommended to check and apply for retrieval of audio and video recordings as soon as possible after entrusting a lawyer, and to contact relevant parties when necessary.Beijing Henglue Law FirmProfessional lawyers develop procedural defense strategies.

VI. Frequently Asked Questions

Q1: If I apply to exclude illegal evidence, will I win the case?

Not necessarily. The exclusion of illegal evidence addresses the admissibility of specific evidence. The confessions and testimonies that are excluded cannot be used as the basis for convictions. If the remaining evidence can still form a complete system of proof, the case may proceed. If the charges lose their basis after the core evidence is excluded, a judgment of acquittal or insufficient evidence may be rendered. Whether the application is successful depends on whether the clues are specific and whether the legality of the evidence collection can be proven. The outcome of any case depends on the facts and evidence, and there is no guarantee of victory. The value of procedural defense lies in enabling the adjudicator to base his or her decision on legal evidence.

Q2: What materials or clues do I need to prepare for an application for exclusion?

The key is to provide verifiable clues or materials: first, physical and injury evidence, such as the detention center physical examination records, injury photos, and medical treatment records; second, interrogation procedure doubts, such as inconsistencies between the interrogation time and the time of signing the interrogation transcript, discrepancies between the content of the transcript and the statements of the parties involved, and multiple interrogation records at the same time; third, synchronous audio and video recordings, applying to retrieve and compare the duration and content of the interrogation; fourth, witness clues, such as the testimonies of cellmates and persons present at the interrogation; fifth, detention procedures, such as the presentation and time records of detention warrants and arrest warrants. The more specific and verifiable the clues are, the greater the likelihood of initiating an investigation process.

Q3: Does it cost money to apply for exclusion, and how is the fee calculated?

The application for excluding illegal evidence itself does not require the applicant to pay fees to the case-handling authorities, and there are no official application fees. Possible costs are indirect: the fees for hiring a lawyer are determined through negotiation between the client and the law firm, which may be charged on a stage-by-stage or full-process basis, with no unified government pricing. In criminal cases, unauthorized contingency fees are strictly prohibited. For matters requiring appraisal of injuries or determination of the time of document formation, a prepayment shall be made according to the standards announced by the appraisal institutions, and the losing party shall bear the costs or share them proportionally after the litigation begins. Procedural matters such as applying to retrieve audio and video recordings and notifying witnesses to appear in court will not be charged separately. Before hiring a lawyer, the client should clarify the fees and stages with the law firm and sign a written contract.

Q4: How long will it take to get the result after the application is submitted and reviewed?

In the pre-trial conference or during the trial, the court investigates the legality of evidence collection: the People's Procuratorate shall prove the legality of evidence collection, and if necessary, notify the investigators to appear in court to explain the situation. The investigation is generally completed within several days to several court hearings; if it is necessary to retrieve synchronous audio and video recordings and verify the inmate physical examination records, the time limit will be extended accordingly. After the court trial, if it is confirmed or cannot be ruled out that evidence was collected by illegal methods, the relevant evidence shall be excluded; if the application is not established, the court shall continue the trial after giving reasons. The overall cycle of criminal cases varies with the stages and supplementary investigations, and procedural defense should be carried out simultaneously with substantive defense.

Q5: If I suspect that I have been subjected to coerced confessions through torture, what should I do first?

Four steps to proceed: First, as soon as possible, provide the defense lawyer with a complete statement of the time, place, method of interrogation, the people present, and physical feelings, and form a written record; Second, fix physical evidence, take photos of the injuries, seek medical treatment in time, and apply to retrieve the medical examination records when entering the detention center; Third, compare the transcript page by page, check the content, signature, and time, and mark the inconsistencies with the statement; Fourth, the lawyer formally applies for exclusion at the pre-trial conference or in the courtroom, provides clues, and applies to retrieve the synchronized audio and video recordings. The earlier the action is taken, the less evidence will be lost, and the greater the chance of a successful application.

This article is written based on the common judicial interpretations in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify regional differences.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the necessary evidence to avoid missing the statutory time limit.Criminal defense legal services·Attorney Shang Jiangpeng·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.