[Direct answer]The core of criminal defense lawyers excluding illegal evidence is to apply for the exclusion of the confessions of criminal suspects and defendants collected by illegal methods such as extorting confessions by torture, the witness statements and victim statements collected by illegal methods such as violence and threats, as well as the physical evidence and documentary evidence that violate legal procedures and cannot be corrected or reasonably explained, in accordance with Article 56 of the Criminal Procedure Law of the People's Republic of China (amended in 2018). The basic process includes: meeting to verify the interrogation process, applying for obtaining the synchronous audio and video recordings and physical examination records, submitting the application for exclusion and providing specific clues, promoting the review in the pre-trial conference and court investigation, and confirming or excluding the illegal evidence according to law. It is recommended to consult as soon as possible to grasp the application timing and the key points of evidence presentationCriminal defense and legal services for criminal case filingFor cases involving disputes over injuries and compensation, the parties may resolve them through negotiation or mediation.Legal services for personal injury and medical disputesCoordinated assessment.

I. Problem Background and Typical Scenarios

The client complained to the lawyer that "some of the statements in the transcript were not mine," "the interrogation times didn't match," and "they interrogated me continuously at midnight." The family wanted to refute the confession, but didn't know where to start. Excluding illegal evidence is one of the most technically challenging aspects of criminal defense: it doesn't directly argue about guilt or innocence, but attacks the legality of the evidence and excludes the flawed evidence from the basis for determining guilt. The difficulty lies in the high threshold for clues, numerous procedural nodes, and the professional distribution of the burden of proof. Simply relying on the client's oral denial is usually not enough to initiate an investigation. It is necessary to organize applications and cross-examinations in a methodical and systematic manner.

II. Key points of contention

  • Determination of the scope of exclusion: Confessions obtained by means of torture and other illegal methods, and testimonies and statements obtained by threats of violence should be excluded, with no room for discretion. However, for defective physical evidence and documentary evidence, the three-fold judgment of "violation of legal procedures, possible serious impact on judicial fairness, and inability to correct or provide a reasonable explanation" applies. The logic of excluding the two types of evidence is different.
  • Thresholds for clues and materials: To apply for exclusion, it is necessary to provide relevant clues or materials such as the person involved in the suspected illegal evidence collection, the time, place, method, and content. The more specific the clues are, the easier it is to initiate the process; it is usually difficult to promote court investigation if the claim is just "forced confession" without supporting details.
  • Proof of responsibility and results: In the court investigation of the legality of evidence collection, the People's Procuratorate shall bear the burden of proof and may request the investigators to appear in court to explain the situation; if it is confirmed through the trial that there are circumstances of illegal evidence collection or if it cannot be ruled out that such circumstances exist, the relevant evidence shall be excluded and shall not be used as the basis for the prosecution opinion, prosecution decision, or judgment.

III. Professional analysis by Henglue Lawyers

Henglue Lawyers integrate the review of the legality of evidence collection into the entire process of criminal defense: during the meeting, they check the differences between the time, location, personnel of the interrogation and the content of the transcript item by item; apply for the detention center's physical examination records, interrogation synchronized audio and video, and entry and exit registration, and compare whether the transcript and video are consistent; review the location and time of the witness's interrogation and the signature on the transcript, and screen out procedural hidden dangers such as interrogation at the defendant's residence and cross-regional interrogation; list the contradictions in the verbal evidence one by one, forming the factual basis for the exclusion application. Procedurally, the exclusion application should be raised before the pre-trial conference, and the list of disputed evidence should be clarified through the pre-trial conference. Then, during the court investigation, the parties can challenge the evidence based on whether the clues are specific, whether the video is complete and synchronized, and whether the transcript and video are consistent. The value of procedural defense is also reflected in other aspects: in a case of intentional injury, Henglue Lawyers applied for a review of the necessity of detention after the client was approved for arrest. After the review, the procuratorial organ determined that there was no necessity to continue detention, and the client was released - it can be seen that professional work around procedures and evidence can substantially change the progress of the case. 恒略律师在刑事辩护中把取证合法性审查贯穿办案全程：会见时逐项核对讯问的时间、地点、人员与笔录内容的差异；申请调取看守所入所体检记录、讯问同步录音录像、进出所登记，比对笔录与录像是否一致；审查证人询问的地点、时间与笔录签名，排查指居、异地询问等程序隐患；对言词证据的前后矛盾逐份列表，形成排除申请的事实基础。程序上，排除申请宜在庭前会议前提出，通过庭前会议明确争议证据清单，再在法庭调查中围绕线索是否具体、录像是否完整同步、笔录与录像是否一致展开质证。程序性辩护的价值同样体现在其他环节：一起故意伤害罪案件中，恒略律师在当事人被批准逮捕后申请羁押必要性审查，检察机关经审查认定无继续羁押必要，当事人获释——可见围绕程序与证据的专业工作，能够实质改变案件进程。

IV. Practical Suggestions and Legal Basis

Legal basis: Article 50 of the Criminal Procedure Law of the People's Republic of China (amended in 2018) stipulates that no one shall be forced to prove their own guilt; Article 56 stipulates the absolute exclusion of illegal verbal evidence and the discretionary exclusion of flawed physical evidence; Article 57 stipulates that the people's procuratorate shall investigate and verify clues of illegal evidence collection, put forward rectification opinions if there are indeed circumstances of illegal evidence collection, and investigate criminal responsibility if it constitutes a crime; Article 59 stipulates that during the court investigation, the people's procuratorate shall prove the legality of evidence collection and may request investigators or other personnel to appear in court to explain the situation; Article 60 stipulates that if it is confirmed or cannot be ruled out that evidence was collected illegally, the relevant evidence shall be excluded and shall not be used as the basis for prosecution opinions, prosecution decisions, and judgments. Practical suggestions: If the parties find that the transcripts do not match their own statements, they should fully explain the details of the interrogation to their lawyers at the first meeting; if they have physical injuries, they should keep photos of the injuries and medical records; family members can assist in organizing materials on the physical condition of the parties before and after their admission to the detention center; the application for exclusion should specify the specific clues to avoid vague claims; and reviewing whether the interrogation audio and video are complete, comprehensive, and synchronized throughout the process is the focus of defense and attack in most cases.

5. Henglu Law Firm's Advice

The exclusion of illegal evidence is not an isolated action, but an overall strategy that interacts with the review of charges, sentencing defense, and changes in coercive measures. After the confession is excluded, the accusation system may be weakened, creating conditions for non-prosecution, misdemeanor defense, or probation; even if the evidence is not excluded, standardized procedural review can also expose loopholes in the accusation and accumulate bargaining chips. The most important cooperation between the client and his family is to truthfully and specifically recount the details of each interrogation. This case was handled by Beijing Henglu Law Firm.Lu XiaoxueThe attorney (practice license number: 11101202311685747, subject to the document issued by the judicial administrative organ) acts as the agent.

Q1: Which pieces of evidence are considered illegal and must be excluded?

According to Article 56, the confessions of criminal suspects and defendants collected by illegal methods such as torture to extort confessions, as well as the witness testimonies and victim statements collected by illegal methods such as violence and threats, belong to the illegal verbal evidence that should be excluded. If the collection of physical evidence and documentary evidence does not comply with legal procedures and may seriously affect judicial fairness, they shall be corrected or given a reasonable explanation; if they cannot be corrected or given a reasonable explanation, the evidence shall also be excluded. The two types of evidence are one absolutely excluded and the other discretionarily excluded, so the defense strategy should be designed separately.

Q2: At which stage can an application be made to exclude illegal evidence?

It can be raised at three stages: investigation, review and prosecution, and trial. At the investigation and review and prosecution stages, the applicant can apply to the case-handling organ and the people's procuratorate. The procuratorial organ shall investigate and verify the clues of illegal evidence collection; at the trial stage, the application for exclusion shall be raised before the court hearing. The disputed evidence shall be sorted out through the pre-trial conference, and the focus of the trial shall be on the evidence. The earlier the application is raised, the more it can influence the subsequent procedures. If it is first raised during the trial, it usually only gets a limited review time.

Q3: What clues do I need to provide to apply for the exclusion of illegal evidence?

It is necessary to provide relevant clues or materials about the personnel, time, place, methods, and content involved in the alleged illegal evidence collection, such as the specific time and location of the interrogation, the characteristics of the participants, the specific methods of corporal punishment, photos of injuries, and medical records. The more specific the clues are, the greater the likelihood of initiating an investigation; if there is only a general statement that "a confession was coerced" without any details, it is generally difficult for the court to initiate an investigation. The details of the interrogee's memory of the interrogation process are the key raw materials for lawyers to construct a chain of clues.

Q4: Who will prove that the evidence collection is legal?

During the court investigation into the legality of evidence collection, the People's Procuratorate shall prove the legality of evidence collection. If the evidence materials are insufficient, the People's Procuratorate may request the people's court to notify the relevant investigators or other personnel to appear in court to explain the situation. After the trial, if it is confirmed that there are circumstances of illegal evidence collection or if it cannot be ruled out, the relevant evidence shall be excluded. That is to say, the unfavorable consequences of failing to provide evidence shall be borne by the prosecution. The fact that "illegal evidence collection cannot be ruled out" itself is a reason for exclusion, which is also the significance of the defense side continuously applying pressure on clues and flaws.

Q5: What will happen to the case after the evidence is excluded?

The excluded evidence shall not be used as the basis for the prosecution opinion, prosecution decision, and judgment. After the key confessions are excluded, if the remaining evidence is insufficient to prove the facts of the crime, it may lead to a decision not to prosecute or a verdict of not guilty; even if the evidence for conviction is still sufficient, the exclusion of some evidence may affect the amount of the conviction, the circumstances of the crime, and the sentencing level. For the defense, the application for exclusion has both direct effects and negotiation value, and is often used in conjunction with the negotiation of guilty pleas and sentencing agreements, and the review of the necessity of detention, in order to obtain a more lenient treatment outcome for the client.

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