Forensic Research & Criminology International Journal

Review Article Open Access

On free proof and regulated proof

Abstract Volume 8 Issue 3 - 2020

Free proof and regulated proof are two basic modes of judicial proof. The system of ‘legal
HE Jiahong
proof’ established in France in the 16th century is a classical model of regulated proof. The The School of Law, Renmin University of China, China
system of ‘free proof with intimate conviction’ established in France in the 19th century is
a classical model of free proof. The force of seeking truth pushes the judicial proof towards Correspondence: HE Jiahong, Professor of Law, Director of
the free mode, while the force of seeking fairness, predictability, and authority pushes the the Center for Anti-Corruption and Rule of Law, Director of
judicial proof towards the regulated mode. The interaction of these two driving forces the Center for Common Law, and Director of the Institute of
causes the ‘reversal development’ of the judicial proof. In the long history of China, the Evidence Law, the Law School of Renmin University of China, 59
judicial proof was in the scope of free proof. In responding to the need for judicial reform, Zhongguancun Street, Haidian District, Beijing, 100872 China, Tel
Chinese system of judicial proof has been going from free proof to regulated proof, and is 8610-51988893, Email
a mixture of the two modes now. The new technologies of internet, big data and artificial
intelligence have provided great support for the development towards the regulated proof. Received: June 17, 2020 | Published: June 30, 2020

Keywords: judicial proof, free proof, regulated proof, intimate conviction, China

Introduction and the arguments of the parties can be held online via video calls.
Therefore, judges of the internet courts are required to have a good
In October 2014, the Forth Plenum of Communist Party of China knowledge of the internet, though they can get some help from an
(CPC) Central Committee made a decision to promote the rule of law intelligent system and even an AI judge.
in China. The decision called for the reform of criminal procedure
system towards the mode of trial-centeredness. The Chinese criminal The Beijing Internet Court was established in September 2018.
procedure mode had the feature of investigation-centeredness. On 10 There were five judges in the Court, and they concluded the trials in
April 2015, Chinese central leadership published the Implementation 25,333 cases in the first year. In the online litigation service center
Plan to Cary out the Decision of the Forth Plenum of the Party’s 18th of the Court, there was an AI judge, who was claimed to be ‘the first
Congress to Deeper the Reform of Judicial System and the Social of its kind in the world’. The ‘female’ AI judge, based on intelligent
System. One priority of the Plan was to promote the reform of criminal synthesizing technologies of speech and image, would help the
procedure system from the mode of investigation-centeredness human judges to do some repetitive basic work, such as the litigation
towards the mode of trial-centeredness.1 reception, case filing, and providing guidance for litigants to use the
online litigation platform. The innovation has improved the quality
Since then, Chinese courts started the experimental reform to and efficiency of the judicial work.2
promote the trial-centeredness of the criminal proceedings, and to
establish a more centralized judicial system. In December 2014, three The operation of the internet courts, especially the employment
trans-district courts of intellectual property (IP) were established in of the AI judge, requires the unified standards for procedures and
Beijing, Shanghai, and Guangzhou. In 2015 and 2016, six circuit evidence, which are made possible by the new technologies. In the
courts of the Supreme People’s Court (SPC) were established in last years, some Chinese courts have tried to establish a system of
Shenzhen, Shenyang, Nanjing, Zhengzhou, Chongqing, and Xian. In the ‘evidence standard’ with the technologies of AI and big data. In
2017 and 2018, three internet courts were established in Hangzhou, 2017, for example, the High People’s Court of Shanghai established
Beijing, and Guangzhou. the AI Assistance Criminal Trial System, which had the functions of
providing the guidance of evidence standard, assessing the legality
The internet court is an online branch of the court system that will of each piece of evidence, and assessing the reliability and value of
deal with disputes related to the internet, such as the internet copyright different pieces of evidence. However, the experimental achievements
disputes, the internet contract disputes, the internet torts, and the have received both appreciations and criticism. Some scholar said
disputes relating to online service and online transactions. Aside from that the system would not only promote the efficiency but improve
the special focus on internet-related cases, the greatest breakthrough the quality of judicial work, while some others worried about the
in judicial work is the innovative working mechanism based on reliability of the evidence standard and the negative effect on the
new technologies. In a sense, the internet courts are products of the discretion of judges in assessing and evaluating evidence, which
technologies of internet, big data and artificial intelligence (AI). In would be important for keeping justice in individual cases.3 Here the
those internet courts, almost all the steps of litigation, including filing controversial use of the new technology of AI and big data in judicial
a case, submitting materials, and assessing evidence, can be done work reflects an old question about the mode of judicial proof: the free
online. Even the hearing of testimonies, the questioning of witnesses, proof vs the regulated proof, which is better?
1
In fact, this author had advocated for ‘changing from an investigation-
centered mentality to a trial-centered mentality’ long before 2014. See HE 2
Refer to Beijing Internet Court entry at Baidu Encyclopedia. 2020.
Jiahong: An Outline for the Reform of the Criminal Evidence System in the 3
PanYonglu: Analysis of the Pathway of AI into Judiciary, Oriental Law, No.
People’s Republic of China, Journal of Chinese and Comparative Law (Hong 3, 2018; Zong Bo: Analysis of the Use of AI in Criminal Evidence, Legal
Kong), 2003;6(1). Science. 2019.

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The two modes of judicial proof system in accordance with preordained standards. In other words, the judges
did not have any freedom or discretion in assessing and evaluating the
Judicial proof can come in two modes, the free proof and the evidence. With the standardized proceedings, the judicial proof turned
regulated proof. Free proof means that the proof is in no way limited from the free mode to the regulated mode.7
by the legal rules, the judges may assess and evaluate evidence freely.
Regulated proof, on the other hand, is regulated according to the rules The trial by ordeal may seem suspicious, or even ridiculous, to
of law, which must be followed by the judges when they assess and the modern people, but it was effective in solving the disputes. In the
evaluate evidence. Each mode of judicial proof has its advantages benighted age, the authority was more important than the rationality
and disadvantages, and the two replaces each other in the history of for judicial decisions. In the trial by ordeal, the judge was not the
judicial proof. fact finder, but the host of the arbitration ceremony, in which the fact
in a dispute was revealed by the God. At the time, even a criminal
The adjudication of disputes in human societies originated in the litigation was seen as a dispute between private parties, and what
mode of free proof. Although there are not historical records that judges needed most was the authority to decide the case. In other
testify directly to this claim, people may so conclude based on the words, an authoritative judgment was more important than a rational
developments of human societies and other knowledge related to this one.
point. The legal rules of judicial proof evolved into existence as the
product of accumulated experience of judicial practice. In the early Once judicial trials were no longer seen as purely for dispute
stage of human societies, no rules of evidence were used in resolving arbitration, but also as a tool for governing the society and suppressing
conflicts between litigants. The authority, generally the chiefs or elders the anti-social activities, the rulers of the country became dissatisfied
of a tribe, would give their judgments based on the evidence submitted with ‘the will of the God’, and the trial by ordeal was gradually
by the litigants, and on their own experience and conscience. Clearly, abolished. For example, in the ‘Old West Frisian Law’ of the Germanic
such trials fall within the scope of free proof. tribe lived on the coastal lowlands of the Netherlands in the 11th
century, the litigants’ testimonies with the oath before the God were
As societies grew larger and more complex, conflicts between admitted in the trials, but if both parties gave the same oaths before
parties increased, and the cases grew more complex. The general the God, the law did not defer to the trial by ordeal, but to the ‘legal
level of human judgment and the use of evidence to ascertain the facts representation’ and human investigation. This was a challenge to the
in a dispute or a case were quite low, which might have resulted in authority of the God. With the growth of the government authority and
some wrongful verdicts. Then some litigants lost their respects for the increase of the people’s distrust of ‘the will of the God’, the trial
the authority of the chiefs or elders, expressing skepticism or even by ordeal was gradually abated. Then the judicial proof returned to the
outright challenges to the judgment. Anyway, the judicial decisions mode of free proof.8
need authority. When the human authority was insufficient to hold
up the judgment, the authority of the gods came in, with the form However, the nature of judicial decision making requires a system
of the ‘trial by the God’ or the ‘trial by ordeal’, such as the trial by of regulated proof. First, finding the truth in judicial proceedings
water and the trial by fire, used in some European countries during the is not equivalent to finding the truth in other social activities. A
Middle Ages.4 The laws of ancient India also provided for eight such judicial decision will directly effect the rights to life and property
methods, including trial by fire, trial by water, trial by scales, trial by of the litigants, so the law must use scientific and rational rules to
poison, trial by holy water, trial by holy grains, trial by hot oil, and minimize individual bias and error in judicial proceedings. Secondly,
trial by the casting of lots.5 the judiciary is a mechanism of human society by which conflicts are
resolved, and a symbol for justice and fairness. In a good society,
In ancient China, there were methods similar to the trial by ordeal, justice and fairness must be upheld by the rule of law. In responding
such as the ‘trial by Sacred Goat’ conducted by Gao Yao, who was to this requirement, the rules of evidence come into judicial practice
the official in charge of law enforcement during the reign of the in different ways in different countries. In France, the development
King Shun (about 2100 BC). In the trial of a difficult criminal case, was very revolutionary, from one extreme to the other. While in
Gao Yao would bring in the Sacred Goat to face the accused. If the Britain, probably because English people did not like revolution as
Sacred Goat butted the accused with its horn, Gao Yao would make a much as French people did, the development took an evolution way
judgment that the accused was guilty. If the Sacred Goat didi not ram towards the regulated proof, with establishing rules of evidence, one
the accused, Gao Yao would make a judgment that the accused was by one, in case laws, such as the rule of hearsay evidence, the rule of
not guilty. Besides, some minority peoples in the south-west part of document evidence, the rule of witness qualification, and the privilege
China used the trial by ordeal for a long time, even until the first half against compulsory self-incrimination, etc. In order to illustrate the
of the twentieth century. For example, the Tibetan people used the differences of the two modes of judicial proof, this author will take
trial by hot oil, the Jingpo people used the trial by boiling water, and the French models for analysis.
the Yi people used the trial by a hot ploughshare.6
The classical model of regulated proof
The trial by ordeal was not rational and scientific, but had a unified
standard for assessing the evidence and finding the facts. The rules Between the 13th and 15th centuries, the system of judicial
must be followed by all the judges, and judgment must be declared proof in continental Europe, of which the kingdom of France was
4
Robert Bartlett, Trial by Fire and Water: The Medieval Judicial Ordeal, a representative, had the feature of free proof. The judges enjoyed
translated by Xu Xin and others, Hangzhou: Zhejiang Rennin Publishing absolute freedom over the use of evidence in the trials. In other words,
House, 2007, pp. 14-17. Also see Chen Shengqing, ed. Legal History of the judges could make their fact findings based on their individual
Foreign Countries, Beijing: Peking University Press, 1982, p. 17.
5
Chen Shengqing, ed., Legal History of Foreign Countries, Beijing: Peking 7
Chen Yiyun. The Study of Evidence, Beijing: China Renmin University Press.
University Press, 1982;31–32. 1991, pp.19–20.
6
Xia Zhiqian. Trial by the Gods, Beijing: SDX Joint Publishing Company. 8
William Andrew. Noye: Evidence: its History and Policies,” Australia:
1990, pp.1–7,44–47. Butterworths Pty Ltd. 1991, pp.8–10.

Citation: Jiahong HE. On free proof and regulated proof. Forensic Res Criminol Int J. 2020;8(3):128‒134. DOI: 10.15406/frcij.2020.08.00317
 Copyright:
On free proof and regulated proof ©2020 Jiahong 130

knowledge, experience, interests, desires and aversions. Without the that would be taken at only half the strength of proof otherwise
consistent rules and standards, different judges would often make admitted. Should such evidence be effectively impeached in court by
different judgments in similar cases with similar facts. This disorder the accused, its strength would be halved yet again. Since evidence
within the judicial activities increased the general disorder in the from one side is often impeached in court by the other side, and it
continental European countries. When the political authorities became is often crucial, in making a verdict, to judge the strength of proof
more stable and unified, the rulers of the countries started to reform of such evidence, this rule is perhaps the most important and of
the judicial system, and in particular to regulate the use of evidence the most significance in real trials. This was remarkable, given the
in criminal justice. Thus, the judicial proof once again began to trend historical conditions. Finally, the system of legal proof makes clear
from the free proof to the regulated proof. the additional rules that assign strength of proof to individual items
of evidence, and reaffirms the standard whereby a guilty verdict can
In the 16th century, a model of ‘legal proof’ was first established
be delivered. The above analysis shows us that the regulations in the
in France, and then learned by other continental European countries.
system of legal proof enjoy a degree of scientific and rational basis,
The system of legal proof predicated the weight for each type of
and some of these rules would still be useful to criminal justice today.
evidence, and the judges must adhere strictly to the rules. They did
not have freedom or discretion in assessing and evaluating evidence The legal proof system also has some disadvantages. First, the
in criminal trials. The rules were: (1) a full proof should have a system for assessing the strength of proof to items of evidence is too
conviction, while no full proof should have no conviction; (2) the best inflexible and not dynamic enough. The judges evaluate the evidence
full proof should include two reliable witnesses whose testimonies by mechanical application of the predicated weight to each item of
determined consistently and conclusively the guilt of the accused; (3) evidence. The verdict is then arrived at simply by summing up the
no matter how reliable, a single witness could only constitute one half weights. In this manner, complex problems are simplified, which in
of the proof; (4) the other half of the proof could be comprised of a certain cases can lead to wrong or inappropriate verdicts. Secondly,
confession by the accused, an official record, or a witness testimony, the system of legal proof makes it easy to abuse the use of torture to
that corroborated the first half of the proof; (5) the testimony of a obtain confessions. Under this system, because the confession of the
witness closely connected to the case only counted for one quarter accused accounts for half the proof, and the law does not regulate how
of the proof, and its value further reduced by half when being such a confession is extracted by law officers, confessions obtained
impeached; (6) the addition of any two halves of the proof constituted through torture were quite common. In fact, the laws of the times
a full proof, and the addition of any two quarters or four eighths of the seemed to say to law enforcement officers: if you have half a proof
proof constituted a half proof. In sum, when the evidence added up to currently in hand, torture can get you the other half in the form of a
a full proof against the accused, the judge must issue a guilty verdict, confession. The system thus gives a ‘green light’ to the use of torture
and if the evidence did not so add up, the verdict must be not guilty.9 to extract confessions.
The system of legal proof is an extreme or classical form of the The classical model of free proof
regulated proof. It is a product of the social culture of worshiping
to authority and hierarchy in the continental European countries at After the 17th century, the Bourgeois revolution and the
the time. Today, it is very easy for people to notice the unscientific Enlightenment movement in continental Europe spurred new reforms
and irrational contents of the system. However, those rules about the in criminal justice. The system of legal proof faced challenges from
weight of evidence are the summation of judicial experience at the humanism and rationalism, which attached great importance to the
time, and have a degree of scientific and rational basis. In other words, human rights and freedom, as well as individual knowledge and
it has both merits and demerits for judicial proof. understanding. The fierce criticism focused on the use of torture to
extract confessions under the system of legal proof, because, according
The legal proof system has some advantages for judgment. First, to the rules, when the court had a good witness against the defendant,
the system introduces the concept of ‘full proof’, which also acts as the confession would make up for a full proof. The criticism reached
the standard for establishing a guilty verdict in criminal cases. The their climax around the time of the French Revolution, and in the end
particular wording of this standard may not have been satisfactorily led to the reform of the legal proof system.
clear, but a degree of certainty was achieved in combination with
other rules, to be discussed presently. This system was also a basis On 26th December 1790, Adrien Duport, jurist in the post-
for assigning weight of proof to each piece of evidence. Secondly, revolutionary Constituent Assembly, presented a reform proposal. He
the rule stipulating that consistent testimonies from two reliable said that the application of the system of legal proof was preposterous,
witnesses constituted a full proof. Experience tells us that a case a threat to both the accused and to society at large. Only by giving the
narrative compiled from the direct perceptions of the facts of the judges the authority to freely decide on the evidence would ensure the
case as delivered from two fair and upright witnesses can prove the court had the best chance of finding the truth in the cases. On 18th
veracity of this case narrative. Thus, this rule was in accordance with January 1791, the Constituent Assembly passed Duport’s proposal to
the general principle of judicial proof. Moreover, the system of legal establish the system of proof with intimate conviction. The proposal
proof also contains a rule stipulating that the testimony of just one became a part of the criminal procedure law on 29th September of that
reliable witness does not constitute a full proof. This rule may seem a year, and was later written into the 1808 French Criminal Code, the
little simplistic and mechanical, but determining guilt based on single Code d’instruction criminelle.
evidence increases the possibility of wrongful conviction. During The term ‘proof with intimate conviction’ means that the value of
a period when judicial practices were less orderly, such a prudent evidence would no longer be predicated as legal rules. Instead, the
regulation was understandable. Still another rule stipulates that judges and jurors should assess and evaluate all items of evidence
witnesses with close connection to the case could supply testimony in a case according to their own conscience and the ‘universal
understanding’ of judicial proof. The 1808 Code d’instruction
9
Chen Yiyun. The Study of Evidence. Beijing: China Renmin University Press.
criminelle gives specific provisions for the system of proof with
1991, pp.25–26.

Citation: Jiahong HE. On free proof and regulated proof. Forensic Res Criminol Int J. 2020;8(3):128‒134. DOI: 10.15406/frcij.2020.08.00317
 Copyright:
On free proof and regulated proof ©2020 Jiahong 131

intimate conviction. It takes the jurors as the fact finders, and requires The primary goal of judicial proof is to find the truth in a case.
the judge to issue the following information before the jury meets to Comparing the free proof with the regulated proof, which mode is
deliberate the case: better for accomplishing this goal? Generally speaking, the free proof
is better for finding the facts, because the law does not limit judicial
‘The law does not require the jury to give the reasoning they have
discretion, and so the judges can use a greater variety of evidence
taken to reach the verdict; the law does not provide any advance rules
to discover the truth. The system of regulated proof, by contrast,
for deciding the sufficiency of evidence; but the law does require
restrains the discretion of the judges, and is in allegiance with the
the jurors to focus, deep in their own conscience, on the impression
social policies and values, which may be an obstacle to fact finding
formed by the evidence against and in favor of the accused. The law
in some cases. For example, the exclusionary rule against illegal
will not ask the jurors to get certain number of witnesses to prove the
evidence may prevent judges to use some truthful evidence to bring
facts. The law will not ask the jurors to reach a full proof comprised of
the facts to light. However, some rules of the regulated proof may help
specific combination of evidence, from oral testimony to documents
judges to ascertain the truth, and the exclusionary rule against hearsay
and more. The law, in fact, asks them just one question for their
is a good example.
sole duty to answer: “Are you certain with intimate conviction?”’10
Obviously, such a system of proof belongs to the category of the free One substantial difference between the two modes is the division
proof. Therefore, the system is known as the ‘free proof with intimate of power between the legislation and the judiciary. The system of free
conviction’. proof gives all the power of evidence assessment and evaluation to
the judges, while under the system of regulated proof, some part of
The free proof with intimate conviction has the virtue of flexibility
the power is retained by the legislators. Therefore, the prerequisite
and adaptability with regard to individual cases. Cases with complex
for free proof is that the judges are qualified legal professionals
circumstances could also involve many different types of evidence.
with great moral rigor, knowledge, skills, and experience. While the
The social environment was also changing all the time, so that
regulated proof begins with a skeptical stance towards the judiciary,
when judicial authorities were using evidence to determine cases
so the legislators must produce universally applicable rules for
according to the way they saw fit, this helped them stick close to the
evidence assessment and evaluation. It is easy to see that the system
circumstances of the case, and so uphold justice and fairness in the
of regulated proof is harder to construct than the system of free proof,
judiciary. However, the free proof with intimate conviction lacked a
because the scientific and rational rules for evidence assessment and
consistent standard for judgments, making it easy for the personal bias
evaluation are not easy to be found and formed, especially when the
of the judicial officer to influence the assessment and evaluation of
types of evidence have become more and more varied and diversified,
the evidence. To large degree, the free proof with intimate conviction
including the new physical evidence and electronic evidence.
depended on the professionalism and moral rigor of the individual
judges, which yielded many opportunities for unscrupulous and However, the judicial work needs the system of regulated proof,
arbitrary action on the judge’s part. Such a system, in other words, especially when judges or fact finders are not highly qualified legal
was suited to countries in which the highest elites of legal experts professionals, such as lay judges and jurors. In this regard, the regulated
served as judges. proof has three advantages over the free proof. (1) The regulated proof
is good for promoting judicial fairness. One of the basic demands of
Since the 19th century, the system of free proof with intimate
judicial fairness is that the similar cases be dealt with by the judiciary
conviction has been the basic model of judicial proof in the continental
similarly. To make all equal in the eyes of the law, judges and jurors
European countries. However, in late 20th century, the system had
should assess and evaluate the evidence in accordance with the unified
some changes towards the regulated proof in some countries like
rules. (2) The regulated proof is good for promoting the predictability
France and Germany. New rules were adopted to strengthen the
of the judgment. In a society under rule of law, the decision of the
regulation of judicial proof, including the exclusionary rule against
judiciary should be predictable. In other words, members of society
hearsay evidence, and the exclusionary rule against illegally obtained
should be able to predict judicial decisions and so arrange or constrain
evidence. With those rules, the judges could not enjoy the absolute
their own behaviors. When the rules of using evidence are clear and
freedom in assessing and evaluating evidence. It seemed that the
specific, the predictability of the judicial decision will be high. (3) The
European countries attempted to find a compromise between the two
regulated proof is good for promoting the authority of the judiciary.
extreme models.
It is easier for the judiciary to obtain the approval and consent in the
The reversal development of judicial proof system society when finding facts and making judgment in a case according
to the prescribed rules. Therefore, it will in turn raises the authority
Over the history of judicial proof in the continental Europe, the of the judiciary. In this regard, the system of regulated proof is better
developments of judicial proof exhibit a pattern of upward-moving than the system of free proof. In order to gain social approval, of
spiral with reversing the system last applied, passing from the original course, the rules must be scientific and rational.
free proof to the regulated proof with the trial by ordeal and to the free
proof again, and from the legal proof to the free proof with intimate In summary, the goals and regulations of judicial proceedings
conviction and to a compromise of the two models. On the surface, demand the regulated proof. Once humans can devise scientific and
each ‘reversal’ appears to be a return to an earlier stage, but in actual rational rules, they should not endow judges with the power of free
substance, each reversal takes the judicial proof to a higher level, with proof. Here we see two forces pushing the development of the judicial
something new for every so-called ‘return’. proof, and these forces are in conflict to certain degree. The force of
seeking truth pushes the judicial proof towards the free mode, while
the force of seeking fairness, predictability, and authority pushes
Chen Yiyun. The Study of Evidence, Beijing: China Renmin University
10
the judicial proof towards the regulated mode. It is the interaction
Press, 1991, pp.31-33; See Chen Shengqing, ed., Legal History of Foreign
Countries, Beijing: Peking University Press. 1982, pp. 239–244.
of these two driving forces that causes the ‘reversal development’ of

Citation: Jiahong HE. On free proof and regulated proof. Forensic Res Criminol Int J. 2020;8(3):128‒134. DOI: 10.15406/frcij.2020.08.00317
 Copyright:
On free proof and regulated proof ©2020 Jiahong 132

the judicial proof in its history. Although in the long term, the system With the judicial reform started in China in the 1990s, the system
of regulated proof may be the grand trend and the mainstream of the of evidence law became a focus for academic discussions. The
judicial proof, the systems in the world now are all mixtures of the scholars did not address the issue directly to the system of judicial
two modes. In other words, according to my limited knowledge, there proof, but argued that China was in need of more specific rules of
is no absolute free proof nor absolute regulated proof in the world. If evidence. Since the beginning of the 21st century, the legislators
we roughly put the legal systems of this world into two large groups, and the judiciary started to work on the rules of evidence and made
as the common law system represented by UK and USA, and the civil some achievements. The Supreme People’s Court (SPC) issued the
law system represented by France and Germany, we may say that the Provisions on Several Issues Concerning Evidence in Civil Procedure
former is more like the regulated proof, because there are more rules (PECP) and the Provisions on Several Issues Concerning Evidence
of evidence in those countries, while the latter is more like the free in Administrative Procedure (PEAP) in 2002. Both PECP and PEAP
proof, because there are less rules of evidence in those countries. included some rules regarding the collection, examination, assessment,
and evaluation of evidence. In December 2019, SPC revised PECP in
The road from free proof to regulated proof in china large skyle and it became effective on 1st May 2020.
In the thousand years of history, the mode of judicial proof in The rules of evidence in criminal proceedings are more important,
China was basically the system of free proof. Judges would make free but more difficult to be made into laws, because of the conflict of
judgments based entirely on their own experience and knowledge, and the social values in criminal justice. For example, there is a conflict
the specific circumstances of the case. As experience accumulated, between the value of fighting crimes and the value of protecting
however, the laws in some dynasties began to restrict the discretion human rights behind the the exclusionary rule against illegally
of judges. In the Tang Dynasty (618-907 AD), for example, the laws obtained evidence.
provided for a rule of ‘making a conviction on a group of witnesses’.11
Here a ‘group’ means three or more witnesses, so this rule requires In China, there was no exclusionary rule of illegal evidence in
the identical testimonies of three or more witnesses for conviction. the Criminal Procedure Law (CPL) of 1979 and in the revised CPL
In the Qing Dynasty (1644-1911 AD ), the laws provided for a rule of 1996, which, instead, only stipulates: ‘judges, procurators and
of ‘convictions must be made on confessions’, or ‘no confession, no investigators must, in accordance with the legally prescribed process,
conviction’.12 Those rules resemble the rules of legal proof in France collect various kinds of evidence. It shall be strictly forbidden to extort
to certain degree. In general, however, the judges in feudal China confessions with torture and to collect evidence by threat, enticement,
enjoyed the freedom in assessing and evaluating evidence. In other deceit or other unlawful means’ (Article 43, CPL 1996).
words, the judicial proof was in the category of free proof.
However, the highest judicial agencies made some efforts to
When the People’s Republic of China (PRC) was founded in establish the exclusionary rule against illegal evidence in late 1990s.
1949, the new legal system was established, including the laws Article 61 of the Interpretations on Several Issues Concerning the
and regulations regarding criminal proceedings and judicial work. Implementation of the Criminal Procedure Law of the People’s
However, the new laws did not have specific rules of evidence, except Republic of China issued by SPC in 1998 stipulates: ‘Where it is
for some basic requirements, such as the evidence should be carefully ascertained, through investigation, that a witness’s testimony, a
examined and assessed, the evidence as the basis of a judgment victim’s statement or a defendant’s confession is obtained through
should be truthful and sufficient, and the use of torture to obtain torture, threat, enticement, deceit or other unlawful means, it cannot
confession should be strictly forbidden.13 Since the basic principle for be used as the basis for deciding a case’. Article 233 of the Rules of
judicial work was ‘seeking truth from facts’, the system of evidence the People’s Procuratorate of Criminal Procedure issued by SPP in
was named as ‘the system of seeking truth from facts’. Under such 1999 stipulates:
a system, judges enjoy the tremendous discretion in assessing and
‘Where a confession of a criminal suspect, a statement of a victim,
evaluating evidence. On the whole, the judicial proof was in the scope
a testimony of a witness or an appraisal opinion is collected through
of free proof in PRC for many years.
torture, it cannot be used as the basis for charging a crime; where
However, there was a need for Chinese judiciary to go towards the above-mentioned evidence is collected through threat, enticement,
the regulated proof, because there were many problems with the deceit or other unlawful means, thus seriously damaging the legitimate
judicial system and its practice, such as the lacking of authority and rights and interests of a criminal suspect, a victim, a witness or an
independence, the lacking of qualified professionals, and the uneven appraiser, or having a possible impact on the objectiveness and
and inconsistent behaviors of judges. Some judges misused their authenticity of evidence, it cannot be used as the basis for charging a
discretion in finding facts and caused some wrongful convictions. crime; where any physical or documentary evidence collected through
Some judges abused their powers in judgments and even accepted unlawful means can prove the real circumstances of a case can, after
bribes to bend the law. These problems had a severe impact on the being reviewed and verified, be used as the basis for charging a crime,
fairness and effectiveness of the judicial work, as well as a severe unless the unlawful means seriously damage the legitimate rights and
impact on the stability and healthy development of society. Therefore, interests of the criminal suspect or other citizens.’
Chinese judiciary should take the road from the free proof to the
With the preceding provisions, Chinese exclusionary rule against
regulated proof.
illegal evidence is one in which ‘different kinds of illegal evidence are
11
Chen Yiyun. The Study of Evidence, Beijing: China Renmin University handled differently’. However, these provisions are neither specific
Press. 1991, p.62. nor explicit.14 With a push of a well-known wrongful conviction
12
Chen Yiyun. The Study of Evidence, Beijing: China Renmin University
Press. 1991, p.66.
13
Zhang Jinfan. History of Chinese laws, Beijing: Qunzhong Publishing 14
He Jiahong, Back from the Dead: Wrongful Convictions and Criminal Justice
House. 1985, p. 506 in China, Honolulu: University of Hawai’i Press. 2016, p. 47.

Citation: Jiahong HE. On free proof and regulated proof. Forensic Res Criminol Int J. 2020;8(3):128‒134. DOI: 10.15406/frcij.2020.08.00317
 Copyright:
On free proof and regulated proof ©2020 Jiahong 133

case of Zhao Zuohai,15 the Supreme People’s Court, the Supreme evidence, including the rules of collecting, producing, and assessing
People’s Procuratorate, the Ministry of Public Security, the Ministry evidence. There are very few rules about the reliability and the weight
of State Security, and the Ministry of Justice jointly promulgated the of evidence, because it is much more difficult, if not impossible, to
Provisions on Several Issues Concerning Assessment and Judgment set up rules for evaluating the reliability and the weight of evidence.
of Evidence in Death Penalty Cases (PEDPC) and the Provisions on
There is another way to go towards the regulated proof. It is
Several Issues Concerning Exclusion of Illegal Evidence in Criminal
to systematize the specific standards of evidence for certain type
Cases (PEIE) on 13th June 2010, which became effective on 1st July
of criminal cases. It is done in two steps: (1) the clarification of
2010.
the factual elements that are to be proved by evidence in a type of
The two Provisions not only stressed the importance of the criminal cases: (2) the clarification of the necessary quantity and
exclusionary rule against illegally obtained evidence, but also quality of evidence for each factual element. The former is generally
provided quite clearly for the concept of illegal evidence, the different based on legal provisions regarding the offence in the Criminal Law.
treatments to different types of illegal evidence, the procedures of The offence of larceny, for example, means taking, in secret and with
excluding illegal evidence in the trial, and the burden of proof on criminal intent, relatively large amounts of public or private property,
the dispute of illegal evidence. Two years later, the main parts of the including repeated burglaries of public or private property. The law
Provisions were adopted in the Amendment to CPL passed by NPC stipulates that a conviction of this offense entails the proving of the
and the Interpretations of SPC on the amended CPL, which came into following factual elements: the identity of the perpetrator and the
effect on 1st January 2013.16 natural circumstances of the perpetrator, which may include their age
and psychological state; the time, place and specific manner of the
On 21st February 2017, Supreme People’s Court (SPC) issued
perpetration, as well as the value of the stolen property or the number
the Implementation Opinions for Overall Promotion of Criminal
of theft; the circumstances of the violation of the property rights;
Procedure System Reform with the Trial-Centeredness, in which the
and the criminal intent to appropriate the property. As for the quality
forth part stresses the rules of evidence, including the exclusionary
and quantity of evidence needed to prove these factual elements,
rule against illegal evidence, in order to prevent wrongful convictions.
the requirements may be generally provided as: (1) one piece of
On 27th June, the SPC, the Supreme People’s Procuratorate (SPP),
reliable, direct evidence, however, if the direct evidence comes from
the Ministry of Public Security, the Ministry of State Security and
a person with close connection to the case, such as the testimony of
the Ministry of Justice jointly promulgated the Provisions on Several
the accused or the victim, corroborating evidence will be necessary,
Issues Concerning the Strictly Exclusion of Illegal Evidence in
and such corroborating evidence may be circumstantial; or (2) two
Criminal Cases. Now China has more detailed rules against illegal
or more pieces of reliable circumstantial evidence that fit together to
evidence, but the problem may still exist in practice.
form a complete proof. On the basis of judicial experience, the types
As illustrated above, the reform direction of the judicial proof of evidence for proving the relevant factual elements may be provided
system in China was towards the regulated proof, but this does not as witness testimony, documentary evidence, physical evidence,
mean that the judicial proof should be an absolute model of regulated electronic evidence, and expert opinion etc.
proof, as the system of legal proof in France. Generally speaking,
The judicial agencies in some part of China has done experiments
the evidence rules mentioned above are about the admissibility of
in this regard. Since 2016, for example, the courts, the procuratorates,
and the police departments of Guizhou province started the experiment
15
On 8 May 1999, a corpse with no head and several missing limbs was found
in an abandoned well in a village of Shangqiu City, Henan Province. Public to establish the ‘Guiding System of Evidence Standards’. They used
security investigation determined that the body was that of Zhao Zhenshang, a the technology of big data and AI to set up evidence standards for
local villager who had been missing for more than a year. They also determined convictions in the offenses of intentional injury, intentional homicide,
the prime suspect to be Zhao Zuohai, also from the same village. Zhao Zuohai robbery, and larceny. The Basic Requirements for Evidence in
confessed to the murder during interrogation. The public security bureau sent Criminal Cases of Guizhou was promulgated later in the same year.17
the case to the procuratorate, which found the evidence insufficient and ordered This experiment is an interesting step towards the regulated proof in
the public security bureau to complete DNA analysis to verify the identity of criminal proceedings.
the deceased. Public security officials ordered four separate DNA analyses, but
none were able to certify that the body was actually that of Zhao Zhenshang. In summary, Chinese system of judicial proof has been going from
At this point the case reached an impasse: public security officials refused free proof to regulated proof, and is a mixture of the two modes, in
to release Zhao Zuohai, and the procuratorate refused to issue an indictment, which the regulated proof is dominant, and the free proof is secondary.
leaving Zhao in a detention limbo. In 2002 the People’s Procuratorate of
The new technologies of internet, big data and AI have provided great
Henan Province chose Zhao’s case as one that required clearing up because of
overdue custody. The local political-legal work committee held a joint meeting support for the development. With these analysis, the answer to the
of the three branches and then made a decision to “issue an indictment within question left at the end of the Introduction shall be that the regulated
twenty days.” On 22 Oct., the Shangqiu Municipal Procuratorate issued the proof is better, especially for the judiciary in current China. However,
indictment. On Dec. 5, the Shangqiu Intermediate People’s Court gave Zhao here comes another question: how far can the judicial proof in human
Zuohai a suspended death sentence. On 13 Feb. 2003, the Hebei High People’s society go on this road?
Court reviewed and approved the decision of the lower court. However, this
was not the end of the case. Seven years later, on 30 Apr. 2010, the victim, Conclusion
Zhao Zhenshang, turned up alive! On May 8, the Henan High Court reversed
its decision and gave Zhao Zuohai a verdict of not guilty and released him the In one sense, the mode of regulated proof and the mode of free
following day. See He Jiahong and He Ran: Empirical Studies of Wrongful proof can be drawn an analogy with the rule by law and the rule by
Convictions in Mainland China, Volume 80, No. 4, University of Cincinnati man. This author is not talking about the difference between the rule
Law Review, Summer 2012, pp. 1278–79.
16
He Jiahong, Back from the Dead: Wrongful Convictions and Criminal Justice Peng Bo: Guizhou: Big Data Enlightened “AI Procuratorial Work”, People’s
17

in China, Honolulu: University of Hawai’i Press, 2016, pp. 151–157. Daily, 31st May 2017.

Citation: Jiahong HE. On free proof and regulated proof. Forensic Res Criminol Int J. 2020;8(3):128‒134. DOI: 10.15406/frcij.2020.08.00317
 Copyright:
On free proof and regulated proof ©2020 Jiahong 134

of law and the rule of man as a basic principle for the political system Just a few days before the festival of Chinese New Year, which falls
a the country. All the systems have their merits and demerits. The rule on 25th January 2020, Chinese people were shocked at the outbreak
by law is cold and strict, and may at times recommend an decision of the novel corona virus (COVID-19), which rapidly spread from
inappropriate to a case, in the interests of preserving consistency. The Wuhan to other parts of China. At the same time, the epidemic broke
rule by man is nimble and flexible for different cases, but may result out in many other countries in the world. Although the governments
in abuse of power under the banner of ‘specific analysis for specific of many countries spared no efforts in fighting the virus, the pandemic
circumstances’. In a given country, if the judicial officers are of high developed into a serious disaster, causing a great number of deaths
moral rigor with high level of professional ability, the rule by man, or worldwide, and influencing negatively on the economy in many
the free proof, will be a better mode. If in a country, such as in present countries.
China, the professional ability and moral rigor of the judges are not
The corona virus pandemic has changed the life style of human
very high, the rule by law, or the regulated proof will be better.
being. Now we basically stay at home and doing things on line,
The basis of regulated proof is a clear and unified set of rules. shopping on line, reading on line, talking on line, meeting on line,
Judges must assess and evaluate evidence according to the rules. They having conferences on line, and teaching classes on line. In future,
do not have much discretion, and there is little space for them to blow shall we have more on line trials? Shall we have more internet courts
‘the black whistle’. The system of regulated proof, then, can increase and even more AI judges? We shall wait and see.
the public trust in the judiciary, and the authority of the judgments.
It can reduce the outside interference in judicial work, and protect Acknowledgments
the independence of the judiciary. It can also reduce the opportunity None.
for judicial corruption. In a society based on guanxi, or personal
relationships, if judges hold great discretion in decision making, Conflicts of interest
some litigants will use all means to find the ‘back door’ or guanxi to
influence the judge, and even use bribery to induce the judge to do a The author declares there are conflicts of interest.
favor for them. If the rules of law are clear and specific, and known
to all the people, the litigants will realize that guanxi is not useful.
The psychological motives for using guanxi and giving bribes will be
weaken. In this sense, the application of the regulated proof in judicial
proceedings can help in promoting the rule of law in China.18

He Jiahong: China Is Closer to the Rule of Law than Ever, But..., The World
18

Post, 4th March 2015.

Citation: Jiahong HE. On free proof and regulated proof. Forensic Res Criminol Int J. 2020;8(3):128‒134. DOI: 10.15406/frcij.2020.08.00317