The new legal interpretation of criminal procedure law that took effect not long ago is said to have more clauses than any other legal interpretation with over 200 substantive changes which will definitely have substantive effect on defense. To our disappointment, the supreme court doesn’t basically recognize the legal status of simultaneous audio recordings, nor does it deal with this as clearly as some local authorities. For a long time in the future, the defense could not get access to simultaneous audio recordings, let alone their copies. If supervision and investigation authorities are not allowed to collect evidence in this way, illegal evidence prevention rules would be impractical and physical abuse of criminals might be common again.   

First, let’s look at relevant provisions. Article 54 of the interpretation provides that the court should approve requests filed by the defense for access to audio and video recordings of interrogations in evidence materials transferred to the court. Article 70 thereof provides that the court can advise the public prosecution authority concerned to transfer within the appointed period of time, where necessary, audio and video recordings of interrogations required by law that have not transferred with other case materials. According to this provision, the interpretation grants the prosecutor the right to decide whether to transfer evidence. The defence cannot get access to audio and video recordings of interrogations until the prosecutor transfer them to the court in evidence materials. If they are not treated as evidence, the defence has no chance to see them. After they are transferred to the court, the defence can only read them quickly and roughly. In fact, as the supreme public prosecution authority clearly states that audio and video recordings of interrogations are not evidence materials, it is apparent how reluctant the prosecutor is to transfer these recordings in evidence materials.

The supreme court hasn’t established a system where audio and video recordings must be transferred in cases where they should be transferred. The provision states the court “could” advise the public prosecution authority “where necessary”, without defining the word “necessary”. The court has the discretion to decide whether the transfer is necessary. Where necessary, the court “can” but is not “required” to give advice and will not be blamed for not giving advice. There are many general provisions that grant someone rights without clarifying their duties in criminal procedure law and its interpretation. Based on practical experience these provisions are not useful and only give courts excuses to avoid doing what they should do.     

Simultaneous audio and video recordings are indispensable to prevent wrong convictions. We need to know the appearance, practical questions and future development of simultaneous audio and video recordings.

I. Origin

Simultaneous audio and video recordings appeared in a voluntary attempt of public prosecution authorities in 2002 and then were gradually applied to the whole country. In 2005 the supreme public prosecution authority laid down the Regulations of full audio and video recordings of interrogations of suspects of job related crimes (implemented on an experimental basis), requiring full audio and video recordings of any interrogation. The Regulations was gradually applied to police investigations in certain cases. In 2007 the two supreme authorities and two ministries jointly promulgated the Instructions on Further Action to Deal with Cases Seriously and Legally to Ensure Death Penalty Cases Are Dealt with Appropriately, which provided that audio and video recordings of interrogations of suspects who could be sentenced to death might be made where necessary. The criminal procedure law 2012 eventually established an official legal system of audio and video recordings of interrogations.  

The explanation about the draft of the amendment to the criminal procedure law given by the standing committee of the national congress that “to prevent physical abuse in criminal interrogations legally, provisions relating to the system of audio an video recordings of interrogations were added to the draft of the amendment” showed the aim of the system of audio and video recordings of interrogations to “prevent physical abuse in criminal interrogations”. This is substantiated by the explanation of the legislative affairs commission of the national congress that “audio and video recordings of investigations and interrogations are mainly used to keep true and full records of interrogations and prove the legality of the authority’s interrogation of a suspect on the legality of their admissions.....and audio and video recordings used as proof of the legality of interrogation are not evidence of case facts”.

The system appeared in a situation where physical abuse prevailed, but was not very effective for a long time. After Du Peiwu case in 2000, similar cases of wrong conviction and physical abuse appeared almost every year. All wrong and false convictions corrected in the past years were caused by physical abuse. That seriously undermines the legal and rightful image of political and legal authorities and the public sense of approval for justice of law and the nation. To control physical abuse and restore public confidence in justice of law, the system of simultaneous audio and video recording emerged.       

The two supreme authorities and three ministries restated the position of the legislative affairs commissions of the national congress by publishing the Regulations on Several Issues Concerning Strict Exclusion of Illegal Evidence in Criminal Cases, in which Article 22 provided that the court and public prosecution authority should approve requests of the suspect or defendant and their defense for access to audio and video recordings which the court and public prosecution authority decided based on inspection results were related to proof of evidence being legally collected. According to this provision, audio and video recordings of interrogations can only be officially used as proof of legal evidence collection, giving lawyers limited opportunities to use them.  

Actually, simultaneous audio and video recordings of interrogations can prevent physical abuse, fix evidence and avoid wrong confessions and false accusations, be used as oral admissions and have functions of substantive evidence. Besides, they can also prevent false confessions caused by people investigating or collecting evidence in a misleading or dishonest way and make actions to prevent false and wrong convictions more effective.    

II. Dilemma

The wide application of simultaneous audio and video recordings really helps prevent physical abuse, but causes worrying practical issues.

First, their legal position is not clear. The legal affairs commission of the national congress only uses simultaneous audio and video recordings as proof of legal evidence collection. In the Reply to How to Deal with the Defense Request for Getting Access to and Copying Audio and Video Recordings, the supreme public prosecution authority states audio and video recordings are case related materials other than case files, not documents for proceedings or evidence materials. In the Reply to the Question of Whether Defendant Lawyers Can Copy Recordings of Interrogations of Investigation Authorities in 2013, the supreme court stated that audio and video recordings could be transferred to courts as evidence materials and played in court and should not be seen as materials not accessible to the public in law and lawyers should be allowed to copy audio and video recordings. It shows the supreme court were apt to accept audio and video recordings as a type of evidence. There is no clear provisions relating to the legal status of audio and video recordings in criminal procedure law. To our disappointment, as the two supreme authorities disagreed with each other, people who prepared the new interpretation were concerned about the possibility that audio and video recordings might contain sensitive information such as clues of related crimes, state secrets and investigation secrets, especially in national security and job related cases, which could pose potential threats to national security and public consensus created “mild” provisions. Reasons for this are closely related to the case of Lv Xiansan in Anhui and will not be further discussed here.   

In contrast, in some local rules simultaneous audio and video recordings are clearly defined as case materials. For example, Article 19 of the Implementation Rules on Legally Protecting the Lawyer’s Right to Practice Law of the Department of Justice of Guangdong Province, the High People’s Court of Guangdong Province, the People’s Procuratorate of Guangdong Province, the Department of Public Security of Guangdong Province and the Department of National Security of Guangdong Province provides that the defense can read, record and copy case materials from the date when the people’s procuratorate starts to inspect the case and prosecute. Case materials include documents for proceedings, evidence materials and simultaneous audio and video recordings made in the investigation stage and case files directly related to the case.

This provision should be applied to the whole country. Grant of rights is really important and clarification of responsibilities of parties involved matters even more.      

Second, there is a major imbalance between the accusing and accused sides in rights to use audio and video recordings. As mentioned above, according to Interpretation, the accusing side can decide whether to transfer simultaneous audio and video recordings and whether to play these recordings in court. The accusing side plays in court recordings that are advantageous to them and refuse to present recordings that are disadvantageous to them by arguing that they are not “evidence materials”. In certain areas official prosecutors refuse to transfer simultaneous audio and video recordings by violating relevant provisions without being afraid of consequences. The defendant only has the application right. The court can refuse to approve the defendant’s application which it believes unnecessary or refuses to notify the prosecution authority of, even in cases where transfer of audio and video recordings is required. This is based on my own experience, not an alarmist description. In these circumstances protection of the defendant’s rights is purely academic.

Third, other practical issues

First, written records of interrogations are made so badly that many of them don’t show what the defendant actually confess. Investigation authorities choose only part of or even falsify admissions of the suspect or defendant when making written records of interrogations. Without access to simultaneous audio and video recordings, neither judge nor defendant can decide in reliable way the admissibility of oral admissions made before trial. For a lack of details of how written records of oral admissions before trial are made, it is hard to compare the reliability of oral admissions made before trial and ones in trial.If written records are false, wrong conviction is unavoidable with “false proof”. This is true for all wrong and false convictions in China.       

Second, According to statistics (in an empirical study of use of audio and video recordings of interrogations as evidence - in 493 samples of criminal judgments on Science of Evidence, Volume 28 in 2020, by Cai Yisheng), in death or life sentence or other serious criminal cases where audio or video recordings of interrogation should be made pursuant to Article 123 of the Criminal Procedure Law 2018, audio and video recordings are actually used at a low rate.

Twenty one in 493 or 4.3% judgments show public security and prosecution authorities transferred audio and video recordings of interrogations with case files. If audio and video recordings stored in disks attached to and used as proof of content of case files are not considered, only 12 or 2.4% sets of documents transferred include audio and video recordings. 4.3% or 2.4% is an alarmingly low rate. The rate is expected to be even lower after the new interpretation of criminal procedure law appears.

III. Destination       

In my opinion, nothing would prevent simultaneous audio and video recordings from being used as evidence materials. First, audio and video recordings are legal because they are legally made by official investigators. Second, audio and video recordings show all that happens during interrogation and can prove interrogation is legal and relevant. Finally, once finished, audio and video recordings begin to exist in fact and are noticeable and objective. Pursuant to relevant provisions of the Instructions on Fully Implementing the Trial Centered Criminal Proceeding System Reform, if there is major difference in substantive content between written records and audio or video recordings of interrogation, the audio or video recordings (audiovisual materials) should be seen as final. Therefore, simultaneous audio and video recordings can be used as not only independent and direct evidence of physical abuse by official investigators, but also independent evidence of criminal facts based on confessions. Restricting use of simultaneous audio and video recordings would cause a loss of most of their ability to prove criminal facts as oral admissions. Excuses of not divulging investigation skills or strategies should be ignored to ascertain facts.    

Moreover, investigation skills are generally used in misleading or dishonest ways. An academic study estimates over 30% cases involve misleading or dishonest acts (Functions of Audio and Video Recordings of Interrogations: From Self-Discipline Tool to Best Evidence by Qin Zongwen, Legal Experts, 5th issue 2018). In fact, judges usually refuse to accept claims against evidence obtained in misleading or dishonest way without mentioning them in official decision made by court because such evidence is not illegal evidence that should be excluded as required by law. The actual figure could be much bigger than estimated above. The supreme court is afraid that if these interrogation skills are accounted to be illegal, criminal investigation would be greatly affected. It shows wide application of misleading and dishonest skills. The incidence and damage of persuading someone to confess in a misleading way is more serious than that of forcing them to confess by physical abuse. The latter is more fraudulent, difficult to notice and more likely to cause wrong convictions.

Therefore, to prevent physical abuse and false and wrong convictions based on false admissions caused by misleading and dishonest acts, it is most advisable to transfer simultaneous audio and video recordings with case files.  

I firmly believe with the advancement of science and technology simultaneous audio and video recordings will be used as a valid substitute for defendant’s confession, completely legal evidence and best proof of substantive facts sooner or later.