The Exclusionary Rule from the Perspective of the Alienation of the Distribution of Burden of Proof
- Author Wang Chao
- Co-Author Dai Luying
- DOI https://ww
- Country : China
- Subject : Law
Keywords : the exclusionary rule; burden of proof; alienation.
Abstract
In the exclusionary rule, the defense party shall bear the burden of forming a controversial issue to prompt a court to doubt the legality of evidence for the prosecution, and the prosecution party shall bear the burden of proof which can persuade the court to exclude the suspicion of illegally obtained evidence. In the past judicial practice, judicial organizations often order the defense party to bear the burden of illegal investigations according to the principle of “ei incumbit probatio, qui dicit, non qui neget”. Although this practice has shown some improvement with the reformation of the exclusionary rule, the fuzziness of relevant clues, materials, and evidence still leaves room for the alienation of the distribution of burden of proof. But in this case of the alienation, coupled with the defense party’s limited ability to obtain evidence, the court fails to support the defense party’s application for excluding illegally obtained evidence, and it is difficult to initiate the investigation procedure regarding excluding illegally obtained evidence.
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