Illegal evidence exclusion rules of criminal cases in Ji'nan lawyer Qiu Hongqi

   The illegal evidence in criminal litigation rules - Ji'nan lawyer Qiu Hongqi
    Ji'nan lawyer Qiu Hongqi phone 13475926922
The Supreme Court three Court chief judges Dai Changlin punishment: a study of difficult issues in the application of rules of judicial exclusion of illegal evidence
   From the perspective of law, the criminal procedure law of our country has take against the illegal behavior of evidence collection, but it was not until 2010 that "two high" jointly issued the "two provisions", was the first to systematically construct the exclusion rule of illegal evidence. Because of "two rules of evidence" and "focus on death penalty cases, some problems about the exclusion of illegal evidence in handling criminal cases regulations" (hereinafter referred to as "the exclusionary rules of illegal evidence") focus on illegal words evidence, so it has some limitations in the judiciary. Interpretation of the 2012 criminal procedure law and the Supreme People's court "on the application of < in the people's Republic of China Criminal Procedure Law >" (hereinafter referred to as the judicial interpretation in the "base") the exclusionary rules of illegal evidence, to further improve the exclusionary rule of illegal evidence, the illegal evidence should be excluded from the concept, guiding directly to the criminal the trial work.
See from judicial practice since the implementation of the "two provisions", apply all over the court of the exclusive rule of illegal evidence is still in the exploratory stage, to the exclusion of illegal evidence in case no more. Some of the exclusionary rule of illegal evidence attribute understanding existence deviation, to exclude illegal evidence conditions under which the program is started, the program is started in which link, how to treat the primary burden of proof of illegal evidence, how to identify, exclusion of the illegal evidence of cases to deal with issues such as the lack of clear understanding, affecting the implementation effect of illegal evidence exclusion rule. This paper is based on the illegal evidence exclusion rules with a universal problem in judicial application, the author talks about the preliminary understanding.
One, the meaning and scope of the illegal evidence
(a) the illegal evidence has a specific meaning
1 concerning the definition of illegal evidence
The concept of criminal procedure law does not define the illegal evidence, but the direct provision of the form, illegal evidence: "using torture to extract confessions and other illegal methods to collect the suspect, defendant's confession and using violence, threats and other illegal methods to collect the testimony of witnesses, the victim's statement, and by not in conformity with the statutory procedures and may seriously affect the evidence, documentary evidence collection of justice way".
Criminal procedure law stipulates "illegal evidence", and the common law about "illegal evidence", has a specific meaning, namely, only through the violation of legal procedures and serious violations of basic human rights (or serious influence judicial justice) illegal method (way) to collect evidence, belong to illegal evidence.
In the criminal procedure law clearly stipulates that "the basis of respecting and guaranteeing human rights" in the constitution principle, emphasizing the illegal evidence exclusion rules and principles of the constitution, the rule from the constitutional rights of understanding and application of illegal evidence, in accordance with the criminal procedure law as "constitution", "human rights" position.
2 on the illegal evidence and the defective evidence to distinguish
The definition of illegal evidence based on meaning, we should strictly distinguish between illegal evidence and the defective evidence in practice. If only the evidence collection procedure, has flaws, not in conformity with the provisions of the law, for example, material evidence, documentary evidence collected and obtained in the exploration, extraction, record record no investigation personnel and other relevant personnel signature, can not be excluded as the illegal evidence. For such defective evidence, cannot apply to the illegal evidence exclusion procedure.
In practice, the defective evidence can be corrected by the case handlers or explain, explain the correction or later, can be used according to law. This situation is in fact confirmed the evidence and authenticity of the recognition as evidence; to make a reasonable explanation for correction or not, can not ensure the authenticity of the evidence, the evidence shall be excluded.
Visible, compared with attention defect evidence exclusionary rules of reliability problems, the exclusionary rule of illegally obtained evidence is focused on the legality of evidence, in practice cannot both be confused.
(two) the illegal evidence has the specific scope
The criminal procedure law will be illegal words evidence and illegal physical evidence into the illegal evidence category, but based on the judicial practice to establish "the absolute exclusion of illegal evidence, physical evidence of illegal practice discretionary exclusion principle", visible, the focus is still illegal words evidence. Practice should accurately understand and grasp the following questions:
About 1 illegal words evidence
The so-called illegal words evidence, refer to "using torture to extract confessions and other illegal methods to collect the suspect, defendant's confession and using violence, threats and other illegal methods to collect the testimony of witnesses, victims' statements". The judicial interpretation stipulates further: "use corporal punishment or corporal punishment in disguise, or use other defendants in the physical or mental suffering from severe pain or suffering, forcing the defendant breach will confess, shall be regarded as illegal method here ''." For "illegal" understanding, need to grasp the following points:
First, "corporal punishment or corporal punishment in disguise", is actually a torture to extract confessions.
Second, about the "other defendants in the physical suffering from severe pain or pain method", the practice is mainly refers to the Supreme People's Procuratorate "about the accreditation standards of malfeasance crime law cases" about the method cited case in the provision of torture to extract confessions, namely "at long time frozen, hungry, drying, baking and so method to extract confessions, serious damage to the health of the human body for the defendant". The extent of this kind of method to the defendant's basic human rights and torture to extract confessions equal.
Third, about the "other defendants in the spirit of suffering from severe pain or pain method", the main performance in practice for mental suffering to the defendant, or give the defendant taking drugs. Because some illegal interrogation method does not directly torment the defendant's body, so the mental torture to extract confessions are to be provided for and physical torture to extract confessions, more conducive to protect the human rights of the defendant. The mental torture to extract confessions to display directly, so in practice difficult to cognizance, requires a combination of interrogation, interrogation, interrogation way object time, place and interrogation record, comprehensive judgement.
Fourth, about "the enticement, deception to collect evidence". The criminal procedure law in addition to the prohibition of torture to extract confessions and violence, threats and other forensic methods, also forbids to collect evidence by enticement, deception. But the criminal procedure law does not use enticement, deception to collect evidence in the illegal evidence exclusion rules. This is mainly on account of the temptation, in judicial practice meaning and standard deceive not define the interrogation and inquiry, many involving psychological battle language, behavior and strategy, are inevitably has the enticement, deception, in the legal limits or permitted by law, do not constitute a threat to lure illegal. If these interrogation, interrogation methods are considered illegal, then the verbal evidence related as the exclusion of illegal evidence, the investigation work has brought huge impact. Even so, does not mean that the enticement, deception to collect evidence to be adopted by the court. Because of the enticement, deception to collect evidence is very likely to be false, therefore, if the court can review interrogation records as evidence that investigators use enticement, deception to obtain the confession of the accused, and the confession and not documented evidence is confirmed, but also from the proof force angle, because the statement is false and shall be excluded.
Fifth, for illegal words evidence, need to pay attention to a particular problem, in practice, makes the confession defendants in the investigation stage, in which the first confession was identified as obtained through torture to extract confessions, shall be excluded, so, whether the defendant has all subsequent repetitive statement should be excluded in accordance with the law? The problem is not lump together. If the defendant and his counsel argued, not the first to suffer the effects of torture to extract confessions, the defendant will not make repeated subsequent confession, therefore requests the court to exclude all the confession, the people's Procuratorate will need to provide evidence of torture to extract confessions, the first time the effect caused by the defendant has been eliminated in the interrogation after in, otherwise it will affect all the admissibility of confession. For example, if the defendant is captured in the place, a public security organ for the first interrogation of the accused at the local, present during torture to extract confessions as evidence of illegal behavior, leading to defendant confession; but then the defendant was escorted back to another detention, public security organs have never had another torture to extract confessions as evidence of illegal behavior of the defendant still, the defendant makes the confession. Under this situation, the public security organs in another interrogation, factors affecting the voluntary confession originally has ceased to exist or not has a controlling effect, therefore, the public security organ in the place of confession is admissible. On the contrary, if always by the same subject of investigation of the accused for questioning, then, the initial confession once they are identified as obtained by method of torture to extract confessions by torture to extract confessions, the psychological impact on the defendant has always existed, repeatedly made to the defendant pleaded guilty confession is the follow-up will be quite cautious.
2 on the illegal physical evidence
Illegal evidence exclusion rules initially established in China's judicial interpretation is the illegal evidence, exclusionary rule of illegal evidence "and" criminal law of 2012, would be illegal words evidence and illegal physical evidence shall be incorporated into the illegal evidence exclusion rules, is a great progress of the criminal law. According to the law of criminal procedure, "collecting physical evidence, documentary evidence does not meet the statutory procedures, may seriously affect judicial justice, shall be corrected or make reasonable explanations; no correction or to make a reasonable explanation, the evidence should be excluded". For the illegal physical evidence of understanding, need to grasp the following points:
First, about "collecting evidence, documentary evidence does not meet the statutory procedures". The criminal procedure law of evidence, documentary evidence collected on the criminal procedure as defined, such as search, seizure and technical investigation measures have standard procedures specific. The program if the investigation activities in violation of the provisions of the law, legal will lead to the controversial evidence.
Second, about "may seriously affect judicial justice". Judicial interpretations: "we should consider collecting physical evidence, documentary evidence in violation of the statutory procedures and the consequences of the severity and so make a determination." Because the objectivity of evidence, documentary evidence is strong, is usually important evidence, the case therefore, practice to exclude evidence, documentary evidence to support cautious attitude. Generally, the exclusion rules of illegal evidence is the basic human rights, if the collection of physical evidence of deliberate acts in violation of the statutory procedures, and violated the privacy of citizens, property rights, communication freedom and communication secret right and other basic human rights provisions of the constitution, can be considered as a serious impact on judicial justice.
Needs to be pointed out is, in practice for the exclusion of illegal evidence, also want to consider the serious crimes, pay attention to maintain the proper balance between the interests of the state, the public interests of the society and human rights protection. Serious crime for the crime of terrorist activities, organized crime and homicide, kidnapping crime of endangering national security and social stability, the investigation organ may be necessary to safeguard national security and social public security based on violation of legal procedure, collecting physical evidence in a particular case, the practice of such illegal physical evidence is excluded should be particularly careful.
Third, a "correction or explain". For illegal material evidence, the law does not impose absolute exclusion, but allows for correction or explain. In practice, the need to distinguish between different circumstances. For ordinary criminal cases, investigators in non emergency situations deliberately violates the legal procedure of collecting real evidences, serious violations of property rights and the right of privacy and other basic human rights of citizens, illegally obtained real evidence should be excluded in accordance with the law. If the investigation personnel is in violation of the statutory procedures, the gathering of physical evidence in case of emergency, such as emergency search without warranty, you need to give a reasonable explanation of the situation; if they can not make a reasonable explanation, the illegal collection of physical evidence should be excluded in accordance with the law.
Two, the exclusion of illegal evidence in the time of application
(a) shall be on trial before the exclusion of illegal evidence for this
Illegal evidence exclusion procedure involves the qualification of evidence, therefore, in order to avoid hearing suddenly raised the issue in the court trial interrupt, excessive delay, the applicant shall apply for the exclusion principle evidence before trial. In the practice of exclusion of the illegal evidence for multiple is the defendant and his counsel, therefore, the following mainly discusses the defendants and their counsel to the court for the exclusion of illegal evidence in the case.
Judicial interpretation stipulates: "the people's court to the defendant and his counsel to a copy of the bill of prosecution, shall inform the application of the exclusion of illegal evidence, shall be made prior to the trial, but the court found that except for clues or materials." Requests the defendant and counsel filed in court, it helps to urge both parties to the trial preparation work, at the same time as far as possible in the court before the problem of illegal evidence exclusion for preliminary treatment.
(two) the court shall perform the obligation right in front of the court
Illegal evidence exclusion belongs to the new rules, procedural problems more complex, the defendant may know little about. In order to ensure that the defendant shall exercise their litigation rights, the people's court shall serve a copy of the bill of prosecution in at the same time, inform the defendant has the right, and clearly requires the defendant and his counsel, the exclusion of illegal evidence before a court session shall put forward application.
In practice, the defendant or attempt to the exclusion of illegal evidence application, usually in the pretrial master the relevant clues or materials. Supervise the defendants and their counsel to the exclusion of the illegal evidence application before a court session, the preparatory work before the court proceedings, to avoid in the trial suddenly put forward the exclusion of illegal evidence in the court to apply for and interrupt.
(three) treatment of illegal evidence exclusion apply the proposed trial
If the defendant and his counsel to master relevant clues or materials in the pretrial, trial has been delayed to the exclusion of the illegal evidence application, although the criminal procedure law does not prohibit, the people's court shall maintain the defendants and their counsel for rights in accordance with the law, but judicial interpretations opposed, processing specific procedures have differences. In this case, the judicial interpretation stipulates: "the court shall review in the court investigation and decide whether or not the end, investigation and evidence collection of legitimacy." In other words, if the defendant and his counsel in court to apply for, the court can first be set aside, no longer censor its application conforms to start a special investigation procedure conditions, until the end of the court to review the application, and decide whether to start a special investigation procedure.
Of course, if the defendant and his counsel at the trial found clues or materials, belonging to the exception, the exclusion of illegal evidence can be put forward for. In this case, the court should in principle be forward to the defendant and his counsel for review, and decide whether to start a special investigation procedure.
Three, apply for the exclusion of illegal evidence of the burden of proof
Illegal evidence exclusion process once started, will waste judicial resources. In order to urge the defendants and their counsel shall apply, to avoid the abuse of procedural rights, criminal procedure law specifically stipulates: "the application exclusion of illegal methods to collect evidence, shall provide relevant clues or materials."
(a) mainly take into account the provisions of the burden of proof
The reason that the defendant and his counsel undertake preliminary proof, is mainly based on the following considerations:
First, if the investigators do illegal evidence, then the defendant usually witnessed the whole process, a contact evidence, evidence of convenience.
Second, ask the defendant and counsel provide clues investigators the illegal collection of evidence or materials, can effectively prevent the defendants and their counsel without any basis and easily to court for the exclusion of illegal evidence, while avoiding the court easily start investigation procedure to collect the legitimacy of evidence, so as to ensure the quality of the trial and efficiency.
Third, ask the defendant and counsel provide clues investigators the illegal collection of evidence or material, can ensure that the prosecution's investigation and court the burden of proof is more targeted, security proceedings.
(two) the scope of "clues or materials"
According to the provisions of the judicial interpretation, the defendant and his counsel should provide clues or materials mainly refers to: "clues of suspected illegal evidence of personnel, time, location, methods, contents or materials." For the "clues or materials", to a specific point, well documented. If the defendant argued that only general himself was torture to extract confessions, and not to mention the suspected his torture people, time, place, and details of information, they failed to complete the proof responsibility preliminary.
1 clues about ""
The so-called clues, mainly refers to the details of the defendant and counsel for allegedly tortured people, time, place, etc.. For example, the defendant clearly pointed out that some interrogators to specific places in the detention center outside in particular time on the implementation of torture, and can prove that the illegal evidence of the same prison custody staff and other personnel on the scene information provided by the defendants and their counsel, and so on.
2 on the "related materials"
The so-called related materials, mainly refers to the reflection of the defendants and their counsel provided for extorting injury hospital medical records, the medical certificate, the body surface damage and damage to clothing; written testimony reflects the defendant suffered torture the caretaker and the defendant prison custody staff reflect the interrogation procedure violation; the law of the transcripts and audio and video, such as the interrogation record reflects a defendant is continuous 12 hours of interrogation and not given the necessary time to rest and diet, interrogation video reflects the existence of torture interrogation process, etc..
　Preliminary treatment four, pretrial conference stage
The criminal procedure law established the pretrial conference program, the program can eliminate the problem to understand the situation of illegal evidence, listen. In order to fully play the positive function of the pretrial conference, need to grasp the following points:
(a) before the court to inform the people's Procuratorate to collect evidence to prove the legitimacy of evidence collection
If the defendant and his counsel may apply to the people's court to exclude illegal evidence before a court case, the judicial interpretation stipulates: "the people's court shall copy before the court timely application or application notes and clues, materials to the people's procuratorate." The people's Procuratorate on receipt of related materials, shall timely collect evidence forensics evidence legality, do appear ready to work.
(two) preliminary treatment to eliminate the problem of illegal evidence in the pretrial conference
In both parties before the court on the legality of evidence produced in case of disputes, it is necessary to deal with the problem of the pretrial conference proceedings. Judicial interpretations: "before the hearing, the parties and their counsel, litigation agent for the exclusion of illegally obtained evidence, the people's court after examination, have doubts about the legitimacy of the evidence collection, should be in accordance with the provisions in the second paragraph of the criminal procedure law of 182nd meetings before the court, on the exclusion of illegal evidence to understand the situation, listen to the views of. The people's procuratorates can produce relevant evidence materials, explained to the legitimacy of evidence collection." The pretrial conference on illegal evidence exclusion problem, need to grasp the following points:
Collect the legitimacy of evidence on pretrial conference in 1 preliminary investigation procedure
In practice, to the exclusion of illegal evidence pretrial conference application, can preliminary investigation in accordance with the following steps: first by the defendants and their counsel that the exclusion of illegal evidence application and relevant clues, materials; followed by the people's Procuratorate to explain the relevant evidential materials to collect evidence of legitimacy; once again by both parties to express their views, consultation to solve the evidence legality controversy; finally in the both sides of the negotiations fail circumstances, the people's court summed up the focus of controversy. The above shall make transcripts, and the signature in pretrial conference.
2 pretrial conference just trial preparation procedure, can not make substantive judgment
Although we hope to solve the problem of exclusion of illegal evidence in court, but in some cases, the exclusion of illegal evidence on both sides are controversial, can not be resolved through consultation in the pretrial conference, the people's court in the pretrial conference cannot be made whether to exclude relevant evidence, can only be left to the court to make a final processing.
3 meeting before trial stage can promote the negotiation of evidence legitimacy controversy
The defendants and their counsel for the legitimacy of the exclusion of illegal evidence, the people's court to collect evidence of doubt and called before the court session of the case, the people's procuratorate can explain the relevant evidential materials to collect evidence of legitimacy in the pretrial conference. If the defendant and his counsel argues that the evidence material the people's Procuratorate illustrates the legitimacy of evidence collection, you can choose to withdraw the application; if the people's Procuratorate believes that the defendants and their counsel to provide materials to confirm the existence of the illegal collection of evidence, can also choose not to be evidence of specific materials as criminal evidence, can even choose to withdraw the prosecution.
4 the parties failed to settle the dispute through consultation cases, need a clear point of contention in the pretrial conference
In the controversial focus of pretrial conference clear both sides around the legitimacy of evidence problem, can make the court focused, effective in the trial to solve these disputes, ensure the quality and efficiency of the trial.
Five, the court starting conditions and treatment principle of investigation procedure
(a) the court to start the investigation procedures required to satisfy specific conditions
The defendants and their counsel at the trial of the exclusion of illegal evidence in the application, the court shall review the first, not all start the court investigation procedure. Judicial interpretations: "during a court hearing, the parties and their counsel, litigation agent for application of the exclusion of illegal evidence, the court shall review. After review, there is doubt about the legitimacy of the evidence collection, should be investigated; no doubt, should explain the situation and reasons in court, to the court." Visible, in the start stage of legitimacy of evidence investigation procedure, the court should perform the review duties according to law, only the legitimacy after examination of evidence collection in question, it is necessary to start the investigation procedure, not easy to start the program.
The exclusion of illegal evidence in court to apply for review, decided to start the special investigation program shall meet the corresponding requirements, evidence. According to the regulations, judicial interpretation of the practice, as long as the court to produce reasonable doubt clues provided by the defendants and their counsel or legal materials on the evidence collection based on, should start the investigation procedure special.
If the defendant and his counsel filed application only after the exclusion of illegal evidence, the paper puts forward some preliminary clues, the court after examination found, these cues did not identify the suspected illegal evidence of personnel, time, place, content, way, cannot be found, no law to the court on the legitimacy of the evidence collection of doubt, the court there is no need to start the investigation procedure special. In practice, the defendant and his counsel may be for almost all the evidence suggests the exclusion of illegal evidence application, the court shall conduct examination on the application, if the legality of evidence collected all have no doubt, should explain the situation and reasons in court, continue to court; if in doubt the legitimacy of certain evidence collection, no doubt the legitimacy of the collection of other evidence, shall explain the situation and reasons of the court, no doubt the evidence no longer investigate, only to investigate questionable evidence.
The defendant and the defender of the exclusion of illegal evidence application was dismissed, may result not court, once again raised the exclusion of illegally obtained evidence for. Therefore, if the defendant and his counsel raised new clues or materials, the legitimacy of court to collect evidence of doubt, should be investigated; if the defendant and his counsel again for the same offence for the exclusion of illegal evidence, according to the judicial interpretation of the provisions, the court no longer review.
(two) to the exclusion of the illegal evidence application principle should first court investigation
The criminal procedure law court courtroom investigation on the legitimacy of the evidence collection, but did not set a specific investigation procedures. According to the relevant provisions of "" the exclusionary rules of illegal evidence, the defendant and his counsel before a court or a court trial, the defendant before the trial testimony is illegal, the court after the prosecutor read out the indictment, the court should first survey.
The exclusion of illegal evidence for application to the investigation, in line with the basic spirit of the law. First of all, if the defendant and his counsel for the exclusion of illegal evidence in court or court, implies the existence of an objection to the validity of evidence collection. The right to appeal to the parties based on respect, only to solve this dispute, to continue the trial. Secondly, the illegal evidence exclusion is the evidence of qualifications, only the first to solve the problem, to determine whether they can be used as evidence in litigation, then the court investigation on it. If after a review of evidence material specific is illegal evidence should be excluded, according to law, no court official of the evidence material.
(three) can be dealt with in court investigation before the end of special circumstances
Facing with the "two provisions" after the implementation of the problems in the judicial practice, judicial efficiency and the order of the court based on the considerations, to advance the investigation principle, necessary to set some exceptions. In other words, to the exclusion of illegal evidence in court is not always first survey application. Aiming at this problem, the judicial interpretation stipulates: "the legitimacy of a review of the evidence collection, investigation, according to the specific circumstances, can put forward to the exclusion of illegal evidence and its application in the defender, agent ad litem, can also be carried out in the court investigation before the end of."
In practice, the main provisions applicable to multi defendant illegal evidence exclusion application cases. In such cases, if the strict implementation of the first survey principle, may not ensure the trial run smoothly, influence the quality and efficiency of the trial. Therefore, it is necessary in the court investigation before the end of the accused is proposed together with the application review, survey. This compromise is to ensure that the trial court, also can take into account the defendant's litigation rights protection, meet the needs of judicial practice.
Six, collect evidence and proof of burden of proof of legitimacy
(a) the people's procuratorates responsible for collecting the legitimacy of evidence
Our previously although through judicial interpretation of the illegal evidence exclusion rules, but the rules in practice can not be effectively applied, one of the important reasons is no proof responsibility clear evidence collection of legitimacy, leading to both sides in court Each sticks to his own view., court to make effective cutting. The criminal procedure law stipulates: "the process of the court investigation evidence collection in the legitimacy of the legitimacy, a people's Procuratorate to collect evidence to prove."
Clear by the people's Procuratorate responsibility evidence collection legitimacy requirements, can avoid the improper practices of the burden of proof of defendant Fang Chengdan in practice. If the defendant and his counsel for the exclusion of illegal evidence, provide relevant clues or materials, the court after examination decided to start the investigation procedure, once the people's Procuratorate cannot prove the validity of evidence collection, evidence should be excluded in accordance with the law.
To collect evidence to prove the legitimacy of the evidence material, must be based on the corresponding. There were the case handling department usually submit a written explanation, that the investigators process does not torture to extract confessions and other illegal behavior of evidence collection, evidence collection process is legitimate. Judicial interpretation stipulates: "lawful evidence forensics process that prosecutors submitted material, shall apply to the relevant investigators signature, and stamped with official seal. Without the approval of relevant investigators signature, shall not be used as evidence. The above description of material alone cannot be used as evidence that forensics legitimacy."
(two) collection of evidence legitimacy proof
The people's Procuratorate to prove the legitimacy of the evidence collection, can be through a variety of ways. The judicial interpretation stipulates: "the court decided to investigate the legality of evidence collection, by the public prosecutor, read by showing the interrogation record or other evidence, to play the interrogation process of recording, the court drew notice about the investigation personnel or other personnel to appear in court to explain the situation and so on, prove the validity of evidence collection."
In practice, the proof is not parallel, but has certain levels.
First of all, the public prosecutor shall comprehensively, systematically show, read the transcripts of interrogation or other evidence. In order to objectively reflect the overall situation of the interrogation process, all of the interrogation record must be transferred to the court, cannot choose the defendant pleaded guilty only when the interrogation record. At the same time, according to the six ministries "on the implementation of the provisions of the criminal procedure law", the investigators were the audio or video recording of interrogation, it shall be indicated in the transcripts of interrogation.
Secondly, if the defendant and counsel of the interrogation record effective questioning the legitimacy of evidence collection, failed to be proved, the public prosecutor needs according to the defendant to provide clues, to play the video recording of interrogation. For the interrogation process recording, need to grasp the following points:
1 about "should be the audio or video recording of interrogation" the scope of the case
The law of criminal procedure: "may be sentenced to life imprisonment, the death penalty cases or other serious crimes, shall carry out the sound recording or video recording of the interrogation process." In practice, the investigation organ in determining which cases may be sentenced to life imprisonment, the death penalty or belonging to a major crime may appear deviation, at the same time, the investigation based on cost considerations, are usually reluctant to expand the interrogation process of audio and video, case range. Therefore, even if some of the cases the investigation organ fails to interrogation process recording or video, if the investigating authorities to provide a reasonable explanation, the court not to judge cases punishable by penalty to evaluate the investigation organ first practice is legal. However, for the case of criminal investigation authority, can make a reasonable judgment on may be sentenced to punishment, should be sound and video recording of interrogation.
2 on the interrogation process audio and video production
The provisions of the Criminal Procedure Law: "the audio or video recording should be whole, maintain integrity." In principle, as long as the defendant from the custody places interrogation, it shall immediately full, synchronization of audio and video. Although at this stage it is difficult to meet this requirement, but the interrogation record starting and ending time should be with the interrogation process of audio and video, beginning and ending time of anastomosis, and the interrogation record content should be consistent with the interrogation of audio or video content reflected. There are contradictions, should be based on sound recording or video recording of the interrogation content. For example, together with the case of dividing the state-owned assets, the interrogation record shows the defendant said "these state-owned assets, then", but the defendant insisted that he had not made the above statement. After playing the interrogation process recording, confession of defendant in that recording is "these state-owned assets to wait", although only one word, but the qualitative case has great influence. The case for different content reflects the interrogation record and video recording in the interrogation, apparently to objectivity stronger recording shall prevail.
Specific requirements of 3 broadcast in court interrogation process recording
Interrogation recording time is longer in many cases, if all players on the court, will seriously affect the efficiency of the trial. Therefore, based on the consideration of the efficiency of the trial, the prosecutor requests to play the interrogation process of recording, the court may according to the defendants and their counsel for the exclusion of evidence and clues or materials, in a targeted manner to play. For example, the defendant made clear in a certain period of a day sometime interrogation by torture to extract confessions, prosecutors can directly play the time of court interrogation recording. If the above content still can not rule out other possible memory time in the torture to extract confessions, should fully play audio and video content.
Again, if the case is not interrogation recording or video recording is not complete, the defendant and his counsel reasonable doubt, the legality of the evidence is still not proven, we need other person present to interrogation court to explain the situation. For example, the defendant was arrested after, led the investigators to identify the scene and the relevant evidence, and make confession in the process, in which the local village committee representatives and related witness on the spot. If then the defendant for excluding the confession, we can draw that the presence of village representatives and related witness appearing in court to explain the legal evidence collection.
Finally, if all the above measures still can not prove the legitimacy of evidence collection, you need to explain the situation to the interrogator. Shouldering heavy investigative task considering the investigators in practice, usually only when other evidence cannot prove the validity of evidence collection, it is necessary to inform the investigators in the court to explain the situation. Of course, according to the provisions of the criminal procedure law, the investigation personnel or other personnel may request the court to explain the situation. The investigators volunteered to appear in court, the court shall permit.
Investigators in the court to explain the situation, not simply refer to the witnesses to appear in court rules, specific should comply with the following requirements: first, the investigators refuses to appear in court to explain the situation, not mandatory court. Second, the public prosecutor may first to the investigators to explain the situation, require investigators that legitimacy of evidence and evidence collection. Third, with the permission of the presiding judge, the applicant may have related clue to its master or materials require investigators to explain the situation. Fourth, the public prosecutor or defense of investigators question improper or content is irrelevant to the case, the presiding judge shall stop. Fifth, the court when necessary, may request the investigation personnel according to the legitimacy of evidence collection instructions related conditions. Sixth, the investigators shall respectively to explain the situation, not to attend the trial.
Needs to be pointed out is, the investigators after notification does not appear in court to explain the situation will lead to what kind of consequences, criminal procedure law has not made the explicit stipulation. The burden of proving the legitimacy of the evidence collection based on, because if the investigatory personnel may not in accordance with the law to explain the situation, eventually cannot prove the validity of evidence collection, the court shall exclude relevant evidence.
Seven, in the court investigation before the end of the exclusion of illegal evidence in the application process
In court investigation before the end of the exclusion of illegal evidence in the application process, mainly involves the following two situations: first, the defendant and his counsel at the trial had been found before the clues or materials, but not in accordance with the provisions of the judicial interpretation in the trial before the exclusion of illegal evidence application, the court should be reviewed in the court investigation before the end, and decided to start the investigation and collection of evidence legitimacy. Second, more than the defendant to provide for the exclusion of illegal evidence collection and investigation of application situation, on the legality of the evidence, can be in court investigation before the end of. For the above situation, need to grasp the following points in practice:
(a) to collect evidence investigation before the end of the legitimacy of evidence, evidence cannot be read
For the defendants and their counsel for the exclusion of illegal evidence, if there is no doubt the legitimacy of the court after examination of evidence collection, decided not to start the investigation procedure specially, can be read, cross examination of the evidence. If the court decided to start the investigation procedures, special then, both ends the first survey or before the court investigation in conjunction with investigation, legal issues must first solve the evidence, not to read, cross examination of evidence.
(two) if the decision in the court investigation together before the end of the exclusion of illegal evidence application, to avoid the legitimacy and authenticity of the evidence be confused
Other evidence investigation on the court is documented, even though the defendant and counsel for the exclusion of evidence and other evidence to confirm each other, objectivity, also cannot therefore decided not to exclude the evidence. Needs to be emphasized is, illegal evidence exclusion address is the evidence of qualifications, not the probative force of. Even if the illegal words evidence or illegal material evidence is objective reality, as long as the evidence is collected by illegal methods, it should be excluded in accordance with the law.
The court to start the investigation procedures of specialized, the related evidence of illegal evidence should be excluded, according to law, can not read, cross examination of the evidence; if there is no related evidence for illegal evidence, it can be read, cross examination of the evidence.
　 Eight, the court to start the final treatment after investigation program
(a) the standard of proof about the legitimacy of the evidence collection
The people's Procuratorate to prove the legitimacy of evidence collection, evidence, proof standard is needed to achieve full, otherwise, according to the provisions of the criminal procedure law, "for after the court after confirmation, or could not be excluded to illegal methods to collect evidence, the evidence should be excluded."
Needs to be pointed out is, collection of evidence standard of proof of legitimacy and criminal conviction standards are identical in essence. The defendants and their counsel to the court for the exclusion of illegal evidence, the people's Procuratorate shall provide true, sufficient evidence to prove the legitimacy of the evidence collection, otherwise, the court shall exclude specific evidence. The reasons are as follows: Based on the principle of evidence judgment, the defendant is guilty should be based on evidence. If the conviction evidence is controversial in legitimacy, confirm or can not be ruled out to collect evidence by illegal methods, then, based on the facts of the crime accused clearly not up to the standard of proof, evidence really fully. In short, from the logical relationship between evidence and facts of the crime on the legitimacy of the conviction, the court evidence for the existence of reasonable doubt, it will lead to the facts of the crime accused there is a reasonable doubt.
In practice, the court of the illegal evidence, mainly divided into two kinds of situations:
1 on the "confirmation to collect evidence by illegal methods"
If the defendant and counsel the exclusion of illegal evidence application, provides evidence of clear, can prove that the investigators on the implementation of the torture to extract confessions behavior, for example, the defendant provided subjected to torture to extract confessions after ice, and the surface of the body injury obviously, right now you can confirm the investigation personnel is to collect evidence to the illegal method. In practice, if the investigators because of torture to extract confessions of the accused shall be investigated for criminal responsibility, apparently can hereby confirm to collect evidence by illegal methods.
About 2 "to collect evidence by illegal methods cases cannot be excluded"
If the defendant and his counsel for the exclusion of illegal evidence to the people's court, the court after examination has launched investigations specialized, the people's Procuratorate cannot provide sufficient evidence to prove that indeed, legitimacy, evidence for example, clear legal requirements for video recording of the whole interrogation work on cases, if the investigation organ did not comply with the provisions of the law in the interrogation, not the synchronization of audio and video, interrogation and not in accordance with the legal provisions in the detention center, and no other people on the scene to prove the legitimacy of interrogation, belongs to such a situation cannot be ruled out "collect evidence by illegal methods".
Needs to be pointed out is, "to collect evidence for that court case" to the illegal methods cannot be ruled out, according to the evidence of interrogation, interrogation recording and the defendant's defense and comprehensive judgment.
(two) to set the significance of higher standard of proof the validity of evidence
First, strengthen the legality of evidence is helpful to protect the basic human rights. In the face of torture to extract confessions and evidence of violence and other illegal evidence collection behavior has occurred when the situation, only to exclude the illegal evidence collecting methods, to provide adequate legal remedy for the defendant in the litigation procedure, to truly reflect the legal protection of the defendant's basic human rights, the effective implementation of the privilege against self incrimination.
Secondly, strengthen the legality of evidence is helpful to avoid misjudged cases. Evidence is the basis for determination the facts of the crime, if the evidence is not valid, especially through illegal methods to collect evidence, false possibility is big, if such evidence as a basis, both the possibility of wronging an innocent person, also may indulge the real criminals. Key source of evidence of doubt, as according to the crime fact certainly not beyond reasonable doubt. Some Criminal Misjudged Case exposed in practice, such as the Du Peiwu case, She Xianglin case, mostly because of the adoption of the false confessions torture to extract confessions obtained, which led to the criminal facts wrong.
Thirdly, strengthen the legality of evidence that can reflect the principle of doubt in favor of the defendant. In the presence of the legitimacy of the judge to collect evidence in case of doubt, if the people's Procuratorate fails to provide the true, sufficient evidence to prove the legitimacy of evidence collection, should be in accordance with the principle of doubt in favor of the defendant, the related evidence of illegal evidence.
(three) on the handling of the case law after the exclusion of illegal evidence
In practice, some of the judges rules have the fear of emotions on illegal evidence exclusion, exclusion of evidence is mainly about key, resulting in the facts of a case cannot be determined. In the current judicial environment, the people's court faced the acquittal difficult problem.
The exclusionary rule of illegally obtained evidence is not only in order to protect human rights, but also to avoid the misjudged cases. Practice has proved, the confession of defendant torture to extract confessions and other illegal methods to collect, is one of the main causes of misjudged cases. If the courts legitimacy to the confession of the accused has reasonable suspicion, but also will the authenticity of its reasonable doubt, based on the facts of the case, on the contrary to the requirement of the standard of proof, the case also there are serious quality problems. Therefore, only with the exclusion of the illegal evidence, in order to avoid misjudged cases.
In strict accordance with the application of the exclusionary rule, is the fundamental guarantee to ensure that the entity justice and procedure justice. The people's court according to law to exclude relevant evidence, if the other evidence to do, the full conviction standards can still be in accordance with the law, the defendant is found guilty; if other evidence not indeed, full of the standard of conviction, the defendant is guilty according to the law can not be.
Nine, the court made treatment on the application and the judgment documents
(a) the court to exclude illegal evidence for treatment
The court to exclude illegal evidence for treatment, is a typical example of the procedure judgment, some scholars call it "the trial judge". As the procedure judgment, shall have the corresponding handling. The criminal procedure law does not make provisions. Based on the spirit of the legislation, should grasp the following points:
1 the court should apply to the court for the exclusion of illegal evidence processing
Exclusion of illegal evidence refers to the evidence of qualifications, only the court made after processing, we can decide whether to read, cross examination of the specific evidence. Therefore, no matter whether the court decided to start the investigation procedure specially, and start the investigation procedure after the final whether to exclude specific evidence, the court should make the treatment, not in court for processing later.
2 of the exclusion of illegal evidence in court for the processing result is suitable to the oral decision is made in the form
Because criminal law does not exclude the illegal evidence for treatment of the separate provisions relief way, therefore, should not use rulings are advised not to use the written decision form to deal with, and is suitable to use the oral decision form the court made processing.
3 if necessary, after the adjournment decision
For some important, difficult, complex case, because the court final processing results of the exclusion of illegal evidence and the application cases are closely related, therefore, the court to start the investigation procedures specially, may be difficult to be whether to exclude specific evidence to decide. In this regard, the exclusion of illegal evidence in court in the foundation for special investigations, it may announce an adjournment, after careful deliberation of collegiate bench and the judicial committee for discussion and decision, the court again, the announcement of the final processing.
(two) requirements of the judgment documents
How to describe the illegal evidence exclusion treatment situation for the judgment, the legal and judicial interpretation has not clearly defined. Need to differentiate the situations in practice:
First, if the prosecution can provide real and sufficient evidence, prove the validity of evidence collection, the defendant and his counsel argues that the evidence is collected by illegal methods, the court after investigation program dedicated, confirming the specific evidence of legitimacy, and by the court after examination to be admissible, to illustrate the adoption and adoption of the evidence in the adjudication document. The following analysis: the court to start the investigation procedures, the prosecution to provide evidence to prove the legitimacy of the evidence collection, to be confirmed by the court, the evidence is adopted; after the trial process, the evidence can be consistent with other evidence, objectivity, shall be adopted, and as a basis.
Second, if the prosecution can not provide true, sufficient evidence to prove the legitimacy of evidence collection, or can not be ruled out to collect evidence by illegal methods, and the prosecution and insist that the legitimate evidence forensics method, the legitimacy of the court investigation process, by special order, to exclude specific evidence to the court, need the exclusion of illegal evidence reason elaborated in the adjudication document. The following specific analysis of specific ideas: evidence for the prosecution to prove the defendant of the facts of the crime, the defendant and his counsel is illegal by the court, start the special investigation program review found that the evidence obtained illegally, or could not be excluded to the illegal collecting evidence, the law can not be taken as a basis.
Third, if the course of the trial, the defendant and his counsel for the exclusion of illegal evidence, the prosecution withdrew specific evidence, no longer will serve as the basis for the criminal facts; or the prosecution did, sufficient evidence to prove the legitimacy of the evidence collection, the defendant and his counsel and legitimacy on the evidence of the recognition, the initiative to withdraw the application for the exclusion of illegal evidence, then, agreement in both sides of the illegal evidence exclusion problem situations, the court without a verdict on the issue, therefore, the judgment is also does not need to be stated.
Ten, the court the judicial relief
The court ruled to deal with the problem of illegal evidence, although is a procedural verdict, but the entity on the handling of the case results have important influence. On both sides especially the defendant, the court to determine whether a specific evidence of illegal evidence, and then made a decision to exclude or not, will directly related to the vital interests of litigation. Therefore, the processing results of the exclusion of illegal evidence in court, the parties concerned should be given the necessary judicial remedy.
According to the provisions of the judicial interpretation, the evidence legality review should always run through the criminal procedure. In the court of first instance for the exclusion of illegal evidence to handle, and the judge of the case, if the parties to the processing results not, can put forward to appeal, appeal. There are mainly the following situations in practice:
First, in the first trial period, if the defendant and his counsel may apply to the people's court to exclude illegal evidence, the court of first instance without censorship, and as to the evidence according to, the court of second instance shall examine the legality of the evidence collection. Second court decided to start the investigation procedure special, if prosecutors do not provide evidence to prove the legitimacy of evidence collection, or evidence has been provided that are not reliable enough, sufficient, the court of second instance shall exclude relevant evidence, can not be taken as a basis.
Second, the defendant and his counsel did not in the first instance during the exclusion of illegal evidence application, but the application in the second period, need to distinguish between the case dealt with in practice.
If the defendant and his counsel in the first trial ended to collect new clues or materials, application of the exclusion of illegal evidence in the court of second instance, the court of second instance shall examine the application of the exclusion of illegal evidence. Second court decided to start the investigation procedure special, if prosecutors do not provide evidence to prove the legitimacy of evidence collection, or evidence has been provided that are not reliable enough, sufficient, the court of second instance shall exclude relevant evidence, can not be taken as a basis.
If the defendant and his counsel have clues or materials, deliberately delay of the second period of exclusion of the illegal evidence application, the court of second instance shall strictly grasp on whether to start the investigation procedure special. Because the judicial interpretation has demanded the defendant and his counsel in principle shall apply in the first instance before the hearing, if the defendant and his counsel did not apply in the first instance, and the defendant pleaded guilty in court, that it has no objection to the validity of evidence collection. Unless the defendant and his counsel may be justified, considering the stability and efficiency of the trial, the second phase of the exclusion of illegal evidence should not be allowed to apply for the general.
Third, if the people's Procuratorate or the defendant refuses to accept the treatment results of evidence collection the legitimacy of the court of first instance, protest, the appeal, the court of second instance shall examine the legality of evidence collection, and make corresponding processing. Needs to be pointed out is, the judicial interpretation of the provision does not mean that, the parties to the court of first instance handle the collection of evidence legitimacy results against, can be individually to protest, on the grounds of appeal, but if the problems caused refuses to accept a judgment of first instance, can put forward the problems in the appeal, appeal.
Fourth, if the first trial period, the people's Procuratorate to the defendant and the defender of the exclusion of illegal evidence in the application, not really, sufficient evidence to prove the legitimacy of evidence collection, lodge an appeal against the exclusion of illegal evidence in the court of first instance, the relevant evidence forensics legitimacy proof in the second period of, need to distinguish make a deal in practice.
If the people's Procuratorate in the first trial period is not proof, fails to collect evidence to prove the legitimacy of the evidence collection, but in the second period to collect new evidence, court of second instance shall allow the people's Procuratorate submit relevant evidence, and shall make a ruling on the legality of evidence collection.
If the people's Procuratorate in the first trial period have collected evidence evidence collection of legitimacy, but ready just in case, failure to proof, according to the exclusion of the illegal evidence in the court of first instance after lodge a protest, to provide relevant evidence has already mastered in the second period, although the Criminal Procedure Law of our country has not established the "non bis in idem" in principle, but this is a people's Procuratorate shall not be to encourage and support.
[author] the Supreme People's court sentence three Court

In: "the people's justice" (application) in 2013 ninth