Criminal Rules Of Evidence

This article is written in the need of legal practice. Before this article, most of the experts major in evidence study the basic theory issues a lot, but there are few articles study the procedural rules of how to use evidence in criminal cases. The criminal trail model had been changed by the amendment in 1996, in which the prosecutor and the defense lawyer must use evidence to prove their arguments in open court. But, little attention has been put on the issues such as admissibility, relevancy, cross examination, objection, appearance in court of the witness, privilege of the witness, presumption, judicial notice, discovery, warrants issued by judge for the police to make search or seizure, exclusionary rule for the illegal obtained evidence, and so on. These issues should be studied carefully and when the experts accepted the suggestions, those rules should be enacted into an independent law of criminal evidence. There are five chapters in this article: Chapter One: Introduction First, the author discussed the definition of criminal evidence rules, and why we should study the criminal evidence rules. Then, he examined the history of the evidence rules. In order to understand the situation of foreign law on this issue, he compared the law on evidence rules in the United Kingdom, the United States of America, Japan, District of Taiwan, and evidence rules in international treaties. On the issue of whether we should enact evidence rules in China, he discussed whether there should be evidence rules in criminal trail, and held that we should enact evidence rules. The reasons are: completely free proof is harmful; our adversary trail model need evidence rules; evidence rules can exclude some false evidence; evidence rules can help protect the human rights in criminal justice. He also analyzed some factors effecting whether we should enact evidence rules, such as the relationship between individual rights and collective rights, trail supremacy and judgement supremacy, objective truth and evidence rules. At the end of this chapter, the author gave us an outline of criminal evidence rules. Chapter Two: Rules on Obtaining Evidence The author suggested that the prosecutor should collect evidence to prove the charge in criminal procedure, the defendant has no obligation to provide evidence unless provided by law. But the defense has the right to investigation, and not only the defense lawyer but also the lawyer attends the police procedure have the right to investigation. The defense lawyer can not compel the witness provide testimony. The lawyer can interview the victim and witness provided by the victim without the permission from the prosecutorate or court. The suspect and defendant should have the right against self-incrimination (the right to silence) through out the procedure, including investigation by the police, prosecution by the prosecutor, and trail by the court. The witness must appear in court during the trail, and the evidence law or criminal procedural law should provide a series of measures to ensure the appearance of witness in court. At the same time, the law should recognize the privileges of witness. In this part, the author also discussed the issue on if policeman should testify as a witness. The author suggested we should adopt the rule of warrants requirement, the police should seek the judicial approval before they conduct search and seizure, to protect the human rights in criminal justice. Chapter Th...