The Study On The Illegal Evidence Exclusion Of Procuratorial Organs

The exclusionary rule of illegal evidence produced in America Federal SupremeCourt case of Weeks v. United States in1914. Accompanied by the two legal systemsexchanges and fusion, the exclusionary rule of illegally evidence has been caught on inthe criminal procedure of most countries in the world, and the exclusionary rule ofillegal evidence has been written into the criminal procedure law of our country. In ourconstitutional system, procuratorial organ as the organ of legal supervision, not onlyexercise the right of investigation of official offence and the right of public prosecutionof criminal procedure, but also exercise the full legal supervision functions and powers.According to the multi characteristics of authority and full participation in criminalprocedure of China’s procuratorial organs, decided the importance, complexity andparticularity in the application of illegal evidence exclusionary rule. This paper isbased on the procuratorial organ as the main body, the author studied the relevantcontent for the exclusionary rule of illegal evidence systematic and detailed, and usethe method of comparative analysis, value analysis and the method of speculative andempirical.Except the introduction, the main contents of this paper is divided into sixchapters.In the first chapter, the author discusses the important role of the procuratorialorgan， the theoretical basis and the value orientation in the application of theexclusionary rule. The principle of evidentiary adjudication is the cornerstone of themodern country proof system, also known as the principle of evidence judgment.Legality of evidence is one of the important meaning of the principle of evidencejudgment, and the lack of evidence legal nature is often a lack of authenticity, theevidence must be after the exhibit, cross examination and effective proving can bebased on. The procedural sanction theory received early attention in westernjurisprudence, procedural sanctions aimed at procedural violations, and the proceduralviolations may exist in any stage of the criminal procedure, the exclusionary rule is one of the important means of procedural sanctions; According to the provisions of theconstitution and the criminal procedure law, the People’s Procuratorate Organ has widepowers in criminal proceedings, participate whole journey in criminal procedure, andin accordance with the provisions of China’s criminal procedural law, application ofthe exclusionary rule is through criminal activities always, which determines theprocuratorial organs can play an important role in the application of exclusionary rule,but it also faces many challenges and conflicts, including the conflict between the roleof the examiner and the role of being examined in the exclusion procedure, the conflictbetween the realization of the right of public prosecution and exclusion of illegalevidence, and the conflict between the role of supervising and role of being supervised.The theoretical foundation of the exclusionary rule application by procuratorial organsincludes: the theory of procedural justice, objective and impartial obligation theory andthe theory of legal supervision. Procuratorial organs application of exclusionary rulenot only embodies the guarantee of human rights and to limit the public authority value,but also to maintain the dignity and the public credibility of the judiciary.In the second chapter, the author mainly described the exclusionary rule incountries of the Anglo American law system and the continental law system, and alsodescribed the role of procuratorial organs in the exclusionary rule. From theexclusionary rule perspective, the Anglo American law system has more rich contentthan the continental law system, especially USA, the exclusionary rule is the mostdeveloped. For the illegal words evidence, because of the serious transgression of theconstitutional rights of citizens, whether the countries of the Anglo American lawsystem and the continental law system requires absolute exclusion;for illegal materialevidence, USA requires exclusion basically, and the UK, Germany and Japan would beentrusted to the judge’s discretion. USA requires exclusion of the "fruit of thepoisonous tree", while the UK, Germany and Japan are generally not exclude. Theexclusionary rule of illegal evidence applicable scope, reflecting the tension betweenthe punishment of crime and protection of human rights. For the role of prosecutors inthe exclusionary rule, because of the relatively independent and the absence ofsubordinating relation between the prosecutors and the police, prosecutors have onlyvery limited right of investigation guide and does not care about the exclusion ofillegal evidence. But the procuratorial organ of Germany and Japan have the right ofinvestigation Command and leadership, can more effectively prevent the illegal evidence collection behavior of police, and the effect of the preventing will be moreoutstanding. In the prosecution stage of criminal case, procuratorial organs of the twolegal systems generally examine and judge the illegal evidence to prevent the adverseconsequences of prosecution evidence exclusion. In terms of the proving of theprosecution evidence, although the proving stage in criminal procedure are different,but the prosecutors all have the responsibility to prove the legitimacy of theprosecution evidence.In the third chapter, discusses how to realize the control of the illegal evidence inthe procuratorial organ investigation cases and how to exclude the illegal evidence inthe procuratorial organ examination of arrest and prosecution stage. For theunderstanding of the illegal evidence, in addition to the macro elements we must havea comprehensive understanding of the illegal evidence, the procuratorial organs shouldalso pay attention to the difference between the illegal evidence and the defectiveevidence, illegal evidence and the strategies of interrogation. Procuratorial organsshould be clear what is other illegal methods of the " inquisition by torture", and whatis the " serious impact on the judicial justice " in illegal material evidence etc. In termsof the illegal evidence exclusion method, criminal procedure law and the relevantprovisions of our country provides for three methods including absolute exclusion,discretionary exclusion and irremediable exclusion; Procuratorial organs should applydifferent exclusion methods according to different forms of illegal evidence, andshould choose different exclusion methods to exclude the illegal evidence in therepeated confession, common crime and different "fruit of the poisonous tree". In theaspect of the procedure content, the procuratorial organs should perform the obligationof excluding illegal evidence in the pre-trial phase. the starting of excluding illegalevidence in the pre-trial phase can be divided into the authority setup and applicationsetup two ways. The investigation organ responsible for proving the legitimacy ofevidence, and the standard of proving should be identical to the standard of theprocuratorial organ in the trial stage.The content of the fourth chapter, take the procuratorial organ’s proving in thetrial stage as the focus, and describes the exclusion procedure of illegal evidence at thetrial stage. The starting of excluding illegal evidence in the trial phase can also bedivided into the authority setup and application setup two ways, just at this time the authority to start the illegal evidence exclusion is the judge but not the prosecutor. Therequest of excluding illegal evidence should be proposed in the pre-trial session, butthis does not conflict with the request of excluding illegal evidence in the trial stage.The procuratorial organs have the responsibility to prove the legitimacy of theprosecution evidence in principle, but it will be something different to the differentforms of the illegal evidence. Procuratorial organs should choose appropriate way toprove the legitimacy of the prosecution evidence, and to complete the proving, theprocuratorial organ must reach to appropriate proving standard. The author agrees, thestandard of illegal words evidence to be absolute excluded should be "beyond areasonable doubt", and for illegal material evidence to be discretionary excluded,"Preponderance of evidence " standard can be applied.In the fifth chapter, the author mainly discusses the content of the legalsupervision on the exclusion of illegal evidence by procuratorial organs in the criminalprocedure. Although the new criminal procedure law did not make special provisionsabout this, but the procuratorial organ’s implementation of the legal supervision on theexclusion of illegal evidence should be take for granted, and it is the last barrier ofillegal evidence. Procuratorial legal supervision of the exclusion of illegal evidenceincluding the supervision on a case of public prosecution and supervision on a case ofprivate prosecution. The legal supervision of the public prosecution case, is dividedinto supervision on illegal investigation behavior and on the exclusion of illegalevidence in pre-trial stage. The legal supervision of the trial stage is mainly on whetherthe people’s court exclude the illegal evidence strictly and safeguard the rights of theaccused. The author believe, for the exclusion of illegal evidence in criminal procedure,the procuratorial organs should take the supervision of public prosecution cases as themain task and improve the legal supervision on private prosecution cases.In the sixth chapter, The author mainly discusses the following contents: becauseof the complexity of the exclusionary rule and the multi characteristics of prosecutorialpower，the procuratorial organs faced with some conflicts in the exclusionary rule ofillegal evidence, including the conflict between the role of interwiewer and the role ofcensorship in the exclusion procedure of illegal evidence, the conflict between therealization of the right of public prosecution and exclusion of illegal evidence, and theconflict between the role of supervising and role of being supervised. To solve these problems depends on some ways like close relationship between the procurator andpolice, strengthen the role of lawyers, rational treatment of procuratorial power internaletc.