A Study On The Competency Of Criminal Evidence

This paper regards competency of evidence as its object of study.In particular,under the theoretical background of diversified evidence value,this paper takes its reflection on theories of both the concept and attribute of evidence as its logical starting point,regards the combing through and improvement of relevant rules as its basic approach and makes comprehensive use of the research method in relation to law hermeneutics,categorized research method and comparative research method so as to explore the “ought to be” pattern for the competency of evidence in the Chinese context,build the rule system for the competency of evidence and implement and promote the application of the competency of evidence in specific rules in order to solve the issue of confusing competency of evidence and probative force.The purpose of writing this paper can be divided into three points.First,it is intended to put forward the theory on competency of evidence by following the practice in China and taking account of Chinese issues and to further specify its differences and connections with the admissibility rule under Anglo-American legal system and the “evidence capability” under the continental law system.Second,it is to make conclusion and comb through the key elements and rule system for competency of evidence,define the connotation and extension of the rule for competency of evidence.Third,it is to review relevant rules of evidence based on the competency of evidence and promote its implementation and improvement in actual practice.Competency of criminal evidence refers to the legal conditions to be satisfied before case materials are allowed to be used as the evidence in a court proceeding.First of all,competency of evidence is a rule level concept that is shown externally by clear evidence rule.It is more open and flexible in terms of limiting the scope of evidence if compared with the closed and rigid concept of evidence.Secondly,we must have dynamic and hierarchical understanding on competency of evidence.Competency of evidence must be clearly understood as the qualification to be used as evidence rather than the basis based on which to ascertain a fact.Its purpose is to set a preliminary limitation on evidence and provide a basic guarantee for the evidence tobecome the basis based on which to ascertain a fact.Finally,the competency of evidence has also reflected the procedural requirements.Having competency of evidence means that it has been granted the access to a formal court proceeding for further investigation by the Judge and thus play a certain role in ascertaining the fact of a case.Having no competency of evidence means that it will not be accepted by the court proceeding and hence will not be investigated or used in the court proceeding.The competency of evidence,in the Chinese context,is different from the admissibility rules under the Anglo-American law system.The complicated yet meticulous admissibility rules are set for the purpose of ensuring that the Jury can play a better role in ascertaining the fact during a court hearing.However,in China,the proposal of the competency of evidence is intended to get rid of the impact of“flow process mode” on litigation process and to highlight the independency and central position of the trial.The “evidence capability”,also as a traditional concept adopted in the continental law countries,has inseparable natural connection with the litigation mode that is inquisitorial,and as a result,it lacks clear distinction with probative force.In general,it will be determined by the professional Judge in the fact-ascertaining process.The purpose for our study of the competency of evidence in China is intended to refer to it as the precondition and basis of the probative force,thus to let it stay independent of the probative force.Therefore,the proposal of the competency of evidence helps to differentiate it from the admissibility rules and the theories of “evidence capability” as in the Anglo-American law system and the continental law system respectively,and thus making it more independent and directional.Judging from the elements of the competency of criminal evidence,it can be divided into positive element and negative element.According to the demand of positive element,evidence needs to have both the form and the relevance as stipulated by law.According to the demand of negative element,apart from satisfying the positive element,it also needs to make sure that it will not be excluded by a series of rules for evidence exclusion.Also,based on different forms of expression,the competency of evidence can be divided into admissibility rules and exclusionary rules.Based on different objects of review,it can be divided into testimonial rule and physical rule.Based on the functions or different purposes,it can be divided into technical rule and policy rule.Besides that,in terms of the complete rule system for the competency of evidence,it should include the exclusionary rule for the illegallyobtained evidence,the authentication rule,hearsay evidence rule,character evidence rule,opinion evidence rule,best evidence rule,privilege rule,etc.For the application of the rule for the competency of criminal evidence,not only do we need to satisfy the demand at substantial level,but also we must be guaranteed at the procedure or institution level.First of all,the establishment of a two-step authentication mode: First,it is to carry out the formal examination on whether or not the case materials have the competency of evidence,and those with the competency of evidence can be deemed as the evidence.Second,it is to carry out substantial research on whether or not the evidence has probative force,and only those with probative force can be considered as the basis used to ascertain facts.Thirdly,in procedures applicable to strict proof,complete rule for the competency of evidence can be applied to ensure that strict control can be executed on the acceptance of evidence.Whereas in the free proof,due to the relativity of freedom and the value of multi-party lawsuits,evidence still needs to meet the bottom line for the competency of evidence.Finally,the actual requirements from the principle of evidentiary adjudication,judgment centralism,before court meeting system and people's jury system,have jointly determined the feasibility of the theory of competency of evidence in practice and provide double guarantee,both procedurally and institutionally,for the application of the competency of evidence.The exclusionary rule for the illegally obtained evidence,the authentication rule and hearsay evidence rule that are applicable to strict proof procedure are all in urgent need of further detailing and improvement since they failed to achieve relatively ideal effect in practice or failed to receive the attention they deserved in light of their fundamental and important status,or the obscure rules have resulted in double predicament,either in theory or in practice.The exclusionary rule for the illegally obtained evidence needs to base on the competency of evidence to reflect on the applicable scope and exclusion pattern of illegal testimonial evidence and illegal physical evidence.For the authentication rule,it needs to differentiate different physical evidence and apply different examination method to authenticate the identity between evidence claimed and evidence presented.For the hearsay evidence rule,it is mainly used to solve the competency of written testimony presented by a witness who does not appear in Court.By using sentencing procedure as an example in making analysis,this paper has explored the application of competency of evidence in free proof,which can be concluded as the “bottom line” and “break through” of thecompetency of evidence.The “bottom line” means to observe the logical relevancy and the exclusionary rule for the illegal testimonial evidence,while the “break through” means to break through the legal relevancy and the exclusionary rule for the illegal physical evidence.The innovations contained in this paper are mainly the followings: Firstly,this paper has put forward the concept of the competency of evidence in the Chinese context,and further distinguishes it from the admissibility of evidence and the theories of “evidence capability”.Secondly,the competency of evidence is further divided into “complete” and “bottom line” of it,with the former emphasized as applicable to strict proof procedure,while the latter emphasized as applicable to free proof procedure.Thirdly,this paper has clarified the differences among “case materials”,“evidence” and “fact-ascertaining basis”,and expanded the two-step authentication mode for evidence.Fourthly,it has summarized the elements of the competency of evidence by categorizing them into positive and negative ones.