Consideration On Formulating Exclusion Rules Of Criminal Illegal Evidence In Our Country

Criminal illegal evidence, relatively speaking, contrasts with legal evidence. There are criminal illegal evidences in broad sense and narrow sense in legal circles and judicial circles. Criminal illegal evidence in broad sense refers to these things-the content of the evidence, the form of the evidence, collection and the subject collecting the evidence and the procedure of collecting the evidence and ways are not in conformity with the material prescribed by law. Criminal illegal evidence in narrow sense just refers to, in criminal action, those people-detectives, procurators, judges are against the regulation of the observed principle, procedure and jurisdiction in which the country constitution and the criminal procedure law regulate in the process of collecting the evidence and acquire the evidence by means of infringing on the rights of parties. Because the criminal illegal evidence in narrow sense is the core of the whole criminal illegal evidence, this paper refers to the illegal evidence in narrow sense when dealing with the criminal illegal evidence. Its connotative meanings can be classified into three kinds: the first one is to acquire the tangible evidence by illegal way. The second one is to acquire the oral evidence by illegal way. The third one is to acquire evidence with the clue of the tangible and oral evidence which is called "the fruits on the poisonous tree" in America. Criminal procedure law in our country, as stipulate in the clause 43, regulates from positive side to collect evidence according to the legal proceeding, forbidding extorting a confession by torture and threat, temptation, deception and other means to collect evidence. But the result of breaching the judicial procedural regulations-the question of whether collecting the evidence by illegal way can be considered as the substantial evidence or not is not regulated. So it sparks different ideas in the circle and leads to the abuse of the authority in the practice of law. In addition, because there is a tendency of "lay stress on the substance, care little for the procedure" in our country's traditional legal and cultural circle and the concept of the "guilty deduction" is deeply rooted in the mind of the judicial members, the phenomenon of collecting the evidence by illegal way is hard to forbid. The system of evidence is the core and soul of the judicial system. Whether any country's judicial system is advanced or not depends on its system of collecting evidence. So it has great significance for the improvement of procedural law in our country and regulation of the judicial practice that our country formulates exclusion rules of criminal illegal evidence. There are two difficult choices for human beings, facing the criminal illegal evidence. Based on the illegal evidence as ascertaining criminal responsibility for suspect in a crime or accused, it may result in false judgment in setting a lawsuit and infringe on the legal rights of citizens and the observation of rules. Therefore, the "criminal" rightfully escapes justice. Many countries in the world now have realized the harmfulness of illegal evidence and formulated the exclusion rules of the illegal evidence, aiming to eliminate the illegal evidence from judiciary proceedings and unit the punishing criminals with protecting the human rights. America is the earliest country to formulate the exclusion rule of illegal evidence. In 1914, with reference to the case that Wessex accused the United States, Federal Supreme Court of the United States formally formulates the exclusion rule of illegal evidence by means of legal precedent. American exclusion rules regulate that: when the legal officers infringe on the relevant regulation to acquire the evidence, it can not be used as the basis for convicting crime. The rule is not only applied to the tangible evidence and the documentary evidence acquired from illegal searches, distraint, but also to the statement of confession acquired from illegal arrest, breaching the due process of law. From the beginning of 1984, Federal Supreme Court of the United States restricts the scope of illegal evidence, regulates "final or inevitable finding exception", "good-natured exception" and so on, meets the objective demand of controlling crime and maintaining social order, and improves the exclusion rules of illegal evidence. There was only confessional exclusion rule in early time in Britain. He formulates gradually the exclusion rule of illegal tangible evidence to some extent after WWII. From the point of view of the relevant regulation of"detectives and criminal evidence law" in 1984 in Britain, Britain incorporates the choice of the exclusion rule of illegal tangible evidence into the limit of judge's free judgment. And the flexibility of the judge's free judgment is strong in order to guarantee the defendant to have justice as the basic standard. Germany, France, Japan, Italy and other countries all take the negative view of the oral illegal evidence, and consider its impotence as evidence which cannot be used as the basis for convicting crime. With regard to the tangible evidence by illegal way, different, countries have different attitude. German exclusion rule of illegal tangible evidence gradually formulates, based on the regulation of "human rights cannot be violated" and "human have the right to develop freely human dignity". The judge manages the legal affaires with the balance principle, refuses to use the evidence of infringing on the human dignity and freedom in principle. Only to those major crimes, can he make concessions. The practice in France is similar to Germany which is also determined by the judge's free judgment according to the balance principle. The Supreme Court of Japan took the negative view of application of the exclusion rule of illegal tangible evidence after WWII for a long time. But in 1987, the Supreme Court in this country confirmed by means of passing the legal precedent according to the constitution: in the procedure of distraining evidence, if there is major illegal act which makes the constitution, as stipulate in the clause 35, and the criminal procedure law based on the constitution, the first item as stipulate in the clause 218, lose the expected function, moreover, from the point of view of behavior of forbidding the future action, if it is proved that the adoption of the evidence of these illegal actions is not proper, it should take the negative attitude to the function as the evidence. The practice in France is similar to Germany which regulates the tangible evidence acquired from illegal way cannot be used. In our country, collecting evidence by means of extorting a confession by torture and threat, temptation, deception and other means has been forbidden by the constitution in explicit terms. But the constitution does not formulate the exclusion rule of illegal evidence. Only in some judicial explanations can it be dealt with. With the deeper understanding of thejudicial rights and deep reform of the judicial system, it is necessary to formulate the exclusion rule of the illegal evidence in our country. The necessity embodies in that: first, the demand of "the constitution is above everything"; second, the necessity of judicial justice; third, it is beneficial to the decrease of the unjust, false and wrong crime; fourth, the necessity of uniting the judicial systems in our country; fifth, the demand of the process of judicial democratization in the world; sixth, it is favorable to correct the traditional concept and the practice of ""lay stress on the substance, care little for the procedure". Drawing on the achievement of other countries, and conforming to the judicial situation in our country, the formulation of the exclusion rule of the criminal illegal evidence in our country should take "the exclusion of the exception" as the theory. Based on it, the rule adopts the unified model of the absolute exclusion and the relative exclusion. It is the choice of punishing the crime and safeguarding the human rights, and the demand of situation in transitional period. Specifically, the absolute exclusion is applied to the extorting a confession by torture and threat, temptation, deception and other illegal means to collect the oral evidence of the statement of suspect and defendant, the attestation of attester, the statement of victim and other behaviors of infringing human rights to collect evidence. The relative exception is applied to the illegal evidence beyond the absolute exception in the law in explicit terms. These illegal evidences should be excluded in principle. With regard to the comprehensive consideration of factors in all aspects, the exception is not excluded. Meanwhile, our country should also improve the constitution, criminal procedure law and other relevant judicial explanation, make clearly the constitutional basis for the exclusion rule of the criminal illegal evidence in order to facilitate the operability of the exclusion rule of the criminal illegal evidence, and formulate the system of right to silence, the system of censorship of evidence before court, the system of exhibition of evidence before court and other relevant supporting systems.