Study On Exclusion Of The Material Evidence Illegally Obtained

The exclusionary rule is the typical representative of the system of the procedural sanction. It announces the evidence invalid by judicial review, punishes and suppresses the illegal detection behavior, and provides relief to the litigant whose constitution rights was violated by illegal detection. In the West, the exclusionary rule is an important part of the safeguard of human rights. At present, our country has already denied the validity of extorting a confession through the interpretation to the law, and excluded the verbal evidence obtained in this way. But the evidence does not only contain the verbal ones, comparing with the diverse and complex material evidence, this stipulation is not enough. So it is necessary to study and absorb the foreign exclusionary rule. This is helpful to establish the exclusionary rule about the material evidence that suits to the practice of our detection and trail.The text is divided into five parts:The first chapter is the definition of illegal material evidence: Though the study on the concept and acquirement of material evidence, the author pointed that detection behavior limits the citizen constitution right. Then through the competency of evidence and the practice in our country, the author pointed that: the illegal material evidence is the evidence obtained by the police and other detectors through violating the citizen constitution right.The second chapter is the study on foreign exclusionary rule: In American history too much no-cards arrest and no-cards search stimulated the American people to realize the existence and importance of the personal freedom, the right of privacy, the housing power, the right of property. So when the US founded, it wrote the inviolability of these power in the constitution, and limit such behavior as no-cards search. Through the value-analysis the author found: The US formulated the 4th amendment to protect the people's human rights. But if we counter-view it, we can make such conclusion that"the citizen's body, residence, document, and property should accept reasonable search and detain". It is not difficult to see that: the safeguard from the 4th amendment is not infinite, and reasonable limit to it is allowed by constitution. The 4th amendment implies the value orientation of the real discovery and punishment on the criminal. The American Supreme Court established and realized the exclusionary rule by balancing test the two conflict value unceasingly. Then the author abstracted the concrete operation of some classical legal precedent. From this analysis the author induced the general pattern of operation, in with the US excludes the illegal material evidence: the judge should analyze the fact first, and then balance the values, and finally decide the competency of the evidence. The author also refined the two general standards:"the probable cause", and"the reasonable intrusion". And then, the author analyzed the exception of the US exclusionary rule and the fruit of the poisonous tree, and their situation is quite different. By the way, the author briefly analyzed the English, Japanese, and German exclusionary rules.The third chapter is the value of excluding material evidence: The value is a concept that indicates the relation between the subject and the object, which is the positive sense of the object for the subject. Speaking of the citizen individual, excluding the illegal obtained evidence lies its value in the safeguard of human rights; say regarding the country and the society its value in the maintenance of government by law. Comparing with exclusion of the illegal verbal evidence, excluding material evidence has further and higher sense.The forth chapter is the creation of the exclusionary rule of illegal material evidence in our country: This article utilized the theory of procedural sanction as a pattern to establish our exclusionary rule. In our country, creating the basis of judging the validity of the evidence is the first step of to create our exclusionary rule. The author analyzed the present law and prompted the proposition that we must draft a new procedural in detail and the warrant clause according to the practice of our detection: China can not absorb American warrant clause. The sending out of the verdict can only continue the present method_"signed by the man in charge of the detection institution."But the scope of detection behavior need to apply should be expanded as far as possible. The application should have integrated form and content, from which the judge can find out the clues and its origin. One hand the verdict should authorize the scope, the object, the power of each detection behavior specially. In the other hand, it is necessary to consummate our detection procedure according to the foreign law, so that our criminal procedural can regulate the three aspects above according to different situation. In choosing the pattern of our exclusionary rule, the author analyzed the American one in essence, and pointed it can't be introduced into china; and pointed the English and Japanese ones can't be operated in china; in the end, the author proved the German pattern adapts to the Chinese present situation, and pointed its own fault. The Chinese exclusionary rule would be established, referring to the German pattern. In value orientation, we should pay equal attention between real discovery inflicting punishment on a criminal and procedural justice, human rights. In related theory on competency of evidence, we shouldn't take for granted that"all the evidence illegally obtained lose its competency", its competency should be determined by the judge through the type and the degree of the violated rights under various condition. In designing our exclusionary rule, we must do it step by step. We should first regulated the principle and the condition which we use to exclude the evidence illegally obtained. Under our present condition, the exclusionary rule of the illegal material evidence should be only used in the situation, that the litigant's rights were seriously violated, and should not be used frequently.The fifth chapter is the realization of our exclusionary rule of illegal material evidence: Who applies to exclude the illegal material evidence? In our country, many people think only the defendants have the right, but in foreign country the judges have it too. Perhaps some people think that it disobeys the principal of judicial neutrality. But even in England, the judges who take the procedural justice seriously can also do like that, can't we absorb the legal precedent? In our country, choosing which procedural to exclude the illegal evidence depends on the carrying out of the reform to our pre-trial procedure. Whether the police or other detectives have to testify in the court is very important to exclusionary rule. In the trail, the judge has three powers: (1) The power to adjudicate the procedural violation. It decides whether the detection behavior is valid, and whether the achievement of the evidence is because of the invalid behavior. Both of them are factual question. (2) The power to adjudicate the constitutional tort. It means that if the detection behavior violates the citizen constitution right enough seriously, the material evidence illegally obtained will be excluded. (3) The power to balance conflict benefits. Excluding the illegal evidence is helpful to the safeguard of human rights and the maintenance of government by law. On the contrary, accepting it is helpful to the real discovery and inflicting a punishment on a criminal. Which one is more important depends on the judge's view in each case.