Discussion On Proving Burden Of Illegal Evidence

This article investigates abroad proving responsibility of illegal evidence, analyzes the specificity of proving responsibility of illegal evidence, discusses the allocation of proving of illegal evidence and the value of principle of invert of proving responsibility of illegal evidence; at the same time, this article analyzes the current situation of proving responsibility of illegal evidence, raises the institution of realizing the invert of civil proving responsibility of illegal evidence. This article is divided into four chapters:Chapter I Comparative investigation of proving burden of illegal evidence. This chapter investigates the legislation of illegal evidence exclusion rule of United States, United Kingdom, Germany and Japanese, while their attitude for illegal evidence is different, the allocation of proving responsibility of illegal evidence and standard of proof are different, but they still have some common point: Because of protecting human rights, they oppose obtaining evidence through illegal means; For suspects'guilty confession that is obtained through illegal means, they hold exclusion attitude; On the allocation of proving responsibility of illegal evidence, while their laws make different rule, but because of jurisprudence that judicial officers should prove the legality of their judicial conduct, they basically agree that prosecution should prove the legality of their proof.Chapter II Legislative construction of proving burden of illegal evidence in China. This chapter analyzes the specificity of proving responsibility of illegal evidence, proving subject is special, proving subject of illegal evidence is special, proving object is special, proving object of illegal evidence is the question that evidence provided by prosecution is legal or illegal, this belongs to typical procedural fact; proving consequence is special, proving consequence of proving burden of illegal evidence is different from proving consequence of proving burden of other procedural fact, proving consequence of illegal evidence has direct and significant impact on physical facts; Establishes the invert of proving responsibility of illegal evidence, specific rules are as follows: After raising assertion that prosecution's proof is illegal, defendant must raises shallow proof to make judge products doubt to the legality of prosecution's proof. If judge agrees defendant's demurrer that prosecution's proof is illegal, prosecution must provide proof to prove legality of proof, if prosecution can't prove, he will undertake adverse consequence, prosecution's proof will be excluded. At the same time, prosecution's proof need reach the degree of"excluding reasonable doubt", defendant's proof need reach the degree of making judge produce reasonable doubt to legality of proof. Sum up the value of invert of proving responsibility of illegal evidence: It helps to play role of exclusion rule of illegal evidence; It helps to contain torture; It helps to restrict detect act, urge investigators to handle case according to law, increase prestige of judiciary; It helps to establish scientific and perfect system of criminal proving responsibility.Chapter III Practical difficulties and reasons of proving burden in our country. According to judicial practice in China, when defendant raises the assertion that prosecution's proof is illegal, courts mainly hold three treat styles: First style is that defendant proves the illegitimacy of proof by raising proof, if defendant can't prove, court will determine the legality of proof. Second style is that when some judges produce doubt about the legality of prosecution's proof, judges will organize staff to survey and obtain evidence. Third style is that when defendant raise assertion that prosecution's proof is illegal, judge will ask prosecution to prove the legality of their proof, but prosecution always provides"certificate of no torture"provided by trial units, or audio and video data of trial.Chapter IV The realization of invert of proving responsibility. This chapter mainly constructs institution that assure the realization of invert of proving responsibility of illegal proof, produces five institutions: separation of investigation and detention; recording and videoing in full trial; lawyer present while defendant is questioned; investigator testify in court; institution of police check. Put up some legislative proposals to perfect of separation of investigation and detention: let detention center managed by judicial and administrative authorities through administrative legislation, carry out series of matching reform measures in order to complete conversion and switching of system. Question to suspect must be in the criminal interrogation room of detention center, or question to suspect is illegal and obtained evidence can't become basis of court decision. At the same time, construct some measures that ensure institution of lawyer present while defendant is questioned: establish prior informing process, give lawyers present right and signature right. Perfect of institution of police check need concept and legislation.