The Research On Evidence Issues Of The Identifying Notes

Eyewitness identification is an important means of investigation in the practice of criminal justice, and fixed by the form of the identifying notes has the irreplaceable testification effective for the facts of case. However, there are many criminal wrongful cases which caused by the wrongful identifying notes both in China and foreign. In our country, it has not yet been explicitly identified the criminal procedure law of evidence and not reached a sufficient extent because of self problem, created the judicial practice of random and confused. This thesis attaches importance to study on fundamental issues of identifying notes, to found the problem concerning the theory and practice, to clear the legal status and improve the rules of our system, focus on handling the case to establish the separation and identification rules, and strengthen the supervision of the activities to identify in theoretical and practical significance, in order to use the little to get the big. The thesis consists of five parts.Part I, the basic the basic theoretical question of identification, including the basic theories and the classification of the identification.This part begins from the theory of psychology, philosophy and the same principle to find the theory support for rules of identification. Then, according to different standards to classify the identification to examine the various categories of the laws and characteristics, in order to build the perfect rules and procedures, includes, the identification in the pretrial and in court, the identification by attesters, that by the injured party and that by the crime suspected, the public identification and the secret identification, the intermixed and the single identification, direct and indirect identification, static state or dynamic identification.Part II, the research on evidence issues of the identifying notes between China and other nations, which mainly reviews from the British and the United states, Russia, Germany and Italy and Hong Kong, Macao and Taiwan.As for the evidence capability, the United States holds the more liberal attitude, which allowed the identifying notes to convict alone without other evidences to support. The British focus on the direct evidence, using the identifying notes as evidence is formed precise and detailed both in the procedures and provisions. Russia and Italy and other countries determine the evidence capability mainly through the format and content of the provisions of identifying notes, and provide the legal status of the identifying notes clearly and set out in strict rules, however, compared with the British in provisions of the operation is relatively simple. Germany demands in practice strictly, through strict control of the identification process, to achieve recognition of the value of the evidence. The provisions of China are relatively chaotic. Hong Kong districts extend the common law system, and Macao provide the legal status of the identifying notes clearly, but the operating procedures is relatively little We should take them from reality with our own legislative traditions and legal status of legislation, to seek a balance and effective path.Part III, preparation and properties of the evidence issues concerning the identifying notes, which mainly expounds the location of the law of evidence based on the analysis of the competency of evidence and the testify. As for the evidence capability, this thesis develops it from its characteristics of objectivity and legitimacy, pointing out that the identifying notes should have evidence qualification. As for the probative force, this thesis develops from the identification subject, the identification object, the identification course, and the other evidences supporting the four assessments of the impact factors to assess the authenticity of the identifying notes.PartⅣ, the situation and the analysis of the identifying notes in China, mainly from the legislative and judicial aspects to interpret the present situation of our country. In legislation, from the canonical form, standardizing content and rights protection perspective to analysis the absence of identifying notes in legislation; In the judicial part, this thesis analysis it from the notes production in the public security and the notes review in the judicial.PartⅤ, the procedural building of the identifying notes as the evidence, which includes three sections. First, it brings out the suggestions to provide the legal status of the identification clearly and the legal evidence captivity of the identifying notes, with the record of litigation and inspection shall be vested in the same type of evidence.Second, on the premise that provide the legal status of the identifying notes, to build the rules of the evidence,especially in the parts of the pre-identification and the identification procedure, and to recommend legislative fiction that listed in the terms in the absence of the rule. Finally, this thesis recommends to improve the procedural mechanisms from the perspective of the identifying notes, including the starting system, the overall record and the reviewing rules, the cross-examination system, establishing the illegal recognize evidence exclusion rules and the record of evidence corroborative rules.