The Recognition Criterion Of The Legitimacy Of Oral Testimony In Judicial Practice

In judicial practice, to a certain degree, there are torture and injustice. The most extreme example are "the dead return" cases which shock the society and reveal lag and weakness of rule of law. The establishment of the rule of excluding illegal confession evidence is to set up a system which is aimed at regulating the legitimacy of judiciary conduct and protecting legal rights of the defendants in criminal prosecution. Legal and judicial interpretations Although, in China, to a certain extent, the rule of excluding illegal language evidence has established in past regulations and interpretations. Also, the criterion for adopting oral evidence that reviewing "authenticity" and "relevance" in past adds "legitimacy" now. It is still difficult to adopt this rule in practice because the criterion is rather general, which lacks of related standards and does not provide appropriate operating procedures.On June 13, 2010, The Republic of China of Supreme Court, Supreme People's Procuratorate, the Ministry of Public Security, National Security, Ministry of Justice jointly issued the "Rules on a Number of Issues about Reviewing and Estimating Evidences in Death Penalty Cases " and "Rules on a Number of Issues about the Exclusion of Illegal Evidences in Criminal Case"(hereinafter referred to as "Rules of Evidence for Death Penalty Cases" and "Illegal Evidence Exclusion Rule" or two "Rules of Evidence"). The two "Rules of Evidence" have critical real values that they provide basic principles for criminal evidence and the detailed standard of proof in death penalty cases. They also lay good foundation for modifying evidence rules in Criminal Procedure Law soon. Based on the recognition criterion of the legitimacy of oral evidences which is explicitly provided by two "Rules of Evidence" obtained "torture and other illegal means"(seriously in violations of evidence-collecting procedures) , this article tries to demonstrate the implementation of the legitimacy recognition criterion of oral evidences in judicial practice with examples and interviews and discuss differences between "theory" and "practices", then finding out the solutions.In addition to introduction and conclusion, the article's text is divided into three parts: The first part at first states the definition and the scope of illegal confession. Then describes the standard and responsibility of proof of the legitimacy of confessions; Thirdly, recommends the aspects of considering the standard of legitimacy of statement in China.The second part is the core of this article which is mainly analyzing the illegal confession Standards. "Illegal evidence exclusion rule" on one side is stating the provision of standard of proving the legitimacy of confessions, on the other side is how to grasp and implement the standard. In judicial practice, how to implement this standard is a problem. The author interviewed ten prosecutors, judges and attended a trial on the illegal confession excluded cases in order to find out the differences between "practice" and "theory". In addition, it is certainly covers the "repeated confession" and the "fruit of poisonous tree" problem in the establishment of illegal confession rules. The author makes a brief analysis by interviewing prosecutors and judges and analyzing the regulation of other countries in order to understand the specific practices.The third part focuses on the solution how to solve "practices" deviates from "theory" .The purposes of the rules of excluding illegal confessions in criminal cases are to regulate the behavior of the investigating authorities to obtain evidence and protect the lawful rights of suspects and defendants .However, relying on only two "rules of evidence" can not achieve these goals. Combined with some views of scholars, the author analysis the reasons of this divergence and give suggestion how to prevent"high standards in theory, low standards in practice". The author holds that it is essential not only to complement and confirm the rules of excluding illegal evidence, but also to set up and consummate the supporting system related to these rules.