Illegal Evidence System Research

The implement of "the Provisions on Several Issues Concerning the Examination and Judgment of Evidence in Death Sentence Cases" and "the Provisions on Several Issues Concerning the Exclusion of Illegal Evidence in Criminal Cases" marks the exclusionary rule of illegal evidence has been initially established in China. And such exclusionary rule has already been included in Criminal Procedure Law by the newly issued amendment. The proof system for illegal evidence is indispensable for the operation of such exclusionary rule. Consequently, a proper proof system for illegal evidence should be set up for the smooth operation of the exclusion of illegal evidence.This thesis is of approximately45,000Chinese characters, and of four chapters.Chapter One, the Overview of relevant Theories of Illegal Evidence. The illegal evidence was redefined; it shall be subject to the illegality of collecting evidence, restraint of people thereof and the infringement to the basic rights of citizens of the accused. Illegal evidence is distinguished from incompetent evidence; the theoretical basis of exclusion of illegal material evidence and illegal verbal evidence at the beginning of founding are Deterrence Theory and Misstatement respectively, with the development of notion of human right and rule by law along with the pursuance of civilization of judiciary, the theoretical basis of exclusionary rule has shifted to the pursuance of procedural justice; the proof system of illegal evidence includes the proof body of illegal evidence, burden of proof, standard of proof and procedure of proof etc..Chapter Two, the Basic Proof System for Illegal Evidence. Research upon foreign theoretical basis and practice experience of such burden of proof and standard of proof as of illegal evidence is conducting. The evidence produced by the accusing party shall be deemed legitimate at first. To bring forward an exclusion motion of illegal evidence by the accused party is a right instead of a burden, i.e. the accused party shall not assume the burden of proof. At the stage of proof, the illegal evidence shall be classified, and the burden of proof shall be distributed upon circumstances. Similarly, the standard of proof shall also be distributed according to whether the exclusionary of evidence is related to the authenticity of evidence, i.e. the standard of proof for the accusing party to proof the material evidence is of little relation to the ratio of wrongful detention and conviction, however, the lower the standard of proof for the accusing party, the lower ratio of the guilty remains at large. The standard of proof for the accusing party to proof the verbal evidence is of negative correlation to the ratio of wrongful detention and conviction, i.e. the higher standard of proof, the lower the misjudgment ratio caused by such evidence. As for the choice such person who shall be the Judge and the hearing stage as shall take two factors, i.e. firstly, whether it will cause an effect on the heart proffer of actual judges, secondly, the influence on the affluence and fluency of the court trial, into consideration. Countries, whose procedure and substantial judge is identical, shall not simply take contries, whose procedure and substantial judges are different, that adopt the pattern to prevent the substantial judge touching illegal evidence, as reference. A more practical method is to set strict explaination obligation upon judges, to avoid the influence of illegal evidence to judges’ discretion utmost. Thus, countries adopted the mentioned pattern, when choosing the stage of hearing, shall take the second factor into consideration.Chapter Three, the Legitimation of Proof Procedure for Illegal Evidence. Conducting research upon the foreign relevant experience, this chapter includes such the launch, hearing, remedy and effect of awards as of the proof of illegal evidence. Firstly, the standing body to bring forward exclusionary motion shall merely consist of the accused, whose basic rights are deemed as damaged, and her or his counsel, and judges. Such motion bringing forward by prosecutors is against the rule of action structure. Similarly, witnesses and victims shall not be the standing body as well. Additionally, based upon due process, the accused shall be informed relevant rights. Secondly, upon the hearing procedures, focusing upon the effect of the testimony of the accused, application of evidence rules and the form of the awards ect.. Finally, focusing upon the late motion, remedy of awards and its effect, and remedy of failure be informed.Chapter Four, the Review and Establishment upon Proof System for Illegal Evidence of China. Reviewing the Chinese legislation upon exclusionary rules of illegal evidence, this chapter firstly focuses upon the issues concering the prejudice upon material evidence, whether testimony of witnesses and statement of victims shall be included into illegal verbal evidence and the exclusion of illegal material evidence. Besides, the burden of proof, standard of proof and procedure of proof within the proof system of illegal evidence in China are elaborated. The accused currently shall be deemed to assume the burden of proof, meanwhile, take assurance of human rights whilist punishment of crimes as starting point, the standard for the accusing party to proof the legitimacy of obtainment of evidence shall be lower, and the standard for the verbal evidence and material evidence shall be distinguished. With regard to the hearing pattern, illegal verbal evidence shall be proofed prior to the substantive hearing in principle; whilist illegal material evidence shall be proofed within the process of substantive hearing. Finally, perfectation of the proof system of illegal evidence shall be guaranteed by several coordinated methods.