Study On Proof Of Criminal Evidence Legality

Exclusionary Rules of Illegally obtained Evidence have been the heated topicboth in theory and in practice. There is great theoretical and practical significance tomake in-depth study of them. Proof of the validity of evidence is the essential matterof Exclusionary Rules of Illegally obtained Evidence. That whether the legality ofevidence is proved or not has a direct effect on implementation of Exclusionary Rulesof Illegally obtained Evidence. Specifically，if the legality of evidence is proved as tothe degree as it needed，the evidence collected by Criminal investigation organ shouldbe accepted and considered as the foundation of Conviction and Measurement ofPenalty.On the contrary，it should be excluded by Exclusionary Rules of Illegallyobtained Evidence. The substance of proving the legality of evidence is to provewhether the evidence itself has evidential qualification or evidential competence. Theobject of proof are those procedural disputes between prosecutor and defender on thelegality of evidence. Generally speaking，on the model of thinking the legality ofevidence proof，the reverse course of proof，in fact，should be implemented. Thatmeans as long as the criminal suspects，defendants and their defenders offer any cluesor materials，neutral referee party cast doubt on the legality of evidence，and theythink there is a presumption of illegal evidence collection behavior，then theprosecution bears the responsibility of overthrowing the "illegal evidence"presumption. If the prosecution can not fully prove the evidence legality，there existsthe possibility of illegal evidence. The presumptive facts are considered to exist，andthere is a "collection of evidence by illegal methods" according to the law of criminalprocedure article fifty-fourth.Before "the exclusionary rules of illegally obtained evidence "are issued，thereare mainly substantive content regulations such as the meaning and scope of theillegal evidence，the competence of illegal evidence. However，some problems onhow to prove the legality of evidence，namely，proof standard，proof method，appliedprocedures and relief procedures are not clearly defined，are not settled. As a result，the exclusionary rule of illegally obtained evidence has become the static written law not implemented in the judicial practice. The new "criminal procedural law" regulatesthe contents of illegal evidence exclusion rules in the investigation，prosecution，trialstage. But except the trial stage，specific operating procedures are not specificallyprescribed in the investigation，investigation examination&prosecution procedure.This paper tries to take this as the background， through the analysis of the currentdeficiency and defects to prove the legality of evidence in our country，to make anin-depth study of how to construct perfect mechanism on proof of the validity ofevidence，and to put forward my own proposals.The paper puts the exclusionary rule of illegally obtained evidence as thebreakthrough point，the pretrial procedure and trial procedure as the boundary，explores the construction of applicable procedures on proof of the legality of evidenceon the basis of the pretrial hearing procedures and the core of making pretrial hearingprocedure and the assistance of first trial，second trial，relief approaches. At the sametime，makes clear of the proof burden and standard of the legality of evidenceproof.The paper advocates that，combining the judicial practice，in the pretrialprocedure at the stage of examination of arrest and prosecution， to establishprocedural subject making prosecutors in the management department of theprosecution of cases neutral，and to build pretrial hearing procedure to prove theevidence legality with the participation of investigation organ and defense as subjects.If the investigation organ can not reach the proof standards，it should bear the adverselegal consequences. But in the judicial procedure，the role of the pretrial hearingshould be played; the proof of the legality of evidence should be executed in thepretrial hearing. The problems of proof of the legality of evidence should be solved inpretrial procedure as to prevent excessive delay action. However，there are notspecific regulations in China on how to deal with the problem of the legality ofevidence in the pretrial hearing according to the existing law. Therefore，according tothe actual situations of our country，this paper tries to make the pretrial hearingprocedure as the core，first trial，second trial as auxiliary，relief approaches assupplementation，to establish a multi-level procedural structure to prove the evidencelegality，providing effective procedure for exclusion of illegal evidence. On the one hand，to make an in-depth study of proof of the legality of evidenceis conducive to the development and implementation of promoting the exclusionaryrule of illegal evidence in our country. On the other hand，it gives a proceduralsafeguard to the provisions of the criminal procedure law to prohibit the illegalevidence，avoiding of miscarriages of justice occurred due to adoption of the illegalevidence.