Research On The Exclusionary Rule From The Perspective Of Criminal Defense

The exclusionary rule of illegally obtained evidence is a basic rule of evidence guaranteeing human rights and limiting criminal judicial power abuse in the field of criminal proceedings. It has caused a high level of concern at home and abroad in recent years. The defense of exclusion of illegal evidence is a significant process and guarantee of practicing the exclusionary rule, which lays emphasis on the application of exclusionary rule in the area of criminal procedures. Influenced by the traditional sense of "substantive law is superior to the law of procedure", lawyers in our country usually ignore the importance of procedural defense, or even if they propose the defense of excluding illegally obtained evidence, they will confront with lots of pressure and obstacles in the litigation practice. With the progress and development of the society governed by law, protection of human rights gradually becomes a significant value pursuit in our country, and the implement of the defense of exclusion of illegal evidence will play an important role in realizing this value goal. The amended criminal procedural law in 2012 finally established the systematic exclusionary rule, then it will be crucial issues for the criminal defense lawyers to explore that how to make proper use of this rule to maintain the accused persons’legal rights and to ensure the justice of the judicial proceedings. Therefore, based on the above understandings, this paper makes a systematically analysis and discussion on the current legislation and judicial actuality of the exclusionary rule from the perspective of criminal defense, sorting out related theories of the defense of illegal evidences by instance analyses and foreign comparisons, etc., and aiming to make some suggestions to our lawyers on dealing with the cases of procedure vindication.This paper can be divided into five parts. The first part introduces the procedural law functions of the exclusionary rule, analyzing its functions and values to our country’s criminal suits theory and judicial practice from the aspects of protection of human rights, procedural justice, substantive justice, and justified competency of evidence, etc. Filtered through the illegal evidence exclusion process, the evidenced finally adopted by the court have quite qualifications as legal bases for deciding cases, realizing the procedural justice while guaranteeing the substantial fairness. It is an effective practice of the criminal prosecution goal of "punishing crime and protecting human rights", which embodies the significance of procedural law. The second part lays emphasis on the practical challenges and judicial difficulties during the defense of the exclusion of illegal evidences, including the obstructions for the initiation of the exclusionary procedure, the investigators’refusal to testify at the trial, the prosecutor’s unpractical burden of proof and standard, the deficiencies in the attorney’s legal rights, and the inadequate procedural defense consciousness and abilities, etc. The third part lists some typical cases in recent years about the defense of exclusion of illegal evidences, generalizing the defense lawsuits for exclusion of the illegal verbal evidences and object evidences. The fourth part describes the systems of defending for the exclusion of illegal evidences in American, England, Germany, EU and some other countries, making a comparative study from the aspects of legislative guarantee and judicial practice, and proposing some suggestions and guidelines for our country. The last part provides some basic measures for our country to build an effective defense system of the exclusion of illegal evidences, putting forward some beneficial insights for solving the practical difficulties and problems mentioned above.