Research Of Electronic Evidence In Judicial Application

The standardization of the electronic evidence in judicial application is one of theimportant goal of research on the theory and practice of electronic evidence, buildinga scientific system in the specification of the electronic evidence in judicial use hasextremely important practical significance to ensure the smooth operation of thecriminal case dealt with, to punish crime accurately. Along with the an increase in thenumber of computer crime and criminal cases involving electronic evidence, how toaccurately regulate use of electronic evidence become one of the problems of thepresent judicial practice, however, the use of electronic evidence in our countryjudicial present situation that the research of the legal aspects lags far behind theresearch of technical aspects. The independent evidence rules of electronic evidenceand use the specification, therefore, should be further improved, with the aid ofelectronic evidence is listed as a separate species, to build the system of the electronicevidence of in China, in order to meet the requirements of electronic evidence injudicial application.This article consists of four parts, a total of about30000words.The first part mainly aimed at the basic problems analyzed in judicial applicationof electronic evidence. Electronic evidence legislation as a separate legal category hasbeen established, but still, there are scholars directly opposed to that electronicevidence is divided into separate species of evidence. In judicial practice, due to thelack of form a complete set of rules, electronic evidence is often converted to otherform of evidence, this is not standard practice that makes electronic evidence lostmeaning of evidence divided into types alone, also cannot meet the reality need tohandle criminal cases. At the same time, the emergence of electronic evidence to thetheory of some traditional rules of evidence, such as the "best evidence rule" and"illegal evidence exclusion rule" and "forensic evidence rule" has brought the hugeimpact, need to review these rules.The second part mainly aims at the problems analyzed in forensics process ofelectronic evidence. On a identity problem in forensics, the identity of the electronicevidence forensics adopts the double track in our country, includes both theinvestigation department of the forensics, and technology expert of electronicevidence, the dual-track approach can meet the demand of the electronic evidence forensics, but there are united hard obtains evidence thought and the legal thinking ofscience and technology, lead to the forensic evidence level is limited. In forensicapplication issues, because of the invisibility and digital of the electronic evidence,the evidence collection procedures is totally different from the traditional evidenceforensics, traditional evidence forensics program can not apply to electronic evidenceforensics, must adopt technical evidence collection procedures, including computerfixed on-site inspection, electronic evidence sequestration and electronic evidenceexamination.The third part mainly aims at the problems analyzed in review judgment link ofelectronic evidence. On electronic evidence identification problem, at present ourcountry electronic evidence appraisal institutions set up within the police organs andprocurator ate organs, they hold a large number of high-quality resources, there is nouniformity requirements of access to electronic evidence the surveyor qualification,the appraisal conclusion simple opinions, arguments; Electronic evidenceidentification should be neutral objectivity, on the other hand, with the existinginvestigation dependent formed under the condition of all sorts of contradictions, forthe idea of expert witnesses the preconceptions presumption of guilt and defenselawyers cannot effectively cross-examination, these contradictions cause controversialidentification of electronic evidence. On electronic evidence review judgment link,the judge for the electronic evidence not understand technical principle, in theelectronic evidence review judgment has dependencies on expert opinion, lead to thejudge for authenticity review evidence judgment ability is weak; On the other hand, inthe case of electronic evidence and traditional evidence, the judge more traditionalevidence, or double careful for electronic evidence, electronic evidence’s probativevalue weakened.The fourth part mainly puts forward the improvement of the electronic evidencein judicial application standardization. First of all, the establishment of specialevidence rules of electronic evidence:1. Electronic evidence for the impact of the bestevidence rule need compensatory by the original fiction rules;2. Make the standard ofthe identity and procedure rules of electronic evidence, clear what kind of evidencebelongs to the legal evidence, evidence which belong to the illegal evidence shall beexcluded, in order to avoid the transformation using electronic evidence is notstandard. Second, the electronic evidence forensics unification to the qualificationauthentication, obtains evidence procedures standardized operation and object legal confirmation, build a unified, standardized system of electronic evidence, to ensurethat the electronic evidence forensics link of technical and legal aspects of a doublestandard. Once again, to identify optimal allocation of resources, appraisal personnelstandardization management and appraisal document material the specialized design,electronic evidence to assist the audit judgment independent appraisal system, toapplication of electronic evidence in judicial into standardized track.