On The Research Of The Capacity Of Evidence From An Interview With Reporters

In some criminal cases where public interests are seriously jeopardized,whether the newsmaterial through an interview with reports can be approved as litigation evidence by thejudicial authority?To this problem,due to the legislation black and the relative stortage of thisstudy on the theory,judges offen face problems in judicial practice whether such evidenceshould be excluded.Therefore,this paper tries to study the problem on the envidence ofinterview materials,hoping to making a contribution.Article consists of four chapters,in addition to the introduction andconclusion,it is aboutthrity thousand words.The first part,the related concept of evidence and evidence ability interview withreporters in this paper.What is the evidence?At present, scholars mainly have "facts","material"and otherviewpoints.This paper adopted the"material”to define evidence as the materials to prove thecase facts. What is the evidence ability?It refers to that a proof materials can meet the basicrequirement of evidence law,becoming a legal qualification of indentifing case facts.According to the different ways of interview,interview with reporters can be divided intodominant interview and recessive interview. According to the fact interview is legal or not,reporters can be divided into legal interview and illegal interview.The dominant interviewrefers to reporters that reporter or interview with the intention of interview,but the recessiveinterview refers to the reporter is not that reporter Followed by the recording means.Not oneone to one correspondence between the dominant or recessive interview with legal or illegalinterview,The dominant is not all of the interview is legitimate,the recessive interviewinterview all illegal interview.The dominant interview,legal or illegal,is simple,the recessiveinterview,legal or irregular,is complex. Relating to the legal problems of the recessiveinterview itself, there is a lot of controversy in theorists and the practical realm.There arepros,opposition,eclectic three claims.This paper adopted the compromise,that the recessiveinterview itself is not illegal.The illegal situation lies in the specific operation in the processof illegal behavior.How should the materials geting through an interview with reporters bepositioning?This paper recognizes it as private forensics.Private forensics is not to say thatprivate have power to collect evidence directly,but whether the evidence material acquired byprivate can be approved by judicial authority as evidence of the case. There are many differences between the private forensics and public authority investigation behavior,notappling to the exclusionary rule for illegal evidence.The second part,China’s current study on evidence ability of news material made byinterview reporters,Including the legislative and judicial status and related theories.China’s legislation is black on the ablity of evidence of the interview especially thecovert interview.A blank in legislation has caused many problems in the judicial practice.Inthe face of envidence ability of interview materials,the judge tend to directly apply theexclusionary rule of illegal evidence.or transform all the interview material to other kinds ofenvidence,or attach the judgment of evidence ability ofinterview material to the judgment ofthe forcefulness of evidence.And the theory about private forensics,there are three theories,namely absolute adoption,absolutely excluded and trade-off theory.This paper adopted thetrade-off theory,that to deal with the envidence ability obtained by private can not "make itrigidly uniform". According to the behavior of interview materials or the evidence against thelegal interests to classify, In principle, admit the envidence ability of private evidence,butexcept if the private use violence,threats or non peaceful means to violate the citizenlife,health,freedom and other constitutional basic rights to obtain evidence.The third part,the comparative study of USA "private power Laissez-faire model" and theGerman model of "legal interest balance".On the basis of USA "private power laissez faire mode",private forensics belong to theexception of the exclusion rule of illegal evidence,private obtain evidence even through illegalmeans banned by public authorities,the evidence also of course have the evidenceability.According to the German "legal interest balance mode",whether the evidence obtainedby private has the abilityof evidence lies to whether the court using the evidence may infringeconstitutional rights of people. In the case,the judge have to balance between the benefit ofprosecution and the legal interests.forensics people may suffer.There are much significantdifference between the two modes.Reasons for the differences are in many aspects,forexample,the difference in.the idea of human rights protection in the constitution,structure oflitigation and theory of the exclusionary rule of evidence illegally obtained. America "privatelaissez faire model" is too absolute, ignoring the complexity of private forensics,notconducive to the protection of the legitimate rights and interests of citizens. Germany’s "legalinterest balance model" has more flexibility,can better reflect the state of determination toprotect fundamental constitutional rights of the individual. The fourth part,put forward some point on the treatment of evidence problems ofmaterials made by reporters.Firstly,acknowledge the reporter has rights.to obtain materials.Based on the principle ofthe modern rule of law,the exercise of power in national public authority can only beexpressly in the scope of the law,that is to say "without authorization,it is prohibited".But forprivate citizens, acts the law does not expressly prohibit are all legitimate,namely "withoutprohibition,it is free”. The behavior of reporters getting the materials through an interview is akind of private forensics based on the freedom of the press. There are obvious differencesbetween the evidence from private and the national public authority.The former is the righttype of evidence,but the latter is the power of evidence. Our law does not expressly prohibitprivate citizens to obtain evidence, so the reporter has the right of freedom to obtain evidencematerial.At the same time,as an important form of private remedy,that the reporter has theright to obtain evidence materials has the legitimacy which can be traced back to thelegitimacy of the private remedy.Private remedy,as” a bottom line of relief”,its legitimacysources are from rights retaintion.Secondly,clear the relationship between the illegitimacy of the behavior ofreporters,obtaining evidence illegally,and the evidence ability.First, the interview materials thereporter legally acquires should have the evidence ability.In criminal cases, the behavior ofobtaining materials legally by reporters in an interview process does not conflict the power ofevidence,this kind of behavior should be legitimate in the procedural law.At the same time,theinterview materials the reporter legally acquires are also fully consistent with the evidenceability,namely objective authenticity,relevance and legitimacy standard.Second,the materials,illegally obtained by reporter,does not necessarily have no evidence ability.We should learn toclassify according to the degree of illegitimacy of interview behavior.In this paper,accordingto the defference in infringement of legal interests,the illegal interview behaviors of reportersare classified into general illegal interview behaviors and serious illegal interview behavior.Inprinciple,the interview materials obtained through general illegal behavior can not beexcluded,such evidence may be adopted as the evidence through statutory authorityrecognition. However,the materials obtained through the serious illegal interview behavior ofjournalists should be resolutely eliminated.How to judge whether the illegal behavior ofreporters reach a great illegal degree,the key is to see whether the illegal behavior of thereporter "makes the society can not accept" or " shocks the community".