The Study On Capacity Of Evidence And Probative Force Of The Audio And Video Recording Materials In Investigation And Interrogation

For a long time, in the stage of criminal investigation，usually interrogation of suspectsare conducted by the investigators in secret way. Then there is only the investigators andsuspects，and the personal freedom of suspects is often restricted in custody. In the case oflacking of the mechanism of effective restraint and supervision, the rights of criminalsuspects is ignored and trampled, then the inquisition by tortures, evidence of violence andother illegal interrogation behavior occur from time to time, and despite repeated prohibitions.In order to standardize the investigation and interrogation behavior of investigation personnel,guarantee and maintenance the basic rights of criminal suspects, the system of audio andvideo recording was formal established in the newly revised “Criminal Procedure Law”article121st in2012. The establishment and operation of any system depends on a series ofrelated systems, for a newly established audio and video recording system of investigationand interrogation is even more so. At the same time just as some scholars have said that,“Evidence law is the soul of the procedure law”. Through the research of the audio and videorecording system about the capacity of evidence and probative force, in order to graduallystandardize and perfect the audio and video recording system, this is the main purpose of thisstudy. This article is divided into three chapters, about thirty thousand words.The first chapter mainly introduces the produce and controversy caused in China of theaudio and video recording system. At first this paper introduced the produce, developmentand final establishment of the audio and video recording system in China. Then analyze themain disputes and differences in this system existed in our judicial operation, this partanalyses the capacity of evidence about the audio and video recording materials, there arefive different theoretical perspectives. In addition to the main problems is the judgment of theprobative force about this material. This part constitutes the basis of this study.The second chapter focuses on the capacity of evidence of the audio and video recordingmaterials, as the “rectification of names”. One of these is introduced the extraterritorial provisions of evidence ability about the audio and video recording materials, Most countrieshave provided the audio and video recording materials as documentary evidence, or incliningto treating as documentary evidence; But there is also the view that we should provide themas physical evidence. Two is introduced for the probative force of the audio and videorecording materials in the theory circle of our country, the dispute in one hand is that whetherthe audio and video recording materials have evidence qualification or not and can be used asevidence to use, the other side is the type of evidence in the audio and video recordingmaterials, there are five main kinds of different views. The three is the analysis on thecapability of the evidence of the audio and video recording materials in this paper, the authorconduct a study on its nature of evidence, it can be used as the evidence for the facts of thecase in criminal proceedings, and recognize “the double nature of evidence” is quitereasonable in the current and carry on the corresponding discussion and analysis. Four is theexclusionary rule of the capability of the evidence about the audio and video recordingmaterials, we have established three major exclusionary rule by means of related research andthe judicial practice of our country.The third chapter relates to the research on the probative force of the audio and videorecording materials. The first part mainly study how to carry on the examination andjudgment about the probative force when the audio and video recording materials areconsistent with the interrogation record, we think that the audio and video recording materialshave direct probative force no matter as a criminal suspect confessions and excuse, or asaudio-visual materials. The second part mainly conduct a discuss as the audio and videorecording materials and the interrogation record is inconsistent, we propose three maindifferent views which existed in our judicial practice and theory circle, think that weemphasize the authenticity and reliability of the audio and video recording materials, at thesame time we make comprehensive examination combining with all the case evidence. Thischapter also introduces the examination and determine of the audio and video recordingmaterials when the appellee withdraw a confession, this paper presents our principal task is toexamine credibility of two kinds of evidence, they both credibility has not necessarily the strong and weak points from both itself. We cannot mechanically provided that the audioand video recording materials have stronger probative force, the key for us to do is how toexamine and judge combining the case facts in order to solve the defendant confessionproblem in our criminal justice practice.