The Research Of E-discovery In Criminal Proceedings

Electronic data is a new kind of evidence produced by the rapid development of modern science and technology,which plays an increasingly important role in judicial practice.As an important guarantee for the effective use of electronic data,e-discovery is almost never mentioned in criminal legislation and theoretical research in China.Therefore,based on the relevant theories of China's procedural law and evidence law,this article makes a tentative plan for the construction of e-discovery mechanism in Chinese criminal proceedings to promote the construction and improvement of e-discovery mechanism in China by analyzing the theory and practice of American.This paper is divided into four parts.The first part is mainly about the introduction of e-discovery.This part first discusses the introduction of electronic data from the origin of the word “electronic data” and its changing history.Based on the analysis of American legislation and the definition of electronic data by Chinese scholars and legislation,this paper dissects electronic data into "electronic" and "data",and defines “electronic data”.Furthermore,this paper discusses the similarities and differences between electronic data and electronic evidence which still exist in academic and practical circles.Then,this part interprets electronic data from the aspects of its definition and the particularity.The second part mainly makes the United States as the representative to conduct comparative study on the e-discovery mechanism.Through translation and integration of a large number of relevant legal documents and academic achievements in the United States,this paper expounds the construction,theory and practice of the e-discovery mechanism in the United States from the aspects of e-discovery in civil proceedings and criminal proceedings,and hopes to provide reference and inspiration for the construction of e-discovery mechanism in China.Specifically,this paper analyzes the e-discovery in the civil procedure in the United States from six aspects,which are obligations and subjects,e-discovery plan,scope,forms,the cost sharing,the relief and the sanctions.Besides,the paper also discusses e-discovery in American criminal proceedings from two aspects: opening legislation and opening practice.The third part discusses the necessity and feasibility of the construction of the e-discovery mechanism in Chinese criminal litigation on the basis of the comprehensive analysis of the current judicial situation in China.On one hand,the necessity of constructing e-discovery mechanism of criminal procedure in Chinese comes from three aspects: meeting the urgent needs of judicial practice and implementing new laws,strengthening the effectiveness of reading right and optimizing the adversary relationship between the prosecution and the defense,improving the efficiency of litigation and saving the judicial resources.On the other hand,the feasibility of constructing the e-discovery mechanism of criminal procedure in our country comes from three aspects: the discovery-ability of electronic data,the theoretical basis providing by existing research results and the effective experience from existing judicial practice.The fourth part proposes bold ideas on the establishment of the e-discovery mechanism in criminal procedure of China from the aspects of subject,scope,procedure,relief methods,and supporting measures on the basis of considering China's judicial environment and current situation.The subjects of discovery should include the prosecutor,the defendant and his lawyers or the non-lawyer advocate,and the judge should serve as the supervisor to participate in the e-discovery process.If necessary,the judge can also hire relevant experts to participate in the discovery process to provide assistance.In terms of the scope of discovery,the paper ad-vocates to insist on limited overall discovery and bidirectional but non-reciprocal discovery.In principle,electronic data should be fully disclosed.However,pretrial preparation materials,public interests,national interest,specific rights of others,and the burden of disclosure should be the restricted factors.And both the prosecution and the defense should conduct e-discovery,just the scope of discovery is different.In terms of the discovery procedure,the time should be from the prosecution of the case to five days before the trial.A special electronic data discovery office should be set up in the court.In the discovery means,direct discovery should be the center and indirect discovery should be the auxiliary mean.As far as the remedy against the discovery mechanism is concerned,the paper advocates that the rules of objection and sanctions should work together to standardize the conduct of electronic data discovery.Of course,no mechanism is isolated.The construction of e-discovery mechanism and its effective implementation depend on the improvement of related supporting measures,such as the improvement of collecting and keeping procedures,the introduction and development of electronic technology systems,and the construction of expert assistance systems.