The Analysis On The Pattern Of Eliminating Illegally Obtained Evidence By Multiple Organs In Criminal Procedure

As a result of modernization and controlling extorting confession by torture,the exclusionary rule of illegally obtained evidence has shown institutional characteristics out of the ordinary in Chinese criminal procedure.In terms of appearance,the investigation organs,procuratorial organs and judicial organs all own the power to examine and exclude illegally obtained evidence in their charge.In essence,it is a join force around policy by multiple organs.Its foundation is"legality of evidence”in theory and a mixture of legislation,judicial interpretation,and policy in judicial practice.Ambiguity in theory and imperfect in legislation directly leads to problems in practice.We shall put forward the countermeasures from the perspective of theory choice,value turn and legislation perfection.From the perspective of theory choice,”legality of evidence”has its rationality while it cannot be self-consistent at the same time.The exclusionary rule of illegally obtained evidence with the core concept of"capacity of evidence"should be established.Meanwhile,although the theory of procedural sanctions is wide enough to contain the exclusionary rule of-illegally obtained evidence,it cannot match the situation in practice perfectly.From the perspective of value turn,the exclusionary rule of illegally obtained evidence shall be a rule with multivariate positions.It is a crucial part of human rights guarantee system in criminal procedure,the warning machine in judicial self-cleaning system,the microscopic reflection on power balance among the investigation organs,procuratorial organs,judicial organs and supervisory organs,and also the guarantee of the mechanism of evidence review in China.From the perspective of legislation perfection,firstly,the definition of core concept should be written in the articles,insure the theoretical basis explicit before list the rules of procedure.Secondly,it is necessary to clarify legitimacy of the pattern of eliminating illegally obtained evidence by multiple organs.With promotion of Trial-centered Reform of Litigation system,the existing pattern shall be rearranged and adjusted.Due to the consideration of legitimacy,the exclusion of illegally obtained evidence made by investigation organs cannot be admitted.The procuratorial organs and judicial organs,on the basis of constitutional authorization,inherently have the legitimacy to exclude illegally obtained evidence.Supervisory organs should strictly apply the exclusionary rule of illegally obtained evidence,and the specific procedure should be thoroughly considered and designed.Thirdly,we should pay more attention to the record retention of identifying,recollecting,and deciding under the exclusionary rule of illegally obtained evidence.