The Construction Of The Authentication Rules In China

Authentication is an admissibility rule for real evidence established by the United States Federal Evidence Rule 901,which preliminarily proves the authenticity and identity of real evidence,reveals the connection between the evidence and the fact and provides sufficient evidence to lay evidence foundation for further using the real evidence to reconstitution the fact of a case and exerting the probative value of the proposed evidence.This evidence rule is helpful to prevent false,untrue and irrelevant evidence from entering the court and promote the accuracy of fact finding.Our criminal procedure law lacks evidence rules governing the admissibility of real evidence so that there are almost no restrictions for the judge to accept the real evidence in judicial practice and sometimes unjust cases have happened as a result of receiving false evidences by the judge.Meanwhile because there existing behavior violating the guidelines in the process of obtaining evidence and the custody of evidence,the charge and the defense would dispute the authenticity and identity of the real evidence or the accuracy or reliability of the process that produced the exhibit,bringing the challenge of convincing the court that the evidence has not been altered and it comes from a certain source.This article takes the authentication rules as the research theme and is intent to analyse and draw lessons from the important experience of the authentication rules in America for a purpose that perfecting the admissibility rules of real evidence,improving the evaluated system of real evidence,preventing unjust case and resolving the difficult problem of how to properly authenticate real evidence.The introduction explains the reasons of picking up this topic,research purpose,research methods,research review,the new ideas of this research and the deficiency of it.Part Ⅰ is an overview mainly introducing the concept of authentication,the nature and the function of authentication rules,and also discussed the differences between authentication and related evidence rules.The word “authentication” is derived from the "Authentication and Identification" provisions of Chapter IX of the Federal Evidence Rules.In this chapter through an extensive analysis of its deep meaning from two aspects-the authenticity and the relevance of evidence a conclusion have been made that authentication doesn’t require definite proof of authenticity but only to meet a mild standard described as “prima face”,and the requirement of authentication actually is an aspect of relevance.The establishment of authentication in U.S is based on three theoretical foundations: the relevance of evidence,the jury system and the presumption that presented evidence is untrue.In U.S authentication rules are typical admissibility rules,while it is very special because authentication focus on the problem of logical relevance of evidence which belongs to fact issue other than a legal issue so that it is also a non-technical legal rules in where the role of the judge in the application of this rule is extremely limited.Authenticating real evidence is beneficial to clear up the interference from the dynamic manner in which evidence unfolds and be guaranteed the authenticity and reliability of real evidence by forbidding false and forged evidence entering the court.As the relationship between authentication and other evidence rules,authentication forms a complementary relationship with the best evidence rules,and combines with rule of exclusion of illegal evidence to constitute the integrity of admissibility system of real evidence,although the two evidence rules have distinct differences they will also coincide with each other in some circumstances.Part Ⅱ analyses the legislation and practice of authentication in our country and discusses the significance and the meaning of constructing authentication rules in China.The first chapter mainly answers the question whether China has established authentication rules.The nature of the rules governing judgment of real evidence in the "Two Rules of Evidence" published in 2010 is controversial in theory.This chapter compares those evidence rules which were difficult to be clarified with the American authentication rules from various aspects such as the purpose of regulation,the form of legislation,the content of the rules,and the period of application etc.It is concluded that our country has not yet formed the system of authentication,but it can be regarded as the prototype of Chinese authentication rules for real evidence.The next chapter discusses the significance and the meaning of constructing authentication rules in China from three aspects.First of all,stand in the perspective of the three parties which are police,prosecutor and the judge to discover the meaning of building this rule.Secondly it finds that constructing authentication rules could perfect the admissibility rules of real evidence and improve the evaluated system of real evidence.Finally the establishment of authentication rules can also activate the defense of evidence,promote the substantive trial and meet the needs of the trial-centric litigation system reform.Part Ⅲ points out the characteristics and deficiencies of Chinese authentication rules for real evidence.At first China has not established a complete system of authentication rules and the content of those current rules is very simple.Besides,the authentication methods are too simple to guide and not flexible enough,what’s more,obviously our legal system lacked the most important method called custody chain and the authentication excessively depend on the writing records but ignores the necessity of analyzing the witness testimony.Thirdly,there is no definite authentication rules and authentication still hide in the authenticity determination activities and lack of independent procedures to rely on.At last when applying authentication rules into specific case the judge has broad discretion and the judge tends to receive other than exclude real evidence that brings the result of application of correction and reasonable illustration rules without limit.Part Ⅳ provides suggestions for the build of authentication rules.First of all,it is important to perfect the authentication rules following the two-step legislative strategy.Secondly,a multivariate and flexible authentication method system should be formed,there is a special chapter summarizing the common methods for authenticating traditional forms of evidence such as physical evidence and documentary evidence and the new type of real evidence which refers to electronic evidence,meanwhile explores particular methods only applied to electronic evidence.For custody chain system is vital to authenticate an evidence successfully,in this paper the construction of the custody chain system is studied in detail.Besides it is advisable to set up the selfauthentication system to balance the relationship between judicial justice and judicial efficiency.Thirdly,it is proposed to use the pre-trial conference to achieve the goal of making the authentication having its independence procedure,at the same time improve the relevant procedural rules of authentication.Finally,in view of the problem that the judge’s broad discretion which weaken the legal effect of authentication rules,the situation that applying the correction and reasonable illustration rules frequently should be changed by limiting the range of application of correction and reasonable illustration and clarify the prerequisites for using this rule.