The initiation of illegal evidence exclusion investigation procedure specifically refers to the initiation of illegal evidence exclusion investigation procedure, which is divided into two situations: first, the judicial organs take the initiative to start. Article 54 of the new Criminal Procedure Law stipulates that evidence that should be excluded in the process of investigation, examination, prosecution and trial shall be excluded according to law and shall not be used as the basis for prosecution opinions, prosecution decisions and judgments. That is to say, whether the investigation organ is in the process of case investigation or the public prosecution organ is in the process of examination and prosecution, the judicial organ should start the investigation procedure to exclude illegal evidence as long as it finds the problem of illegal evidence in the trial process, which is a "mandatory" provision. Second, the obligee applies for membership. The new criminal procedure law stipulates that the parties, their defenders and agents ad litem have the right to apply to the people's court for the exclusion of evidence collected by illegal means according to law, and provide relevant clues or materials orally or in writing. The "materials" mentioned here refer to evidence materials such as scars, photos of scars, medical certificates, disability certificates, and certificates of fellow inmates that can prove illegal evidence collection such as extorting confessions by torture. "Clue" refers to specific facts that can show the existence of illegal evidence collection such as extorting a confession by torture, including the time, place, way and clues of suspected illegal evidence collection personnel. It should be noted that as long as the parties, their defenders and agents ad litem put forward information or clues about illegal evidence collection, it is not necessary to start the investigation procedure. Only when the judges think that there may be problems with illegal evidence can the investigation procedure be started. After preliminary examination by the court, if the circumstances or clues of illegal evidence collection put forward by the parties, their defenders and litigation agents are obviously untenable, the court may directly reject the application and not start the investigation procedure of illegal evidence. This involves the examination of illegal evidence. Regarding the scope of examination and handling of illegal evidence, in the two provisions, it is only limited to written evidence such as criminal suspect's confession, defendant's testimony and victim's statement, while in the new criminal procedure law, two types of evidence are added: physical evidence and documentary evidence. In judicial practice, the judge's examination of illegal evidence is influenced by many factors, such as the time when the defendant put forward the examination, the complexity of the case, the number of defendants and so on. This requires the judge to read the case file carefully after accepting the case, and take the initiative to examine whether there is any problem of illegal evidence collection in the case file, such as the method, way, time, place, content and procedure of verbal evidence, physical evidence and documentary evidence. When serving a copy of the indictment, it is important to know whether the defendant and the defender have the problem of illegally obtaining evidence and whether there are relevant clues and materials. Then the judge will take corresponding measures according to the relevant situation. (1) If the defendant applies for the exclusion of illegal evidence before the trial, the judge shall start the pre-trial meeting procedure, call the prosecution and the defense and relevant parties to review and deal with the exclusion of illegal evidence, and make a decision on whether to exclude relevant illegal evidence. Even if the defendant or defender does not file a pre-trial application, if the case is complicated and a pre-trial meeting is needed, the judge should also ask the prosecution and the defense whether there is illegal evidence collection in the pre-trial meeting and record it. (2) If the defendant makes an application during the court session, the judge can start the investigation procedure first or handle it flexibly according to the specific circumstances of the case after the prosecutor reads out the indictment. For example, if the investigation procedure is started at any time, the trial time may be delayed. At this time, they can review, investigate and make a decision to exclude illegal evidence together with the investigation of other evidence before the end of the court investigation. It should be noted that if the illegal evidence investigation procedure is not started first, the judge should seek the opinions of the public prosecutor, the defendant and their defenders, and after reaching an agreement, the illegal evidence investigation procedure can be started before the end of the court investigation and after the investigation of other evidence is completed. Otherwise, the public prosecutor had better suggest that the court postpone the trial at this time. During the extension of the trial, the judge will focus on reviewing and excluding illegal evidence with both the prosecution and the defense, and then resume the trial. For example, in the theft trial of defendants Chen Mou and Cheng, defendant Chen Mou suddenly raised the issue of illegal evidence and provided relevant clues when he was questioned by the investigation organ after the trial. The court held that the defendant's confession played a major role in the crime, and the court did not have the conditions to review and exclude the evidence. At this time, the prosecutor offered to postpone the trial, and the collegial panel agreed to postpone it. During the extension period, the public prosecution agency investigated the relevant evidence and ruled out the problem of illegal evidence collection in this case. Then, the court resumed the trial. (3) Judging from the existing trial practice, the operation of excluding illegal evidence is too formal. In practice, most of the illegal evidence problems raised by the defendants were extorted by torture during the investigation. Some of the crimes confessed at that time did not exist, but were committed under the intimidation and inducement of investigators. For example, the theft cases of defendant Yang and others and defendant Chen all have the same problems. In terms of excluding illegal evidence, the public prosecution agency generally requires the investigation agency to provide an explanation of whether there is a phenomenon of extorting a confession by torture and the record of the original investigator's re-interrogation of the defendant to confirm that the procedure was legal when interrogating the defendant at that time, and there was no phenomenon of extorting a confession by torture; In addition, the public prosecution agency supplemented the physical examination form when the defendant was detained in the detention center, confirming that the defendant passed the physical examination when he entered the detention center, and there was no trauma. This makes the illegal evidence exclusion procedure a mere formality and does not completely solve the problem. According to the trial practice, the author suggests that in principle, investigators involved in obtaining illegal evidence should be required to appear in court to explain the situation, and if there are special circumstances, they should also sign the statement issued; In addition, if the defendant claims that there is a phenomenon of extorting a confession by torture in the investigation, the investigator should be replaced when the defendant is verified again, and the "suspected" investigator cannot be interrogated again. When necessary, prosecutors and judges can also participate in interrogation on the spot; When necessary, the examination of the physical examination form for admission to prison can be supported by the testimony of the personnel with the same prison number when the defendant first entered prison. 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Legal basis:
Article 56 of the Criminal Procedure Law stipulates that confessions of criminal suspects and defendants collected by illegal methods such as extorting confessions by torture, witness testimony and victim statements collected by illegal methods such as violence and threats shall be excluded. If the collection of material evidence and documentary evidence does not conform to legal procedures and may seriously affect judicial justice, it shall be corrected or a reasonable explanation shall be made; If it cannot be corrected or a reasonable explanation cannot be given, the evidence shall be excluded. Evidence that should be excluded during investigation, examination, prosecution and trial shall be excluded according to law and shall not be used as the basis for prosecution opinions, prosecution decisions and judgments.