1. What are the rules for the exclusion of illegal evidence in my country?
1. Evidence materials produced or collected by law enforcement agencies in violation of legal procedures;
2. Beyond their authority or Evidence materials produced or collected by abuse of power;
3. Evidence materials produced or investigated and collected by lawyers or parties through illegal means;
The legislative body faces problems when formulating rules for the exclusion of illegal evidence with different value choices. If we simply consider the need to fight crime and find out the facts, then the more illegal evidence is excluded, the better. If we simply consider the need to protect the rights of criminal suspects and defendants, the more illegal evidence that can be excluded, the better. Lawmakers in various countries must strive to find a balance between the multiple values ??of fighting crime and protecting human rights.
Based on multiple value considerations, countries around the world generally treat illegal evidence differently. In other words, illegally obtained evidence will neither be excluded nor accepted. Specifically, there are the following situations: First, different types of illegal evidence are treated differently. For example, illegally obtained verbal evidence must be excluded, but illegally obtained physical evidence does not need to be excluded; secondly, different degrees of illegal evidence are treated differently, such as serious Illegal evidence obtained in violation of laws or serious violations of human rights must be excluded. Illegal evidence obtained in minor violations or minor violations of human rights does not need to be excluded. Third, treat illegal evidence in different types of cases differently, such as illegal evidence in general criminal cases. Evidence must be excluded, and illegal evidence in serious criminal cases such as terrorism and violence does not need to be excluded.
The basic idea behind our country’s formulation of rules for the exclusion of illegal evidence is also to treat them differently. This is reflected in the "two evidence provisions" and the Criminal Procedure Law. As mentioned earlier, Article 1 of the "Provisions on the Exclusion of Illegal Evidence" defines illegal speech evidence. Article 2 stipulates that "evidence of illegal speech determined in accordance with the law shall be excluded and shall not be used as the basis for finalizing a case." Article 14 Article 14 stipulates: "If the acquisition of physical evidence or documentary evidence clearly violates legal provisions and may affect a fair trial, corrections or reasonable explanations must be made; otherwise, the physical evidence or documentary evidence cannot be used as the basis for finalizing the case." Criminal Procedure Article 56 of the Law stipulates: "Confessions of criminal suspects and defendants collected using illegal methods such as torture to extract confessions, and witness testimonies and victim statements collected using illegal methods such as violence and threats shall be excluded. The collection of physical evidence and documentary evidence shall not If it complies with legal procedures and may seriously affect judicial fairness, it should be corrected or a reasonable explanation given; if it cannot be corrected or a reasonable explanation given, it should be excluded. "
According to the above provisions, my country's illegal evidence exclusion rules also apply. A two-pronged approach is adopted: the first category is the illegal evidence that is clearly listed in the law and should be excluded, which is equivalent to the illegal evidence that must be excluded according to the law, including the defendant's confession obtained through torture, and the witness testimony obtained through torture or threats. Victim statements, etc. The second category is illegal evidence that can be corrected or explained before a decision is made on whether to exclude it. It is similar to illegal evidence that is excluded at discretion. It mainly includes physical evidence, documentary evidence, etc. collected in violation of legal procedures. Such provisions do reflect the flexibility of legal rules, but they also bring difficulties to the application of the rules.
The rules for the exclusion of illegal evidence should have basic characteristics such as clarity, operability and predictability. Among them, clarity is the core because it is the basis for operability and predictability. If the clarity is strong, the operability and predictability of the rules will be high; if the clarity is weak, the operability and predictability of the rules will be low. In a sense, the clarity of legal rules marks the level of legislative technology and the perfection of the legal system. Therefore, legislators should try to use accurate language expressions when formulating rules for the exclusion of illegal evidence.
However, affected by factors such as the fuzziness of concepts, the polysemy of words, and the development and changes of social language, legal rules often have to have a certain degree of flexibility or openness, that is, the relative clarity of the subject meaning is accompanied by the relative change of marginal meanings. Ambiguity, or rather, being relatively clear at a more abstract level and relatively vague at a more concrete level. In addition, in order to meet the requirements of general application and long-term application, legal rules also need to have a certain degree of flexibility. Therefore, it is inevitable for legislators to use vague expressions such as "etc." when formulating rules for the exclusion of illegal evidence.
After the passage of the newly revised "Criminal Procedure Law", relevant leaders of the legislative body once explained: "With regard to the provision of 'using torture to extract confessions and other illegal methods' from the collection of confessions, it is recommended to use Obtaining confessions by inducement and deception is also clearly excluded. After research and consideration: confessions and testimony obtained by inducement and deception are also illegal and should be prohibited. However, there are many problems in practice and the impact is large. The main ones should be excluded. The confessions obtained through torture are clearly listed, reflecting the efforts to solve outstanding problems in punishing crimes and maintaining judicial fairness. "From a legislative perspective, this flexibility in the illegal evidence exclusion rules may be necessary, but from a judicial practice perspective. See, this would put the application of the rules into a difficult-to-regulate situation.
In summary, the rules for the exclusion of illegal evidence require a certain degree of flexibility so that judicial officers can decide whether to exclude it based on specific circumstances. Factors that judicial personnel can consider include: the seriousness of the violation of evidence collection; the seriousness of the infringement of evidence collection; the seriousness of the criminal case; the probative power of illegal evidence; the subjective state of the person who illegally collects evidence; the impact of illegal evidence collection on judicial fairness; The impact of illegal evidence collection on the judicial environment; the impact of illegal evidence collection on social interests, etc. There are so many factors that need to be considered and so many standards that need to be grasped, and these factors are also diverse. These standards are also ambiguous, and legislators really cannot make precise regulations in advance. However, leaving these issues entirely to the discretion of judicial personnel in specific cases will cause confusion in the application of the rules, especially in our country's current judicial environment. Therefore, how to apply the illegal evidence exclusion rule has become an important issue facing judicial personnel.