Definition of (1) related concepts
1. The concept of evidence
Article 42 of China's Criminal Procedure Law stipulates: "All facts that prove the true situation of a case are evidence. Evidence in criminal proceedings refers to all the facts that can prove the true situation of a case in the form prescribed by law "[1]. From the above definition of evidence in criminal proceedings, it can be seen that evidence in criminal proceedings has one of three essential characteristics, namely, legality, that is, it must be collected and used according to law, which is an important condition for evidence to have legal effect. It is not only related to the probative force of evidence, but also related to the probative force of evidence, that is, the probative function and value of evidence. Therefore, in order to be used as evidence in litigation, it must have the characteristics of legitimacy, not evidence with legitimacy.
2. The concept of exclusionary rule of illegal evidence
At present, there is no accurate definition of "illegal". According to the Oxford Law Dictionary, "breaking the law" refers to a general concept that conflicts with the law and has no exact meaning and consequences. It can refer to a real violation of the law or a prohibited, punishable or criminal act. It may also only refer to acts that violate legal obligations or public policies and cannot be enforced. "[2] Illegal evidence is simply illegal evidence collected and used in violation of legal provisions. In the process of definition, illegal evidence can be divided into broad sense and narrow sense. The narrow sense of illegal evidence is aimed at the methods or procedures of collecting evidence, while China's criminal procedure law only focuses on the narrow sense of illegal evidence. Article 43 of China's Criminal Procedure Law stipulates: "It is strictly forbidden to extort confessions by torture and collect evidence by threats, enticements, deception and other illegal methods. "In the process of collecting evidence, if these regulations are violated or not met, the obtained evidence will be regarded as illegal evidence. Illegal evidence in a broad sense includes: the subject of collecting and using evidence needs to be legal, the collection procedure of each evidence needs to be legal, the evidence must have a legal form, and the evidence needs to be verified by legal procedures. The concept of the exclusionary rule of illegal evidence means that in criminal proceedings, evidence collected by investigation, prosecution and judicial organs by illegal means should be excluded and may not be adopted as evidence or used as the basis for trial.
(2) Historical origin
1. the relationship between the inquisitorial litigation mode and the exclusionary rule of illegal evidence
The inquisitorial litigation mode is a very popular litigation system in the middle and late feudal society. The essential feature of inquisitorial litigation is that judges actively investigate crimes according to their functions and powers, and the functions of accusation and trial are all on one judge. Neither the plaintiff nor the defendant has the status and rights of the litigation subject, and the defendant is the object of investigation who only undertakes litigation obligations and belongs to the object of being traced and interrogated. In litigation, confession is very important and is the main basis for deciding a case. Confession is called "the king of evidence". In order to obtain confessions, legislators and judiciaries regard extorting confessions by torture as a necessary means of prosecution, which is clearly and specifically stipulated in the law and widely applied in judicial practice, and even becomes the central link of prosecution. From the above analysis, it can be seen that the inquisitorial litigation mode legalizes obtaining evidence by torture, which runs counter to the spirit of the exclusionary rule of illegal evidence advocated in modern times.
2. Typical modern western countries
(1) USA. The exclusionary rule of illegal evidence originated in the United States. On 19 14, the Supreme Court of the United States passed the hearing of the case of Vickers v. the United States. After the trial, the exclusionary rule of illegal evidence was formally established and applied in the criminal pursuit of the US federal court. Later, it was extended to the criminal proceedings of state courts through a series of precedents, which continues to this day. Despite some resistance, even pressure from Congress, it failed to shake the application of this rule. However, compared with the content when the rules were just formed, the content has been continuously supplemented and improved.
19 14 In the case of Vickers v. the United States, the police arrested the defendant in the workplace without a search warrant, and later the police searched the defendant's house without a search warrant and obtained relevant evidence of the defendant's crime. The Supreme Court of the United States held that the police searched and seized the defendant's letters and property without a license, which violated the Missouri Constitution and the Fourth and Fifth Amendments to the US Federal Constitution. From the perspective of upholding the Constitution and protecting citizens' constitutional rights, the Supreme Court of the United States believes that evidence obtained by illegal means must be excluded. However, the exclusionary rule of illegal evidence was originally only applicable to illegal search and seizure in the United States, and not every state court was willing to accept this rule until the revolution of due process of law, especially after the Supreme Court of the United States tried Max v. Ohio in 196 1. However, these are only physical evidence obtained by illegal search, thus excluding all illegally obtained evidence, which was established through a very famous case Miranda v Arizona. The Supreme Court of the United States established the Miranda warning rule (or Miranda rule). Because Miranda rule is no longer only aimed at police's search behavior, but also at police's interrogation behavior, it can be said that with the continuous enrichment and increase of cases in the Supreme Court of the United States, the scope of application of the exclusionary rule of illegal evidence has gradually expanded. Although there were some disputes during this period, through continuous development and improvement, the rule gradually became reasonable and perfect, and became more operable.
Since the United States, many countries have stipulated this rule in their constitutions or laws.
(2) Japan [4]. In Japan, the exclusionary rule of illegal evidence is a rule formed by precedent rather than legal provisions. It is generally believed that 1978 Osaka ice case established the exclusionary rule of illegal evidence. There are three main theories to apply the exclusionary rule of illegal evidence, namely, normative theory, judicial honesty theory (or judicial innocence theory) and inhibition effect theory. Japanese scholar Shouyi Taguchi said: "We should focus on the theory of inhibition effect and consider the other two viewpoints at the same time, and then determine the application of the exclusionary rule of illegal evidence after comprehensive analysis." There are two views on the exclusion standard of illegal evidence, one is called absolute exclusion theory, the other is called relative exclusion theory. Whether evidence should be excluded should be determined according to certain conditions or circumstances. Regarding the problem of "the fruit of the poisonous tree", it is considered that not all these derived evidences must be excluded, and whether all derived evidences should be excluded should be judged according to the severity of the infringement and the correlation between the two evidences. In addition, there are some exceptions to the exclusionary rule of illegal evidence, such as the inevitable discovery exception and the bona fide exception. Japan doesn't generally adopt the exclusionary rule of illegal evidence to exclude the use of some evidence like the United States, but it gives us a lot of useful enlightenment, such as judging whether the fruit of the poisonous tree should be excluded after adopting certain standards, which deserves our in-depth study and reference. Later, Article 38 of the Japanese Constitution stipulated that "confessions obtained by coercion, torture or coercion, or confessions obtained after improper long-term detention or seizure, shall not be used as evidence". Formally establish this rule in law.
③ Germany [5]. In Germany, it is mainly through the provisions of the German Criminal Procedure Law to determine whether illegal evidence should be adopted. The exclusion of illegal evidence can be divided into two types, namely, violation of the prohibition of collecting evidence and prohibition of using evidence. For example, Article 136a of the German Criminal Procedure Law stipulates: "It is forbidden to use methods such as abuse, fatigue tactics, physical injury, taking drugs, torture, fraud or hypnosis to interrogate the defendant, and it is also forbidden to use measures that damage the defendant's memory and understanding. Even if the defendant agrees to do so, the statement obtained cannot be used as evidence. " However, the German Criminal Procedure Law does not stipulate whether the evidence obtained by other illegal means can be recognized, so scholars have different opinions. However, the court and most scholars believe that the opposition to the "automatic" application of the exclusion rule should be dealt with on a case-by-case basis, and we cannot simply think that as long as it is an illegal way of obtaining evidence, it must be excluded and cannot be adopted. Some scholars in Germany disagree that the application of the exclusionary rule of illegal evidence can effectively prevent law enforcement officers from obtaining evidence by illegal means. They believe that only illegal evidence that meets certain conditions can be excluded, and the conditions that need to be met are: "1. Illegal evidence collection will inevitably harm the interests of those who can benefit from the exclusion of evidence protected by law; 2. Evidence exclusion must serve the procedural rules that have been destroyed; 3. Unless through illegal means, these evidences cannot be obtained; 4. The exclusion of evidence cannot conflict with the highest interests of the' real' facts in handling cases. " For the fruit of the poisonous tree, German legal scholars and courts tend to exclude the admissibility of derivative evidence, rather than taking more exclusions like the United States.
3. International treaties
The Code of Conduct for Law Enforcement Officials adopted by the United Nations in 1979 stipulates: "Law enforcement officials should respect and protect human dignity and safeguard everyone's human rights when performing their duties." United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: "Taking into account the principles proclaimed in the Charter of the United Nations, the States parties to this Convention recognize the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world; Recognizing that these rights stem from the inherent dignity of human beings; Considering that the Charter, especially Article 55, stipulates that all countries have the obligation to promote universal respect for and observance of human rights and fundamental freedoms; Noting that article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights stipulate that torture and other cruel, inhuman or degrading treatment or punishment are prohibited for anyone; Noting the Declaration on the Protection of Everyone from Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the General Assembly on 9 February, 1975, I hope that the struggle against torture and other cruel, inhuman or degrading treatment or punishment can be carried out more effectively all over the world "; "For the purposes of this Convention," torture "means any act that intentionally inflicts severe physical or mental pain or suffering on a person for the purpose of obtaining information or confessions from a person or a third party, punishing him or a third party for acts he or she has done or is suspected of doing, or for any reason of any kind of discrimination, which is caused by or at the instigation, consent or acquiescence of a public official or other person exercising his or her functions in an official capacity. It does not include pain or suffering caused entirely by legal sanctions or inherent or incidental to legal sanctions. Article 10 of the resolution on human rights in criminal proceedings adopted by the 15 General Assembly of the World Association of Criminal Law clearly stipulates: "The evidence obtained by any violation of basic rights, including indirect evidence derived from it, is invalid." The above-mentioned United Nations conventions show that respecting and protecting human rights, prohibiting extorting confessions by torture and establishing rules for excluding illegal evidence have become major issues and world trends facing criminal systems in various countries.
Second, the litigation value of the exclusionary rule of illegal evidence
(A), the relationship between the exclusionary rule of illegal evidence and the relevant value
1. Relationship with human rights
The Code of Conduct for Law Enforcement Officials adopted by the United Nations in 1979 stipulates: "Law enforcement officials should respect and protect human dignity and safeguard everyone's human rights when performing their duties." The amendment to the US Constitution [4] stipulates: "The people's right to protect their person, house, documents and property from unreasonable search and seizure shall not be infringed; A search and seizure permit shall not be issued unless there are reasonable grounds to believe that he is guilty, he has sworn or solemnly declared, and he has a detailed list of places to be searched and people or things to be seized. " Paragraph 3 of Article 33 of the Constitution of China revised in 2004 stipulates that "the state respects and protects human rights". This requires that human rights should be respected and protected in criminal justice, and cases must be handled in strict accordance with the Constitution, because the investigation and evidence collection behavior of judicial organs in criminal proceedings will violate the basic rights given to citizens by the Constitution and human rights. The establishment of the exclusionary rule of illegal evidence makes judicial personnel must collect and use evidence in strict accordance with the law, thus providing a strong institutional guarantee for safeguarding human rights from the source and minimizing the occurrence of human rights violations. American scholar Fred said: "If there is no chance to get a trial according to legal procedures, the confession obtained from the suspect will be banned, regardless of its voluntary nature in other aspects." [6] Reid's point of view illustrates the relationship between the exclusionary rule of illegal evidence and human rights protection. The two are opposites, so it is necessary to make a correct value choice between them. From the previous introduction, we can know that the exclusionary rule of illegal evidence is established because the act of obtaining evidence by investigation organs sometimes infringes on citizens' legal rights, although the obtained evidence may be true and relevant. Therefore, we can see whether illegal evidence should be excluded, in fact, the court must make a correct value choice between protecting citizens' rights and finding out the facts of the case, and balance the conflict of interests between them. If we adopt extremely strict exclusionary rules of illegal evidence, we may indulge in crime; If these illegal evidences are not excluded, it will undoubtedly condone and even encourage the investigation organs to use a large number of illegal methods to obtain evidence, thus infringing on the basic rights of citizens. Although the exclusionary rule of illegal evidence may lead to the indulgence of crimes in some cases, and the trial results may be inconsistent with the facts, it is more in line with the concept of justice to indulge a criminal (or some criminals) than to violate the basic rights of citizens, and the legal system of protecting rights cannot be abandoned just because of punishing a criminal. In the application of the exclusionary system of illegal evidence, we should combine the current concept of rule of law and human rights in our country, reasonably determine the standards and applicable situations that should be excluded, and make the exclusionary rule of illegal evidence play a greater role in our legal system.
2. Relationship with justice
Justice is the primary value goal pursued by human society. Among all kinds of social justice, the justice of social system and social basic system undoubtedly plays a decisive role. Rawls thinks: "The main problem of justice is the basic structure of society, or more accurately, it is the way to make the main social systems allocate basic rights and obligations and determine the division of rights and interests arising from social cooperation." [7] Judicial justice plays a very important role in social justice. It is the last judicial barrier to maintain social justice, the window to reflect social justice, and the soul and lifeline of judicial organs. Judicial justice is divided into procedural justice and substantive justice. Procedural justice also refers to procedural justice, that is, justice is embodied in litigation procedures. Judicial justice should reflect not only substantive justice, but also procedural justice. In the Anglo-American legal system, the relevant provisions of the whole criminal procedure law are mainly about procedures and restrictions on state public power. Only by realizing substantive justice and procedural justice can judicial justice be truly realized. When procedural justice conflicts with substantive justice, procedural justice must be given priority. The exclusionary rule of illegal evidence is a typical embodiment of procedural justice.
3. Relationship with due process of law
Due process of law is an important legal basis of American constitutionalism. Its application in judicial practice not only enriches the theory of due process of law itself, but also promotes the development of constitution and constitutionalism. The connotation of due process of law, such as procedural norms and procedural restriction power, is closely related to the exclusionary rule of illegal evidence. The amendment to the US Constitution [5] stipulates: "No one shall be punished for capital crimes or other felony unless reported or prosecuted by a grand jury, except for cases that occurred in the service of the army, navy or militia during wartime and national crisis. No one may be injured twice in life or physical disability because of the same criminal act; Never be forced to testify against yourself in any criminal case; No one shall be deprived of life, freedom or property without due process of law; Private property may not be used for public purposes without proper compensation. " The first paragraph of the [14] amendment to the US Constitution stipulates: "Anyone born or naturalized in the United States and subject to the jurisdiction of the United States is a citizen of the United States and the state in which he lives. No state shall enact or enforce any law that deprives citizens of the United States of privileges or immunities; Without due process of law, no state may deprive anyone of life, freedom or property; Nor shall it refuse to give equal legal protection to anyone under its jurisdiction. " The Fifth Amendment and the Fourteenth Amendment to the American Federal Constitution are famous due process clauses, which are the essence of American legal spirit. As the famous American judge Cardoso pointed out: "No one should be deprived of his freedom without due process of law, which is the most common concept." "Any nation that pursues civilization and progress in today's world should have its own due process, although they may not use the word' due process'." "This is an indispensable thing for any judicial system in the world today." [8] This shows that due process of law is necessary for judicial justice, which embodies procedural justice and is a more essential guarantee for any citizen's legitimate rights and interests to obtain very effective protection.
(B), the value of the exclusionary rule of illegal evidence itself
The value of the exclusionary rule of illegal evidence itself not only refers to the value goal to be achieved by this exclusionary rule in the specific operation process, but also refers to the value standard for people to evaluate and judge whether this rule is just and reasonable. Kant pointed out that "unless a person commits a punishable crime, he should not be convicted and punished" [9]. The acquisition of illegal evidence usually assumes that the parties are guilty, and the presumption of guilt is carried out at the expense of the legitimate rights of the parties, which often leads to a large number of unjust, false and wrong cases. She Xianglin's wife murder case is a typical manifestation of the serious consequences of illegal evidence collection. This kind of illegal behavior not only seriously violates human rights, but also wastes a lot of judicial resources, which is not conducive to the real realization of substantive justice. American scholar Taylor said: "Under normal circumstances, a just procedure can produce more just results than an unfair procedure." [10] The exclusionary rule of illegal evidence is an important embodiment of procedural justice. On the premise of adhering to procedural justice, it is helpful to standardize the investigation and evidence collection behavior of judicial organs, realize substantive justice to the maximum extent, protect human rights and realize judicial justice. In China's judicial practice, when some facts are unclear in the trial, the judge conducts an out-of-court investigation alone to collect new evidence against the defendant, which directly serves as the main basis for the defendant's conviction at the time of judgment. In this way, judges can find evidence that many investigation departments have not obtained, so that guilty people can be investigated, thus realizing substantive justice. However, the judge did not give the litigants the opportunity to cross-examine and debate the evidence they collected, and deprived those who had an interest in the outcome of the case of the opportunity to effectively participate in the decision-making process. The procedure of accepting such cross-examination evidence as legal evidence does not conform to the spirit of modern law [1 1]. This unrestricted procedure has seriously damaged the legitimate rights and interests of both parties, especially the rights of the accused.
Third, the scope of the exclusionary rule of illegal evidence
Different countries have different national conditions, and their attitudes towards whether verbal evidence, physical evidence and evidence obtained on the basis of illegally obtained evidence (so-called fruit of poisonous trees) are adopted are also very different [12].
(1) Exclude verbal evidence obtained by illegal means
Because illegal verbal evidence is often obtained by brutal means such as extorting confessions by torture, which seriously infringes on the dignity, health and even life of citizens and other most important basic rights of natural persons, countries usually take a very strict attitude towards verbal evidence obtained by illegal means, demanding that it be excluded and not adopted.
1. UK. /kloc-at the end of 0/8th century, Britain established the exclusion rule of defendant's non-arbitrary confession through case law. According to this exclusion rule, whether the defendant's confession can be accepted depends on whether it is completely voluntary. In modern British law and judicial practice, the issue of non-arbitrary confession has always been one of the focuses of people's attention, and compared with previous cases, some very important changes have taken place: (1), the exclusion rule of non-arbitrary confession has been further clarified in legislation in the form of written law. For example, the Judges Ordinance stipulates: "In criminal proceedings, part or all of the confessions made by the defendant, as long as they are voluntary, can be used by the prosecution as evidence to accuse the defendant of guilt; That is, the evidence is not because the defendant was unfairly treated, threatened or suppressed by the judicial organs, or hoped to gain benefits. " (2) The content of illegal means of obtaining evidence related to this rule has also developed greatly compared with the past. At present, it is stipulated not only to exclude confessions obtained by torture or threats of violence, but also to exclude confessions obtained by violating the right of lawyers to be present. (3) The scope of excluding confessions of criminal suspects and defendants is also expanding. In judicial practice, if the police do not make synchronous records during interrogation, or do not give the interrogation record to the defendant to read and sign, it may also lead to the conviction being revoked by the court of appeal. The understanding of the exclusion rule of non-arbitrary confession in Britain is a gradual deepening process. At first, the defendant's non-arbitrary confession was excluded to ensure the authenticity of the confession. With the development of society, the rights of the defendant in criminal proceedings have been paid more and more attention, so the value and theoretical basis of this rule have also shifted from discovering the substantive truth to protecting and safeguarding the defendant's right to silence. Whether the adoption of illegal evidence will have an adverse impact on procedural justice has therefore become the primary consideration for illegally obtaining confessions. Article 76 of the British Police and Criminal Evidence Act 1984 stipulates the principle of automatically excluding the confession illegally obtained by the defendant. Based on the spirit of English common law rules, this law deals with verbal evidence in the form of legislation for the first time.
2. America. The exclusion rule of defendant's non-arbitrary confession originated in Britain, but it was transplanted and greatly developed in the United States shortly after its emergence. The Fourth Amendment to the US Constitution stipulates that "in criminal charges, evidence collected by illegal means shall not be used as evidence to prove guilt". The amendment to Article 14 of the Constitution of the United States stipulates: "No matter what state, no laws that deprive citizens of the United States of privileges or immunities shall be stipulated or implemented; No one shall lose his life, freedom or property without due process of law. " This clause was cited and interpreted by the Federal Supreme Court as the constitutional basis of the exclusionary rule of illegal evidence. The rules are further improved by the cases of Weeks V.V.S. in 19 14 and mappov.ohio in 196 1. In order to stop using the means of infringing citizens' constitutional rights to obtain guilty confessions, the Supreme Court of the United States has established a series of admissibility rules of evidence in the form of precedents, and through these rules, it has established the judgment standard of non-arbitrary confessions, that is, voluntary confessions should be the product of free will and normal intelligence, and there is no doubt that those who violate this principle are non-arbitrary confessions. The rules of non-arbitrary confession in the United States have experienced a development process from relatively loose to strict. Before the 1940s, the defendant's confession was limited to "arbitrariness". Later, the Supreme Court's case showed that the dispute about the confession law changed from "the arbitrariness of confession" to "the illegality of procedure", that is, if the confession was obtained by a federal official during the extension of the defendant's detention period, or violated his lawyer's right, or failed to follow the rules of informing the right to silence, the federal court would not accept it regardless of whether the confession was credible or voluntary.
3. Germany, Japan and Italy. Article 136A (1) of the German Criminal Procedure Law stipulates: "The statement made by the defendant when deciding and determining his will shall not be violated by means of abuse, fatigue tactics, physical injury, taking drugs, torture, fraud or hypnosis, and it is mandatory only within the scope permitted by the Criminal Procedure Law. It is forbidden to take threatening measures that are not allowed by the Criminal Procedure Law, and it is forbidden to promise benefits that are not stipulated by law. " Paragraph (2) of this article stipulates: "It is forbidden to take measures that will damage the complainant's memory and understanding." Paragraph (3) of the same article stipulates: "Even if the defendant agrees, statements obtained in violation of these prohibitions are not allowed to be used." Article 3 19 of Japan's Criminal Procedure Law stipulates: "Confessions obtained by coercion, torture or coercion, confessions obtained after long-term improper detention and other involuntary confessions cannot be used as evidence." Article 19 1 of the Italian Criminal Procedure Law, as amended by 1988, stipulates: "Evidence obtained in violation of the law shall not be used. It shows that civil law countries hold a negative attitude towards the confessions of criminal suspects and defendants obtained by illegal means, believing that they have no evidence effect and are not used as the basis for finalizing the case. "
Relevant international treaties also recognize the exclusion of verbal evidence obtained by illegal means. For example, Article 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was adopted and opened for signature by the United Nations General Assembly in February in its resolution 1984 10, stipulates: "Each State Party shall ensure that any confession determined to have been obtained through torture shall not be invoked as evidence in any proceedings.
(2) excluding material evidence obtained by illegal means.
With regard to the legal effect of illegally obtained material evidence, different countries have different litigation theories and legislative choices because of the great differences in legal traditions and in order to meet the domestic political needs and the changes in crime rates in different periods. There are three ways for countries or regions to exclude material evidence obtained by illegal evidence: one is to exclude it all; The second is to exclude in principle and set some exceptions; Third, it is excluded by the judge's discretion.
The first method is mainly adopted by Italy and Russia. For example, Article 9 1 of the Italian Criminal Procedure Law "Illegally Obtained Evidence" stipulates: "(1) Evidence obtained in violation of the law shall not be used; (2) The unavailability of the above evidence can be pointed out at any stage of litigation and trial level. "
The second method is mainly adopted by the United States. In the United States, from the perspective of crime control and human rights protection, the exclusionary rule of illegal material evidence has been thoroughly applied. Based on the provisions of the Fourth Amendment to the Constitution, the Federal Supreme Court established this rule through a series of cases, and applied it to the criminal proceedings in various states in 196 1. However, after the early 1980s, due to the constant impact of the crime wave, the US Supreme Court revised the exclusionary rule of illegal evidence. Such as the principle of "good faith exception" and the principle of "inevitable discovery". In the early 1990s, three principles were added: the exception of independent sources, the exception of weakening causality and the exception of questioning. But in fact, at present, the theoretical circle of American criminal procedure law is still arguing about this rule.
The third way is adopted by Britain, Germany and Japan. Most countries use this method to exclude illegally obtained material evidence. In Germany, illegally obtained material evidence is treated according to the principle of "balance of interests", that is, evidence obtained by violating personal dignity and personal freedom should be prohibited; However, for serious criminal offences, even if the evidence obtained by illegal search, confiscation or seizure should be prohibited, decisions should be made based on the comparison and balance of various interests.
However, Japan's Constitution and Criminal Procedure Law do not clearly stipulate whether the evidence obtained by search and seizure in violation of legal procedures has probative force, but adopt an evasive attitude. In a drug abuse case heard in 1978, the Supreme Court of Japan held that two conditions must be met to exclude illegally collected evidence: first, there is a major illegal situation in the procedure of collecting evidence that seriously obliterates the spirit of writ doctrine; Second, if illegally collected objects of evidence are allowed as evidence, it will not be conducive to curbing illegal investigations in the future.
In Britain, evidence obtained through illegal search, seizure or similar acts is not completely excluded, but judges are required to exercise their discretion by analyzing the specific circumstances of the case. When a judge excludes the admissibility of a certain evidence, he must weigh and compare the probative value of the evidence and its possible adverse impact on litigation justice. When exercising this discretion, the judge needs to grasp the scale of ensuring the defendant to get a fair trial and exclude all evidence that seriously hinders the defendant from getting a fair trial, which is not applicable.
(c) Eliminate the "fruit of the poisonous tree"
The "poison tree" in the Fruit of the Poisonous Tree refers to the evidence collected by the theory of illegality; Take the illegally collected evidence as a clue to further obtain the fruit of the poisonous tree. There are great differences in the practices of destroying the fruits of poisonous trees in different countries. For example, although the United States adopts the principle of exclusion, the Supreme Court has confirmed the so-called "independent source exception", "dilution exception" and "finally or inevitably discovered exception" in relevant cases. Britain has adopted the principle of "destroying poisonous trees" but "eating the fruits of poisonous trees". That is, although the facts of the defendant's confession are excluded, it does not affect the admissibility of the evidence found in the confession. The exclusion of all other illegal or unfair evidence should be carried out by the judge by exercising his discretion according to the specific circumstances of the case. In Germany, scholars have different views on whether evidence obtained through explicit prohibition can be used. Most people think that the use of evidence should be banned, otherwise the norm of prohibiting evidence will not be easily implemented. However, it also applies to cases in some state high courts. Some cases in federal courts tend to think that exploitation should be prohibited, but their opinions are not clear. In Japan's judicial practice, the lower courts generally still master according to the established standards of the Supreme Court, and there are cases of affirming and denying the evidential ability of derivative evidence.