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The boundary between illegal and flawed evidence
Author: Li Yong (Nanjing Municipal People's Procuratorate, National Procuratorial Expert)
Source: Evidence Science, Issue 4, 2023 (the text was modified at the time of publication, please refer to the original journal for citation)
Abstract:Subject to the inertial thinking of the "three natures" (legitimacy, objectivity, and relevance) theory of traditional evidence law, and confused by the dilemma between common law and civil law systems, the boundary between illegal evidence and flawed evidence is confused. Drawing on the theory of evidence prohibition, illegal evidence and flawed evidence are issues related to the prohibition of the use of evidence, which belong to the category of evidentiary capacity, and the boundary between the two should be based on the two aspects of procedural justice and substantive truth as the benchmark for substantive interpretation, and then four judgment rules are derived: human rights rules, pain rules, authenticity rules, and voluntariness rules. In terms of specific judgment methods, we follow the logical sequence of progression from form to substance, adhere to the "form-substance" hierarchical identification method, and first judge whether the evidence obtained violates laws and regulations in terms of source, process, and result, and if it does not violate laws and regulations, there is no problem of excluding illegal evidence; if it violates relevant laws and regulations, it is first determined that it is flawed evidence, and then further make a substantive judgment on whether it is illegal evidence according to the rules of human rights, the rules of suffering, the rules of authenticity, and the rules of voluntariness.
Keywords: prohibition of evidence, capacity of evidence, illegal evidence, flawed evidence
Abstract: Influenced by the traditional theory of "
I. Introduction
On June 13, 2010, the "Two Evidence Provisions"[1] preliminarily established the rules for the exclusion of illegal evidence in mainland China, and created a new concept with Chinese characteristics - "flawed evidence". In 2012, when the Criminal Procedure Law was revised, the content of the "two evidence provisions" was fully absorbed, so that the rules of illegal evidence and flawed evidence in the mainland were established in legislation, and the rules for the exclusion of illegal evidence were not revised in 2018. The traditional theory of "three natures" of evidence (legality, objectivity, and relevance of evidence) in mainland criminal procedure law and law lacks explanatory power for illegal evidence and flawed evidence, and criminal procedure law scholars are subject to the "three natures" of traditional evidence The inertial thinking of theories and the dilemma between the common law system and the civil law system have led to the confusion of the boundary between illegal evidence and flawed evidence, the lack of in-depth theoretical research, and the chaos of judicial practice. Where is the substantive boundary between illegal evidence and flawed evidence, and how to specifically identify and judge them? These issues need to be studied urgently.
II. Doctrinal Analysis of Articles 52 and 56 of the Criminal Procedure Law
The rules on illegal evidence and flawed evidence are embodied in the legislation in articles 52 and 56 of the current Criminal Procedure Law of the mainland. The doctrinal interpretation of these two articles is the logical starting point for the study of illegal and flawed evidence. On the basis of theory, do the above-mentioned provisions of the Criminal Procedure Law of the Mainland draw on and absorb the theory of admissibility of the common law system or the theory of the prohibition of evidence in the civil law system? The author believes that Articles 52 and 56 of the Criminal Procedure Law of the Mainland draw on the reasonable elements of the theory of prohibition of evidence in the civil law system.
(1) The basic connotation of the theory of prohibition of evidence
In 1930, the German jurist Beling published the article "Evidence Prohibition as the Boundary of True Discovery in Criminal Proceedings", which opened a precedent for systematic discussion of the theory of evidence prohibition. According to the German theory of evidence prohibition, the prohibition of evidence is divided into the prohibition of obtaining evidence and the prohibition of the use of evidence, the former regulates the government's evidence collection activities, that is, prohibits the use of illegal methods to obtain evidence, and the latter regulates the scope of adjudication, that is, prohibits the use of certain evidence that has been obtained as the basis for judgment. This distinction refers not only to the different stages of criminal proceedings, but also to two different types of prohibitions that are in fact independent of each other – evidence that cannot be collected can be used, and evidence that can be properly collected cannot be used in a judgment. ”[2]
In violation of the prohibition on obtaining evidence, Germany's "courts and most authors opposed the 'automatic' exclusionary rule." They adopt a case-by-case approach, i.e. a trade-off theory, arguing that evidence cannot be automatically excluded because of an error made in the process of obtaining it, and that the exclusion of evidence does not necessarily reduce the damage caused by the unlawful gathering of evidence. [3] German courts would not accept the logical conclusion that "as long as the evidence was obtained illegally, it must be excluded". The following conditions must be met for the prohibition to be used as the basis for a verdict: (1) The illegal collection of evidence must harm the interests of the parties. For example, if a testimony against the defendant is obtained without informing the witness of his rights, it can be used as evidence because the failure to inform the witness of the right only violates the rights of the witness and does not infringe the legal rights of the defendant. Another example is the confession of the guilt of another person X by a criminal suspect who was not informed of the right to silence, and the confession is considered admissible evidence in the trial of X. (2) The evidence cannot be obtained except by illegal means, i.e., the "necessary discovery" rule. For example, if the police get a blood sample from a nurse after a suspect has undergone surgery, German law requires a doctor, not a nurse, to extract the blood. Although it was illegal for the police to fail to inform the nurse that they were not obliged to give the blood sample to the police, the court admitted the blood sample as evidence. The reason is that the police can legally obtain a blood sample in accordance with the provisions of the Code of Criminal Procedure on medical examinations, and it is a formalistic practice to exclude the current blood sample. For example, the German Code of Criminal Procedure provides that the medical examination should be carried out by a physician, and if a nurse is often mistaken for a doctor and ordered to take a blood sample from the accused, the exclusion of the results of the blood sample will not contribute to the achievement of the purpose of the requirement for a medical examination, i.e. to protect the health of the suspect. (3) the exclusion of evidence must serve the procedural rules that have been breached, and (4) the exclusion of evidence must not conflict with the paramount interest of the entity's "truthfulness". That is, even if all other exclusionary conditions are met, the evidence will not be excluded if the importance of ascertaining the truth far outweighs the interests of the defendant. The court needs to weigh the interests of the defendant against the interests of law enforcement, taking into account, but not limited to, the seriousness of the offence charged against the defendant, the seriousness of the procedural breach in the collection of evidence, and the extent to which the use of contested evidence is necessary for the accurate handling of the case. [4] The prohibition on the use of evidence is divided into dependent prohibition and autonomous prohibition of use according to whether the cause of formation is caused by the state's violation of the provisions on evidence collection. The effect of the prohibition of the use of the former comes immediately after the fact that the state organ illegally collects evidence, that is, the state organ violates the corresponding norms for the collection of evidence in criminal proceedings, and is dependent on the provisions of the Criminal Procedure Law, so it is called the prohibition of dependent use, and the most typical example is the non-arbitrary confession of the defendant obtained by the investigating organ using torture to extract confessions and other improper methods; "Autonomy" is also known as the constitutional prohibition on the use of evidence. [5] The most typical example is the illegal collection of evidence by private individuals. As far as the prohibition of dependent use is concerned, although the prohibition on the use of dependent evidence can only be said after the state organ illegally collects evidence, not all illegal evidence collection will lead to a prohibition on dependent use. [6]
In short, the basic consensus of the theory of evidence prohibition is that "illegal evidence collection ≠ use prohibition", that is, "other conditions" must be added to the illegal evidence collection to have the effect of prohibiting the use of evidence. Illegally obtained evidence may not be usable, and similarly, illegally obtained evidence cannot be used as the basis for a verdict. In other words, a prohibition on the acquisition of evidence is not the same as a prohibition on the use of evidence. [7] The essence of the German theory of prohibition of evidence can be summed up in one sentence, that is, the prohibition of evidence includes two different concepts: prohibition on obtaining evidence and prohibition on the use of evidence, and prohibition on obtaining evidence is not the same as prohibition on the use of evidence.
(2) The embodiment of the theory of prohibition of evidence in the Criminal Procedure Law of the Mainland
Article 52 of the Criminal Procedure Law prohibits the use of torture to extract confessions and the use of threats, inducements, deception and other illegal methods to obtain evidence, while article 56 prohibits the extortion of confessions by torture and verbal evidence obtained by illegal means such as violence and threats. As for the exclusion of physical and documentary evidence, the following three requirements need to be met at the same time: (1) the procedure for extracting physical and documentary evidence is illegal; (2) such illegal evidence collection may seriously affect judicial fairness; and (3) it is impossible to supplement or correct such illegal evidence collection or give a reasonable explanation. This kind of evidence that can be reasonably explained or corrected is the flawed evidence mentioned in the "Two Evidence Provisions" and is remediable evidence. [8] In fact, Article 52 of the Criminal Procedure Law of the People's Republic of China prohibits the acquisition of evidence, that is, evidence may not be obtained by these methods, and whether the evidence obtained by these methods can be used as the basis for a verdict or whether it should be excluded as illegal evidence is another matter. Article 56 is a prohibition on the use of evidence, that is, it cannot be used as the basis for a verdict. A comparison of Articles 52 and 56 shows that the former lists inducement and deception, while the latter does not specify inducement and deception, which shows that inducement and deception only violate the prohibition on obtaining evidence, but do not necessarily violate the prohibition on the use of evidence, so the evidence obtained by inducement and deception is not excluded in general. In this regard, the relevant person in the legislature pointed out that it should be understood that not all evidence gathered by illegal means should be excluded. [9]
In short, the violation of the provisions of Article 52 does not necessarily mean that Article 56 cannot be applied, that is, the illegal collection of evidence ≠ the exclusion of evidence, and the legal basis behind it is the general doctrine of evidence law in the civil law system - the prohibition of obtaining evidence ≠ the prohibition of the use of evidence. Therefore, as soon as we see that the evidence collection procedure is illegal, we cannot advocate the exclusion of illegal evidence. Articles 52 and 56 of the current Criminal Procedure Law of the Mainland are based on the theory of prohibition of evidence, just like the relevant provisions of the Mainland and Taiwan. Article 98 of the "Criminal Procedure Law" of the mainland and Taiwan region stipulates: "The interrogation of the defendant shall be conducted in earnest, and no violence, coercion, inducement, fraud, fatigue interrogation or other improper methods shall be used." Article 156, Paragraph 1 stipulates that "if the confession of the defendant is not based on violence, coercion, inducement, fraud, illegal detention or other improper methods, and is consistent with the facts, it may be used as evidence". Article 98 is a prohibition on the acquisition of evidence, and Article 156, Paragraph 1 is a prohibition on the use of evidence. [10] Professor Lin Yuxiong pointed out that due to the large number of regulations on the collection of evidence, it is inevitable that the public authorities will violate them, and if they are excluded indiscriminately, the result will be neither conducive to substantive justice nor to the fight against crime. Moreover, many of the procedures for collecting evidence stipulate that the object of protection is not the defendant, but a third party. [11]
In terms of the exclusion model of illegal evidence, the prohibition on the use of evidence in Germany means that it cannot be used as the basis for a verdict, and the illegal evidence in mainland China also means that it cannot be used as the basis for a verdict, which is different from the prohibition of illegal evidence from entering the court in the United States. First of all, the mainland's Criminal Procedure Law legislatively emphasizes that illegal evidence must be excluded at the three stages of the public, procuratorate, and judicial stages, not only that it cannot enter the courtroom, but is also embodied in Article 56, Paragraphs 1 and 2, Article 59, and Article 60 of the Criminal Procedure Law. In particular, paragraph 2 of Article 56 clearly stipulates that "it shall not be used as the basis for prosecution opinions, prosecution decisions and judgments", which is a provision corresponding to the relationship between the public prosecutor, the procuratorate and the judiciary in the mainland and the stage of litigation, and has nothing to do with whether illegal evidence has the qualifications to enter the court. This is because, on the one hand, the prosecution opinion of the public security organ and the prosecution decision of the procuratorate are not the final judgment of the case, and on the other hand, articles 59 and 60 further clearly stipulate that the legality of evidence needs to be investigated during the trial. Second, the mainland judicial interpretations and relevant normative documents on the exclusion of illegal evidence make extensive use of the expression "cannot be used as the basis for a verdict". For example, Article 2 of the Provisions on the Exclusion of Illegal Evidence provides for the exclusion of illegal verbal evidence, Article 83, Paragraph 2 of the Interpretation of the Criminal Procedure Law of the People's Republic of China provides for the exclusion of illegal physical evidence, Article 84, Paragraph 2 provides for the exclusion of illegal documentary evidence, and Articles 88, 89, 90, 94, 95 and 98 of the Interpretation of the Criminal Procedure Law of the People's Republic of China, etc.
In short, the provisions of the Continental Criminal Procedure Law and judicial interpretations on the exclusion of illegal evidence are based on the theory of evidence prohibition on behalf of Germany in the civil law system. However, the traditional theory of evidence law is completely studied within the framework of the American theory of exclusion of illegal evidence, which directly leads to the way of thinking of practitioners following the American rules of exclusion of illegal evidence to evaluate evidence, resulting in many confusions and misunderstandings. An important reason for the formation of such confusion and misunderstanding is that, on the one hand, the mainland has borrowed from Germany's theory of prohibition of evidence, which also belongs to the civil law system, in its legislation, and on the other hand, the theoretical circles are accustomed to using the American theory of exclusion of illegal evidence to interpret it, resulting in the inability to make a reasonable evaluation of the relationship between the prohibition on obtaining evidence and the prohibition on the use of evidence in the mainland's criminal procedure law. Judicial officers are misleading, either believing that only evidence obtained by illegal methods such as extorting confessions by torture will be excluded from use, or that as long as illegal means are used, they must not be used as the basis for a verdict. [12] Of course, the introduction of the theory of prohibition of evidence does not mean that it completely copies the provisions of Germany, but absorbs the rational elements of the theory of prohibition of evidence in the civil law system, and on this basis, it uniquely innovates the concept of defective evidence.
III. Definition of the connotation of illegal evidence and flawed evidence
The premise of clarifying the boundary between illegal evidence and flawed evidence is to accurately grasp the connotation of both. The theoretical basis for accurately locating Articles 52 and 56 of the Mainland Criminal Procedure Law lies in the theory of evidence prohibition in the civil law system, and then defines the connotation of illegal evidence and flawed evidence. The prohibition on the use of evidence is a matter of evidentiary capacity, that is, the prohibition of the use of evidence without evidentiary capacity is used as the basis for a verdict. Evidentiary capacity and probative power (hereinafter referred to as the "two forces") are the two core concepts in the evidence law of the civil law system, and an accurate understanding of the connotation and relationship between evidentiary capacity and probative power is the basis for defining illegal evidence and flawed evidence.
(1) The connotation and relationship between evidentiary capacity and probative force
Evidentiary capacity refers to the ability or qualification to be used as evidentiary information, that is, to be able to prove the existence of criminal facts. [13] In short, evidentiary capacity is the qualification of evidence as the basis for a verdict. The "probative value" of evidence refers to the fact that the evidence has substantial value for the determination of the facts to be proved, so it can be said that the evidence has the probative value. [14] Probative power emphasizes the relationship between evidence and the facts to be proven, and "evidence has substantial value for the determination of facts to be proved, and becomes the probative force of evidence". [15] In short, probative power is the probative role and value of evidence in the facts to be proved.
What is the relationship between probative power and evidentiary capacity? The general theory of evidentiary law theory in the civil law system holds that evidentiary capacity comes first and probative power comes later, and the two logically have a hierarchical and progressive relationship. "After the evidence has obtained the qualification to determine the facts of a crime, that is, after the evidentiary capacity has been obtained, what kind of 'rules' does the judge follow to judge whether the evidence is admissible? For example, after a witness has gone through a lawful investigation procedure, the judge admits or does not accept his testimony?" This logically determines that the evidence must first have evidentiary capacity, and then there is the problem of probative evaluation. [16] Huang Dongxiong et al. in the book "New Development of the Law of Criminal Evidence" pointed out more bluntly that the judgment of probative power is a matter after the evidence has evidentiary capacity. [17]
It is undeniable that there is also an interrelated and interpenetrating relationship between probative power and evidentiary capacity. Theoretically speaking, evidence with evidentiary capacity has the minimum probative power, because according to the viewpoint of dialectical materialism, the connection is the universal law between things, and the evidence with evidentiary capacity is absolutely irrelevant with the facts of the case, and there is no philosophical existence, but the strength of the probative power depends on the strength of the connection between it and the facts to be proven. Legal provisions on evidentiary capacity often contain elements of probative power, which will affect the scope of evidentiary capacity. For example, if the evidence is obtained in a minor violation of the law, if it has little impact on the probative power of the evidence, it may not be excluded as illegal evidence. "The laws of permissibility of evidence, in addition to those which arise from other external policies, trace their origins in great deal with the prevention of the danger of untrustworthiness. "The reason why some evidence is considered to be incapable of evidence and excludes it from being the basis for a verdict is that it is not true and credible, which makes it have no probative force. According to Rule 403 of the Federal Rules of Evidence, although a piece of evidence is relevant, its evidentiary value may still be excluded if it is affected by unfair bias or the danger of misleading the jury. <中华人民共和国刑事诉讼法>Article 109 of the Supreme People's Court's Interpretation on Application regards the authenticity of audio-visual materials as an important factor in judging whether they have evidentiary capacity. Therefore, some scholars summarize this phenomenon as the phenomenon of "probative power countering evidentiary ability". [18]
In short, evidentiary capacity and probative power are logically related. From this point of view, the precise definition of probative force should be the role and value of evidence with evidentiary capacity in proving the facts of the case. From the perspective of evidence review, the two are hierarchical, when we examine evidence, we first examine the evidentiary capacity of the evidence, and if it does not have evidentiary capacity, it will be excluded, and there is no need to examine its probative force; if it has evidentiary capacity after examination, we must then examine its probative force. In this regard, it can also be said that evidentiary capacity is a necessary condition for the facts to be proven, and probative power is the ability to have evidence to fully prove the facts to be proven, and to achieve the sufficient condition that evidence is a fact to be proven. [19]
(2) The connotation of illegal evidence and flawed evidence
Illegal evidence and flawed evidence in criminal proceedings in mainland China are all issues of evidentiary capacity. Some scholars define flawed evidence by probative force, arguing that flawed evidence cannot be used as the basis for a verdict because of its lack of probative power, that is, the lack of authenticity and reliability. [20] This view confuses the connotation and relationship between evidentiary power and probative power. Illegal evidence in the sense of exclusion of illegal evidence refers to evidence that has no evidentiary capacity, that is, evidence that cannot be used as the basis for a verdict, which is the rule of prohibition (exclusionary rule). Evidence without evidentiary capacity and illegal evidence have the same meaning, but the title is different, civil law systems generally use evidentiary capacity, while common law systems generally use illegal evidence. In the mainland, evidence without evidentiary capacity is illegal evidence that is excluded, that is, evidence that cannot be used as the basis for a verdict (prohibition on the use of evidence). However, illegal evidence ≠ evidence that does not have legitimacy, and there are many kinds of evidence that do not have legitimacy, and evidence that violates the prohibition on evidence collection is illegal evidence, but it may not be illegal evidence to be excluded, and may be flawed evidence.
Flawed evidence refers to evidence with flaws in evidentiary capacity, that is, evidence obtained by the act of collecting evidence with slight illegal circumstances, and its evidentiary capacity is yet to be determined, and if the illegal evidence gathering can be supplemented or reasonably explained, its evidentiary capacity is restored, and it may continue to be used as the basis for the verdict in subsequent procedures; The essential characteristic of flawed evidence lies in the slightness of its illegal circumstances, and as long as its illegality can be eliminated through correction and explanation, its evidentiary capacity will be restored. [21] It can be seen that whether the flawed evidence needs to be excluded needs to be determined by the adjudicator.
IV. The substantive boundary between illegal evidence and flawed evidence
(1) Theoretical disputes over the boundaries between illegal evidence and flawed evidence
1. Domestic controversy. The boundary between illegal evidence and flawed evidence is not clearly defined in the law, and theoretical disputes can be described as dazzling. In particular, it is difficult to understand the rule of exclusion of documentary and physical evidence in Article 56 of the Criminal Procedure Law that "may seriously affect judicial fairness". [22] One view is that evidence obtained by infringing on constitutional fundamental rights is illegal evidence, and evidence obtained by means that does not infringe fundamental rights but merely violates the procedures stipulated in the Criminal Procedure Law is flawed evidence,[23] and some argue that flawed evidence is evidence obtained by investigators through a minor violation of the law, and illegal evidence is evidence obtained by a serious violation of the law. [24] Generally speaking, there is a broad consensus on the degree of illegality as the criterion for distinguishing illegal evidence from flawed evidence, and it is generally believed that flawed evidence is evidence obtained in a slight violation of law, and illegal evidence is evidence obtained in serious violation of law. [25] However, the specific determination of minor and serious violations remains a difficult problem. Some scholars put forward the "four criteria", advocating that the judgment should be made from four aspects: whether the evidence collection method violates major rights and interests, whether the evidence collection method violates substantive procedural norms, whether the use of a certain evidence violates procedural justice and causes judicial injustice, and whether the use of a certain evidence affects the authenticity of the evidence; while other scholars put forward the "three standards", advocating that the judgment should be made from three perspectives: whether the evidence collection method directly infringes on the major rights and interests of the criminal suspect, whether the technical procedural standards are violated, and whether it affects the authenticity of the evidence.[26] Some scholars have also proposed "two criteria", based on the two criteria of whether the illegal act can be remedied and whether the rights of the person being collected,[27] or the degree of procedural violation and the degree of infringement of the basic rights and interests of the parties by the act of collecting evidence. [28] Some scholars believe that the exclusion of illegal evidence should shift from true discovery to formal sanctions, and procedural fairness is the only justification for the exclusion rule. [29]
In the author's opinion, the above view has certain positive significance, but it also has certain shortcomings. First, it is difficult to grasp the severity of illegal evidence collection and is not operable. The "second standard" theory takes the degree of procedural illegality and infringement of rights and interests as the criterion, but the degree itself is an ambiguous thing. Second, the substantive procedures, procedural justice, and judicial injustice in the "three standards" and "four standards" theories are abstract and cannot be operated in practice. Third, the "second standard" doctrine excludes the true discovery of entities from the viewpoint that the reparability of illegal acts and human rights violations, as well as procedural fairness as the only criterion, is not in line with the provisions of the Criminal Procedure Law and relevant judicial interpretations in the mainland, nor is it in line with the current situation in the mainland where it is difficult to exclude illegal evidence, and will further escalate the system of exclusion of illegal evidence.
2. Extraterritorial theory. Although there is no concept of flawed evidence outside the territory, evidence obtained by illegal means is not excluded in general, and there are many theories on the criteria for exclusion under what circumstances are necessary. The most important feature of the prohibition of evidence in Germany, represented by the civil law system, is that the types and standards of prohibition are not solved by legislation, but are the product of doctrine and precedents. [30] The German doctrine on the prohibition (exclusion) of the use of evidence is mainly as follows: (1) the theory of the field of rights, the main view is that the prohibition on the use of evidence arises only when the statute is designed for the interests of the defendant and the defendant's important rights are in the field of the defendant's rights, and the prosecuting authority illegally collects evidence to infringe on the defendant's interests. (2) The normative purpose of protection theory, which holds that whether the evidence obtained in violation of the law can be applied, it is necessary to trace the normative purpose of the violated law, and there are also different views on how to explore whether the purpose of the law is intended to prohibit the use of evidence. If the purpose of normative protection is to discover the truth, the violation of this provision will affect the correctness of the adjudication, and the use of the evidence will be prohibited. If the purpose of protection of the norm can no longer be achieved due to the wrong collection of evidence, the evidence is allowed to be used as the basis for the verdict. (3) The trade-off theory holds that any evidence that violates the norms of evidence collection must be weighed on a case-by-case basis in order to finally decide whether the use of evidence is prohibited, taking into account the principle of proportionality, weighing the necessity of the public authority's pursuit interests and individual rights protection, and the factors to be weighed include the seriousness of the violation of procedures, the severity of the crime, the necessity of correcting the discipline of the investigating organ, and the necessity of protecting the parties. At present, the general theory in German practice is the trade-off theory. [31]
The theoretical basis for the exclusion of illegal evidence in the United States, which is the representative of the common law system, also has controversies such as promoting the correctness of the result, preventing future violations (deterrence theory), judicial integrity theory, remedies for wrongdoing caused by illegal acts (relief theory), and weighing theory. [32] Among them, the theory of judicial integrity and the theory of deterrence are powerful doctrines. The theory of judicial integrity (also translated as judicial integrity) holds that the exclusion of illegal evidence is to ensure the integrity of the judiciary, and the court cannot endorse the illegal evidence collection of the police and the government. If evidence illegally obtained by the police is not excluded, it is tantamount to the court conniving at or even encouraging the police and the government to illegally collect evidence and infringe on the rights of citizens. The theory of deterrence (deterring police wrongdoing) holds that the primary purpose of the exclusionary rule is to deter police from future violations of the law in order to achieve the Fourth Amendment guarantees of civil rights. [33] After more than half a century of case law development, the US rule on the exclusion of illegal evidence has not only undergone substantial changes in terms of theoretical basis, but also has been continuously limited in its scope of application. "Over the past 50 years, the constitutional foundations of the exclusionary rule have been shaken and the scope of application has been compressed. "To this day, the trade-off theory occupies an important place in the American theory of the exclusion of illegal evidence. [34]
Looking at the various theories of Germany and the United States, we can draw two basic conclusions: First, all theories are facing the problem of being too abstract and difficult to operate. For example, in Germany, the purpose of normative protection cannot be weighed against the importance of the normative purpose of protection and the severity of the damage to that purpose of protection, nor can it be clearly concluded whether the use is prohibited or not. [35] Both the German trade-off theory and the American trade-off theory face the same problem: on the one hand, the rationality, type, and quantity of the factors themselves as balancing variables are questionable, and on the other hand, the trade-off process is disorderly, incomprehensible, and random. [36] Second, the trade-off theory has become a common trend of the two major legal systems, and both the German and American general theories are increasingly inclined to lay exclusion and prohibition on the basis of trade-offs, and of course the common problem faced by the two is how to make trade-offs. The German theory of trade-offs was first proposed by Rogall, who argued that trade-offs are an intrinsic requirement of the principle of the rule of law, a solution to the tension between the mode of conduct and penal justice, and that the trade-offs need to be treated differently on a case-by-case basis. There are five main factors to be weighed: (1) the violation of the procedures stipulated in the procedural law, the more serious the infringement of the legal rights of the parties, the more it cannot be used as the basis for the verdict; (2) the protection needs of the relevant persons; (3) the seriousness of the crime, the more serious the crime, the more difficult it is to exclude the evidence of illegal evidence; (4) whether the evidence can be obtained through legal means, that is, the so-called hypothetical substitution intervention; (5) the importance of specific evidentiary materials to prove the facts of the crime, the more important the evidence for the presentation of evidence, the more difficult it is to be excluded for the benefit of criminal prosecution。 In the United States, the common law representative, the first example of the balancing doctrine is Rule 403 of the Federal Rules of Evidence, which establishes the exclusionary rule that applies to the vast majority of trial court decisions: evidence that, while relevant, may be withheld if it is likely to cause unjust bias, confuse controversy, or mislead the jury more than the evidence might have value, or when it is considered to be unduly delayed, wasted time, or unnecessary to produce duplicate evidence. [37]
(2) The substantive boundaries between illegal evidence and flawed evidence
Looking at the above-mentioned major domestic views and the substantive benchmarks of the two legal systems on the exclusion of illegal evidence, they cannot escape the eternal proposition of criminal procedure—the balance between substantive truth and procedural justice, and between the prosecution of crimes and the protection of human rights. The criterion for the substantive distinction between illegal evidence and flawed evidence must also be explored from the perspective of substantive interpretation. For criminal law, substantive interpretation theory is the process of searching for substantive justice contained in the norms of criminal law as formal justice. [38] For the Criminal Procedure Law, substantive interpretation is also an exploration of the substantive justice contained in the norms of the Criminal Procedure Law, which is substantive truth and procedural justice. The Criminal Procedure Law is a procedural law to ensure the implementation of the criminal law, and the purpose of the criminal procedure may be given many things, but the core purpose is to implement the criminal law, provide a basis for just and fair adjudication, restore social peace, and discover the truth of criminal cases. Truthfulness and impartiality are the aims of criminal proceedings. [39] In short, the value of criminal procedure law is based on procedural justice and the realization of substantive truth. Articles 1 and 2 of the current Criminal Procedure Law of the mainland also clearly stipulate this. However, because the process of judicial proof is to use evidence to prove facts that have already occurred, and is constrained by objective conditions, the pursuit of truth cannot be unscrupulous, and must meet the requirements of procedural justice, therefore, the two major value goals of the modern criminal procedure law are procedural justice and substantive truth, and the substantive interpretation of various issues in the criminal procedure law, including evidence, should be based on substantive truth and procedural justice, which is complementary to the substantive interpretation of the criminal law that adheres to the substantive criminality and the protection of legal interests。 For example, article 56 of the Criminal Procedure Law stipulates that the exclusion of illegal evidence for documentary and physical evidence "may seriously affect judicial fairness", and the essence of the connotation is also procedural justice and substantive truth. The boundary between illegal evidence and flawed evidence should also be based on the two aspects of procedural justice and substantive truth.
1. The aspect of procedural justice. In order to achieve the punitive purpose of the criminal law and to ascertain the truth, criminal proceedings need to give state organs some means of investigation and evidence collection, but they cannot be unscrupulous in order to achieve the truth, and procedural justice is a measure directly used to protect human dignity. [40] From the perspective of the historical development of criminal procedure, the guiding spirit of modern criminal procedure is the idea of human rights protection, and procedural legitimacy has a priority guiding role, regardless of the principle of parties or the doctrine of authority. [41] Procedural justice is fundamentally aimed at implementing human rights protections through a series of procedural norms that constrain the State's power to investigate and prosecute crimes on a proper track. In order to clarify the truth of the crime, the state must use many coercive means, and these means will inevitably seriously interfere with the rights of possible suspects and even other third parties. [42] It can be seen that the protection of human rights is the core of procedural justice. The first sentence of the Provisions on Several Issues Concerning the Strict Exclusion of Illegal Evidence in the Handling of Criminal Cases of June 27, 2017 is "to accurately punish crimes, effectively protect human rights, standardize judicial conduct, and promote judicial fairness", emphasizing that the purpose ......of the rule on the exclusion of illegal evidence is to "protect human rights, standardize judicial conduct, and promote judicial fairness", which reflects the requirements of procedural justice. Therefore, where the collection of evidence is illegal to the extent that it infringes on the basic human rights of the parties and causes the parties to suffer, it is a violation of procedural justice, and the evidence obtained therefrom should be excluded. Based on this, we can decompose the substantive standard of illegal evidence from the perspective of procedural justice into "human rights rules" and "pain rules".
First, the meaning of the "human rights rule" is that if the basic human rights of the parties are violated by illegal evidence collection methods, they should be excluded as illegal evidence, and the basic human rights here are constitutional human rights, such as the right to body and health. The use of torture to extract confessions, disguised corporal punishment, violence, or threats to obtain evidence, as well as methods that illegally restrict personal freedom, is excluded because it violates the basic human rights of the parties and the evidence obtained on this basis lacks evidentiary capacity. For example, according to article 2 of the "Provisions on Several Issues Concerning the Strict Exclusion of Illegal Evidence in the Handling of Criminal Cases", confessions obtained by the use of violence or disguised corporal punishment are excluded, article 3 stipulates that confessions obtained by means of violence and threats are excluded, and article 4 stipulates that confessions obtained by means of illegal detention are excluded because these methods of evidence collection violate the basic human rights of the defendant and violate human rights rules.
It should be pointed out that the "human rights rules" are not necessarily specific to confessions and verbal evidence, and the illegal acquisition of electronic data, documentary evidence, and physical evidence by means that violate human rights should also be excluded. For example, the collection of documentary evidence by violent and illegal invasion of a home and the assault of the person in possession of physical evidence should be excluded as violations of human rights rules. Another example is that technical investigative measures are prone to infringe on basic privacy rights and can only be taken after a criminal case has been filed, so the electronic data collected or extracted by employing the above-mentioned investigative measures in the course of the preliminary investigation is not lawful and should be excluded in accordance with law. [43]
Second, the meaning of the "pain rule" is that if the illegal means of evidence collection may cause the parties to cause physical or mental suffering, they will be excluded as illegal evidence. Professor Long Zongzhi believes that this is also the standard set by the United Nations Convention against Torture for "torture", so it can also be summarized as "torture rules". [44] Article 2 of the Provisions on Several Issues Concerning the Strict Exclusion of Illegal Evidence in the Handling of Criminal Cases emphasizes that "...... Confessions made against the will of criminal suspects or defendants causing unbearable suffering shall be excluded. "It should be particularly pointed out that the suffering here includes both physical suffering, such as the physical suffering caused by the use of violence to obtain evidence and the extortion of confessions by torture, and mental suffering, such as the confession of a criminal suspect who is addicted to drug addiction by providing drugs, which will lead to unbearable suffering of the criminal suspect, and the evidence obtained should be excluded. The use of painful means to obtain documentary evidence, physical evidence, electronic data, and so forth shall also be excluded. For example, the use of painful means to compel others to hand over physical or documentary evidence should be excluded. For example, if an investigator induces that "a truthful confession can be given a lenient punishment" or "a truthful confession can be released on bail pending trial", it is flawed evidence if it does not violate the rules of human rights and the rule of suffering, and it also does not violate the following rules of authenticity and voluntariness, as long as it can be reasonably explained and explained, it can be excluded as illegal evidence and its evidentiary capacity can be restored.
2. The real aspect of the entity. To realize the real reality is to "not be guilty", "not guilty" means that the innocent person is found innocent, and "not guilty" means that the guilty person is found guilty and punished for his crime. The full meaning of the real entity is "to exonerate the innocent and punish the crime". The idea that the crime will not tolerate the innocent or allow the offender to go unpunished, is derived from the concept of justice, and is also a principle of justice. [45] The process of discovering the truth of a case is a process of using evidence to prove it, and the distortion of evidence will inevitably mislead the discovery of the truth, which may not only wronged the innocent, but also indulge the guilty. This is because, in order to achieve substantive truth, the evidence should be authentic, and evidence that may affect the authenticity of the evidence does not have evidentiary capacity and should be excluded; This is the third rule of truth and the fourth rule of voluntariness of the substantive standard under the real domination of the entity.
Third, the rule of authenticity. Article 50, paragraph 3 of the Criminal Procedure Law of the People's Republic of China stipulates that evidence must be verified to be true before it can be used as the basis for a verdict, emphasizing authenticity as an important indicator of evidentiary capacity. The examination of the authenticity of objective evidence such as documentary evidence, physical evidence, and electronic data is called "authenticity". [46] Documentary evidence, physical evidence, and electronic data must not be the basis of a verdict if there is no source, or where the source is questionable and a reasonable explanation cannot be made, it must not be the basis for a verdict. On the face of it, these circumstances do not comply with the rule of exclusion of physical and documentary evidence under article 56 of the Criminal Procedure Law. In fact, the authenticity of documentary and physical evidence without source or from unknown sources cannot be guaranteed, and "may seriously affect judicial fairness", so there is no evidentiary capacity. Verbal evidence also has the problem of veracity review, and verbal evidence that does not have authenticity does not have evidentiary capacity and cannot be used as the basis for a verdict. Even if the means of collecting verbal evidence are not illegal, the verbal evidence is not authentic and still does not have evidentiary capacity, such as the Supreme People's <中华人民共和国刑事诉讼法>Court's Ruling on ApplicationArticles 88 and 94 of the Interpretation (hereinafter referred to as the "Interpretation") stipulate that the testimony of witnesses who are obviously drunk, poisoned, or under anesthesia and cannot be perceived and expressed correctly normally, as well as confession records that have not been verified and confirmed by the defendant, have no evidentiary capacity because their authenticity cannot be guaranteed. Another example is when a minor is interrogated, and his legally-designated representative or appropriate adult is not present, because the minor is mentally immature, and when he is interrogated as a criminal suspect, there is great psychological pressure, which may affect the veracity of his confession, so he does not have evidentiary capacity. Article 94(4) of the Interpretation stipulates that where a juvenile criminal suspect or defendant is interrogated without the presence of a legal representative or other appropriate adult, his confession is illegal evidence and must not be used as the basis for a verdict. However, why is the testimony of a juvenile victim or witness in the same situation under Article 90(5) considered flawed evidence? This is because, compared with a criminal suspect, a juvenile witness or victim has relatively little psychological pressure when being questioned, and the impact of authenticity is small, so it is flawed evidence. In this regard, the relevant responsible person of the Supreme People's Court pointed out that the participation of appropriate adults in juvenile criminal proceedings has functions such as supervising interrogation activities, soothing the tension of minors, and helping minors communicate effectively with interrogators, and where there is no legal representative or appropriate adult present, the veracity of the defendant's confession cannot be guaranteed, so it should be directly and compulsorily excluded. However, for the questioning of juvenile witnesses, the possibility of perjury in the absence of a legal representative or an appropriate adult is not very large, and it is not appropriate to rule it out absolutely, and it is appropriate to find that there are flaws in the procedure for collecting witness testimony, and it is appropriate to allow supplementation and reasonable explanation. [47] It can be seen that the substantive difference between illegal evidence and flawed evidence lies in the rule of authenticity, also if the legal representative or other appropriate adult did not appear.
Fourth, voluntary rules. The subject of the voluntary rule includes both the confession and defense of the criminal suspect and the testimony of other witnesses (including victims, evaluators, etc.). The rule of voluntariness of confessions and justifications of criminal suspects and defendants is derived from the "rule of arbitrariness of confession". The rule of self-arbitrariness of confession is that the confession of the accused must be of his free will in order to have evidentiary capacity. The rule of confessional arbitrariness was indiscriminate in England in the 18th century, and became strict and even extreme after the French Revolution and the rise of human rights ideas in the 19th century. At that time, the confession of a small degree of inducement was also considered to be non-arbitrary, and it was not until the second half of the 19th century that such extremism gradually subsided. Today, it is a well-established rule in both common law and civil law systems. The theoretical basis for the arbitrariness of confession includes the "hypocritical exclusion theory" and the "human rights protection theory". [48] If the method of violating human rights is adopted, of course, it will violate both the rules of human rights and the rules of authenticity, if the illegal means of evidence obtained are not sufficient to infringe human rights but affect the truthfulness, it still does not have the capacity to be evidential, and if the illegal means of evidence collection adopted are not enough to infringe on human rights and do not affect the truthfulness, it is flawed evidence. For example, if a slight inducement or deception is used to obtain evidence, which does not infringe on human rights, and the confession obtained does not affect the authenticity, then it is flawed evidence. [49] It can be seen that the rules of voluntariness do not completely coincide with the rules of human rights, and that voluntariness, like authenticity, is based on the theoretical basis of the substantive value goal of the criminal procedure law, while the theoretical basis of the human rights rule lies in the value goal of procedural justice. Similarly, the rule of voluntariness and the rule of pain do not completely coincide, and the argument that the rule of arbitrariness of confession is replaced by the rule of pain in mainland criminal procedure cannot be established,[50]. This is because some confessions obtained in violation of voluntary consent may be excluded without evidentiary capacity, even if they do not cause unbearable suffering on the part of the defendant. It should be noted that the relationship between the rule of voluntariness and the rule of authenticity is not completely overlapping, and confessions obtained in violation of voluntary origin, even if true, may be excluded. For example, where a criminal suspect falsely claims that his elderly mother was in a car accident and can only meet if he pleads guilty, and the criminal suspect is forced to confess, even if the confession is consistent with the facts, it is illegal evidence and should be excluded. [51] "The precondition for the defendant's confession to have evidentiary capacity is that the confession is arbitrary and truthful, and if the defendant's confession is not arbitrary, even if the confession is consistent with the facts, but the confession is not arbitrary, it still has no evidentiary capacity." ”[52]
To sum up, the substantive distinction between illegal evidence and flawed evidence must be based on the two aspects of procedural justice and substantive truth, and then four specific rules are derived, namely, the rule of human rights, the rule of suffering, the rule of authenticity, and the rule of voluntariness.
(3) The proposal of the "form-substance" hierarchical identification method
As mentioned above, the four substantive rules that distinguish illegal evidence from flawed evidence are the human rights rule, the pain rule, the truth rule, and the voluntariness rule. In philosophy, substance is the category that corresponds to form, and the logical order between the two is from form to substance. People recognize and judge things in a logical order from form to substance. The judgment of illegal evidence and flawed evidence should also follow a logical sequence from form to substance, first judging whether the evidence was obtained in violation of laws and regulations from the formal point of view, and specifically from the three aspects of the source, process, and result of the evidence. The reason why these three aspects of judgment are defined as formal judgments is that the judgment of the source, process, and legality of the results of evidence is mainly to formally compare these three aspects with existing laws, regulations, judicial interpretations, and normative documents to judge whether the act of collecting evidence violates these provisions. If the source, process, and result of the evidence do not violate any laws and regulations, there is no question of the exclusion of illegal evidence; if the relevant laws and regulations are violated, it is necessary to further apply the rules of human rights, suffering, authenticity, and voluntariness to substantively determine whether the evidence is flawed or illegal. The reason why the judgment of these four rules is defined as a substantive judgment is that even if the act of collecting evidence violates the relevant provisions, it is necessary to make substantive value judgments on whether it violates human rights, whether it causes pain to the parties, whether it affects the authenticity of the evidence, and whether it affects the voluntariness of the parties. The author calls it the "form-substance" hierarchical identification method.
1. Judgment steps of the "form-substance" hierarchical identification method. The first step is to make a formal judgment, and the basic method of judgment is to examine the evidence from three aspects: the source, the process, and the result. In order for any piece of evidence to have evidentiary capacity, it must be legal in three aspects: source, process, and result. Any aspect is not lawful, and it is either illegal evidence with no evidentiary capacity, or flawed evidence with undetermined evidentiary capacity. This is the first step in distinguishing illegal evidence from flawed evidence. The so-called source of evidence refers to who and where the evidence came from, and by whom it was extracted. For example, a documentary evidence must be proved from where it was taken and the source must be in accordance with the law, and a testimony must be obtained by questioning whom. The so-called process of obtaining evidence refers to how the evidence is obtained. For example, whether physical or documentary evidence was polluted, damaged, or altered in the process of collection or storage, and whether there was torture, violence, threats, inducements, deception, and so forth in the process of obtaining verbal evidence. The so-called result of evidence refers to the medium in which the evidence is presented. For example, whether the physical or documentary evidence is the original or a copy, and if so, whether the copy is consistent with the original or the original, whether the verbal record has been checked and confirmed by the parties, etc. The Criminal Procedure Law of the Mainland, its judicial interpretations, and normative documents have a large number of provisions on the source, process, and outcome of evidence. If any aspect of the source, process, and result of a piece of evidence violates the provisions, it may be illegal evidence with no evidentiary capacity, or flawed evidence with undetermined evidentiary capacity.
The basic method of the second step of substantive judgment is to determine whether the illegal evidence collection in the first step violates the rules of human rights, the rule of suffering, the rule of authenticity, and the rule of voluntariness. If any of these rules are violated, there is no evidentiary capacity and is excluded as illegal evidence;
2. Precautions for the operation of the "form-substance" hierarchical identification method. First of all, it is necessary to follow the order of form before substance. The formal judgment comes first, and the substantive judgment comes later, and the two are in a progressive relationship. This is determined by the relationship between the prohibition on the acquisition of evidence and the prohibition on the use of evidence. According to the general theory of evidence prohibition, the prohibition on the acquisition of evidence is not the same as the prohibition on the use of evidence, that is, the evidence obtained from the illegal evidence collection procedure does not necessarily make the evidence obtained from it incapable of evidence (illegal evidence exclusion). The first step of formal judgment is to judge the legality from the source, process, and result of the evidentiary capacity, and if any aspect violates the provisions of laws, regulations, judicial interpretations, etc., it is a prohibition on the acquisition of evidence, but whether it should be excluded as illegal evidence requires the substantive judgment of the second step. Second, follow a selective relationship rather than a "juxtaposition" relationship. The trade-off in both steps is an either-or. The first step of formal judgment is to choose one of the three aspects of the source, process, and result of the evidence, and if any of the elements violates the provisions, it is either illegal evidence or flawed evidence, and it is necessary to enter the substantive judgment of the second step, rather than violating the provisions of the three elements at the same time. The second step of the substantive judgment of human rights rules, pain rules, truth rules, and voluntary rules is also optional, that is, as long as any one of these rules is violated, it must be excluded as illegal evidence, rather than violating all four rules at the same time as illegal evidence. Finally, adopt the advantage proof standard. In the substantive judgment of the second step, whether the rules of human rights, the rules of suffering, the rules of authenticity, and the rules of voluntariness are violated, the preponderance standard of proof is adopted. This is because the exclusion of illegal evidence is a procedural fact and belongs to the category of free proof, and the preponderance standard of proof should be adopted. In practice, the evidence should be excluded whenever there may be a violation of these four rules. For example, the use of threats in a way that harms the lawful rights and interests of close relatives should be found to be a violation of the voluntary rule as long as it is likely to cause the parties to confess contrary to their voluntariness.
The above-mentioned "form-substance" hierarchical identification method can be demonstrated and summarized in the following figure:
(Illustration of the "form-substance" hierarchical identification method)
[1] The "Two Evidence Provisions" refer to the Provisions on Several Issues Concerning the Exclusion of Illegal Evidence in the Handling of Criminal Cases and the Provisions on Several Issues Concerning the Review and Judgment of Evidence in the Handling of Death Penalty Cases jointly promulgated by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of State Security, and the Ministry of Justice.
[2] Thomas Weigent, Criminal Procedure in Germany, translated by Yue Liling and Wen Xiaojie, China University of Political Science and Law Press, 2004, p. 189.
[3]Ibid., p. 193.
[4] See supra note 2, pp. 195-198.
[5] See Lin Yuxiong, Interference with Punishment and Criminal Evidence, Peking University Press, 2010, pp. 210ff.
[6] See Wang Shifan, "The Connotation of Evidence Prohibition", Yuedan Referee Times, No. 103, 2021.
[7] Supra note 5, p. 211.
[8] See Wang Jinglong, "Why Evidence Should Be Remedied?—— Logic and Methods of Criminal Evidence Remediation", Evidence Science, No. 2, 2022.
[9] See Li Shouwei, "Several Issues of the Exclusion System of Illegal Evidence", China Criminal Law Journal, No. 2, 2014.
[10] See Lin Yuxiong, Criminal Procedure Law (Volume I), Chinese University Press, 2005, p. 428.
[11] See supra note 5, p. 181.
[12] See Ai Ming, "On the Prohibition of the Use of Evidence in Criminal Proceedings in the Mainland: Focusing on the Relationship between the Prohibition on the Acquisition of Evidence and the Prohibition on the Use of Evidence", Modern Legal Science, No. 5, 2015.
[13] See Chen Tianxun, "Summary of the Criminal Procedure Law", Laisheng Culture Co., Ltd., 2015 edition, p. 252.
[14] Lin Shantian, Criminal Procedure Law, Wunan Book Publishing House, 1998, p. 248.
[15] Zhang Liqing, "Criminal Procedure Law: Theory and Application", Taiwan Wunan Book Publishing Company, 1995, p. 232.
[16] See supra note 10, p. 347.
[17] See Huang Dongxiong et al., "The New Development of the Law of Criminal Evidence", Taiwan Xuelin Cultural Business Co., Ltd., 2003, p. 8.
[18] See Zongbo, "Probative Power Countermeasures the Theory of Evidentiary Ability", China Criminal Law Journal, No. 4, 2014.
[19] See Chen Zhilong, "Beyond Reasonable Doubt and Evidence Proof", Taipei University Law Review, No. 69, 2009.
[20] See Sun Rui, "The System of Criminal Evidence Exclusion Rules Combing——— Taking the Distinction of Evidentiary Ability and Probative Power as the Approach", Sichuan Normal School
Journal of the University(Social Sciences), No. 6, 2016, pp. 70-74.
[21] See Wan Yi, "On Flawed Evidence: Taking the "Two Evidence Provisions" as the Object of Analysis", Law and Business Research, No. 5, 2011.
[22] See Zhou Shan, "Exclusion of Illegal Evidence: Effectiveness and Improvement: Based on <非法证据排除规程>Pilot Operation", Evidence Science, No. 4, 2019.
[23] See Wang Jiancheng, "What Illegal Evidence Exclusion Regulations Does China Need?", Global Law Review, No. 5, 2006.
[24] See Chen Ruihua, "On the Rules for the Correction of Flawed Evidence", Jurist, No. 2, 2012.
[25] See Li Xuejun and Liu Jing, "The Application of Flawed Evidence and Its Remedial Rules", Tsinghua Law Science, No. 5, 2020.
[26] See Liu Guangsan and Ma Yunxue, "An Analysis of the Correction of Flawed Evidence", China Criminal Law Journal, No. 3, 2013.
[27] See Yang Yuguan and Guo Xu, "On the Scope of Illegal Evidence", Lanzhou Academic Journal, No. 6, 2015.
[28] See Dong Kun, "Paradigm Combing and Reflection on the Rules of Exclusion of Evidence in China", Political and Legal Forum, No. 2, 2018.
[29] See Bian Jianlin, "Reflection on the System of Excluding Illegal Evidence", Contemporary Legal Science, No. 3, 2023.
[30] See Lin Yuxiong, "The Development and Characteristics of the Theory of Prohibition of Evidence in Germany", Lawyer Magazine, No. 232, 1999 (January issue).
[31] See Michael Hegermans, "Prohibition on the Use of Evidence in the German Criminal Procedure Law", trans. Zhou Jing, Evidence Science, No. 5, 2016.
[32] See John S. W. Strom, ed., McCormick on Evidence, translated by Tang Weijian et al., China University of Political Science and Law Press, 2004, pp. 315-318.
[33] See Wang Zhaopeng, "U.S. Criminal Procedure Law", Yuanzhao Publishing Company, 2004, pp. 27-28.
[34] See Wu Hongyao, "The Contemporary Fate of the Exclusionary Rule of Illegal Evidence in the United States", Comparative Law Studies, No. 1, 2015.
[35] See supra note 31.
[36]Ibid.
[37] See Eleanor Swift, A Hundred Years of Reform of American Evidence Law: Thayer's Victory, translated by Shi Pengpeng and Ye Bei, and edited by Shi Pengpeng, Modern Criminal Procedure Model Dialogue and Conflict, China University of Political Science and Law Press, 2020, p. 537.
[38] See Liu Yanhong, "The Concept of Substantive Criminal Law (Second Edition)", Chinese University Press, 2019 edition, p. 259.
[39] See Thomas Weigent, Principles of German Criminal Procedure Law, trans. Jiang Su et al., China Legal Publishing House, 2021, pp. 266-267.
[40] See Claus Rockersin, Criminal Procedure Law, translated by Wu Liqi, Law Press, 2003, p. 5.
[41] See Ke Yaocheng, "The Concept and Reconstruction of Criminal Procedure", Yuanzhao Publishing Company, 2009, p. 17.
[42] See supra note 10, pp. 8-9.
[43] See Zhou Jiahai and Yu Haisong, "<关于办理刑事案件收集提取和审查判断电子数据若干问题的规定>Understanding and Application", People's Justice (Application), No. 28, 2017.
[44] See Long Zongzhi, "The "Pain Rule" and Related Issues for the Exclusion of Illegal Confessions in the Mainland", Political and Legal Forum, No. 5, 2013.
[45] See supra note 10, p. 7.
[46] See Chen Ruihua, "The Authenticity of Physical Evidence", Legal Research, No. 5, 2011.
[47] See Li Shaoping, ed., The Supreme <中华人民共和国刑事诉讼法的解释>People's Court on the Understanding and Application of Application, People's Court Press, 2021, pp. 214 and 218.
[48] See Zhang Liqing, Criminal Procedure System and Criminal Evidence, China Procuratorial Press, 2016, pp. 114-116.
[49] See Dai Changlin, Liu Jingkun, and Zhu Jingjing<关于办理刑事案件严格排除非法证据若干问题的规定>, "Understanding and Application", People's Justice (Application), No. 22, 2017.
[50] See Long Zongzhi, "The "Pain Rules" and Related Issues for the Exclusion of Illegal Confessions in the Mainland", Political and Legal Forum, No. 5, 2013
[51] See supra note 49.
[52] Supra note 13, p. 255.