讯问录音录像的证据使用问题——日本的经验、教训及启示

A Study on the Use of the Audio-Video Recordings of Interrogation as Substantive Evidence——the Experience,Lessons,and Enlightenment of Japan

2012年《刑事诉讼法》增设讯问录音录像制度以来,讯问录音录像的证据使用问题备受瞩目。目前,对其能否成为证明案件实体事实的实质证据仍存在较大分歧。在日本,讯问录音录像在庭审中发挥着固定口供、防止翻供、发现案件真相的功能,检警机关对录音录像实质证据化的态度由抵制逐渐转变为妥协甚至支持,学界的争点也从能否作为实质证据使用转向如何有效发挥录音录像的实质证据功能。讯问录音录像具有供述笔录不可企及的优势,如果使用得当将有利于审判机关提高办案质量,因此,我国应当明确讯问录音录像的实质证据资格。但是,我国现阶段侦查讯问程序尚未实现控辩平等,讯问程序正当化程度较低,不宜将讯问录音录像不加限制地作为实质证据使用,应当设定具体标准严格筛选。在审判实务中,可根据预期的证据功能和播放效果予以灵活运用,避免与庭审实质化改革发生冲突,异化为侦查中心主义的新一代加速器。

Since the audio-video recordings of interrogation system was established in the Criminal Procedure Law in 2012,the evidence function of audio-video recordings of interrogation has been widely concerned.At present,there are still great differences as to whether it can be used as substantive evidence to prove the substantive facts of the case.In Japan,audio-video recordings show the powerful functions of fixing confessions,preventing reversal of confessions,and discovering the truth in the court.The attitude of the prosecutor and police towards the audio-video recordings as substantial evidence have gradually changed from resistance to compromise and even support.And the dispute in the academic circle has also shifted from whether it can be used as substantive evidence to how to effectively give full play to the function of audio-video recordings as substantive evidence.The audio-video recordings of interrogation has the advantage that the written transcription cannot reach,and if used properly,it will help the court to improve the quality of handling cases.Therefore,China should clarify the substantive evidence qualification of the audio-video recordings of interrogation.However,at the present stage in our country,the equal power relationship between prosecution and defense has not been built in the procedure of interrogation,and the degree of due process of interrogation is relatively low,so it is not suitable to use the audio-video recordings of interrogation as substantive evidence without any restriction.Specific criteria should be set for strict screening.In the trial practice,it can also be used flexibly according to the expected evidence function and playback effect,avoid conflict with the substantiation of court hearing,and become a new generation of accelerator of investigative centralism.