论秘密监听证据能力

Research on the Evidence Ability of Secret Monitoring

秘密监听所获得的证据资料具备证据能力的法理性。如果通话一方具有一定的合理隐私期待,则侦查机关必须在合法监听下取得的证据资料才具有证据能力;如果附带性监听所获证据资料证明的犯罪为监听令状载明的犯罪嫌疑人之外的第三人所为,只有在附带性监听所获证据资料证明的犯罪为可以监听的犯罪种类的情况下,该证据资料才具有证据能力;如果附带性监听所获证据资料证明的犯罪为完全无关第三人所为,则该证据资料不具有证据能力。

The evidence got by secret monitor has the nature of legal principles of evidence ability. If one telephone user has a reasonable privacy expectation, it is only the evidence being obtained legally by investigation organs would have the evidence ability. If the crime proved by the occasional monitored evidence is done by third party being not included in the criminal suspects recorded in the monitoring order, it is only on the circumstances that the crime belongs to the monitoring criminal types, such evidence has the evidence ability. If person who is totally irrelevant does the crime, such evidence has no evidence ability.