口供消极补强规则的实质化

Materialization of the negative confession corroboration rule

真实口供证明力强大,虚假口供破坏力强大。防止法院采纳虚假口供是降低错案风险的核心环节之一。我国目前已经形成了一整套防范虚假口供的证据规则,即刑诉法和司法解释中确立的各种非法口供排除规则和口供补强规则。前者范围有限,且在防止虚假供述方面存在内在困境。后者以证明力为中心的规制方法值得肯定,但其中的消极补强规则在实践中可能变为任意补强,积极补强规则可能会使法官采信虚假口供"合法化"。为使补强规则发挥功效,需要把积极补强规则的精神—补强程度—吸收到消极补强规则的规制方式—否定方式—之中,并结合真假供述的判断原理,使消极补强规则实质化:即任何口供,只有其中包含的"隐蔽性情节",在基本排除诱供指供和案情泄露的情形下获得,且与具有证据能力、证明力的被告人供述以外的证据所证明的事实,基本吻合一致,才能作为证据使用。为实现消极补强规则的规制目标,刑诉法所确立的全程录音录像制度应当进一步予以完善。

True confession has strong probative value, while false confession has devastating damage. To prevent admitting false confessions into evidence is one of key solutions for decreasing the risks of wrongful convictions. Nowadays, China has established a full set of preventive rules, such as various exclusionary rules of illegally obtained confessions and confession corroboration rules. As to the exclusionary rules, not only are their scopes limited, but also have inherent dilemmas in preventing false confessions. As to confession corroboration rules, such probative value oriented path they chose is right, but the negative corroboration rule they include may become arbitrary corroboration in practice and affi rmative corroboration rule can legitimate judges＇ admission of false confessions. For the sake of solving the above-mentioned problems, we should absorb the spirits in affi rmative corroboration rule into the way that negative corroboration rule has taken. Then we may have a material negative corroboration rule which requires any confession not being used as evidence unless the hidden facts in them have not been got by inducement and leakage of crime facts has been basically confi rmed by competent and probative evidence besides the confession itself. In order to achieve the goal of materializing the negative corroboration rule, the new established whole-process audio and video recording system in criminal procedure law ought to be further improved.