违反讯问录音录像规定所获供述之证据能力问题

The admissibility of confession obtained through violating the rules of audio and video recording during the process of investigation

2012年《刑事诉讼法》确立了讯问时的全程录音录像制度,但由于立法规定过于原则化,加之缺乏制裁性机制,导致在司法实践中大量存在选择性录制、先审后录、讯问后补录或重录等违反该制度规定的现象,在借鉴其他国家和地区的相关规定的基础上,适用刚性模式,强制性地排除选择性录制和先审后录所获得的供述,对于讯问后补录或重录所获得的供述,则根据不同的情形采用推定模式予以排除。同时还应看到排除违法录音录像所获供述还将面临着口供中心主义依然盛行、立法上缺乏相应的证据规则、以审判为中心的诉讼制度尚未建立等一系列现实因素的制约。

According to the 2012 P.R.C. Criminal Procedural Law, the whole course of audio and video should be recorded. However, the legislation lacks specifi c regulations and sanction mechanism. Such defects have resulted in a large number of malpractices in police investigations, such as selective recordings, recordings after interrogation, complementary recordings and retaken recordings. Learning from judicial practice in other states and regions, the confessions obtained by selective recordings or recordings after interrogation should be compulsorily excluded. The confessions attained through complementary recordings and retaken recordings should be excluded on a case-by-case base. In the meanwhile, excluding the illegal recorded confessions is constrained by confession-centered trial mode, lack of corresponding rules of evidence, lack of trial-centered litigation system and other practical factors.