“双规、双指”期间自书材料的证据法分析

The legal problem of holograph-accounts during the shuanggui and shuangzhi

自书材料是职务犯罪审理时常见的一种证据形式,但它作为诉讼证据的合法性不足,故在证据属性上应当把它界定为"准口供"。自书材料在使用时应当受到限制,不能随侦查卷宗一起不受限制地直入法庭,应以用作弹劾证据为原则。在满足真实性保障的前提下,自书材料可以用作实质证据,但任何时候不得用作补强证据。应当把刑讯、变相刑讯以及威胁、引诱、欺骗所取得的自书材料均界定为非法证据。但非法自书材料不能对后续的侦查口供产生波及效应,否则就意味着惩罚守法的侦查人员,有违排除规则之阻却违法的目的,也有以司法干预党纪之嫌。

The holograph-confession is the ordinary evidence in the trial of duty-related crimes. But such evidence lacks the value of legitimacy that is one essential feature of the qualified evidence used in trial. In that sense, the holograph-confession should be regarded as the quasi-confession. The use of holograph-confession should be restricted in trial. It is to say, the holograph-confession should not be introduced at trial along with the investigation files. Such confession can solely be used as the impeaching evidences. Such evidence can also be used as substantial evidence if the trustworthiness of such evidence is guaranteed. But such confession should never be used as the corroborative evidence. If the holograph-confession is the product of illegal investigation, which involves torture, threatening, seducing, deceiving, and so on, such evidence should be regarded as illegal evidence. But the illegally obtained holograph-confession should not deny the legitimacy of the confession obtained in the later investigation. Otherwise, it means the investigators, who obey the law are being punished. To do so will go against the purpose of the exclusionary rule, and will also fall into the suspicion that the administration of justice interferes the disciplinary measure of party.