摘要
公共场所监控视频的刑事证据能力问题主要集中于取证手段合法性和证据的可靠性两个方面。即便公民身处公共场所,也依然享有隐私权,因此公共场所的视频监控在特定情形下仍会因侵害公民隐私权而构成技术侦查行为,对于通过非法实施技术侦查型视频监控行为而获得的公共场所监控视频,应按照非法证据排除规则判定是否予以排除。公共场所监控视频的可靠性主要从视频的生成、收集及流转过程中是否存在影响其客观真实性的因素进行判断,可以采取推定、书面笔录及取证录像、证人证言、专家鉴定意见等方式对监控视频的可靠性进行证明。
The research on the evidence focuses mainly on the legality of the means used competence of public place surveillance video to obtain the video and the authenticity of the video. Even in public place, citizens still enjoy certain privacy, and therefore public place surveillance video can still constitute technical investigation because of violation of privacy. The question of whether surveillance video should be excluded should be determined according to technical investigation rules and illegal evidence exclusion rules. The authenticity of video can be judged by whether there are factors affecting the realness in the process of generation, obtainment and circulation of the video, and proved by such means as presumption, paper notes and video records, witness testimony, and expert opinion.
出处
《环球法律评论》
CSSCI
北大核心
2016年第6期75-92,共18页
Global Law Review
基金
作者参与的四川省学术和技术带头人培养基金项目"视频证据在刑事诉讼中的运用机制研究"(2013DTPY0022)的研究成果
关键词
监控视频
技术侦查
可靠性
证据能力
The research on the evidence focuses mainly on the legality of the means used competence of public place surveillance video to obtain the video and the authenticity of the video. Even in public place, citizens still enjoy certain privacy, and therefore public place surveillance video can still constitute technical investigation because of violation of privacy. The question of whether surveillance video should be excluded should be determined according to technical investigation rules and illegal evidence exclusion rules. The authenticity of video can be judged by whether there are factors affecting the realness in the process of generation, obtainment and circulation of the video, and proved by such means as presumption, paper notes and video records, witness testimony, and expert opinion.
