我国刑事非法证据排除规则司法实践实证研究——以W市刑事审判实务为视角

An empirical study on application of the exclusionary rules in China

在我国立法层面逐步建立非法证据排除制度的背景下,非法证据排除制度能否发挥预期的效果仍取决于在司法实务中的贯彻落实情况。通过分析W市法院近三年启动非法证据排除程序的实际情况,我们发现实务中仍存在对非法证据的范围认识不统一、刑讯逼供、疲劳审讯等非法方法的界定不明确、重复自白是否可采具有争议、程序性情况说明尚普遍存在等问题。在司法实务中正确贯彻落实非法证据排除规则,实现对非法取证行为的一般预防功能,首先需要转变重实体轻程序的传统观念,树立实体正义与程序正义并重的新观念,同时要着眼于我国刑事诉讼的现状,避免非法证据排除泛化。在具体操作上,要严格落实证明责任倒置原则,对控辩双方在非法证据排除程序中实行不同层次的证明标准,辩方提供的线索或材料只需达到"存在非法取证的可能性"这样较低程度的证明标准即可,控方的举证则需达到"排除合理怀疑"这样较高程度的证明标准。对于有辩护人的案件,尽量保证在庭前会议中最大可能地解决非法证据排除问题,避免不具备准入资格的非法证据进入庭审,在法官主持下,控辩双方在庭前会议中达成的协议应当具有约束力。

The legislative system of excluding illegally obtained evidence is gradually established in our country. However, the achievement of the expected effect of this system is depended upon the application of the law in judicial practice. According to the analysis of the past three years＇ cases that held the exclusionary hearings, it is revealed a lot of problems, including the recognition of the scope of iUegally obtained evidence is not unified, the definition of illegal methods, such as extorting a confession by torture and grueling interrogation, is unclear, the admissibility of the repeated confession is in dispute, explanation of the defective procedures is prevalently used, and etc. In order to make effective the legislative system of excluding illegally obtained evidence and the general deterrence against illegal evidence collections, not only need the traditional ideology of focusing substantive justice more than procedural justice to be changed, but also the undue expansion of applying the exclusionary rules should be avoided. In the specific application of the exclusionary rules, the principle of shitting the burden of proof should be strictly applied. In the exclusionary hearing, the prosecution and defense counsel should satisfy different levels of burden of persuasion. Defense counsel should satisfy the lower proof standard of ＂a preponderance of the evidence＂, while prosecution should satisfy the higher proof standard of ＂beyond a reasonable doubt＂. In cases in which the defendant is represented by defense counsel, It is needed to exclude at most the illegally obtained evidence and to avoid the inadmissible evidence from being introduced at trial. The agreement reached in the pretrial hearing presided by the judge between the prosecution and the defense shall be binding on both sides.