刑事诉讼中人脸识别证据的理论界定与规则构建

Theoretical Definition and Rule Construction of Face Recognition Evidence in Criminal Procedure

人脸识别证据在刑事司法实践中已实际应用,但规范缺失。基于人脸识别证据的形成机理及其科技性、盖然性、复验性和信息关联性特点,可在现阶段将人脸识别证据定位于鉴定意见类证据。但刑事诉讼中人脸识别证据与典型鉴定意见类证据在基本特点、形成机理等方面存在显著区别,有必要构建符合人脸识别证据特点的证据规则。我国应理性看待现行鉴定意见规范,适度参考域外规则的合理内核,从取证、举证与质证、认证三方面构建刑事诉讼中的人脸识别证据规则。

Face recognition evidence has been practically applied in the field of criminal justice in China, but it has not independently demonstrated its proof function in the process of proof, cross-examination and authentication, showing a tacit existence and default state.Based on the formation mechanism of face recognition evidence and its characteristics of scientificity, probability, reexamination and information connection, face recognition evidence can be positioned as the form of appraisal opinion.However, there are significant differences between face recognition evidence and typical appraisal opinion evidence in basic nature, characteristics, methods and so on, which indicates that it is necessary to construct evidence rules in line with the characteristics of face recognition evidence.American academic circles have discussed how to regulate the practical application of face recognition evidence from the aspects of evidence collection, cross-examination and authentication.Our country should treat the current standard of appraisal opinion rationally, and at the same time draw lessons from the reasonable kernel of the rules outside the domain to construct the evidence rules of face recognition evidence from the two aspects of evidence ability and proof power.