A Study On Exclusionary Formula Of Illegal Evidences In Penal Suits

One of the awfully complicated questions in penal suits is whether illegal evidences are valid to decide on a verdict. Whether to accept or reject illegal evidences typically reflects the choice of value in crime prevention, impersonal truthfulness, human rights guarantee and legitimate procedure. At present, different countries, no matter they are of British and American Law system or of continental Law system, are different in legislation and judicatory theories. In China, though it is forbidden to illegally obtain evidences in legislation, there is no clear statement concerning the validity of illegal evidences. In China it is proclaimed in writing that words obtained by torturing, inducing or other illegal means are not to be used as evidence. On the other hand, the penetration of the legitimate procedure mindset through the penal legislation and the appearance of the exclusionary formula of illegal evidences in penal suits have revealed the trifle progress in China's evidence system, but objectively there exist shortcomings and inadequacies. Considering China's tradition of law culture, the policy of managing state affairs according to the law, the pursuit of value balance in penal suits, and the consistency with the international judicatory trend, to set up the exclusionary formula of illegal evidences in China, it is not only necessary to weigh the value of esse justness and procedure justice, but also necessary to take into account such factors as current law environment, judicatory sources and the quality of the judicatory personnel. As a result, while all the wordevidence collected by illegal means should not be accepted, whether to accept or reject the physical evidences derived from the word evidences depends on the actual situations. To solve the problem of obtaining evidences illegally, it is critical to establish the onus probandi of illegal evidences. It helps the investigation institutions establish a systematic measure to leave onus probandi to the prosecutor. If the evidences are gained illegally, the prosecutor must take the complicated onus probandi to prove that he/she has not collected evidences by illegal means and undertake the consequences when the illegal evidences are not accepted.