| As a special type of evidence,technical investigation evidence is different from the rules of application of physical evidence and documentary evidence.The need for confidentiality has become a difficulty in examining and identifying such evidence.In the use of technical investigation evidence,the Criminal Procedure Law stipulates three types of evidence review methods:ordinary mode,protection mode and out-of-court verification mode.Among them,the most special mode of out-of-court verification is a legislative creation based on the out-of-court investigative power of judges.In order to protect specific legal interests such as relevant technical investigation methods and the personal safety of technical investigators,the law allows the judicial personnel to verify the evidence outside the court when necessary.However,the procedure lacks specific applicable rules and detailed operating standards,does not clarify the relationship with the court trial mode,and is more casual to start;the procedure has a single participant,the defense basically has no opportunity for cross-examination,and lacks a form of litigation;the procedure puts aside important trial rules,plus the judge’s out-of-court investigative power is not standardized and the inadequate trial supervision mechanism,and there is a risk of secret trial.A series of problems led to the out-of-court verification procedure of technical investigation evidence that focused on protecting the confidentiali ty of the evidence and neglected the realization of litigation rights such as the defense right to know and the right.of cross-examination,making the value of the two major lawsuits against crime and human rights protection unbalanced.This article will combine empirical research,literature analysis comparative method analysis and other research methods to analyze the operation status,existing problems and causes behind the out-of-court verification procedures of China’ s technical investigation evidence in recent years.Explore how to rationally regulate the out-of-court verification of technical investigation evidence around these issues,and construct an out-of-court verification procedure of the“quasi-trial"nature,which is available to both parties.It includes the following five parts:The first chapter is the basic issues of technical investigation evidence verified outside the court.This chapter mainly explains the basic theory of the system of out-of-court verification of technical investigation evidence.Using the method of literature analysis,it first determines the connotation and characteristics of technical investigation evidence and the three verification methods of technical investigation evidence.Verify and make an overview,analyze its necessity and institutional risks.The second chapter is the practical operation of the verification of technical investigation evidence out of court.This chapter first introduces the data sources used in this article,as well as the overall situation of the out-of-court verification cases involving technical investigation evidence in the past five years,and then combines the practical situation to summarize the problems that are exposed during the operation of out-of-court verification procedures such as the random start of the procedure,the judge’s extra-court investigation power,the single participant,the lack of cross-examination procedures,and the excessive t ransformation of evidence.The third chapter is the analysis of’ the reasons for the irregular operation of the technical investigation evidence outside the court.This chapter aims at the problems summarized in the previous chapter,combined with the method of case analysis,focusing on the controversial parts of typical cases,and analyzes the reasons for the irregular operation of the program from the aspects of the legislative framework,the exercise of the judge’s out-of-court investigation power,the use of the main evidence rules,and the supervision and correction mechanism,and summarize the hidden concerns of the out-of-court verification program operation.The fourth chapter is the procedure regulation of the technical investigation evidence verification outside the court.This chapter explores the specific measures of procedural regulation,focusing on how to implement important procedural values such as open procedures,trial neutr ality,participation in prosecution and defense,and direct speech into the out-of-court verification procedures for technical investigation evidence,and demonstrates that out-of-court verification of technical investigation evidence should be regulated from four aspects:start-up standards,methods and content of out-of-court verification,design of special procedures for cross-examination,and supervision and correction mechanisms. |
