Research On Authentication Of Physical And Documentary Evidence In Criminal Procedure

As the result of China criminal justice learning from foreign legislative experience and summarizing judicial practice,the authentication of physical and documentary evidence provisions was first stipulated in Provisions on Several Issues Concerning the Examination and Judgment of Handling Death Penalty Cases and Provisions on Several Issues Concerning the Exclusion of Illegal Evidence in Criminal Cases both published in 2010,later incorporated in Supreme Court criminal judicial interpretations published in 2012 and has become a part of the evidence rules in China.However,since its establishment,there have been some problems such as too simple and unclear logic,authentication provisions can’t effectively guide judicial practice.Considering to that,this dissertation studies the subject of authentication of physical and documentary evidence from the foreign and domestic perspectives.This paper consists of four parts.Firstly,in different judicial contexts,there are some differences in the provisions of the authentication of physical and documentary evidence.In order to carry out the research and clarify the definition of authentication,it is essential to clarify its contents from two levels.From the static level,the evidence submitted to the court is required to be true,the same,and clear under the requirement of authentication.From the dynamic level,the evidence should not be changed to the extent of losing its value in the criminal procedure under the requirement of authentication.The purpose of authentication in assuring authenticity of physical and documentary evidence is meet through two ways:proving the attribute of evidence and excluding unreliable or untrue evidence.Secondly,from the perspective of comparative law,the authentication clause,which is stipulated in an evidence code or incorporated into a country’s criminal procedure,is an important evidence rule with universality.Its basic composition includes four components:scope,method,procedure and consequence.First of all,the scope of authentication of physical and documentary evidence includes two parts: scope under requirements and scope free of authentication.As two related propositions,the rule of authentication and the rule of best evidence,the compulsory weakening of later makes the scope of authentication of physical and documentary evidence expand to the original and the duplicates,and the authentication of second form of physical and documentary evidence can’t be ignored.Thechain of custody of evidence is another important content of authentication of physical and documentary evidence.Most countries set different requirements for the chain of custody of evidence,and ask the evidence proposer to prove the chain of custody of every evidence.The scope free of authentication reflects the consideration of litigation efficiency,and stipulated in some law to different extent all over the world.It should be taken into legislator‘s consideration under certain circumstances.in the second,there are mainly three methods of authentication: authentication by characteristics,by witness or other personnel,by chain of custody.Comparatively,the method of authentication and identification of physical and documentary evidence in China is too plain to effectively identify the authenticity of evidence.Then,due to the differences of judicial system contexts,there are different types of start-up and review modes,which should be reasonably used in China under the premise of considering our own contexts.At last,the core of the validity of authentication clause lies in its exclusion effect,which is generally implemented in foreign judicial system in the way of judges’ discretion.Compared with the exclusion effect of the authentication clause in China,it is safe to make a conclusion that it is too weak to play a substantive normative role for our authentication clause.Thirdly,there are four problems in current authentication clause about physical and documentary evidence.First of all,China’s authentication rules don’t include the need of chain of custody,leading to the situation that evidence is excluded,the probative force is reduced or the change of evidence can’t be reasonably explained in criminal judicial practice,and the specific operation standards or rules of evidence custody are ignored.In the second,the authentication methods in China rely on formal dossier to prove that there is an inevitable shortcoming of lacking of link,and the single specific method leads to the contradiction in written authentication provisions and missing the requirements of authentication.It is difficult for the witness or personnel to appear in court,which leads to the failure of the authentication,and the fact of the "situation statements" brings the query of the validity of authentication.Then,there are two modes of authentication in the process of criminal procedure in our country,one is reviewed by the procuratorial organ,the other is reviewed by the court.The former is confronted with the conflict of different roles and the query of the effect of the reviewing,while the latter is faced with the problems of starting rarely,unclear responsibility of authentication and difficult of substantive reviewing.At last,the compulsory effect of the authentication clause is too ambiguous to be applied accurately.The rules of correction andreasonable interpretation of the slight defective evidence further improve the impairing effect of authentication,which makes every effort to none.Finally,facing these problems of the authentication provisions about physical and documentary evidence in China,it is necessary to improve from the scope,methods,procedures and effectiveness of authentication clauses in different dimensions.