我国非法证据排除规则的可操作性拷问

我国非法证据排除规则确立了刑讯逼供证据坚决排除的基本原则,意味着我国刑事司法向人权保障的积极迈进。在实务操作中,可行性是能否贯彻立法精神的关键指标。我国非法证据排除规则还存在若干可行性疑问,在非法证据界定、非法物证考量、毒树之果效力、警察出庭保障、被告人举证、讯问全程录音录像等方面尚待进一步细化完善,以增强可操作性,防止规则被虚置。

To Question the Operability of Exclusionary Rule in China

The exclusionary rule in China set up basic principle of excluding the evidence extorted by torture. It means Chinese criminal justice is positively developing to the protection of human rights. In practical situation, feasibility is the key index concerning whether the legislative spirit can be carried out. Therei-e still some questions about the operability of the exclusionary rule in China. Some issues need to be specified and perfected, such as the definition of illegal evidence, the examination of illegal material evidence, the effectiveness of the fruit of the poisonous tree, the assurance of the police appearing in court, the proof of the accused, the complete record of sound and video, etc. The operability should be strengthened so as to prevent the rule from being nominal.