1. Overview of the rules for the exclusion of illegal evidence

(1) Definition of related concepts

1. The concept of evidence

Article 42 of my country’s Criminal Procedure Law stipulates: “All facts that prove the true situation of the case are evidence. Evidence in criminal proceedings means that it is expressed in the form prescribed by law and can All facts proving the true circumstances of the case” [1]. From the above definition of criminal litigation evidence, we can see that criminal litigation evidence has one of three essential characteristics, that is, the legality of evidence. The legality of evidence refers to the fact that evidence must be collected and used in accordance with the law. It is an important condition that must be met for evidence to have legal effect. It is not only related to the evidential capacity of the evidence, but also to the probative power of the evidence, that is, the probative role and value of the evidence. Therefore, to be used as litigation evidence, it must be legal. Evidence that does not have this characteristic and is not legal has no evidence capacity and is not admissible.

2． The concept of the exclusionary rule for illegal evidence

There is currently no precise definition of "illegal". According to the "Oxford Legal Dictionary", illegal means "refers to the law and has no precise meaning or consequences." A general concept. It may refer to an actual violation of the law or to a prohibited, punishable or criminal act. Or it may simply refer to an act that is contrary to a legal obligation or contrary to public policy and cannot be enforced.” [2 ] Illegal evidence simply means evidence that is collected and used in violation of legal provisions. In the process of definition, illegal evidence can be divided into broad and narrow senses. Illegal evidence in the narrow sense refers to the methods or procedures for collecting evidence, while my country's Criminal Procedure Law only refers to illegal evidence in the narrow sense. Article 43 of my country’s Criminal Procedure Law stipulates: “Extorting confessions by torture and collecting evidence by threats, inducements, deceptions and other illegal methods are strictly prohibited.” During the process of collecting evidence, if these regulations are violated or do not comply with the requirements, the evidence obtained will be considered illegal evidence. Broadly defined illegal evidence includes: the subject collecting and using evidence must be legal, the collection procedure of each evidence must be legal, the evidence must be in a legal form, and the evidence must be verified to be true through legal procedures. The concept of exclusionary rule of illegal evidence (Eclusionary Rule of IllEegally Obtained Evidence) means that in criminal proceedings, evidence collected by illegal means by the investigation, prosecution, and trial agencies should be excluded and shall not be admitted as evidence or used as part of the trial. in accordance with.

(2), Historical origins

1. The relationship between the inquisitorial litigation model and the illegal evidence exclusion rule

The inquisitorial litigation model is an extremely popular litigation system in the middle and late feudal society. The essential feature of inquisitorial litigation is that the judge takes the initiative to pursue crimes in accordance with his authority. The prosecution function and the trial function are not separated and are integrated into the judge. Neither the plaintiff nor the defendant has the status and rights of litigation subjects, and the defendant only bears litigation obligations. The object being investigated is the object of investigation and torture. In litigation, oral confessions are taken very seriously and are used as the main basis for finalizing the case. Oral confessions are called the "king of evidence". In order to obtain confessions, both legislators and judiciaries regard torture as a necessary means of prosecution, which is clearly and detailedly stipulated in the law and widely used in judicial practice, and has even become a central link in prosecution activities. From the above analysis, we can know that the inquisitorial litigation model legalizes the collection of evidence through torture, which is contrary to the spirit of the illegal evidence exclusion rule advocated in modern times.

2． Typical modern Western countries

(1) United States [3]. The rule of exclusion of illegal evidence first originated in the United States. The U.S. Supreme Court heard the case of Weeks v. United States in 1914. After the case, the rule of exclusion of illegal evidence was formally established and applied in criminal prosecutions in U.S. federal courts. Later, through a series of cases, the rule of excluding illegal evidence was extended to the criminal proceedings in state courts, which continues to this day. Although it encountered some resistance and even pressure from Congress, the application of this rule was not shaken. However, compared with the content when the rules were first formed, the content has been continuously supplemented and improved.

In Weeks v. United States in 1914, police arrested the defendant at his place of work without a warrant, and later searched the defendant's home without a warrant. A search was conducted and relevant evidence and materials related to the defendant's crime were obtained. The U.S. Supreme Court held that the police's search and seizure of the defendant's letters and property without a warrant violated the Missouri Constitution and the Fourth and Fifth Amendments to the U.S. Federal Constitution. The U.S. Supreme Court considered the protection of the Constitution and the constitutional rights of citizens From the perspective of protection, it is believed that evidence obtained through illegal means must be excluded. However, the initial application of the illegal evidence exclusion rule in the United States was only for illegal searches and illegal seizures, and not every state court was willing to accept this rule until the legal due process revolution, especially after the U.S. Supreme Court ruled in 1961 The decision in Mapp v. Ohio ruled that every state in the U.S. must abide by this rule. However, these are only for physical evidence obtained through illegal searches. The exclusion of all evidence obtained illegally was established through a very famous case, namely Miranda v. Arizona. The U.S. federal The Supreme Court established the Miranda Warning Rule (also known as the Miranda Rule). Since the Miranda Rule no longer only targets police searches but also police interrogations, it can be said that with the continuous enrichment and increase of the U.S. Supreme Court's jurisprudence, the scope of application of the illegal evidence exclusion rule has gradually expanded. , although there were some disputes during this period, through continuous development and improvement, the rules gradually became more reasonable and complete, and also became more operable.

Since the United States, many countries have stipulated this rule in their constitutions or laws.

(2) Japan [4]. In Japan, the rule of excluding illegal evidence is a rule formed through precedents rather than rules stipulated in legal provisions. It is generally believed that the 1978 Osaka methamphetamine case established the rule of excluding illegal evidence. As for the substantive basis for applying the rule of excluding illegal evidence, there are mainly three theories, namely the theory of norms, the theory of judicial integrity (or the theory of judicial flawlessness) and the theory of inhibitory effect. Japanese scholar Taguchi Moriichi believes: "The suppression effect theory should be the main one, while the other two viewpoints should be considered, and the application of the illegal evidence exclusion rule should be determined after a comprehensive analysis." There are two views on the standards for the exclusion of illegal evidence, one is called the absolute exclusion theory, and the other is called the relative exclusion theory. The relative exclusion theory holds that certain conditions or circumstances should be used to determine whether the evidence should be excluded. Regarding the issue of "fruit of the poisonous tree", it is believed that not all of the derivative evidence must be excluded. Whether all the derivative evidence must be excluded shall be determined based on the seriousness of the violation and the correlation between the two pieces of evidence. In addition, there are some exceptions to the rule of exclusion of illegal evidence, such as the inevitable discovery exception, the good faith exception, etc. Japan does not generally adopt illegal evidence exclusion rules to exclude the use of certain evidence like the United States, but it has given us many useful enlightenments. For example, when judging whether "fruit of the poisonous tree" should be excluded, it needs to be measured by using certain standards. Only then did we decide that this is worthy of our in-depth study and reference. Later, Article 38 of the Japanese Constitution stipulated: "Confessions obtained by force, torture or coercion, or after undue long-term detention or internment, shall not be used as evidence." Legally formalize this rule.

(3) Germany [5]. In Germany, it is mainly determined through the provisions of the German Criminal Procedure Code to determine whether illegal evidence should be used, and the exclusion of illegal evidence is divided into two types, namely, violation of prohibitive regulations on collecting evidence and prohibitive regulations on using evidence. handle these two situations. For example, Article 136a of the German Code of Criminal Procedure stipulates: “It is prohibited to use methods such as abuse, fatigue tactics, physical harm, administration of drugs, torture, fraud or hypnosis to interrogate the accused, nor to use methods that are harmful to the accused. Even if the accused agrees to do so, the statements obtained cannot be used as evidence.” However, the German Criminal Procedure Code does not provide for whether evidence obtained through other illegal means can be recognized. Therefore, scholars. They disagree. However, the courts and most scholars believe that they are opposed to the "automatic" application of the exclusionary rule. Instead, they believe that it should be handled on a case-by-case basis. It cannot simply be said that as long as the evidence is obtained in an illegal way, it must be excluded and not admitted.

Some German scholars disagree with the view that applying the illegal evidence exclusion rule can effectively prevent law enforcement officers from using illegal methods to obtain evidence. They believe that only illegal evidence that meets certain conditions will be excluded. The conditions that need to be met are: "1 . Illegal evidence collection must harm the legally protected interests of those who can benefit from the exclusion of evidence; 2. The exclusion of evidence must serve procedural rules that have been violated; 3. These evidences must be obtained by illegal means other than using illegal means. 4. The exclusion of evidence cannot conflict with the highest interest of handling the case based on the 'true' facts." As for the "fruit of the poisonous tree", German legal circles and courts tend to favor the admissibility of derivative evidence. Sexuality is not as excluded as in the United States.

3． International Treaty

The "Code of Conduct for Law Enforcement Officials" adopted by the United Nations in 1979 stipulates: "When performing their duties, law enforcement officials shall respect and protect human dignity and uphold the human rights of everyone." The United Nations "Prohibition of Torture" Convention on Cruel, Inhuman or Degrading Treatment or Punishment: "The States Parties to this Convention, taking into account the principles proclaimed in the Charter of the United Nations, recognize that the equal and inalienable rights of all members of the human family are an integral part of the world's freedom, justice and the basis of peace; recognizing that the above-mentioned rights derive from the inherent dignity of the human person; considering that the Charter, in particular Article 55, stipulates that States have the obligation to promote universal respect for and observance of human rights and fundamental freedoms; noting Article 5 of the Universal Declaration of Human Rights Article 7 of the International Covenant on Civil and Political Rights stipulates that torture and other cruel, inhuman or degrading treatment or punishment shall not be inflicted on any person; Declaration on the freedom of all persons from torture and other cruel, inhuman or degrading treatment or punishment, in the hope that the fight against torture and other cruel, inhuman or degrading treatment or punishment will be carried out more effectively throughout the world"; "In relation to this Convention For purposes of this article, “torture” means to obtain information or a confession from a person or a third party, to punish him or a third party for an act he or she has committed or is suspected of having committed, or to intimidate or threaten him or a third party. or any act that intentionally inflicts upon a person severe pain or suffering, whether physical or mental, on any ground of discrimination of any kind, where such pain or suffering is caused by a public officer or other person exercising authority in an official capacity Pain or suffering caused solely by, inherent in, or incidental to legal sanctions does not include pain or suffering caused at the instigation, consent or acquiescence of such person.” Article 10 of the “Resolution on Human Rights in Criminal Procedure” passed by the 15th Congress of the World Association of Criminal Law clearly stipulates: “Any evidence obtained in violation of fundamental rights, including indirect evidence derived therefrom, is invalid. "The above-mentioned United Nations conventions indicate that respecting and protecting human rights, prohibiting torture to extract confessions, and establishing rules for the exclusion of illegal evidence have become major issues and world trends facing the criminal systems of various countries.

2. The litigation value of the illegal evidence exclusion rule

(1) The relationship between the illegal evidence exclusion rule and related values ??

1. Relationship with human rights

The "Code of Conduct for Law Enforcement Officials" adopted by the United Nations in 1979 stipulates: "When performing their duties, law enforcement officials shall respect and protect human dignity and uphold the human rights of each individual." U.S. Constitution Amendment [4] stipulates: “The right of the people to be protected from unreasonable searches and seizures of their persons, houses, documents and effects shall not be infringed unless there are reasonable grounds to believe they are guilty, guaranteed by oath or solemn declaration, and a detailed list of the things that should be searched No search and seizure warrant shall be issued for the location, persons or things that should be seized. "Article 33, paragraph 3, of my country's 2004 revised Constitution stipulates: "The state respects and protects human rights." This requires respect and protection of human rights in criminal justice, and cases must be handled strictly in accordance with the Constitution, because the investigation and evidence collection by judicial organs in criminal proceedings will violate the basic rights of citizens granted by the Constitution and infringe on human rights. The establishment of the rules for the exclusion of illegal evidence requires judicial staff to collect and use evidence in strict accordance with legal requirements, thus providing a strong institutional guarantee for the protection of human rights from the source and minimizing the occurrence of human rights violations. American scholar Fred believes: “If the interrogation opportunity is obtained without following legal procedures, then the confession obtained from the suspect will be prohibited from being used, regardless of its voluntariness in other aspects.

" [6] Reid's point of view illustrates the relationship between the illegal evidence exclusion rule and human rights protection. The two are antagonistic and require a correct value choice between them. Through the previous introduction, we It can be known that the reason for the establishment of the illegal evidence exclusion rule is that the behavior of the investigative agencies in obtaining evidence sometimes violates the legal rights of citizens. Although the evidence obtained may be true and the evidence is relevant, we can see that the illegal evidence is illegal. Whether it should be excluded is actually a matter for the court to make a correct value choice between protecting the rights of citizens and ascertaining the facts of the case, and balancing the conflict of interests between the two. It is possible to adopt extremely strict rules for the exclusion of illegal evidence. It will indulge in crimes; if these illegal evidences are not excluded, it will undoubtedly indulge or even encourage the investigative agencies to use a large number of illegal methods to obtain evidence, thus causing the basic rights of citizens to continue to be violated. Although the use of illegal evidence exclusion rules may In some cases, the result of indulging in crime may occur, and there may also be situations where the trial results are inconsistent with the facts. However, indulging a criminal (or some) is more consistent with the concept of justice than infringing on the basic rights of citizens. Punishing a criminal cannot be justified. The legal system that gives up the right to protect. In the application of the system for the exclusion of illegal evidence, we should combine the current concepts of the rule of law and the concept of human rights in our country to reasonably determine the standards and application situations that should be excluded, so that the rules for the exclusion of illegal evidence should be included in our legal system. Play a greater role.

2. Relationship with justice

Justice is the primary value goal pursued by human society. Among all kinds of social justice, social systems and social basics. Institutional justice will undoubtedly play a decisive role in justice. Rawls believes that "the main problem of justice is the basic structure of society, or more precisely, the distribution of basic rights and duties by the main institutions of society, which determines the consequences of social cooperation. The way in which rights and interests are divided. " [7] Judicial justice occupies a very important position in social justice. It is the last judicial barrier to maintain social justice, a window to reflect social justice, and the soul and lifeline of judicial organs. Judicial justice is divided into procedural justice and There are two aspects of substantive fairness. Procedural fairness also refers to process fairness, which refers to fairness in litigation procedures. Judicial fairness must not only reflect substantive fairness, but also procedural fairness. In the British and American legal systems, the relevant provisions of the entire criminal procedure law. It is mainly about the provisions on procedure and the provisions on limiting the public power of the state. Only by achieving substantive justice and procedural fairness can we achieve true judicial justice. When there is a conflict between procedural fairness and substantive fairness, procedural fairness must be given priority to the exclusion of illegal evidence. Rules are a typical embodiment of procedural fairness.

3. Relationship with legal due process

Due legal process is an important legal foundation of American constitutionalism, and its application in judicial practice not only It enriches the theory of due legal process itself and promotes the development of the constitution and constitutionalism. The connotation of due legal process includes concepts such as procedural standards and procedural constraints on power. As we know above, legal due process and the rules for the exclusion of illegal evidence have a great impact. The relationship. Amendment [5] of the United States Constitution stipulates: "No person shall be punished for a capital crime or other felony except upon a report or indictment by a grand jury, except in time of national crisis while in the army or navy, or while serving in the service of the United States." This does not apply to cases among the militia. No person shall be twice subjected to jeopardy of life or bodily injury for the same criminal act; no person may be forced to incriminate himself in any criminal case; no person may be deprived of life, liberty or property without due process of law; Private property shall not be used for public use without appropriate compensation. "Section 1 of Amendment [14] to the U.S. Constitution stipulates: "Every person born or naturalized in the United States, and subject to the jurisdiction of the United States, is a citizen of the United States and of the state in which he resides. No state shall make or enforce any law abridging the privileges or immunities of citizens of the United States; no state shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction "Equal protection of the laws." The provisions of the Fifth and Fourteenth Amendments to the U.S. Federal Constitution are the famous due process clauses, which are the essence of the spirit of American law. As the famous American judge Cardozo pointed out ’s: “It is a most universal concept that no one should be deprived of his or her liberty without due process of law.

"Any nation in the world today that pursues civilization and progress should have their own due process, although they may not use the term 'due process'", "This is indispensable for any judicial system in the world today." something. ” [8] This shows that legal due process is necessary for judicial fairness. It embodies procedural justice. It is a more natural guarantee for any citizen’s legitimate rights and interests to obtain a very effective guarantee.

(2) Illegal The value of the evidence exclusion rule itself

The value of the illegal evidence exclusion rule itself refers not only to the value goals that this exclusion rule aims to achieve in the specific operation process, but also to the basis by which people evaluate and judge this rule. The value standard of legitimacy and reasonableness. Kant pointed out: “Unless a person has committed a crime that deserves punishment, he should not be convicted and punished” [9]. The acquisition of illegal evidence often assumes that the party concerned is guilty and carries out the presumption of guilt. , often resulting in a large number of unjust, false and wrongful convictions at the expense of the legitimate rights of the parties involved. The case of She Xianglin’s wife-murder is a typical example of the serious consequences of illegal evidence collection. This illegal behavior not only seriously violates human rights, but also wastes a lot of money. The judicial resources are not conducive to the real realization of substantive justice. American scholar Taylor believes: “In general, fair procedures can produce more just results than unfair procedures. " [10] The illegal evidence exclusion rule is an important manifestation of procedural fairness. On the premise of adhering to procedural fairness, it helps to regulate the investigation and evidence collection behavior of judicial organs, maximize substantive justice, protect human rights, and achieve judicial fairness. In In our country's judicial practice, if the judge discovers that some facts are unclear during the trial, he will conduct an out-of-court investigation alone and collect new evidence that is unfavorable to the defendant. In the judgment, the judge will directly use this evidence as the main factor in convicting the defendant. In this way, the judge was able to discover a lot of evidence that the investigative department had not obtained and brought the guilty to justice, thereby achieving substantive justice. However, the judge did not give the parties to the litigation the opportunity to cross-examine and debate the evidence they collected. Those who have an interest in the outcome of the case have no opportunity to effectively participate in the decision-making process. The procedure of accepting such evidence without cross-examination as legal evidence is inconsistent with the spirit of modern law [11]. The restrictive procedure seriously damages the legitimate rights and interests of both parties, especially the rights of the person being prosecuted.

3. The scope of the rules for the exclusion of illegal evidence

The national conditions of each country are different. Countries differ greatly in their attitudes towards using verbal evidence and physical evidence obtained through illegal means, as well as evidence obtained based on illegally obtained evidence (the so-called fruit of the poisonous tree) [12].

(1) Exclusion of verbal evidence obtained illegally

Since illegal verbal evidence is often obtained through barbaric means such as torture to extract confessions, it seriously infringes upon the dignity, health, and even life of citizens. The most important basic rights of natural persons, therefore, countries usually adopt a very strict attitude towards verbal evidence obtained through illegal means, requiring them to be excluded and not accepted.

1. The United Kingdom has established the exclusionary rule for the defendant's non-arbitrary confession through jurisprudence. According to this exclusionary rule, the condition for the admissibility of the defendant's confession lies in whether it is completely voluntary. In modern British law and judicial practice, it is non-arbitrary. The issue of sexual confession has always been one of the focuses of attention, and compared with previous cases, some very important changes have taken place: (1) The exclusionary rule of non-arbitrary confession has been further legislated in the form of statutory law clarification. For example, the "Judge Regulations" stipulate: "In criminal proceedings, a defendant's partial or complete confession can be used by the prosecution as evidence against the defendant as long as it is voluntary; that is, the evidence is not because of the defendant. Being treated unfairly, threatened by judicial authorities, suppressed, or expected to receive benefits. "(2) The content of illegal evidence-gathering methods related to this rule has also been greatly developed compared to the past. Now it is stipulated that not only confessions obtained by torture or threats of violence should be excluded, but also confessions obtained by infringing on the lawyer's right to be present. Confessions should also be excluded. (3) The scope of exclusion of confessions of criminal suspects and defendants is also expanding. In judicial practice, if the police fail to record the interrogation at the same time, or do not give the interrogation transcript to the defendant, Signing may also result in the conviction being quashed by the Court of Appeal.

The British understanding of the exclusionary rule for non-arbitrary confessions is a gradually deepening process. The initial exclusion of non-arbitrary confessions by defendants was to ensure the authenticity of the confessions; with the development of society, the rights of defendants in criminal proceedings have become more and more important. has received more and more attention and attention, so the value and theoretical basis of this rule have shifted from the discovery of substantive truth to the protection and maintenance of the defendant's right to silence. Whether the use of illegal evidence will adversely affect procedural fairness has therefore become the primary consideration for illegally obtained confessions. Section 76 of the British Police and Criminal Evidence Act 1984 stipulates the principle of automatic exclusion of illegally obtained defendant's confessions. This law adheres to the spirit of English common law rules and establishes the handling of oral evidence in the form of legislation for the first time.

2． USA. The exclusionary rule for the defendant's non-arbitrary confession originated in the United Kingdom, but was transplanted to the United States soon after its creation and has been greatly developed. The 4th Amendment to the U.S. Constitution states: “Evidence collected by unlawful means shall not be admissible as evidence of guilt in a criminal charge.” The 14th Amendment to the U.S. Constitution states: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any person be deprived of his life, liberty, or property, without due process of law.” ” This provision was cited and interpreted by the Federal Supreme Court as the constitutional basis for the exclusionary rule of illegal evidence. This rule was further improved through the weeks v. v.s case in 1914 and the mappov.ohio case in 1961. In order to prevent the use of means that violate citizens' constitutional rights to obtain guilty confessions, the U.S. Supreme Court established a series of rules on the admissibility of evidence in the form of precedents, and established standards for judging non-arbitrary confessions through these rules. That is, voluntary confession should be the product of free will and normal intelligence. If it violates this principle, it will undoubtedly be a non-arbitrary confession. The non-arbitrary confession rules in the United States have experienced a development process from relatively loose to strict. Before the 1940s, the defendant's confession was still limited to "arbitrariness." After that, the Supreme Court's jurisprudence explained that the controversy over the confession rule shifted from "arbitrariness of confession" to "illegality of procedure," that is, This means that if the confession was obtained by federal officials during the period of prolonged detention of the defendant, or violated the defendant's right to counsel or failed to comply with the right to silence notification rules, the federal court will not use the confession regardless of whether the confession is credible and voluntary.

3. Germany and Japan and Italy. Article 136a (1) of the German Code of Criminal Procedure stipulates: "It is not allowed to use methods such as abuse, fatigue tactics, physical harm, taking drugs, torture, fraud or hypnosis to determine and confirm the confession of one's own will." In case of infringement, coercion is only allowed within the scope permitted by the Criminal Procedure Law. It is prohibited to threaten measures that are not permitted by the Criminal Procedure Law, and it is prohibited to promise benefits that are not provided for by law. "The same article (2) stipulates: "It is prohibited to threaten the accuser. The use of measures of memory and understanding is prohibited. Article 3 of the same article stipulates: "Statements obtained in violation of these prohibitions are not allowed to be used even if the accused agrees." Article 319 of Japan's Criminal Procedure Code. Paragraph 1 stipulates: “Confessions obtained by force, torture or coercion, confessions made after long-term improper detention and other involuntary confessions cannot be used as evidence.” Article 191 of the Italian Code of Criminal Procedure revised in 1988 stipulates: “In violation of Evidence obtained under legal prohibition shall not be used. It shows that countries with civil law systems have a negative attitude towards the confessions of criminal suspects and defendants obtained through illegal methods, and determine that they have no evidentiary effect and are not regarded as the basis for finalizing the case.”

The exclusion of verbal evidence obtained illegally has also been recognized by relevant international treaties. As Article 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the United Nations General Assembly in resolution 39/46 on December 10, 1984 and open for signature, states: “Each State Party shall ensure that In any proceedings, any confession that is confirmed to have been obtained by torture may not be cited as evidence, but such confessions may be used as evidence to extract confessions from the person accused of torture.”

(2). Exclusion of material evidence obtained illegally

In terms of the legal validity of material evidence obtained illegally, due to the large differences in legal traditions, as well as in order to adapt to domestic political needs and changes in crime rates in different periods, Countries have different litigation theories and legislative choices.

There are three ways to exclude physical evidence obtained illegally in various countries or regions: one is to exclude all evidence; the other is to exclude it in principle with certain exceptions; the third is to exclude it at the discretion of the judge.

The first method is mainly used by Italy and Russia. For example, Article 91 "Illegally obtained evidence" of the "Italian Code of Criminal Procedure" stipulates: "(1) Evidence obtained in violation of legal prohibitions may not be used; (2) It may be pointed out at any stage and level of the proceedings. The unavailability of the above evidence. ”

The second method is mainly used by the United States. In the United States, from the perspective of controlling crime and protecting human rights, the rule of exclusion of illegal physical evidence is applied more thoroughly. Based on the provisions of the 4th Amendment to the Constitution, the Federal Supreme Court established this rule through a series of cases, and in This rule was applied to criminal proceedings in various states in 1961. However, after the early 1980s, due to the continuous impact of the crime wave, the U.S. Supreme Court revised its tough position on the illegal evidence exclusion rule and added several other exceptions. Such as the principle of "good faith exception" and the principle of "necessary discovery". In the early 1990s, three principles were added: “exception from independent sources”, “exception from weakening of causal relationship” and “question exception”. However, in fact, there is still ongoing debate on this rule in the theoretical circles of American criminal procedure law.

The third method is used by countries such as the United Kingdom, Germany, and Japan. Most countries use this exclusion method to exclude illegally obtained physical evidence. In Germany, physical evidence obtained illegally is handled based on the principle of "balance of interests", that is, evidence obtained in violation of personal dignity and human freedom should be prohibited from being used; however, for serious criminal crimes, even if it is due to illegal Whether evidence obtained through search, confiscation, or seizure should be banned should be decided based on the comparison and weighing of various interests.

As for the issue of whether evidence obtained through search and seizure in violation of legal procedures is probative, the Japanese Constitution and the Criminal Procedure Law do not expressly provide for it, but adopt an evasive attitude. In a drug abuse case tried in 1978, the Supreme Court of Japan held that two conditions must be met to exclude illegally collected evidence: first, there are major illegal situations in the procedures for collecting evidence that seriously obliterate the spirit of writ doctrine; second, if Allowing illegally collected evidence items to be used as evidence will not be conducive to suppressing illegal investigations in the future.

In the UK, not all evidence obtained through illegal search, seizure or similar actions is completely excluded, but the judge is required to exercise his discretion after analyzing the specific circumstances of the case. When a judge excludes the admissibility of a piece of evidence, he must weigh and compare the probative value of the evidence and the possible adverse impact it may have on the fairness of the proceedings. The criteria that judges need to grasp when exercising this discretion are: to ensure that the defendant gets a fair trial and to exclude all evidence that seriously hinders the defendant from getting a fair trial and shall not apply it.

(3) Exclusion of "Fruit of poisonous tree"

The "poisonous tree" in "Fruit of poisonous tree" refers to those collected illegally Evidence; the fruit of the poisonous tree is further evidence obtained based on evidence collected illegally as clues. There are great differences in the practices of various countries regarding the exclusion of the fruit of the poisonous tree. For example, although the United States adopts the exclusion principle, the Supreme Court has confirmed three exceptions in relevant cases: the so-called "independent source exception", the "attenuation exception" and the "ultimately or inevitably discovered exception". The British adopted the principle of "eliminating the poisonous tree" but "eating the fruit of the poisonous tree". That is, although the fact that the defendant made a confession is excluded, it does not affect the admissibility of the evidence discovered from that confession. The exclusion of all other illegal or unfair evidence is left to the judge in the exercise of his or her discretion based on the specific circumstances of the case. In Germany, scholars have different opinions on the admissibility of evidence obtained through expressly prohibited conduct. Most people believe that the use should be prohibited, otherwise the rule of prohibiting evidence will not be easy to implement. However, it is also applicable in some state high court cases. Some federal court cases tend to believe that utilization should be prohibited, but do not express their opinions clearly. In Japan's judicial practice, lower courts generally still control according to the established standards of the Supreme Court, and there are precedents that affirm and deny the evidentiary ability of derived evidence.