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Proper standards of evidence collection strategies

Author: YinWeiZhong From: www.yourpaper.net Posted: 2009-12-29 09:48:57 Read:
Key words] [the     object behavior; behavior; behavior method
[Abstract] evidence collection strategies play a central role in the criminal investigation strategy, in the process of implementing the strategy of collecting evidence must have the legitimacy of the law and the moral, the purpose is to eliminate or reduce the violations of human rights in the investigation procedure of disadvantages.
Evidence collection strategy is that the investigation organs in evidence collection process, for the effective discovery, extraction, fixed evidence and the use of strategies.On the one hand, found evidence is not equal to have evidence, also need to use evidence collection strategies effective discovery, extraction and fixing the evidence, and to decide whether to end the investigation evidence and how to end.On the other hand, only a certain number of evidence, in order to determine the suspect, also can check on it.Therefore, collecting evidence is found evidence of fate, and is the premise of seizing suspects, evidence collection strategies in the center of investigative tactics, is the focus of the investigation strategy.Acquisition strategy is to prove the facts of the case evidence for obtaining evidence.From the objective point of view, any can obtain evidence can be used as the evidence collection strategy strategy.That is to say, only from a rational point of view, any can be effectively collected evidence strategy has the legitimacy objectively, regardless of whether they conform to the laws and ethics.The legitimacy of evidence collection strategy objectively rejected all no scientific basis behaviors, such as praying to gods, graphology identification.Deception, inducement, threat, such as illegal eavesdropping method can rule to obtain evidence, but these methods are not allowed in law and morality, and therefore has no legitimacy.Provisions of evidence collection strategies must be compatible with the existing method, it has the legitimacy of the law.In accordance with the provisions of the present law, refers to meet the conditions of legal matters, on the evidence collection behavior subjects, objects, methods.
, a collection of the evidence act
Look at the following legislation: "code of criminal procedure" Germany 100th watching communication conditions] the fact that there is reason to suspect that someone as principal, accomplice committing one of the following crimes, or attempted also punishable in the implementation of crime attempted, or to prepare the implementation of these crimes, in order to in no other way to clarify the circumstances of the case, investigation or the accused residence conditions, allow command monitoring, recording phone calls......
163rd a [interrogation of the accused] (a) unless the procedure leads to withdrawal of the case, the accused shall address in the investigation before the end of 1984 to British "interrogation of the police and criminal evidence law" article nineteenth
(1) the legitimate access to any place police may exercise this article (2), (3), (4), granted.
(2) the police may arrest any items within a site, if he has reasonable grounds to believe that --
(a) it is because the implementation of a crime and the......"Criminal Procedure Law" in Japan, 197th in the investigation of the necessary investigation for investigation purposes, can make the necessary investigations except otherwise stipulated by this law, shall not be mandatory sanctions......
On the German law of 100th a specific condition monitoring telecommunications contacts, 163rd a only provides the interrogation procedure, without stipulating the conditions; the British law specific conditions of seizure.We can clearly stipulates the concrete condition known as the dominant condition, there will be no specific condition called recessive condition.No provisions of the conditions is not equal to no conditions.On the Japanese law "in order to achieve the purpose of investigation", can be regarded as arbitrary investigation measure conditions.Because any act of investigation has a clear purpose, is to find the clue, collect evidence, arresting suspects and preservation purposes.It is from this sense, any act of investigation are the implementation of certain conditions -- to find out the case.Optimum conditions it is universal or general condition of investigation behavior.It is because of this condition is generally applicable to all the investigation behavior, so it is not necessarily in the provisions made clear stipulations.According to the author's knowledge, the majority of legislation of the inquiry, questioning, identifying measures does not require the implementation conditions.But not without conditions, because a person to become a witness, victim, suspects itself need to have certain conditions, but also need to identify the people identify with clear perception and memory base.Just because of these conditions is self-evident, so need not be specified.Seen from the demand of rule of law and the legislation, collecting evidence behavior explicit conditions applicable to the invasion of the more important benefits, including mandatory behavior and secret forensics behavior: Secret forensics behavior not only possible violations of rights and interests of relative people, and may damage the state organs of the moral prestige, the conditions should be defined as the dominant conditions.
Acquisition strategy must be consistent with the conditions of implementing evidence law provisions on evidence collection behavior, including explicit and implicit conditions conditions.Collecting evidence strategy does not meet the statutory conditions, does not have the legitimacy of the law.
two, collecting evidence behavior subject
Subject to the evidence collection behavior are decided to subject and the implementation of the main one and decide the main body and implementation of separation of the two kinds of legislation.Our current law will determine the right and the implementation of the right of collecting evidence behavior all investigation are exercised by the investigation organ.Britain and the United States, France, Germany and other countries generally will decide in the search, wiretapping evidence collection behavior by the judge to exercise, the investigators only in the judge to review the consent to the implementation of the evidence collection behavior.Legal provisions on the evidence collection behavior, rules and main number, qualifications, such as interrogation shall be made by 2 or more investigators implementation, inspection should be a lawyer or a 2 case had nothing to do with witnesses, etc..Only the legal body, carry out the collection of evidence decision behavior, collecting evidence strategy could be legitimate.
The object three, collecting evidence behavior that the scope of application of
Objects collecting evidence behavior will take the form of time and space of certain, scope of application and evidence collection behavior accordingly including time and space range.The legal provisions of the range space gathering evidence behavior object, generally defined as witnesses, victims, suspects and probably left, hiding evidence places, objects as to the possibility of legacy, hide the evidence standard, there are different legislative cases is a reasonable or justified according to the standard, the British, the United States and other countries the law adopted the standard.As the leading British "1984 police and Criminal Evidence Act" provisions on police seized, use is reasonable according to the standard.The United States of America the fourth amendment to the Constitution stipulates, search, seizure shall be justified.The legislation of the countries tend to practice the system of judicial review, judicial review on the legality of search, seizure, collecting evidence act itself.Another is the investigator discretion standard, namely the investigator to decide whether it is possible to hide the evidence according to the left.The current law of our country.The law for evidence collection behavior when the object scope is generally ask for search, seizure, interrogation gathering evidence behavior in time to make the necessary restrictions.As Russia's new code of criminal procedure of the 164th paragraph 3 "is not allowed in the night to ask for investigating behavior, but except in the case of brook no delay."Investigation behavior here include inspection, search, seizure, listening, inquiry, collect evidence behavior.German law on 163rd a (a), "on the accused shall address in the investigation before the end to interrogation" requirement, is about the scope and time of interrogation of the provisions of the object.Legal provisions on the evidence collection behavior object, is to determine the acquisition strategy objects based on evidence, if the strategy objects that do not comply with the current law, the design or the use of the strategy does not have the legitimacy of the law.
The
method of four, evidence collection behavior
Legal provisions on the methods of collecting evidence way, and not the specific methods of all the evidence collection or each kind of collecting evidence are by no means exhaustive in the provisions of regulations, such as a variety of scene sequence, interrogation presentation of evidence method, ask how the strategies of the consequences without legal provisions; should stipulate the content mainly includes three aspects: one is the method and evidence collection behavior results as evidence of the authenticity of the way, the two is about the acquisition process fair and reasonable method, three methods of collecting evidence of humane care of the way.The more developed legal system civilization countries about the investigation and collection of evidence legislation at different levels including the three contents.Evidence of the truth in relation to the facts of the case should be correctly identified, so that can be used to guarantee the authenticity of evidence and the method may lead to get no real evidence methods separately prescribed guide and prohibition in law.In order to obtain evidence, investigators can use secret search, cheating, punishment flood and injustice
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