Year : 2021 | Volume
: 7 | Issue : 3 | Page : 96--104
Deceptive forensics and the “generalized” negation of the evidences
China University of Political Science and Law, Beijing, China
China University of political science and law, student apartment 1, No. 25, Xitucheng Road, Haidian District, Beijing
Deceptive interrogation, undercover investigation, special information, and covert spying may be used as deceptive evidentiary acts. By Article 52 of the Criminal Procedure Law, these methods must undergo the examination of the admissibility of evidence in the trial stage. How interpretate obtaining evidence by deception such judicial postmortem review should include the necessity of investigation and the legality of investigation. The sources of information examined should not only be limited to the defendant's confession and prosecution files but also include the evidence of personal testimony, intelligence sources, and material evidence sources, especially the appropriate presentation of investigation files. In a case, the necessity, possibility, and possibility of distortion of the means of obtaining evidence determine whether the specific evidence has the legality of evidence. Documents must be able to truthfully reflect the implementation process of specific evidence in the case.
|How to cite this article:|
YaPing Q. Deceptive forensics and the “generalized” negation of the evidences.J Forensic Sci Med 2021;7:96-104
|How to cite this URL:|
YaPing Q. Deceptive forensics and the “generalized” negation of the evidences. J Forensic Sci Med [serial online] 2021 [cited 2021 Nov 27 ];7:96-104
Available from: https://www.jfsmonline.com/text.asp?2021/7/3/96/326805
Deception interrogation is generally believed to be, investigators use deceptive methods to obtain evidence to find out or prove the facts of the case in the process of criminal proceedings. In the revision of criminal procedure law, it is forbidden to obtain evidence by deception in Article 52. How to understand the provisions of Article 52 of the criminal procedure law has always been controversial. Most people are entangled in the prohibition of obtaining evidence by deception, which may bring troubles to judicial practice, but they do not consider the actual meaning of this provision. Whether Article 52 of China's criminal procedure law has the meaning of evidence prohibition is the key to the problem. It is obviously too optimistic to ban all evidence with illegal elements from the court. Deceptive evidence collection may include many types, from legal to illegal measures. However, the further trouble of the problem discussion lies in the adoption of technical investigation measures with some form of deception. The methods of obtaining evidence such as deceptive interrogation, secret investigation, informants, and secret spies need to be analyzed more seriously. The essence of deceptive forensics lies in confusing opponents and making them produce illusions. It belongs to the advantage, creation, and use of investigative strategies.
Regarding fraudulent evidence collection, the criminal procedure law of our country has continuously adopted negative evaluation in Article 43 of the Criminal Procedure Law in 1996, Article 50 of the Criminal Procedure Law amended in 2012, and Article 52 of the Criminal Procedure Law amended in 2018. Those Articles say the same words time and time again: The act of “inducement and fraud” is listed as the same status as extorting a confession by torture and belongs to the object of “strict prohibition”. Although in the 2018 Amendment, Article 52 of the Criminal Procedure Law generally prohibits fraudulent evidence-gathering and does not be included in the illegal evidence (Article 56), this negation still has specific evidentiary legal implications. This legislative expression can not be misunderstood as the legislator's clerical error or realistic choice in a state of contradiction being interpreted as “gradually limited.” At one time, the academic circles used “overhead” to explain the expression of “prohibition” in Article 52. And in practice, the public security organs kept secret about the process of technical investigation. In short, they all misunderstood the actual content of legislators.
Dr. Jiang Pengfei proposed that the “strict prohibition” in Article 52 of the Criminal Procedure Law should be a general qualitative and general negation of technical investigation measures and the evidence obtained. Only in this meaning there can be an inherent logical consistency between the “strict prohibition” stipulated in Article 52 and the “technical investigation measures” stipulated in Articles 150–154 of the Criminal Procedure Law. However, this issue still needs to be further clarified: Can “general negation” refers to the prohibition of investigation, or to the evidence obtained by investigation, or to the complete prohibition of use, to only the establishment of “premise of illegality” to allow the prosecution to use in practice.? The main contents are as follows: First, the negation of “generality” is not the prohibition of deceptive investigation, but the establishment of a judicial review standard; second, for the evidence obtained by deception, the “general” negation has established a judicial review standard; Third, the negation of “generality” blocks the judge's presumption of the legality of specific evidence.
In practice, secret investigation and “technical investigation means” have always been understood as a kind of investigation method that should be kept secret, or the means should be hidden in the underwater as “iceberg” to ensure the effectiveness for the crimes. Due to the transfer of investigation files and other reasons, the deceptive problem in technical investigation measures is more urgent than the general investigation fraud such as deceptive interrogation. Therefore, this paper mainly focuses on the legality of the evidence in the means of secret investigation and technical investigation. If the concept of “general negation” can not involve technical investigation, the system of “trial centered” will be difficult to realize. At the same time, “generality” negation means that the qualification of evidence obtained by technical investigation and secret investigation depends on the conclusion of judicial review in specific cases. This makes the qualification examination of evidence obtained by investigation be confused with the examination of investigation behavior. In other words, for the evidence obtained by technical investigation, “general negation” also implies the judicial review procedure.
What is “General Negation”
The main ways of legalization of technical investigation measures include procedure permission before the investigation and evidence examination at the trial stage. The former is mainly manifested in the procedural licensing of the investigation, while the latter is mainly manifested in court. From the perspective of the scope of the examination, the practice of prior examination can only prevent some acts from being opened, while the latter examination can examine all the evidence obtained by technical investigation measures, and indirectly standardizing the acts of technical investigation measures. Therefore, the indirect norms of judicial afterward review for investigative acts are much stronger than that of prior permission. According to this way, the concrete meaning of the so-called “general negation” is actually clear.
What is “illegality hypothesis”
The first meaning of “general negation” is to stipulate that the evidence obtained by deceptive technical investigation may be illegal. Legalization of investigation should standardize the scope and means of implementation of technical investigation measures; the main ways to realize the legalization of technical investigation measures include the procedure permission before the investigation and the evidence examination in the trial stage. “General negation” is to assume that the evidence obtained by deceptive investigation means should be examined. Even if there is no defendant's “exclusion” application, the court should take the initiative to review the legality of evidence according to its authority. Hence, “general negation” say that this kind of investigation method has characteristics that should be questioned in essence.
According to the literal understanding, “general negation” may assume that the evidence obtained by the deceptive investigation should be determined on trial. Unlike the general exclusionary rules of illegal evidence, such negative evidence should be examined without the defendant's motion. This is the negative meaning of Article 52 of the Criminal Procedure Law for deceptive investigation or deceptive evidence collection. Generalized negation means that this kind of investigative method has more characteristics that should be questioned. Of course, this assumption is only a legal presumption, which allows the reversal of counter-evidence. This negative assumption of evidence is not to exclude the evidence obtained by this means, but authorize the judges make sure the police have enough respect for the law.
The evidence is valid or not, still rely on the conclusion of evidence examination. But this requires the prosecuting officer and the police officer transfer the specific details of evidence collection in case. Moreover, this assumption secret investigation cannot be overturned with the excuse of “endangering the secret of investigation” or simply replacing the source of evidence with “statement of circumstances”.
What is postreview
The second meaning of “generality” negation is that the judge must examine the qualification of evidence obtained by technical investigation. Generalized negation leads to evidence review, so evidence review leads to the way how to Examining the evidence, and the way how to analyze evidence examination. Does evidence review refer to the examination of authenticity or legality of evidence? If the examination of evidence includes the examination of the legality of evidence, the evidence to be examined should be called undetermined validity. Hence, generalized negation means the prosecution must prove the necessity and legitimacy of the evidence collection methods. We cannot interpret “general negation” as “general affirmation” or as a moral judgment way. There are two main procedures to control the legality of the procedure of technical investigation measures: The licensing procedure before technical investigation measures and the review procedure in judicial trial. For all the evidence on which criminal charges are based, the trial judge must be able to examine the source of the evidence transferred by the investigation. Whether the evidence obtained by deceptive evidence in specific cases is valid or not should be analyzed concretely according to clear procedures and conditions in specific cases. The main manifestations are the examination of legality and necessity. The examination of legality refers to whether the evidence obtained has the qualification of evidence. Necessity review refers to whether the evidence obtained conforms to the principle of proportionality of investigation.
Based on the confidentiality of investigation, criminal investigation evidence is divided into different stages, such as investigation, prosecution and trial, which are managed by the three functional subjects of public prosecution law. The confidentiality of investigation means that the judicial organs are unable to obtain the process materials and review opportunities for the implementation of specific investigation actions. “Judicial Centralism” must include the examination of the legality of fraudulent forensics in the investigation procedure, which should include the specific process of investigation implementation. Fifth, the principle of evidence examination in specific cases. The vagueness of the articles in the Criminal Procedure Law does not mean that there are no definite provisions and some standards in criminal justice. Existing standards for examining evidence obtained in fraudulent investigation mainly stipulate that in special cases such as corruption cases, drug cases, and organized crime cases, the main manifestations are conference minutes and other normative documents.
What is diverse with evidence prohibition
The negation of “generality” does not prohibit similar means of evidence collection. Generalized negation is essentially a hypothesis of evidence legality, which allows the prosecution to overturn the evidence, so it is different from the meaning of “evidence prohibition” in Germany. The evidence prohibition can be divided into the prohibition of evidence acquisition and the prohibition of evidence use. The former is the code that prohibit some behavior mode of evidence collection for state organs, and the latter is the code of conduct for judges to judge the ability of evidence in the trial. According to Article 136 (a) of the German Criminal Procedure Code, illegal methods of obtaining confessions from the defendant population are prohibited, including abuse, fatigue tactics, physical injury, medication, torture, fraud, or hypnosis (later anesthesia analysis and lie detection tests are added). German Criminal Procedure Law 136 (a) clearly stipulates prohibited interrogation methods by combining enumeration and generalization, restricts the infringement of constitutional rights by interrogators during the interrogation of criminal suspects, thus guaranteeing the freedom of criminal suspects to decide and confirm their will; and clarifies the compulsory effect of prohibited interrogation methods in the interrogation process, even if the crime is committed. If the suspect agrees to use the prohibited interrogation method, the interrogator may not use the prohibited interrogation method during the interrogation; if the prosecution obtains evidence in violation of the prohibition, even if the criminal suspect agrees, it is not allowed to use the prohibited interrogation method.
Logically, there should not be a completely equal logical relationship between the prohibition of evidence acquisition and the prohibition of evidence use. On the one hand, there are many social interests involved in criminal cases, and the police adopt different ways and methods in the cases. In the implementation of the methods prohibited by law and other methods prohibited by law, the judge of the case should be given some discretionary power. On the other hand, the prohibition of the use of evidence actually exists an inclusive relationship prohibited by the way of obtaining evidence. Evidence obtained according to the way of acquisition must ultimately be examined by the court. If the approval procedure of investigation methods, especially the approval procedure of technical investigation measures, is overemphasized, it will naturally overlook the actual effect of judicial afterward review. Ultimately, the court can only rely on a brief description of the “situation” to determine whether the evidence is applicable. The law must give judges the power of discretion according to the “balance of interests” in the prohibition of the use of evidence, which is naturally closely related to the “trial-centered doctrine.” This rule of exclusion of evidence has basically the same meaning as that of exclusion of illegal evidence in Anglo-American law.
The Negative Effect
There are some differences between the legality of investigation means and the admissibility of evidence. The legitimacy of investigation means comes from the authorization of law or the satisfaction of pre-examination conditions; the admissibility of evidence obtained by the investigation is actually the issue of evidence qualification examination in the trial procedure, which points to the judicial postexamination and is based on the relevant evidence rules. Deceptive interrogation is not directly stipulated as illegal evidence as extorting confession by torture but requires careful consideration by the actual trial judge. Whether the interrogated person knows clearly the method used by the investigator or the evidence presented, and whether the deceptive method has the realistic possibility of causing false confession, and whether the evidence obtained by deceptive interrogation should be excluded. If an interrogator puts a knife similar to the tool on the table, the suspect will subjectively think that this is the weapon he used. This method may belong to deceptive interrogation, but there is no possibility of evidence exclusion. Since, no matter whether the interrogated person commits a crime or not, it can always clearly distinguish whether the criminal instrument is collected by the interrogated person. However, if the interrogator presents a false identification report to the suspect, the interrogation should be deceptive, and therefore the export supply obtained should be excluded from evidence. Because of the professionalism of these fictional evidences, there is strong pressure on the defendant, which makes it difficult to challenge the authority. If it is enough to attract innocent people to make false confessions temporarily, deception to obtain the benefits of sentencing should be excluded by law.
Review to technical investigation measures
In the discussion of technical investigation measures, scholars generally assume the effect of “outside-system supervision,” but the problem is that the pre-approval procedure controlled by prosecutors or judges cannot effectively limit the “deception” of technical investigation measures. At present, neither the procuratorate nor the court has the power of technical investigation measures. How to examine the legality of the implementation of technical investigation measures? Whether it is a prosecutor or a judge, the power control that can be exercised in the prior examination of technical investigation measures is bound to be limited and superficial. Because an important principle of checks and balances of power is that the power of the decision-maker is at least sufficient to replace the power of the decision-maker in some cases; the judicial practice has proved that it is difficult for the procuratorate to effectively supervise the case filing of public security organs in cases where the procuratorate does not have investigative power. On the other hand, in practice, police must be given a certain range of autonomous power in the implementation of technical investigation measures. Prosecutors or judges are often far away from the front line of investigation, judging whether to open the necessary means of investigation information or from the police, the correct decision of prior review and timely decision have certain risks. Even in Germany, which realizes the legalization of investigation, although the law clearly stipulates the decision-making procedure before the investigation and the post-investigation review procedure after investigation, in order to ensure the promptness of investigation, the police still have greater autonomy in implementing technical investigation measures. In fact, judicial review can only rely more on the exclusion of illegal evidence in court to achieve post-investigation. Obviously, paying too much attention to the pre-examination procedure of technical investigation measures may exaggerate the actual binding force of criminal law on the police. Extra system supervision may rely more on the power balance system, and it is difficult to ensure the accuracy of the decision itself. “(Evidence) The discovery procedure enables litigants to make careful investigation and careful examination of the evidence before trial so that they can ask questions and test the seemingly true situation in the trial to obtain the truth of the case.” Prohibiting the presentation of unexplained evidence is the strongest, and often the toughest, sanction.
Based on the response to organized crime, the undercover investigation and other technical investigative measures really implemented by police stations must be an organized behavior. Undercover police must have the support of information collection, logistical support, dispatching command, financial support, and other factors. The judicial after-fact review must have the realistic conditions to collect sufficient clues. We should also consider that, based on the huge cost of undercover investigation and other technical investigation measures, undercover behavior is not a single means of investigation, but must be a combination of multiple ways of evidence collection, including multiple intelligence collection, intelligence analysis, and other comprehensive means of investigation. To judge the legality and necessity of the evidence obtained undercover, it is necessary to include a wide range of legal combination norms and the value comparison of the specific reality in the case. The legal norms of undercover investigation should take into account the initiation of undercover procedure, the transfer of undercover investigation files, the behavioral norms of undercover investigation, the exclusion principle of undercover evidence, the testimony of undercover police, the handling of evidence in other cases, the protection of undercover police, the presentation and cross-examination of undercover evidence court, the procedure of claiming the interests of bona fide third party, and the state compensation for undercover investigation. Research. Based on the non-prosecution characteristics of criminal investigation, the judge's examination of the evidence actually determines the effectiveness of the previous police investigation and indirectly determines the protection of the interests of the relevant persons. Therefore, the way of judicial review after the fact is to decide the validity of investigative action, and also to make an early decision on the protection of the rights of other relevant persons. Specifically speaking, in a specific case, the judge makes a final measurement of the final results of the undercover investigation to decide whether to adopt the evidence. The main factor to be considered should be the “admissibility” of evidence obtained undercover.
Negation of technical investigation measures
Whether the principle of proportionality is violated or not is the core criterion for judging whether deceptive forensic measures lead to the lack of legitimacy. The acts of secret evidence collection taken by the persons who conceal their identity must be compatible with the seriousness of the crime investigated and the specific situation at that time. In the case of preexamination or postapproval, the subject of review must make a comprehensive judgment according to the relevant circumstances. In emergencies, people with concealed identities can conduct secret forensics first. They must also adhere to the principle of proportionality and deal with criminal acts by appropriate coercive means. If they can adopt less coercive acts, there is no need to adopt stronger coercive acts to obtain evidence. Seriously beyond this proportion of necessity, the evidence-gathering behavior will lose its legitimacy. Article 151 of the Criminal Procedure Law of China and Article 262 of the Provisions on Procedure for Handling Criminal Cases by Public Security Organs stipulate that investigators should not use methods that may cause serious personal danger and endanger public safety, and that is to say, it is forbidden to use “intentional induced” investigation methods to induce the original innocence.
According to the reality of our country, we have made corresponding regulations on the ways, methods and means of secret forensics. According to the regulations of various countries, these methods and means of secret forensics include: Undercover investigation, temptation investigation, controlled delivery, interception of communication, secret shooting, electronic interception, telephone monitoring, electronic surveillance, secret photography or video recording, secret forces, secret search, secret identification. Secret arrest and the use of other means of technical investigation and criminal scientific and technological appraisal, etc., Article 52 of the United Nations Convention against Corruption, adopted by the General Assembly of the United Nations, once again provides for special investigative means. The Convention takes a step further on the basis of the United Nations Convention against Transnational Organized Crime. It allows courts to accept evidence generated by special investigative means and solves the problem of admissibility of evidence generated by special investigative means.
However, it is not clear whether the information on technical investigation measures should be transferred to trial judges. In principle, in every criminal case, it is very important to disclose the evidence involved in the accusation to the accused. Only in this way can he defend effectively. The implementation process of technical investigation measures and the evidence obtained involve not only the judgment of the qualification of evidence in this case but also the examination of the legality of the investigation. Therefore, there should be a certain standard, and the scope of moderate openness should be stipulated. Without endangering the safety of investigators or taking protective measures, the behavioral process of technical investigation measures should be disclosed as far as possible. Failure to publish any information may adversely affect the fair implementation of technical investigation measures and the fair trial of the case itself. Generally, the procuratorial organs must disclose to the defense all the important evidence they have in their possession which is beneficial or unfavorable to the defendant, including the evidence obtained by the technical investigation measures and the implementation process of the technical investigation measures. To ensure that the defendant gets a fair trial, the disadvantage situation caused by the limitation of rights must be balanced through relief procedures.
Illegality Assumption of Several Technical Investigation Measures
”Undercover investigation” is a special investigation method for organized crime in our country. It is generally considered that “undercover investigation” refers to a method of investigation in which specially selected investigators conceal their original identity, hide in the criminal organization or environment under investigation and secretly collect evidence or information of crime within the scope prescribed by law. As far as the actual operation of its investigation is concerned, “undercover investigation” and “undercover investigation” carried out by early countries in respect of political cases are concerned, apart from the great differences in the nature of the cases, they are actually identical in terms of investigative means. That is, only the nature of the cases is different between “undercover investigation” and “undercover investigation,” but in fact, there is no difference in means. The starting procedure of undercover investigation is to limit the scope of cases used by undercover investigation measures and whether undercover investigation can accurately target appropriate cases.
According to the implementation of undercover investigation, the main deceptiveness of undercover investigation lies in two aspects: The state investigators' “hidden identity” and “secret forensics” (or “secret access to information”). The deception of “concealed identity” is mainly manifested in that, as the basis of normal social interaction, people must be able to trust their friends or relatives, but “concealed identity” makes it impossible for people to know whether the people around them can be fully trusted. “Hidden identity” does not directly infringe upon all citizens' right to privacy, nor does it infringe on all contents of citizens' right to privacy; what “Hidden identity” infringes is only the right of civil society trust. The tremendous advantage of the state in concealing the identity of investigators does not bring uneasiness about whether citizens' personal privacy content will be known by the state, but whether the state will abuse this information to obtain some convenience in the investigation.
The fraudulence of “secret forensics” and “secret information acquisition” mainly lies in the risk of personal privacy leaking brought about by the confidentiality of forensic methods, and whether such secret evidence can get the opportunity of “cross-examination” in court. In other words, the public cannot be sure whether the privacy of individuals unrelated to the case is being peeped into by others and whether the evidence collected by investigators can be impartially judged in court. Although we think that the excessive emphasis on the “moral cleanliness” of national judicial acts in criminal justice can not explain and regulate the specific judicial acts perfectly, we can prevent the “excessive” problem of national judicial acts by carrying out certain legal systems norms in undercover investigation.
The fraudulence of undercover investigation is mainly manifested in the fact that the investigative behavior carried out by the police in a certain sense has destroyed the basic moral rules of society or the basic consensus of people's social life. This kind of deception will show different levels of destructiveness because of the operation process of the specific undercover personnel. Therefore, the implementation of undercover investigation cannot be kept secret. We should conduct court investigation as far as possible under the condition of protecting the safety of undercover personnel. Police use people's good customs in undercover investigation measures, and there is deception in evidence collection. The police make use of all kinds of psychology or hobbies of the target task to show “what they like” without being prepared, and make use of the “reciprocity” custom in everyone's mind to obtain the convenience of investigation behavior in the later stage. “Program Promotion” and “Evidence Program” make use of the way of examination and promotion in criminal organizations and the group psychology of “no longer defending each other” within groups to obtain the “confession” of the first criminal of criminal groups. Although police actions are directed at some suspects of serious crimes, these moral practices that use the public to benefit society are always less glorious. If this kind of investigation behavior is abused in the investigation of common crimes, the state investigation behavior has the risk of causing the society to follow suit. This risk runs counter to the legal purpose of the government's normal good customs in building a society ruled by law.
The police may abuse various powers and facilities of the police by undercover during the period of taking measures by the police or imprisonment. Undercover policemen's behavior and “target” behavior in this stage are contrary to the “consistency” of social interaction. The police's behavior is the actual breaker of such social rules. Undercover policemen have already mastered all kinds of psychology and hobbies of the target before their observation time, which will naturally have a greater “attraction” for the target. However, the “performance” carefully arranged or trained is not the true face and character of the undercover policemen. The police take advantage of the feelings of the person being taken measures, but also involve the use of the feelings of the third party. There should be a degree of problem, and all evidence of excessive behavior should be declared null and void.
Secret discourse measures and their deceptiveness
According to the article “Secret Talk” published at present, the main characteristics of this measure are analyzed. The measure of “covert probing” is not only limited to drug cases but also used in some cases where no evidence can be found. Secret spying is through “informants” or make-up investigators to inadvertently listen to the details of the crime between suspects. The space of implementation mostly concentrates on the period of detention of criminal suspects and defendants. “Make-up” policemen, or “informants” directed by the police, or even those in the same cell for the purpose of “meritorious service”, conduct “probing” after obtaining the trust of the suspect and the defendant, that is, through verbal stimulation and provocation, so that the person can talk about the important plot or content of the case and help the police to find out the behavior of the case. The implementation of covert speeches does not require too much capital investment and the organizational behavior of the police. Sometimes other prisoners who are eager to “make meritorious contributions” will “volunteer”. However in essence, covert spying is still a special undercover investigation measure, because it has the main elements of undercover investigation, namely “deception,” and its main purpose is to obtain specific evidence.
The deception of covert speeches is mainly manifested in three aspects: Trust, sympathy, and repentance. In the normal development of human beings, there must be some good customs beneficial to social development. These customs are as indispensable as air, which should include “trust” between people. Trust is an important part of the cooperative relationship between human beings. Based on trust, we can communicate with others, and even with those “strangers,” we can also take appropriate care of each other. The investigation of the covert spy will create a kind of “self-endangerment” estrangement for those who are imprisoned, which will certainly lead to a depressive atmosphere in the prison. Everyone has compassion. Make use of other people's inadequacies to make use of their words, and then get the opportunity to commute their sentences. There is in fact a destructive effect on the goodwill of compassion. If there is a successful case in the cell, there will inevitably be a bad “demonstration effect” for other detainees in the same cell. If it works in groups, no one in the cell will go to pity each other. In normal social communication, repentance is also an important social basic factor. People sincerely regret their mistakes, which means the true understanding of past mistakes, but also means a new choice of their own life path. The main purpose of the commutation and parole system of modern penalty is not to encourage others to report, but to encourage the criminals to correctly understand the past misconduct. Secret inquiry actually provides a wrong “shortcut” model for prisoners, whether it is conducted by undercover police or by implying that the time for other people to carry out “secret inquiry” is to tell the prisoners that informing others of their crimes can reduce their penalties.
Informers and their deception
”Informer” is one of the effective components of the effective intelligence network of the police in case investigation, and even a widely used source of information for some administrative law enforcement agencies in social management work. “Informers” widely exist in all walks of life. They may be ordinary members of society, who have never known the “informant” for life, but report only on the basis of “righteous indignation” or “bonus.” They may also report with the “informant” business partners, competitors or other social interests disputes with the “informant.” However in drug cases, there is often a situation that the police through harassment or incentive bonuses, so that some drug addicts to report intelligence, in extreme cases, there are even police and drug addicts in collusion, forging intelligence sources, creating false cases. Informers have obvious advantages in the current sources of criminal investigation intelligence, but there are also obvious loopholes in the relevant laws. Because in the sense of behavior, informants have some characteristics that are completely consistent with undercover investigation. In a sense, “informant” is not a formal investigative act of the police, but it is often “accepting police financial aid beforehand” or “accepting bonuses afterward,” thus constituting an “extension” of police investigative behavior, which should be equated with police investigative behavior. Although in reality, there are reports based on “righteousness and indignation” and not for the purpose of economic remuneration, they should still be regarded as investigative acts effectively promoted by the police. Because the result of this kind of behavior is that the police profit, so it should be regarded as the behavior of the police organization.
The harmfulness of “informant” is mainly embodied in the dilemma of encouraging the right to report and cross-examine. Illegal prosecution is one of the main means used by the state to fight crime, but if it is used improperly, there will be more troublesome legal problems. The original intention of the state is to encourage all insiders to report wrongful acts, but when reporting can also be a threat tool. For example, to obtain illegal interests or even for criminal purposes, it can not be considered reasonable. Because this kind of informing actually makes the country become the power endorser of the informer. Generally speaking, informants can not testify in court, which will bring danger to the normal exercise of the accused's right to cross-examine in criminal trial. In theory, when the testimony made by the informant becomes part of the final case, it is necessary for the informant to appear in court to accept the evidence of the defense. But the informant's forensic behavior, whether based on economic interests or other purposes, as long as the state uses the information he provides, means that the state must ensure the relevant security of informants and the existence of secrecy. If the informant is required to appear in court, it will undoubtedly destroy the advance “commitment” between the state and the informant, and there exists the responsibility of the state for breach of contract.
Approaches to Examination of Deceptive Evidence Collection
The reason why concealed identity investigation can be effective in criminal investigation lies in its ability to effectively resist organized crime and other anti-public investigations. The police will do everything possible to prevent the identity of secret forces and the leaking of evidence. However, it also means that it is difficult for the accused to know the situation of the concealed identity investigation afterward, to find the defects of the evidence obtained by the concealed identity investigation in accordance with the process of evidence collection. In the United Kingdom, the disclosure of information or information on the investigation of concealed identity can be applied to exceptions to public interest immunity. In the Ward case of 1993, though, the British courts declared that all investigative records, including the use of technical investigative measures, should be disclosed to facilitate the questioning of evidence obtained by investigative organs in public courts. However, in the Criminal Procedure and Investigation Act, the scope of public interest immunity was restored, and the right of the defense to know secret information was restricted. In continental law countries, even if there is a record of technical investigation measures, investigation and prosecution organs usually exclude the use of technical investigation measures from the record of case files. The main reason for this is that concealed identity investigation sometimes only provides clues to obtain evidence, but does not provide evidence directly. Concealed identity investigation without producing evidence is not necessary to be recorded in the files. Moreover, in some countries such as The Netherlands, many measures of concealed identity investigation started before the investigation phase, according to the law before 2001, these acts need not be recorded in the files. However, after a heated debate, Dutch legislation in 2001 began to clearly stipulate that the investigative organs must record the implementation of secret forensics in the investigation report, and require detailed records of the collection of investigative forensics and the evidence information obtained.
General negation and examination of evidence sources
If we look at the implementation process of undercover investigation, fraudulent forensics mainly includes three steps: Camouflage infiltration, fraudulent trust, evidence collection, and intelligence. According to this order, the main hazards of undercover investigation and other acts of technical investigation measures may exist in the following points: First, without approval procedures or in violation of certain elements of the approval procedures, the potential hazards of wrongly implemented acts of technical investigation measures, that is, the “out-of-bounds” problem of undercover investigation; second, there are problems in the implementation of acts of technical investigation measures. Problem, which may result in social harm, such as the means of undercover penetration into criminal organizations and the illegal acts committed to gain trust after penetration into criminal organizations, the harm of technical investigation measures to third parties, i.e., the “cost” of undercover penetration; third, the main purpose of undercover penetration into criminal organizations is to collect evidence of criminal organizations and to collect evidence of criminal organizations. Intelligence, its behavior should have a basic “degree,” if beyond this degree, the harm caused by undercover investigation exceeds the original crime of criminal organizations, that is, the “out of control” problem of undercover investigation. The main concern of the initiation procedure of undercover investigation is that the behavior of technical investigation measures may be abused in general cases, which not only wastes police power but also leads to negative effects on social governance. In my opinion, the main legal problem of fraudulent forensics is the examination of the legality of evidence, because although the subject has changed, the investigative clues based on the judgment are inevitably insufficient, no matter whether the police or prosecutors or judges conduct the prior examination. Excluding the distrust of supervision within the system, the decision of opening judges and prosecutors may not be absolutely superior to the decision of investigative organs in terms of substantive authenticity; however, the cost of supervision outside the system is the total deprivation of the autonomy of investigative front-line case handling. If the corresponding investigative opportunity is lost, the actual cost of the whole Society for the purpose of checks and balances of power will be paid. It's more expensive. Generalized negation can not explain to the public the necessity of undercover investigation and the specific constraints of undercover investigation. Therefore, the main content of the fraudulent review should focus on the “degree” and “out of control” of undercover investigation. Since it actually involves the validity of the evidence obtained under cover and the possible scope of application of these legal evidence in the court trial. Essentially, it is also the question of the qualification of evidence and the exclusion of evidence. Evidence exclusion here is not only the supervision of technical investigation measures implemented by the judiciary but also the exclusion of illegal evidence carried out by the court, that is, the content of the operation of judicial power. The evidence obtained in undercover investigation does not only refer to the testimony of undercover policemen but also includes the information obtained in undercover investigation, the evidence secretly extracted during undercover investigation, and the evidence obtained by non-policemen undercover. These are very realistic and specific problems.
”General negation” and examination of evidence collection behavior
In fact, the rationality of undercover investigation and other measures is closely related to the lack of effective means of fact-finding and evidence-gathering in specific cases. Because of this, undercover investigation can only be strictly restricted and can not be completely prohibited. Legislative countries with deceptive investigative means such as eavesdropping and undercover investigation, which are totally prohibited by the state, should not exist in reality. Many countries adopt a certain degree of “tolerance” for fraudulent forensics, the main reason is that this means of investigation has a clear “reality” and “necessity.” “Reality” refers to the fact that almost all countries have long existed and implemented this kind of investigation before the law effectively regulates the means of investigation. Police organs do not refuse to take technical investigation measures because they do not have the specific authorization of the law. Practice first is a sensitive but practical problem in the secret investigation; Necessity means “necessity.” The state must have such investigative means and ways, which are not enough to deal with specific crimes. Therefore, it is impossible for the law to establish a comprehensive prohibition or comprehensive judicial review of technical investigative measures. It can only regulate serious errors or illegal investigative acts in practice. At least, it is necessary to retain part of the police investigators' autonomy in handling cases.
Conditions for examining the legality of acts of technical investigation measures
According to the author's understanding, the legal norms of undercover investigation can be roughly divided into two parts, one is the procedure control of undercover investigation, mainly referring to the examination and approval procedure before the implementation of undercover investigation; the other is the examination of evidence obtained by undercover investigation, which is not only the examination during undercover investigation, but also part of the exclusion of illegal evidence, but also the evidence obtained by undercover investigation. There are some particularities. The procedure control procedure of undercover investigation mainly includes two situations: The initiation procedure control within the police and the judicial pre-examination. The internal procedure of the police is mainly in accordance with the hierarchical nature of the police department. Only after the approval of the police at a certain level can they conduct undercover investigation or special investigation procedures such as “sneak in,” “make-up” and “wire report.” The main manifestation is the internal control and control of the police. The Pre-judicial review mainly stipulates that the specific judicial organs should control the initiation of this special investigation procedure. It is mainly manifested as an out-of-program control. Based on the distrust of police's behavior, people prefer to control police's behavior outside the system, but this way of thinking ignores the requirement of timely investigation and overestimates the accuracy of judicial review to a certain extent, and may even neglect the actual effect of postexamination of evidence obtained in undercover investigation. In the examination of evidence obtained undercover, threats, inducements and deceptive evidence that seriously violate existing laws, religious traditions, professional ethics, and family ethics, or may lead to a criminal suspect's confession against his will, should be regarded as illegal evidence and excluded. This has a special effect on regulating undercover investigation in practice.
The maintenance of social public order has to rely on specific state institutions, but whether these institutions can successfully fulfill their duties often depends not only on the ownership of power but also on the specific acts of the exercise of power. As the main content of the judicial review, the evidence obtained by these acts can record and reflect the legitimacy of the whole law enforcement process. The “general negation” of deceptive forensics means that the law has a certain attitude of questioning the nature of the act, but it is not the specific procedure and judgment standard of the exclusion of evidence. Trial centralism determines that all evidence entering the court must rely on the comprehensive review of the trial. This review can be expressed as a specific value judgment, but it can not be summarized as a measure of moral conflict.
Simple ambiguity of evidence qualification criteria and the “one-size-fits-all” attitude as to whether a certain kind of evidence can be applied in the trial will easily lead to the judicial review of evidence limited to the details of the evidence collection methods produced by judicial isolation. In the derivation, diffusion and response of public crises, the interests of government officials and departments are clearly publicized. Public policies and government behavior patterns are not absolutely able to strictly follow the logic of public interests and effective response to public crises. As the decision-making mechanism of the government and other organizations in risk society, expert system can neither warn beforehand nor prevent afterward, nor confirm responsibility accurately and timely even afterward. “Risk society” and “organized irresponsibility” actually put forward a detailed analysis approach to the management of national public order. Public order can not be regarded as the end of the task only in confirming the affiliation of power. The management responsibility of public order is only entrusted to the state organs, which are only acting as agents to complete their own work. As the implementer of public interest, the government and its departments have the obligation to fulfill the duty of protecting public interest accurately and timely. Drug cases and cases of corruption and bribery often directly infringe on the public interests of society and do not have direct victims. If there are ambiguous and unclear rules of law and evidence, the handling of these cases will be ineffective, resulting in the maintenance of social order, and ultimately the “control” harm of the state, thus endangering the reality of all members of society. The interests of order.
Financial support and sponsorship
Conflicts of interest
There are no conflicts of interest.
|1||Luther K, Snook B. Putting the Mr. Big technique back on trial: re-examination of probative value and abuse of process through a scientific lens. J Forensic Pract 2016,p3.|
|2||Taijun J. Government public crisis management failure: Internal mechanism and dissolution path: From the perspective of risk society.Acad Mon 2011(9)p12-p15.|
|3||Berry G, Briggs P, Erol R, van Staden L. The Effectiveness of Partnership Working in a Crime and Disorder Context: A Rapid Evidence Assessment, Research Report 52. London: Home Office; 2011.|
|4||Yusong L. On the legal definition of deceptive interrogation [J]. Legal system and society 2014:120-5.|
|5||Jiang Pengfei. Theoretical interpretation of deceptive evidence collection in Article 50 of the criminal procedure law [J]. Oriental Law 2016:48-54.|
|6||Zongzhi L. Moral boundary between deception and criminal justice behavior [J]. Legal research, 2002 (04): 96-104|
|7||Shuxue Q. On the development and improvement of the exclusionary rule of illegal evidence in China -- Taking the German law of prohibition of evidence as a reference [J]. Journal of Hubei University of Economics (HUMANITIES AND SOCIAL SCIENCES EDITION), 2018,15 (07): 81-4.|
|8||Youping X, Lijun D. Secret investigation system in Germany .J Gansu Univ Polit sci law 2011 (06):51-60.|
|9||Mi dy. On the undercover investigation system in Germany and Its Enlightenment .J. Henan Normal Univ (PHILOSOPHY AND SOCIAL SCIENCES EDITION) 2011;38:140-4.|
|10||Brants C, Fiield S. Legal culture, political culture and procedural traditions: Towards a comparative interpretation of cavertand proactive policing in England and wales and the Netherlands. In: Nelken D, editor. Contrasts in Cririminal Justice. Advances in Criminology, Aldershot: Ashgate Dartrnouth; 2000.|
|11||Wu Hongqi. Basic institutional structure of criminal evidence review [J]. China law 2017: 167-86.|