Research on the discovery of the electronic surveillance evidence
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    Abstract:

    The discovery of electronic surveillance evidence not only touches public interests, but also involves the defendant's right to a fair trial. It is of great significance to explore an appropriate discovery system of electronic surveillance evidence for balancing public interests and individual fundamental rights. Through normative analysis and comparative research, it is revealed that the generation mechanism of electronic surveillance evidence is not transparent, and public prosecution and judicial organs may refuse to discovery electronic surveillance evidence on the grounds of public interest immunity. At the same time, due to the principle of last used, electronic surveillance evidence is decisive for the defendant's conviction and sentencing, refusal to discovery it will inevitably affect the individual fundamental rights of citizens. From the perspective of purpose or motivation, individual fundamental rights of citizens can be restricted in the name of safeguarding public interests, but under the same effect, other means should be chosen that do not restrict the individual fundamental rights of citizens or that are significantly less restrictive. Refusal to discovery electronic surveillance evidence directly on the grounds of protecting public interests violates the requirements of the principle of necessity. Therefore, it is necessary to explore appropriate methods of electronic surveillance evidence discovery. In China's criminal proceedings, the electronic surveillance evidence to discovery is dossier materials and associated electronic data, which are incorporated into the surveillance dossier and ready to be served as the basis for charges. The methods of discovery are to view, extract and copy. The disadvantage of this institutional arrangement is that, on the one hand, for the electronic surveillance evidence incorporated into the surveillance dossier, the Criminal Procedure Law does not distinguish between dossier materials and electronic data, and lacks refined regulations, which leads to the discovery of electronic surveillance evidence being limited to the dual model of discovery and non-discovery. On the other hand, it is difficult for the defense to obtain opportunities to view, extract and copy materials that the prosecution agency is not prepared to use as evidence, and is not incorporated into the surveillance dossier, so they have no way of knowing about it. In fact, the secrets carried by dossier materials and electronic data are different, and the discovery methods of them should be differentiated. The massive electronic data obtained by electronic surveillance may contain materials that are decisive for the defendant's conviction and sentencing, it is necessary to discovery the materials that are not incorporated into the surveillance dossier. In view of this, it is necessary to construct a differentiated electronic surveillance evidence discovery system according to the dual framework of electronic surveillance evidence incorporated into the surveillance dossier and not incorporated into the surveillance dossier. For the discovery of electronic surveillance evidence incorporated into the surveillance dossier, the defense may be required to sign a confidentiality agreement, allowing to view, extract, and copy the dossier materials, and to view and extract the associated electronic data. However, due to the protection of the technology of electronic surveillance, the defense's application for a copy of the associated electronic data may not be allowed. For the discovery of electronic surveillance evidence not incorporated into the surveillance dossier, the prosecution is obliged to provide the defense with a list of data and criteria for the selection of associated electronic data, and the defense has the right to raise objections and apply for access to linked data.

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周伟.电子监控证据开示制度研究[J].重庆大学学报社会科学版,2024,(1):206~219

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  • Online: March 15,2024
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