On the Exclusion of Derivative Evidence Obtained from Illegal Evidence

Abstract

In judicial practice, the operation of the illegal evidence exclusion rule faces dif-ficulties, and the exclusion of derivative evidence obtained from illegal evidence has never been established in China's current legal texts. The normative purpose of the illegal evidence exclusion rule is: evidence must not be obtained by in-fringing upon the fundamental rights of the accused. Centered on this, it is nec-essary to judge whether the inherent defect of derivative evidence is a substan-tive defect, and then determine whether to exclude derivative evidence of illegal evidence through a balancing of interests. Constructing a "hierarchical" evi-dence review system combining pretrial conferences and trial-centered pro-ceedings will promote the exclusion of illegal evidence. Derivative evidence of illegal verbal evidence should be absolutely excluded, while derivative evidence of illegal physical evidence should be subject to a combination of absolute ex-clusion and relative exclusion.