違反錄音錄像規定訊間筆錄證據能力研究

Study on the Admissibility of Interrogation Records Violating Statutory Provisions

全程同步錄音錄不僅可以擔保訊問筆錄的證據能力，還可以提高訊問筆錄的證明力。在「強制性錄音錄像」案件中，不規範的錄音錄像行為復雜多樣，只有「不合理」的違法錄音錄像行為才會對訊問筆錄的證據能力產生較大影響，但也並不必然使訊問筆錄喪失證據能力，只會導致證據能力有瑕疵，此時，對訊問筆錄的證據能力需要予以補正。補正的路徑是通過證明訊問程序的合法性來保證供述的自願性，從而恢復訊問筆錄的證據能力。訊問程序合法的舉證方是檢察機關，證明方式採自由證明，證明標準應達到優勢證據即可。From the perspective of the science of evidence, keeping an audio or visual record covering the entire process of interrogation not only ensures the admissibility of interogation records, but also helps to improve the testimonial strength. There are various forms of keeping audio or visual records without complying with provisions. However, it is merely the 'unreasonable' forms of them that have negative effects on the admissibility of interrogation records, which not always lead to the total loss of admissibility. In this situation, the admissibility of interrogation records is flawed which needs to be corrected. In order to resore the admissiblity, one way of correction is to ensure that the randomness of confession is voluntary by the interrogation meeting the requirements of law. The legality of interrogation should be proved by People's Procuratorates with the method of free proof. Meanwhile, such proof should reach the preponderance of probability level.