李文军

（西南政法大学人权研究院，重庆 401120）

【摘 要】证据调查是刑事审判程序的核心环节，对于重大疑难案件和被告人不认罪案件，控辩双方用于支持本方诉讼主张的证据资料，需经过法庭举证、质证、辩论后，才能作为裁判者认定案件事实的依据。由于庭审调查制度设计的理念不同，我国部分刑事程序设置出现了偏差，实践中发展出“客观到主观”或“主观到客观”的证据调查顺序。然而，这种看似有序的证据出示方式，内在缺陷是公诉方法庭举证的低效、形式化，容易造成证明体系紊乱。以讯问被告人为中心的证据审核方式，虽然优先出示证明力较强的实物证据资料，可以明确案件事实的争议焦点，减少辩方对控方指控犯罪事实的异议，但过度依赖被告人的供述和辩解核实证据资料，而不是强调关键证人出庭作证，最终可能仍然无法形成清晰的证据链。因此，有关键证人出庭的案件，证据调查应当以人证调查为主线，按照查明案情的需要穿插出示物证、书证、电子数据等实物证据；没有关键证人出庭或很少有关键证人出庭的案件，应根据证据资料与待证事实的关系，证据资料之证明力的强弱变化，通过优势证据连环举证实现证据调查逻辑架构的完整。

【关键词】庭审实质化；刑事审判；法庭调查；证据调查顺序

【中图分类号】D915.13

【文献标识码】A

【文章编号】1674-1226（2021）05-0534-16

Research on evidentiary hearing sequence in the reform of trial materialization. Li Wenjun. Human Rights Institute, Southwest University of Political Science and Law,Chongqing, 401120.

【Abstract】Evidentiary hearing is the core proceeding of the criminal trial. For serious and hard criminal cases and cases in which the defendant does not plead guilty, evidence that is proffered by the prosecution and defendant in order to support their own claims, cannot be relied upon by judges in determining the facts of the cases, before evidence is heard through evidence production, cross-examination and courtroom debate proceedings.Due to the fact that the design idea of evidentiary hearing proceeding is different from Western Jurisdiction’s, some criminal procedure settings in China relatively deviates from the due function. In practice, the evidentiary hearing is proceeded in two models, -- producing evidence in the sequence of "from objective to subjective" or "from subjective to objective". However, this so-called organized way of evidence production bears inherent defects. Such model not only makes the prosecution’s production of evidence inefficient and lacking real worth, but also easily leads to the disorder of the proof system. The evidentiary hearing model that centers direct examination of the defendant, by putting in priority the production of physical evidence with high probative value, can help to manifest the issue in disputes, and to reduce the defendant’s objections on the prosecution’s production of facts of crime. But excessive reliance on the defendant’s admissions and explanations for the purpose of verifying evidence, rather than focusing on examining key witnesses’ in court testimonies, could still eventually end up with a failure of forming a clear evidence chain. Therefore, in cases in which key witnesses take stand, evidentiary hearing should set the key witnesses’ examination as the storyline, with which for need of seeking truth connect the presentation of physical evidence, documentary evidence, and digital evidence, etc. In cases in which none or few key witnesses take stand, an evidentiary hearing with logical consistency should be fulfilled by arranging evidence with high probability to be produced in a continuous sequence, which is determined by consideration of the relationship between evidence and the facts to be proved, and the variation of the probative value of evidence.

【Key Words】Trial materialization; Criminal trial; Evidentiary hearing; Evidentiary hearing sequence