(1) Collecting criminal evidence
1. concept
Collecting evidence refers to the legal activities of public security and judicial organs and lawyers to collect evidence and evidence materials in accordance with the procedures and scope prescribed by law in order to prove the specific facts of the case. Collecting evidence is the primary tool to use evidence, the premise of analyzing and studying cases, and the basis for judging and identifying the facts of cases.
2. The theme of collecting evidence
(1) People's courts, people's procuratorates and public security organs have the right to collect and obtain evidence from relevant organs and individuals, and relevant units and individuals shall provide evidence truthfully.
(2) With the consent of witnesses or other units and individuals, defense lawyers may collect materials related to this case from them, or apply to the people's procuratorate or people's court to collect and obtain evidence, or apply to the people's court to notify witnesses to testify in court.
With the permission of the people's procuratorate or the people's court, and with the consent of the victim or his close relatives or witnesses provided by the victim, the defense lawyer may collect materials related to the case from them.
pay attention to
Evidence collected by others must be examined and verified by public security and judicial organs in accordance with legal procedures before it can be used as evidence.
Evidence materials such as physical evidence, documentary evidence, audio-visual materials and electronic data collected by administrative organs in the process of administrative law enforcement and case investigation can be used as evidence in criminal proceedings. It does not mean that administrative organs can have the right to collect evidence in criminal proceedings, but the evidence collected in the process of administrative law enforcement and case investigation before criminal proceedings can be used as evidence in criminal proceedings after being handed over to public security and judicial organs according to law.
3. Requirements for collecting evidence
(1) legal
Judges, prosecutors and investigators must collect all kinds of evidence that can prove the guilt or innocence of criminal suspects and defendants and the seriousness of the crime in accordance with legal procedures. It is strictly forbidden to extort confessions by torture and collect evidence by threats, enticements, deception or other illegal methods, and no one may be forced to prove his guilt. It is necessary to ensure that all citizens who are related to or know the case have the conditions to provide evidence objectively and fully, and they can be hired to assist in the investigation except in special circumstances.
In addition, the Criminal Procedure Law and other legal provisions also clearly stipulate how to interrogate criminal suspects, ask witnesses and victims, conduct inquests, inspections, searches, seize documentary and physical evidence, identify and conduct technical investigations. Only by strictly implementing these regulations can the collected evidence be legal.
(2) Timely
Collecting evidence is a time-sensitive job. Only after accepting a case, the public security and judicial organs can take the initiative to investigate and collect evidence in time, improve the detection rate and handling efficiency, and ensure the quality of handling cases.
(3) objective and comprehensive
Objectivity means that we must proceed from the actual situation of the case, respect the objective facts and collect evidence according to their true colors. Comprehensiveness refers to the comprehensive investigation and collection of evidence related to the case. It is necessary to collect evidence to prove that the suspects and defendants are guilty, and to collect evidence to prove that the suspects and defendants are innocent, guilty or exempted from criminal responsibility.
(4) in-depth and meticulous
Going deep mainly refers to going deep into the reality of the case, going deep into the masses, investigating and studying, collecting all the evidence related to the case, and grasping the internal relationship between the evidence and the case. Meticulousness mainly refers to accurate observation, meticulous inquiry, and never let go of any clues and suspicious clues.
4. Preserve the collected evidence (it must be properly preserved by legal and effective methods to maintain the authenticity and probative force of the evidence).
(1) The witness testimony, the victim's statement, the confession and defense of the criminal suspect and the defendant are mainly kept in the form of transcripts, audio recordings and videos. There shall be no fewer than two producers of audio and video recordings, and a written explanation of the production process shall be attached, which shall be signed or sealed by the producers. The recorder of the transcript must have legal qualifications, conform to legal procedures and requirements, truthfully record the contents of the statement, and be legal and effective after being checked by the presenter and signed page by page.
(2) For general material evidence, a list shall be attached and kept with the case. When transferring a case, it shall be transferred with the case. For the physical evidence that should not be attached for preservation or transferred with the case, in addition to properly preserving the original, it should be preserved by taking photos, drawing, copying and video recording. , and should use words to explain in detail the nature, characteristics and shape of material evidence, the place, time and course of collection, and the connection with the case.
(3) All traces should be preserved in different ways. For example, use gypsum solution as a model to preserve footprints, and take photos or videos to preserve traces.
pay attention to
In order to be effective, the preservation methods adopted must be able to prevent evidence from deteriorating, deforming, being contaminated or damaged.
(2) Examination and judgment of criminal evidence
1. concept
The examination of criminal evidence refers to the analysis and research of various evidence materials collected by public security and judicial personnel, examination and judgment, identification of authenticity, in order to determine whether each piece of evidence has probative force and the size of probative force, and make a realistic conclusion on the facts of the whole case.
2. The content of the review
(1) Review and verify each piece of evidence one by one, and judge the probative force of a single evidence on the basis of determining its objectivity and authenticity.
(2) On the basis of reviewing and judging individual evidence, comprehensively analyze and compare the evidence of the whole case, eliminate contradictions, find out the internal relations, and judge whether the evidence is true and sufficient, so as to draw a conclusion on the facts of the case.
pay attention to
The authenticity of the evidence should be comprehensively examined.
The probative force of evidence should be examined and judged according to the specific circumstances, from the degree of correlation between evidence and facts to be proved, and the relationship between evidence. Evidence is intrinsically related, and only when * * * points to the same fact to be proved, and there are no unavoidable contradictions and unexplained problems, can it be used as the basis for finalizing the case.
Step 3 review
Generally speaking, the review of criminal evidence should include the following three steps:
(1) Personal comments
Examine each piece of evidence separately, that is, examine and judge the source and content of each piece of evidence and its connection with the facts of the case, and examine whether it is true and reliable and how much probative value it has.
(2) Comparative review
Comparative review refers to comparing and contrasting two or more evidential materials in a case to prove the facts of the same case, and to examine whether its contents are consistent with the reflected situation and whether it can reasonably prove the facts of the case. In general, consistent evidence materials are often reliable, while contradictory evidence materials may have problems with one or both of them. Don't blindly believe the evidence materials that are consistent with each other, because collusion, perjury, torture and other factors may also cause false consistency. If there are contradictions, we can't deny them all, but we should make a concrete analysis of the evidence materials.
(3) Comprehensive review
Comprehensive review is a comprehensive analysis and study of all the evidence materials in the case to see whether their contents are coordinated with the reflected situation, whether they can confirm and match each other, and whether they can fully prove the true situation of the case. The key to comprehensive review is to find and analyze contradictions, so as to make an overall evaluation of the evidence materials in the case.
4. Evidence review procedure
When reviewing evidence, we should pay attention to the following contents: whether the source of evidence is reliable; Whether the content of the evidence is true and whether there is an inevitable internal connection between the evidence and the facts of the case; The relationship between all kinds of evidence; Whether the evidence is sufficient, etc. For each piece of evidence, we should not only examine its source and content, but also examine its relationship with other evidence, conduct various research and analysis, and correctly identify the facts of the case in combination with the evidence. There are different methods to examine all kinds of evidence, which are realized as follows:
(1) physical evidence inspection and judgment
The examination and judgment of material evidence can be carried out in the following ways: through technical means such as identification, identification, experiment, verification and scientific instruments, whether the source of material evidence is objective and true, whether there is forgery or other reasons leading to the deformation and distortion of material evidence; Examine and judge whether there is any inevitable connection between the material evidence and the case, whether the case can be proved, and what problems can be proved in the case; Examine and judge whether the physical evidence is original or copy, whether the relationship with other evidence is consistent, and whether there is any contradiction; Find out the source of the physical evidence.
(2) Review and judgment of documentary evidence
Review the process of making documentary evidence by means of identification, comparison and verification; Review the production process of documentary evidence; Examining whether the contents of documentary evidence conform to the facts, are true and reliable, are wrong or illegal, are necessarily related to the case, are wrong or illegal, are necessarily related to the case, and can prove what problems exist in the case; Review the collection process and preservation method of documentary evidence; Examine whether the documentary evidence itself is official or unofficial, whether it is report documentary evidence or disciplinary documentary evidence, and whether it has been notarized.
(3) Review and judgment of witness testimony
Examining the source of witness testimony, whether the witness knows it directly or indirectly; Review some social factors, such as the quality of witnesses, the relationship with the parties, whether they are interested in the case, whether they are influenced by the outside world, etc. Check whether the witness has physical or mental defects, as well as his ability of understanding, memory and expression; Examine whether the witness's testimony is consistent with other evidence and whether there are contradictions. If there are contradictions, we need to find out the reasons further.
(4) the review and judgment of the victim's statement
The provisions on the examination of witnesses are basically applicable to the examination and judgment of the victim's statement. However, according to the formation and collection process of victim statements, we should also pay attention to the following contents: (1) the formation and collection process of victim statements; The relationship between the victim, the criminal suspect and the defendant; Whether the victim has abnormal performance before and after reporting or making statements; Whether the victim's statement is reasonable and consistent with other evidence.
(five) to examine and judge the statements and excuses of criminal suspects and defendants.
Under what circumstances were the confessions and excuses made, for what purpose, and whether they had external influence; Whether the procedure of confession and defense is legal, whether the confession is obtained by torture or by threats, enticements, deception and other illegal means; Whether there is repetition after confession, and if there is repetition, find out the reason; Whether the contents of the confession are reasonable, whether there are contradictions, whether the confession and defense are consistent with other evidence, and whether there are contradictions.
(6) Review and judgment of evaluation opinions
Examining whether the appraiser has the knowledge and experience to solve the specialized problems of the case; Examining whether the appraisal materials provided are true and sufficient; Review and identify whether the equipment used is in good condition and whether the method adopted is scientific and reasonable; Examining whether the appraiser is influenced and interfered by the outside world during the appraisal, and whether there are intentional false appraisal behaviors such as favoritism, bribery and so on; Review whether there is any contradiction between the expert opinion and other evidence.
(seven) the examination and judgment of the experimental records of the inquest, inspection, appraisal and investigation.
Whether the contents of the transcript are complete, whether the written records, photos and drawings are complete, and whether each part is specific and detailed; The sense of responsibility and professional ability of the inspectors, the organization, the presiding appraiser and the experimental personnel, whether there is the possibility of making mistakes; Whether the inquest, inspection, appraisal, investigation and experiment conform to the procedures and requirements prescribed by law; Whether the contents of the transcript are true and accurate; Whether the record meets the legal requirements; Whether it is consistent with other evidence in this case.
(8) Review and judgment of audio-visual materials and electronic data
The formation process of audio-visual materials; Review the performance of technical equipment for producing and playing audio-visual materials; Whether the collection process of audio-visual materials conforms to legal procedures; Whether the background reflected in the audio-visual materials is true; Whether the audio-visual materials are related to the facts of the case and what problems can be proved.
When necessary, audio-visual materials can also be technically inspected to identify whether they are forged, altered or spliced. In addition, we should also pay attention to whether the electronic data is transferred with the original storage medium; Whether extraction and copying are sufficient to ensure the integrity of electronic data; Whether the collection procedures and methods are legal and compliant; Whether the content is true, whether there is any deletion; Whether it is comprehensively collected; Whether it is related to the facts of the case.
In addition, articles 104~ 1 12 of the interpretation of the supreme law have also made special provisions, including indirect evidence, hidden evidence, evidence materials collected by technical investigation, materials such as arrest at the scene, and evidence materials of legal age of responsibility.
(c) Use of criminal evidence
The application of criminal evidence refers to the fact that the public security judicial personnel determine the case according to the verified evidence.
The following points should be paid attention to when using evidence to identify cases:
1. Emphasis on evidence, investigation and research, distrust of confession.
Article 53 of the Criminal Procedure Law stipulates that in sentencing all cases, emphasis should be placed on evidence, investigation and study, and confessions should not be trusted. If only the defendant confesses and there is no other evidence, the defendant cannot be found guilty and punished; If there is no confession from the defendant and the evidence is true and sufficient, the defendant may be found guilty and punished.
2. All evidence must be verified before it can be used as the basis for determining the facts of the case.
The criminal procedure law clearly stipulates that all kinds of evidence must be verified before it can be used as the basis for deciding a case. Any evidence can only be used as the basis for deciding a case if it is verified. None of them can be used as the basis for finalizing the case without verification through legal procedures. The judge must personally examine and verify all kinds of evidence in court, and all the evidence based on which the case is decided must be investigated and verified by the court, and the parties, their defenders and agents should be given sufficient opportunities to express their opinions. All evidence must be investigated and verified by the court before it can be used as the basis for deciding a case, except as otherwise provided by laws and relevant judicial interpretations.
3. The facts of the case are clear and there is corresponding evidence to prove it.
The evidence is indeed sufficient, and between evidence and evidence cases, all doubts and other possibilities are ruled out and conclusions are drawn according to law. After trial by the court, if the evidence is insufficient and the defendant cannot be found guilty, a verdict of innocence shall be made. Because of insufficient evidence, the accusation cannot be established.
4. Be loyal to the truth.
Article 5 1 of the Criminal Procedure Law stipulates that when the public security organ approves the arrest, the people's procuratorate brings a lawsuit and the people's court makes a judgment, it must be faithful to the facts. Anyone who intentionally conceals the truth shall be investigated for responsibility.
Article 12 of the Provisions of the Central Political and Legal Committee on Effectively Preventing Unjust Cases stipulates that the collegial panel, the sole judge, the prosecutor and the people's police shall establish and improve the responsibility system for handling cases, and the judges, prosecutors and the people's police shall be responsible for the quality of handling cases within their duties for life. Judges, prosecutors and people's policemen who handle cases illegally shall be investigated for responsibility in accordance with relevant laws and regulations.
Article 13 stipulates that the standard of unjust, false and misjudged cases, the subject and procedure of starting error correction, and the accountability mechanism of unjust, false and misjudged cases should be established and improved. Extorting confessions by torture, obtaining evidence by violence, concealing or forging evidence, etc. , must be severely punished according to law.