How to Face "Eliminating Reasonable Doubt" in Criminal Justice

Editor's Note by Jiang Wei, Zhang Jun and Tian Wenchang: In the practice of criminal justice, all litigation activities revolve around the collection and application of evidence. Because there is no evidence law in China at present, there are still some problems to be solved in the application of criminal evidence. Recently, Jiang Wei, director of the Public Prosecution Office of the Supreme People's Procuratorate, Zhang Jun, president of the Second Criminal Trial Court of the Supreme People's Court, and Tian Wenchang, director of the Beijing Kyoto Law Firm, the old author of the Three Lectures on the Rule of Law, conducted in-depth discussions on "Several Issues Concerning the Application of Criminal Evidence" in the Guide to Criminal Justice published by the Law Press. After obtaining the consent, this newspaper will publish their discussion in stages in the "judicial practice" edition. Jiang Wei (Director, Public Prosecution Department, the Supreme People's Procuratorate): Regarding the standard of proof in criminal cases, no case can be finalized without evidence, and isolated evidence cannot be finalized. This is determined by judicial principles. At present, the main problem in practice is how to understand the standard of proof of final appeal. It is unrealistic to demand that the evidence system is completely exclusive and only a single conclusion can be drawn. Litigation theory puts forward the identification standard of criminal case evidence system excluding reasonable doubt. In judicial practice, sometimes the questions raised by the defense are unreasonable. For example, in a bribery case, a contractor sent money to the factory director who had the right to contract the project. When sending money, the contractor, the driver and the accountant went. When the contractor and the accountant took 50,000 yuan to the downstairs where the factory director lived, because the contractor was afraid that two people would go up to deliver the money and the factory director might not want it, he asked the accountant to wait downstairs and go upstairs by himself. The contractor entered the room and talked to the director, gave him the money, went downstairs, told the accountant that the money had been paid, got on the bus and left. After the incident, the director of the contractor refused to admit that he had received 50 thousand yuan. The prosecution produced the following evidence: first, the driver and accountant testified, which was indirect evidence; Second, the project was later contracted to this contractor; Third, I found a passbook of 50,000 yuan from the factory director's house. But the lawyer questioned that the contractor put the money in his pocket when he went upstairs and never gave it to the factory director. In my opinion, although lawyers can raise such questions, such questions are unreasonable: first, the contractor asks the director to contract the project, can he put the money into his pocket? According to common sense, it must be for the factory director, after all, asking for help; Second, the project was indeed awarded to the contractor afterwards; In the end, the factory director's family just saved 50 thousand during that time. In my opinion, in this case, it should be more certain that the factory director took bribes, but the lawyer suggested that the prosecutor's evidence system did not reach the only conclusion. How to understand the uniqueness and exclusiveness of the conclusion of evidence should have a reasonable scope, and we should not blindly doubt it. Tian Wenchang (Director, Beijing Kyoto Law Firm): This situation cannot be ruled out. For example, two people send money to the factory director, one is waiting downstairs, and the other is going upstairs to give the money to the factory director, but the factory director is an honest man and will not accept it. So the people who went upstairs put the money away by themselves, and no one else knew. Zhang Jun (President of the Second Criminal Court of the Supreme People's Court): This case involves how to understand and judge "reasonable doubt". According to reports, during that time, the factory director deposited 50 thousand yuan in the bank. If the factory director can't say that the contractor still has 50,000 yuan from other sources at home after paying bribes, then he can be convicted in general, but there are special circumstances. For example, the defendant just robbed 50,000 yuan after the contractor gave money. He would consider that if he said that 50,000 yuan was robbed, he would be sentenced to more than ten years in prison, so he would rather admit that 50,000 yuan was obtained by taking bribes. Although this possibility is extremely small, it cannot be ruled out. If there is no evidence of the defendant's post-personnel deposit, the case can certainly not be judged. Because in judicial practice, there are cases where bribers embezzle and accept bribes but lie that they have given them away. In the above case, if the defendant is a very honest person, he can completely contract the project to the contractor without charge. Therefore, it cannot be used as evidence that the defendant took bribes because the project was contracted to the briber, and it can only be used as a reference. Therefore, I think that the defendant's deposit of 50,000 yuan in the bank is relatively strong evidence, but the so-called "reasonable doubt" cannot be completely ruled out, that is, the 50,000 yuan may not be the proceeds of bribery. Jiang Wei: But is this assumption a reasonable doubt? Zhang Jun: All possible untrue situations should be ruled out. Jiang Wei: If you think so, that's absolutely true. How to understand reasonable doubt? In theory, all kinds of assumptions will exist. However, there is a difference between theoretical assumptions and doubts about the rationality of the defendant's evidence system. The key is to have a correct definition of rationality. The general principle is not to suspect others' illegal behavior for no reason, which is the premise. The public prosecution accused the defendant of being guilty because there was relevant evidence to prove that he had committed a criminal act. The contractor sent money to the factory director, but he pocketed it himself. Theoretically, this may happen, but this doubt cannot be raised without any evidence. This suspicion must be well founded. A person's illegal behavior, especially the behavior that may constitute a crime, cannot be unreasonably suspected. Zhang Jun: In the above case, from the perspective of interests, the briber admitted that it was more beneficial for him to give the defendant 50,000 yuan. If the briber says that he didn't send the money, it is tantamount to admitting that he embezzled the money, then he is embezzling and misappropriating, and he bears even greater guilt. Therefore, from the perspective of personal interests, it is possible for bribers to embezzle and accept bribes. From a practical point of view, although the briber took 50 thousand yuan upstairs, the defendant did not receive it, which is entirely possible. In judicial practice, another situation has happened. Although the briber went upstairs with 50 thousand, he left 20 thousand and only gave the defendant 30 thousand Later, the defendant happened to have other income of 20 thousand yuan, but for other ulterior reasons, he was unwilling to explain the source. In this case, even if the defendant is found guilty of accepting bribes, it can only be set at 30 thousand yuan. Jiang Wei: These are all analyses and there is no basis. Zhang Jun: But since there is such a possibility, and this possibility has not been ruled out, it is inconclusive. Tian Wenchang: This is related to the logical rationality or the rationality of the conviction principle. This often happens in court. For example, the evidence presented by the prosecution is indeed very reasonable, and the public prosecutor's inference, speculation and analysis are very reasonable. According to the analysis of common sense and normal logical relationship, as a general debate, rather than a court debate, this analysis is more convincing. But judging from the principle of conviction, this analysis is not necessarily correct. The principle of conviction requires that the defendant's guilt must be based on the evidence provided by law. When a possibility cannot be ruled out, even if it is reasonable to find the defendant guilty, it cannot be used as the basis for finalizing the case. In the above cases, from the general logical point of view, the questions raised by lawyers seem to be more difficult, because it is unlikely that the briber will embezzle and accept bribes under normal circumstances. But judging from the principle of conviction, is this possible? If the lawyer's question is impossible, his opinion is unreasonable. However, not to mention that similar things actually happened, even from the analysis, there is such a possibility, and the evidence that the prosecutor accused the defendant of being guilty is not exclusive. In this case, in fact, no one can say that he is definitely right in the end. The key is value orientation. Jiang Wei: I have always advocated excluding reasonable doubts, not all doubts. This is one of our differences. Defendants and their defenders can make assumptions, and whether the assumptions are reasonable or not should be judged by the presiding judge. However, if a person is suspected of committing an illegal act, there should be some evidence to support it. This suspicion is reasonable. It is unreasonable to say that the defendant's money may have been robbed and there is no evidence of robbery. Otherwise, as long as there is a "one-on-one" situation, as long as the briber does not admit it, it will be impossible to identify any crime of accepting bribes. Jiang Wei (Director, Public Prosecution Department, the Supreme People's Procuratorate): It is particularly important to point out that it is reasonable to question, and it cannot be questioned blindly. Otherwise, any case can be questioned as long as the defendant denies it. Tian Wenchang (Director of Beijing Kyoto Law Firm): On this issue, the prosecution and the defense are not equal, and the defense is definitely superior to the prosecution in cross-examination. As long as the defense breaks the chain of evidence of the prosecution, then the question raised by the defense is reasonable. Jiang Wei: The key is to suspect that there should be evidence to support it. Tian Wenchang: The suspicion Jiang Wei said refers to the suspicion that the defense has made similar charges. Jiang Wei: It's a suspicion of the accusation. My opinion is that there should be a reasonable range of questions. In practice, most people doubt that the defendant is guilty because of the illegal behavior of the investigators. But we should not ask such questions blindly. For example, the defense claims that the defendant made a guilty confession because the investigation organ extorted a confession by torture, and the defendant's confession cannot be established unless there is evidence to prove it. If there is no evidence to prove the existence of extorting a confession by torture, and the defendant recants his confession, and other evidence cannot be verified, the investigation organ cannot be unreasonably suspected of extorting a confession by torture. In a word, groundless doubt without evidence is not reasonable doubt. Zhang Jun (President of the Second Criminal Court of the Supreme People's Court): What Jiang Wei said about reasonable doubt is actually a rule of evidence. At present, there is no evidence law in China, and there are no evidence rules stipulated by law. For reasonable doubt, my understanding is that there may be doubts, or it is more likely to exist. After the case, to restore the truth, some may be completely true in form, such as using the whole video. But this is only close to the facts of the case and cannot be fully recovered. Therefore, reasonable doubt is to eliminate false information to the maximum extent, be close to the real situation, and make the facts of the case conform to common sense and common sense on the whole. If 80% or 90% is possible, it should be reasonable. Make a reasonable decision. In the absence of special evidence rules, in practice, we can only judge according to individual cases and specific circumstances, so as to put forward reasonable doubts and then reasonably eliminate them. Jiang Wei: I agree with this principle. First, the system of questioning evidence is not to eliminate all doubts, but to eliminate reasonable doubts; Second, there must be certain standards for reasonable doubt. Although there is no evidence law in China at present, we should grasp two points in practice: first, there must be greater possibility and high possibility of reasonable doubt, which can overturn the evidence conclusion of the other party as a whole; Second, reasonable suspicions must be supported by evidence, especially those suspected of illegal and criminal acts of others, which must be confirmed by certain evidence materials. Zhang Jun: As to whether there must be evidence to support the research. Even if the defense puts forward an argument involving illegal behavior, it does not have to be supported by evidence. When the defense puts forward a rebuttal opinion, even if there is no evidence to prove it, it can put forward a logic, which will make the other party's evidence fall into contradiction, make the other party unable to prove great possibility, and achieve the purpose of making the judge judge judge the case carefully. Jiang Wei: If the defense simply questions the prosecution's evidence system and points out which evidence is contradictory, it may not be able to produce evidence. However, if the defense puts forward a new proposition that the briber has the time and conditions to embezzle and accept bribes, then the basic point of the defense is that the defendant did not accept bribes because the briber embezzled the bribes. In this case, the defense believes that the evidence provided by the prosecution does not rule out this possibility, so it should provide corresponding evidence. Tian Wenchang: The definition of "reasonable doubt" is difficult to be specific, and it is also difficult to be particularly clear in theory. In the final analysis, this is the basic value orientation of a belief. Reasonable doubt refers to a possibility, and the purpose of putting forward this possibility is to deny another inevitability. In other words, when this possibility exists, another inevitability does not exist. Therefore, this suspicion itself has obvious pertinence. To be precise, it should be called reasonable questioning. This kind of questioning can't be rambling, can't go against common sense, and must have certain realistic credibility. For example, when A shot B, only one shot was fired, but after B died, two bullet holes were found in him, and only one was in the fatal part. If B's death was caused by another shot, this suspicion is reasonable, and the prosecution has the responsibility to rule out this possibility through judicial expertise. If there is only one bullet hole in the body of the deceased, but the defense argues that the possibility of others shooting the deceased in the same direction with the same seed cannot be ruled out, this doubt is unreasonable unless evidence can be adduced to prove the existence of this fact. So under normal circumstances, the rationality of questioning can still be judged. In short, how to treat the rationality of questioning and how high the requirement for rationality is still related to the value orientation and the principle of conviction. If we insist on the principle of preferring to misjudge rather than indulge, the understanding of questioning rationality will be very narrow, and it is easy to understand possibility as inevitability; If we stick to the principle of indulgence rather than misjudgment, the result will be the opposite. According to the prevailing principles of contemporary international society and the actual judicial situation in China, I advocate the latter attitude, and the possibility as a reason for questioning must not be understood as inevitability, otherwise it will easily lead to the result of presumption of guilt.