catalogue
First, the procedural rules of proof.
Second, the methods and rules of proof
Third, the rule of time limit for proof.
First, the procedural rules of proof.
(A) the concept and characteristics of proof
There are many theories about testifying. One view is that proof in criminal proceedings refers to the activities of the plaintiff (prosecution) and the defender to provide evidence to the court to prove the facts of the case they advocate. [1] The second point of view is that presenting evidence in court is a litigation procedure and activity in which the prosecutor presents evidence to prove that the defendant is guilty and guilty. [2] The third point of view is that testifying in court refers to the work of the public prosecutor to show, read and play relevant certification materials to the court in order to prove the criminal facts alleged in the indictment, which is the premise and basis for investigating the criminal responsibility of the defendant. [3] The fourth point of view is that testifying in court means that the public prosecutor presents and displays evidence in court on the plot of the criminal facts accused by the defendant. [4] There are also views that testifying in court proceedings includes interrogating the defendant, asking the victim, witness and expert witness, reading the testimony of the witness who did not appear in court, the victim's statement and the expert witness's expert conclusion, presenting relevant material evidence and playing audio-visual materials. There is also a view that testifying in court does not include asking questions in court. [5] The reason why these views have not reached a * * * understanding is actually that there are differences in the subject of proof, the object of proof, the relationship between proof and burden of proof, the difference between proof and cross-examination, and the relationship between proof and factual claims. Explain these problems first, and then give the concept of proof.
(1) Facts and claims. There is a close relationship between proof and factual proposition. On the one hand, according to the principle of "who advocates, who gives evidence", fact assertion is the premise and basis of giving evidence. Without facts, there is no evidence. The facts advocate starting the proof procedure. On the other hand, the purpose of proof is to support one's own factual claim. If no evidence can be provided or the evidence is insufficient, a person's factual claim will not be recognized and supported by the court. It can be seen that without the right to claim facts, there is no proof. Without proof, the right to claim facts is passive water and invalid claim. Of course, the factual claim does not necessarily start the proof procedure, that is, proof is not the inevitable result of the factual claim, and there are cases where there are factual claims but no proof.
(2) Proof and burden of proof. Proof is different from the burden of proof. The burden of proof in criminal proceedings is the responsibility of both the accused and the defendant to provide evidence to the court to prove the facts of the case they advocate. The concept of burden of proof includes three meanings: first, the responsibility to provide evidence for facts, also known as the behavioral responsibility of proof; Second, the responsibility of explaining his facts with sufficient evidence is also called the persuasion responsibility of proof; Third, in the case that sufficient evidence cannot be provided and the facts of the case cannot be ascertained, the responsibility for adverse consequences is also called the responsibility for proving the results. [6] It can be seen that proof is only the content of the burden of proof. Burden of proof generally leads to proof behavior, but the existence of burden of proof is not necessarily the premise of proof. For example, the defendant does not bear the burden of proof, but has the right to give evidence in court. Here, proof is not a responsibility, but a right. This right of proof is based on the right of defense and is the natural content of the right of defense.
(3) the subject of proof. The so-called subject of proof refers to who among the participants in the proceedings has the right to testify in the trial. In the above concept of proof, there are differences about the subject of proof. Some people say that it is only the prosecutor, while others think that it includes both the prosecution and the defense. We believe that the main body of proof includes: First, the public prosecution. There is no dispute about this, because the public prosecutor bears the burden of proof and is of course the subject of proof. The second is the defendant, his defender and legal representative. It is considered that the subject of proof is only the prosecutor's point of view, which confuses the burden of proof and the burden of proof. This view holds that only the prosecution bears the burden of proof, and naturally only the prosecution is the subject of proof. As mentioned above, the burden of proof is not an inevitable prerequisite for proof. You have the right to prove without the burden of proof. In addition, the defendant is not completely without the burden of proof. It is generally believed in academic circles that the defendant also bears the burden of proof when the burden of proof is transferred and inverted. In this case, defense is of course the subject of proof. In fact, defense is the subject of proof, which has not only theoretical basis but also legal basis. Article 157 of China's criminal procedure law stipulates: "Public prosecutors and defenders shall present material evidence to the court for identification by the parties concerned, and documents such as witness testimony transcripts, expert conclusions and inspection transcripts that are not in court shall be read out in court as evidence." Article 159 stipulates: "During the court hearing, the parties, defenders and agents ad litem have the right to apply for notifying new witnesses to appear in court, obtaining new material evidence and applying for re-appraisal or inspection." The third is the criminal private prosecutor and his agent. In criminal private prosecution cases, the private prosecutor claims that the defendant has committed a criminal act against himself and should bear the burden of proof. Of course, the criminal private prosecutor is also the subject of proof. The fourth is the victim and his agent. The victim belongs to the prosecution, and the revised criminal procedure law has raised him to the status of a party. As a party, China's criminal procedure law stipulates that in the process of court hearing, the parties have the right to apply for notifying new witnesses to appear in court and obtaining new material evidence. In addition, the victim is a person who is directly injured by a criminal act and has his own factual claims, so he naturally has the right to produce evidence to support his claims. Of course, this does not mean that the victim has the burden of proof. However, giving the victim the right to give evidence in the trial will also cause some problems. Because this makes the evidence of both the prosecution and the defense become tripartite evidence and multiple evidence, which will cause confusion in court, especially when the victim and the prosecutor disagree. We believe that under normal circumstances, the evidence held by the victim should be handed over to the public prosecutor, who will provide the evidence in a unified way. Only when the victim thinks that the evidence should be presented in court, and the public prosecutor fails to present it, the victim can testify in person. In this way, it not only protects the legitimate rights and interests of the victims, but also ensures the orderly conduct of the evidence-giving procedure.
In addition, does the judge have the right to give evidence? Before the revision of the Criminal Procedure Law, the trial of criminal courts in China adopted the principle of authority, and judges also undertook the task of cracking down on and punishing crimes and investigating the criminal responsibility of criminals. In court, no matter who collects the evidence, including the judge himself, it is displayed by the judge. The judge is the only subject of proof. After the revision of the Criminal Procedure Law, China's criminal trial basically adopts the adversarial type, and the evidence should be presented in court by both the prosecution and the defense, and the judge should judge in the middle. Although Article 45 of China's Criminal Procedure Law stipulates: "People's courts, people's procuratorates and public security organs have the right to collect and obtain evidence from relevant units and individuals. The relevant units and individuals shall truthfully provide evidence. " Article 43 stipulates: "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 according to legal procedures." However, the people's court collects and collects evidence mainly to verify the evidence provided by the prosecution and the defense and ensure the correctness of the judgment, not to show it in court [7]. Therefore, in the trial of the confrontation between the prosecution and the defense, the judge is not the subject of proof.
(4) the object of proof. The object of proof is the object to which the subject of proof points. Generally speaking, as long as the evidence collected by the prosecution and the defense can be displayed in court. However, the purpose of both the prosecution and the defense is to support their own factual claims, that is, to make the court accept their factual claims, so the evidence they present in court should be restricted. It must be legal evidence first. China's Criminal Procedure Law has made strict provisions on the forms of evidence, that is, material evidence, documentary evidence, witness testimony, victim's statement, statements and excuses of criminal suspects and defendants, expert conclusions, transcripts of inquests and inspections, and audio-visual materials. If the evidence submitted does not belong to these seven categories, the court will not accept it. Secondly, it must be objective and relevant. If it does not exist objectively, or it is not related to the facts of criminal cases, it is meaningless to show it in court. Furthermore, for the defender, the evidence presented in court must be beneficial to the defendant. Defenders are special defenders of the legitimate rights and interests of criminal suspects and defendants, and perform the defense function, not the accusation function. Therefore, the evidence they present in court should be all kinds of evidence that the defendant is innocent, the crime is light or the punishment should be lightened, mitigated or exempted, otherwise it will violate their defense purpose. In addition, for the public prosecutor, the evidence presented in court is best within the scope of the evidence list transferred to the people's court before the trial. During the trial, if the public prosecutor presents evidence beyond the evidence list, the defense can raise an objection, and the court will decide whether it can present it and adjourn the court, which will cause unnecessary passivity to the public prosecutor and affect the efficiency of the proceedings. China has not implemented the system of pre-trial evidence display, and generally speaking, there are few restrictions on testifying in court. If the evidence display system is implemented, then the evidence presented by the prosecution and the defense in the trial should be the evidence that has been presented to the other party before the trial.
(5) Proof and evidence display. Evidence display, also known as evidence discovery, refers to the system in which both the prosecution and the defense disclose their evidence to the other party through appropriate means before the court hearing in criminal proceedings. Formally speaking, proof is also evidence display, and it is also carried out between the prosecution and the defense, but there are great differences between them. First, the display time is different. Evidence can only be displayed before the trial, and evidence must be presented in court; Second, the exhibition location is different. Evidence can be displayed in the procuratorate, the court or the place negotiated by both parties, and evidence can only be presented in the court, that is, the trial place. Third, the objects displayed are different. Evidence display means that the accused and the defendant show each other, and the proof is displayed to the court, that is, to the other party, the observer and the judge. Of course, it's mainly for judges. Fourth, the purpose of the exhibition is different. The purpose of evidence display is to let the other party know the evidence they have, while the purpose of proof is to convince the judge and the other party that their claims are correct and true. Fifth, different values. The presentation of evidence is mainly based on efficiency, but the proof is based on fairness. Sixth, the content displayed is different. Generally speaking, the evidence shown in the evidence is the evidence to be presented at the trial, and some countries require the other party to know the evidence that was not presented at the trial. However, in the trial, evidence that may not be presented to the other party before the trial must be presented in court. Seventh, the preconditions and obligations are different. Evidence display is based on the obligation of evidence display, which is shared by both the prosecution and the defense; The burden of proof is generally based on the burden of proof, but this obligation is not mutual. Generally speaking, the defense has no burden of proof, but it also has the right of proof. Generally speaking, evidence cannot be presented in court unless it is presented to the other party before the trial. Unless, of course, the evidence shows immunity.
(6) Proof and cross-examination. Proof and cross-examination are both important contents in the evidence system and the core of court trial. Criminal cross-examination refers to the litigation activities that the litigants are allowed by law to examine the authenticity, relevance and legality of evidence by asking questions, refuting, confronting, identifying, displaying, reading, explaining and debating, so as to establish or exclude the evidential ability of evidence, thus forming a strong influence on the judge's judgment. [8] Proof is the premise of cross-examination. Without evidence first, cross-examination will become water without a source and a tree without a foundation. Cross-examination is initiated by proof, but it is not particularly important. Only after providing evidence, and when there is doubt about the evidence, does cross-examination begin. Of course, cross-examination also has evidence, that is, some evidence is triggered by cross-examination. Accordingly, some people think that "proof is a supplement to cross-examination." When the prosecution and the defense argue about a certain evidence, both right and wrong are justified. "If the debating or refuting party can cite more evidence to reinforce it, it will stand up straight. "In fact, this shows that under special circumstances, the proof is caused by cross-examination. Of course, this kind of cross-examination is also caused by giving evidence first. In addition, the way of proof is to show, read and play, and the way of cross-examination is to question, refute, confront, identify and argue. Although the way of cross-examination also exists in statements and readings, "it is actually an intersection of defense and proof." [9] that is, the proof in cross-examination. The questioning of witnesses and appraisers in the trial belongs to the category of cross-examination, not to proof.
Based on the above, we believe that criminal proof refers to the litigation activities that participants in criminal cases are allowed to show evidence to the court in order to support their own factual claims. It has the following characteristics: (1) two-way proof. In other words, proof is not only a matter for the prosecution, but also a matter for the defense. (2) time limit for proof. That is, evidence can only be given in court, usually in the investigation stage and debate stage of the court. (3) the publicity of the proof. That is, the evidence can only be publicly displayed to the court during the trial.
(2) the procedure of proof
The order of proof is the arrangement of evidence for the defendant and the defendant who gives evidence first, which evidence is given first and which evidence is given later. Including the prosecution and the defense who will give evidence first, and which evidence will be given first and which evidence will be given later when the prosecution and the defense give evidence respectively. If there is a view that "the order of presenting evidence means that the public prosecutor must pay attention to the logical combination and overall layout of evidence in the whole case in the process of presenting evidence, that is, design and arrange the presentation order of different kinds of evidence, so as to give the judge and the audience a clear and natural impression, so as to achieve the fundamental purpose of explaining the case to the maximum extent and facilitating the collegiate bench to obtain evidence." [10] This is how to look at the order of proof from the prosecution's point of view.
The law of our country does not clearly stipulate the order of proof in the criminal procedure law. In practice, court investigation usually begins with asking the defendant, and judges or prosecutors often ask the defendant to make a comprehensive statement of the facts of the accused case first. The rationality and legality of this practice are debatable. If a lawyer thinks that "some simply ask the defendant to describe the facts or process of the crime, this practice itself is neither scientific nor based, which is equivalent to asking him to accuse himself of committing a crime." [1 1] Some prosecutors disagree with this: "We often ask the defendant first, which is of course the first link. Some defendants pleaded guilty, which is easier to handle. He can explain the process to everyone. Some denied it, which caused the audience present not to understand, because he said that he didn't do it, or he defended himself plausibly, so the audience at the bottom was puzzled ... Can the investigation start with asking the defendant, and can the prosecutor first produce relevant evidence, first kill someone in a certain month, then show this evidence, and then the witness will accuse you of being the defendant? " [12] Of course, there are also opinions in favor. For example, "the trial investigation doesn't have to start with interrogating the defendant, but the main purpose of interrogating the defendant at this time should be to verify the identity, age and attitude of the defendant to the alleged crime, rather than substantially proving the facts of the case. Of course, if according to the specific circumstances of the case, the evidence of the prosecution is really suitable to start with the confession of the defendant, it is also possible. However, we should not uniformly require that all evidence in criminal cases must start from asking the defendant. " [13] We believe that in judicial practice, the trial investigation begins with the interrogation of the defendant, because the trial of criminal cases in China is still based on the "trial investigation" of authority, that is, the judge is the center of reviewing evidence, so the order of giving evidence in court is not arranged from the perspective of the parties, but designed from the perspective of the judge's active review of evidence. After the revision of the Criminal Procedure Law, this situation did not change immediately. With the deepening of the reform of trial methods, judges should try their best to maintain a neutral role in the trial, take the initiative to hear rather than take the initiative to obtain evidence, and let the parties give evidence themselves. In the adversarial trial mode, we believe that if the defendant pleads guilty, the proof can start from interrogating the defendant, but if the defendant does not plead guilty, it should not start from the defendant. This is because the defendant's confession or excuse is one of the seven legal evidences. Interrogating the defendant is actually the first thing to show the defendant's confession or defense evidence. No matter both the prosecution and the defense, presenting evidence to the court is nothing more than supporting their own factual claims. As the prosecution, the prosecutor's purpose is to prove the defendant guilty. However, if the defendant does not plead guilty, then the trial investigation begins with interrogating the defendant, and the evidence presented by the prosecutor is evidence contrary to his own facts, that is, the prosecutor presents evidence against himself, which obviously violates the law of trial. However, if the defendant pleads guilty and the trial begins with the prosecutor interrogating the defendant, then the evidence of the defendant's confession can well support the prosecutor's claim. Therefore, from the general law of evidence application, the defendant's confession is the evidence of the prosecution and should be displayed by the prosecution, while the defendant's defense belongs to the defense evidence and should be displayed by the defender.
(3) The basic principle of determining the order of proof.
(1) The principle that the prosecution gives evidence first. The principle that the prosecution gives evidence first is that the prosecution gives evidence first, and then the defense gives evidence; After the first round of proof, if both sides still have rebuttal evidence, the second and third rounds of proof can be carried out in the order of first prosecution and then defense. The fact that the prosecution gives evidence first does not mean that the prosecution has priority or privilege, but is based on the responsibility of the prosecution and the relationship between the prosecution and the defense. Procuratorial organs perform the appeal function and are in the position of active prosecution. His behavior will bring losses to the interests of criminal suspects and defendants, including property, freedom, personal dignity and even life. The fact that the defendant committed a criminal act was put forward by the public prosecution agency, which directly put the defendant in a legal disadvantage position. Therefore, the public prosecutor must provide evidence to the court in advance to prove his claim. If the prosecutor can't produce evidence, there is no need for the defense to produce evidence, and the prosecution's factual claim will not be supported by the court. Defense is actually in a passive position. Without the prosecution's complaint, there is no defense. However, the proof of defense is based on the exercise of the right of defense. If the prosecution does not prosecute or provide evidence, there will be no preconditions and conditions for the defense to provide evidence. Therefore, the prosecution gives evidence first, which is essentially to protect the defendant, not to say that the prosecution has priority. Secondly, the prosecution's first proof is also in line with the principle of "whoever advocates, who gives evidence". The prosecution first puts forward its factual claims to the court, and naturally it has to bear the burden of proof first to prove its factual claims. Whoever advocates first will give evidence first. Moreover, the prosecution's first proof is conducive to the defense's proof. The defense's evidence depends on the prosecution. Because the defense is not to prove anything alone, but to refute the prosecution, the defense argument must be aimed at the prosecution's factual claims and cannot deviate from the prosecution's factual claims. In this case, the shortcut to refute the prosecution's factual claim is to refute the prosecution's evidence. Therefore, the prosecution's first proof makes the defense's proof targeted, and it can also make the subsequent cross-examination truly antagonistic.
(2) the principle of efficiency. The principle of efficiency requires both the prosecution and the defense to adopt appropriate methods when determining the order of proof, so as to obtain the best proof effect in the least time. Pay attention to efficiency, not to say that the less time to give evidence, the better, but to achieve the purpose of giving evidence in a short time. Appropriate proof methods can not only achieve the purpose of proof, but also implement the principle of efficiency well. In this way, for the prosecution, it is necessary to pay attention to the strategy of proof, which evidence is given first, which evidence is given later, and what form each evidence is presented. For the defense, it is necessary to arrange its own order and way of presenting evidence for the prosecution.
(3) the principle of fairness. The principle of fairness is that both the prosecution and the defense give evidence equally. Mainly when giving evidence, the judge should treat both the prosecution and the defense equally. The judge cannot deprive the defense of the right to give evidence, nor can he stop or interrupt the defense's giving evidence at will. In the way and object of proof, if there is no illegal or improper behavior, the judge cannot interfere too much. The status of the prosecution and the defense in the court is equal, and there is no question of who is taller than who and who is bigger than who. As the prosecutor of the prosecution, as the legal supervisor, he cannot accuse or prevent the defense from giving evidence. If you think the defense's evidence is illegal or unreasonable, you can only submit it to the court. Carrying out the principle of fairness is of great practical significance in China.
(D) Several common order of proof
Because the prosecution bears the burden of proof and has to produce a lot of evidence in court, and the defense's evidence is to refute the prosecution, so the defense's evidence is subject to the prosecution's evidence and should be arranged according to the prosecution's evidence. In this way, the order of proof of the defense is random, and the prosecution must carefully arrange and determine the order of proof before the court. Therefore, the following common order of proof is mainly aimed at the prosecution.
(1) Give evidence in the order of events. The implementation of criminal acts generally needs a process, in which several acts and actions are implemented one after another, so that evidence can be given in chronological order, that is, the sequence of events. This order of proof is mainly applicable to two types of cases: first, criminal acts consist of a series of specific activities with relatively independent time series, generally including preparatory acts, implementation acts, facts of the result, etc. , such as buying explosives, making explosive devices, installing explosives, and carrying out explosions, the prosecution can give evidence in the order of these activities or facts. The second is a similar case of combined punishment for several crimes. The defendant is accused of many similar crimes, such as theft and robbery, and the prosecution can provide evidence according to the order of the crimes. For several different kinds of crimes, if it is not particularly necessary, evidence can be given in chronological order. If the defendant is accused of several crimes of the same kind, and several crimes of different kinds are separated, such as theft first, robbery half a month apart, and theft half a month apart, in this case, the public prosecutor can first give evidence of several crimes of the same kind in chronological order, and then give evidence of different crimes in chronological order. The advantage of this order of proof is that it can clearly show the context of the occurrence and development of crimes to the court and conform to people's cognitive laws. The disadvantage is that this order of proof is not suitable for some sudden cases and cases with short criminal process and unclear time sequence between acts. In addition, it is difficult to highlight the key points in this order of proof. In practice, there are reverse proof and cross proof in order. The reverse proof refers to the proof from back to front according to the time sequence of events, that is, the evidence of criminal results is presented first, and then the evidence of criminal behavior is presented. Because the later evidence is close to us, it helps to highlight the key points and grasp people's psychology. Its disadvantage is that if the arrangement is not good, it is easy to make people understand confusion. Cross-proof refers to the general order, arranged in chronological order, and specific to each group of evidence, which can be provided in reverse order according to the case situation. The advantage of this method is flexibility, but cross-proof can only be applied when necessary, otherwise it will easily affect the overall proof effect.
(2) according to the importance of the facts of the case. Every case consists of a series of factual elements, and each factual element has different importance in the case. Some are constitutive facts, some are non-constitutive facts, some factual elements show who the perpetrator is, some factual elements show what crime the defendant committed, and some factual elements show the defendant's attitude after committing the crime. The public prosecutor can arrange the order of proof according to the nature and status of each factual element in the case. There are generally two cases in this order of proof: the first is from the inside out, that is, the core facts of the case are given first, and then the peripheral facts of the case are given; The second is the order of proof from the outside to the inside, that is, the external facts of the case are given first, and then the core facts of the case are given. [14] In practice, the first order of proof is common. This order of proof is conducive to highlighting key points and distinguishing primary and secondary contradictions, and is suitable for cases with complex cases and complex evidence.
(3) Prove according to the causal relationship between factual elements. In some cases, there is a clear causal relationship between case facts, such as behavior facts and result facts, or behavior facts and behavior facts. In this way, it can be proved according to the causal relationship between factual elements. It can be divided into two situations: first, the order of proof of consequences, that is, the reasons in the case are given first, and then the results in the case are given; The second is the order of proof after the cause, that is, the result in the case is given first, and then the reason in the case is given. For example, causal implicated offense, the proof of behavior and result can adopt this proof order. This order of proof is conducive to grasping the relationship between the facts of the case.
(4) Evidence showing the primary and secondary status of * * * and the defendant in this case. * * * In the same criminal case, there are generally principals and accomplices, perpetrators, helpers, instigators and organizers. In this regard, there are generally two orders of proof: one is the order of proof after the principal offender. Because the principal offender plays a major role in joint crime, he is generally the planner, organizer and powerful executor of the crime. Providing evidence of his crime first helps to fully understand the case. The second is the order of proof of first offense and then non-offense. The actor is the executor of the crime, and his behavior shows the nature of the whole crime. Giving evidence to the non-perpetrators first helps to grasp the nature of the whole case. In addition, if the principal does not plead guilty, the proof can also start from the accessory. This method is also called transposition proof. In this way, it is easy before it is difficult, that is, the strategy of bypassing and taking advantage of people's danger is adopted. First, the accomplice is interrogated and collected, and the periphery is cleared. After the facts of the crime are confirmed by the collegial panel, the principal offenders are centralized and collected, which is conducive to the smooth progress of evidence.
(5) Determine the order of proof according to the order of conviction and sentencing. That is, first, the evidence of guilt and heavier crime is presented to expose the social harm of the crime and the personal danger of the defendant, which is convenient for the collegial panel to convict, and then the evidence of sentencing and lighter crime is presented to facilitate the collegial panel to sentence. This order of proof is not conducive to fact finding, but it is conducive to court debate.
(6) Determine the order according to the charges listed in the indictment. Generally speaking, evidence should be presented in the order in which the criminal facts are stated in the indictment. If the two are inconsistent and cross each other, the evidence may be scattered, messy, or even chaotic, which leads to the fact that it cannot be determined because of insufficient factual evidence and weakens the strength of the accusation. This order of proof only applies to the case of combined punishment for several crimes. Moreover, this order of proof also requires that the charges listed in the indictment be in a reasonable order.
(7) Determine the order of proof according to the probative force of evidence. The most objective, convincing and uncontroversial evidence should be presented first. Documentary evidence and physical evidence should be presented first if they can play a direct evidence role, because documentary evidence and physical evidence are highly objective and authentic among the types of evidence, and it is difficult for defendants and defenders to have a strong influence on them, and they are easily accepted by the court, paving the way for the next evidence.
(8) Determine the order of proof according to whether the defendant pleads guilty. A crime with a good guilty attitude should produce evidence, and a crime with a bad guilty attitude should produce evidence again. This can prevent the trial frustration from affecting the proof of other crimes, or cause the collegial panel to doubt the evidence, announce the adjournment, investigate and verify the evidence, and affect the timely conclusion of the case.
In addition, who decides the order of proof is also a controversial issue in the theoretical circle. Some people think that the order of proof in criminal proceedings should be decided by the judge; There are also views that the order of proof in criminal proceedings should be decided by the prosecutor. [15] There is also a view that the burden of proof is the responsibility of the parties, and the order of proof should belong to the rights of the parties. If the order of proof is improper and the effect of proof is not good, the parties will bear the adverse consequences of the lawsuit. In criminal proceedings, the prosecution bears the burden of proof, so the order of proof should be decided by the prosecutor. However, in order to ensure the smooth presentation of evidence in the trial, the prosecutor should listen to the judge's opinions on the order of presenting evidence before the trial. As the judge is the presiding judge of the trial and investigation, he has the responsibility to ensure the fairness and efficiency of the evidence-giving process. According to the specific circumstances of each case, the judge can put forward the evidence-giving requirements at the macro level, including the basic order of evidence-giving. If the judge finds that the prosecution's evidence order is improper during the trial, he can also ask the public prosecutor to make corresponding adjustments, but as a basic principle, the judge should not interfere too much with the parties' evidence-giving activities. [16] We believe that in the adversarial trial mode, the judge is only the middle referee, and the proper order of proof is directly related to the effect of proof, which is naturally a matter for both the prosecution and the defense and should be decided by them. If the judge decides the order of proof, it is actually the judge who has done the work of both the prosecution and the defense, which is not conducive to the prosecution and the defense to give evidence, and it is not conducive to the judge's judgment in the middle. Of course, if the order of evidence affects the normal trial, such as delaying time and making trouble without reason, the judge should stop it.
(5) the contents of the certificate
There are different views on the content of proof in theory or practice, but they are all expounded around prosecution. Some people think that the scope of proof should be the concretization of the object of proof. Generally speaking, it includes the following aspects: first, the facts that constitute a crime, that is, the "seven elements" summarized in judicial practice: who (the subject of the crime), what motive and purpose (the subjective aspect of the crime), when, where, by what means, what criminal acts were committed and what harmful results were produced. Second, as a reason and fact of being heavier, aggravated or lighter, mitigated or exempted from punishment. The third is to exclude the fact that the act is illegal and punishable and the criminal responsibility of the actor. [17] There are also views that this is divided into separate crimes and * * * same crimes. It is considered that "the scope and content of proof of a separate crime are generally: evidence to prove the identity of the defendant; Evidence to prove the occurrence of a criminal act; Evidence to prove that the defendant committed a criminal act; Evidence to prove the time, place, plot, process, means and consequences of the defendant's execution; Evidence to prove the defendant's motives and purposes; Evidence that the defendant's criminal behavior has reached the statutory criminal circumstances; Other evidence to prove the facts related to the defendant's conviction and sentencing. * * * In addition to the above-mentioned scope and contents, the proof of the same crime shall also include: evidence to prove that the defendants colluded with each other; Evidence to prove the division of labor and specific responsibilities of each defendant; Evidence to prove the whereabouts and distribution of stolen goods. " [18] There is also a view that the public prosecutor should testify in court closely around the alleged criminal facts and circumstances, including: the identity of the defendant; Whether the alleged criminal facts exist and whether they were committed by the defendant; The time, place, methods, means, results and the defendant's performance after committing the crime; The respective positions and responsibilities of criminal groups or other people involved in the same criminal case; Whether the defendant has the ability to be responsible, whether it is intentional or negligent, and the motivation and purpose of his behavior; Whether criminal responsibility should not be investigated according to law, whether there are uncertain circumstances such as heavier or lighter punishment, mitigated punishment or exemption from punishment; Tools of crime,