Necessity of establishing evidence discovery system in China
First, the defects of China's current evidence transfer system
Article 150 of the revised Criminal Procedure Law stipulates that after the people's court has examined the case in which a public prosecution was initiated, if the facts of the crime alleged in the indictment are clear, and a list of evidence, a list of witnesses and copies or photos of the main evidence are attached, it shall decide to hold a hearing. This means that when prosecuting, the procuratorate only needs to collect the indictment, evidence list, witness list, copies or photos of the main evidence, instead of collecting the evidence of the whole case as in the past. This evidence transfer system mainly has the following shortcomings:
1, "obtaining a copy of the main evidence" affects the lawyer's right to read papers, resulting in an imbalance between prosecution and defense. Article 36 of the new criminal procedure law stipulates that defense lawyers may consult, extract and copy the litigation documents and technical appraisal materials of this case from the date when the people's procuratorate examines and prosecutes the case. The people's court may, from the date of accepting the case, consult, extract and copy the materials of the alleged criminal facts in this case. Therefore, the evidence materials contacted by defense lawyers in the stage of review and prosecution are only "technical appraisal materials", and in the first case, "technical appraisal materials" are not available. At the trial stage, the evidence materials that can be retrieved from the people's court depend on the retrieval by the procuratorate. The revised Criminal Procedure Law has narrowed the scope of evidence collection, and the public prosecution only needs to collect the evidence catalogue, witness list and copies or photos of the main evidence from the court. However, the provisions of the law on "major evidence" are not clear. According to the criminal procedure rules of the people's procuratorate, the main evidence plays a major role in determining the facts of the constitutive elements of a crime and has an important influence on the conviction and sentencing of a case. Mainly including (1) the main evidence of all kinds of evidence involved in the indictment; (2) A number of similar evidences are identified as "main evidences"; (3) As evidence of statutory sentencing circumstances such as surrender, meritorious service, recidivism, suspension, attempted, justifiable defense, etc. But at the same time, it is stipulated that the scope of "main evidence" shall be determined by the case-handling personnel according to the above provisions and the actual proof function of each evidence in a specific case. The Interpretation of the Supreme People's Court on Several Issues Concerning Implementation stipulates that the main evidence refers to the main evidence involved in the indictment among the types of evidence stipulated in Article 42 of the Criminal Procedure Law (1); (2) Being recognized as the main evidence among multiple similar evidences; If there is only one kind of evidence, the evidence shall be the main evidence; (3) As evidence of statutory sentencing circumstances, such as surrender, meritorious service, recidivism, suspension, attempted, excessive defense, etc. The "main evidence" referred to in Article 48 of the Criminal Procedure Law of the six ministries and commissions includes the main evidence of all kinds of evidence involved in the indictment (1); (2) A number of similar evidences are identified as "main evidences"; (3) As evidence of statutory sentencing circumstances such as surrender, meritorious service, recidivism, suspension, attempted, justifiable defense, etc. At the same time, it also stipulates that when the people's procuratorate transfers a specific case for prosecution, the "main evidence" shall be determined by the people's procuratorate according to the above provisions. The three judicial interpretations have different provisions on "main evidence" and have greater flexibility, which makes the public prosecutor more arbitrary when collecting "copies of main evidence". It is usually he who transfers the evidence that can prove the defendant's criminal facts to the court. At the same time, due to the opposition between the prosecution and the defense, in order to prevent lawyers from obtaining evidence that is not conducive to the charges when consulting the court files, the prosecution will inevitably have reservations when collecting evidence. Before the amendment of the Criminal Procedure Law, the procuratorate handed over all the files to the court, so that lawyers could master all the files when they arrived at the court, which basically guaranteed lawyers' right to read papers. The revision of the evidence collection system in the new criminal procedure law undoubtedly greatly infringes on the lawyer's right to read papers. Since we can only get very limited evidence from the prosecution, we must investigate and collect evidence ourselves. However, the law imposes various restrictions on lawyers' investigation and evidence collection. The Criminal Procedure Law stipulates that defense lawyers may collect materials related to the case from witnesses or other relevant units and individuals with their consent. 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, materials related to the case may be collected from them. But in practice, how difficult it is to obtain the above consent and permission. The defense lawyer is in an obvious inferior position between the prosecution and the defense, which leads to the imbalance between the prosecution and the defense. At the same time, it wastes a lot of judicial resources. On the one hand, lawyers exercise their right of defense in order to safeguard the legitimate rights and interests of defendants and carry out a lot of difficult investigation and evidence collection work. On the other hand, all kinds of evidence resources in favor of the defendant, such as statutory mitigation, lighter punishment and exemption from punishment, obtained by the procuratorial organs relying on the judicial power of the state, cannot be reasonably and fully utilized.
2. The "surprise attack" in the trial violated the defendant's legitimate rights and interests, aggravated the out-of-court confrontation between the prosecution and the defense, and damaged judicial justice. After the implementation of the new trial mode, the antagonism between the prosecution and the defense has been greatly strengthened, and whether the court can win the case has become an important symbol to measure the success of public prosecution activities. In order to prevent lawyers from finding evidence that is unfavorable to the charges or favorable to the defendant when reading the papers in court, the prosecution always has reservations when collecting evidence, not only the evidence that is unfavorable to its own prosecution, but also the key evidence that can subdue the defense, so that the defense lawyer can be caught off guard when presenting it in court. The defense lawyer also showed some key evidence he had in the pre-trial investigation in court, which caught the prosecution off guard. The two sides carried out a "surprise attack" in court, and the fate of the defendant was largely unknown. The trial has become a judicial competition that has nothing to do with finding out the truth of the case. The prosecution and the defense can't conduct targeted defense, and the outcome can only be decided by the success of the surprise attack, their respective argumentation skills and court performance. "When the prosecution and the defense hand over their secret weapons in court, in many cases, what really suffers is justice itself." The tit-for-tat prosecution and defense in court gradually changed from distrust to non-cooperation, and from non-cooperation to abnormal confrontation outside the court. In order to "recover the loss", the prosecution who was "raided" in the trial even resorted to the judicial power of the state and took various retaliatory measures against lawyers. Since the implementation of the new Criminal Procedure Law, many lawyers have been brought to court by prosecutors for the crimes of destroying evidence, forging evidence and obstructing testimony, so that on April 15 this year, Article 306 of the Criminal Law became the focus of criticism by the legal profession at the "Advanced Seminar on Criminal Business" held by the Beijing Lawyers Association. This abnormal out-of-court confrontation aggravates the imbalance between the prosecution and the defense in criminal proceedings, encourages professional retaliation, and makes criminal defense suffer serious setbacks. More and more lawyers are unwilling to undertake criminal cases. "Mr. Zhang, a professor at the National Judges College, also regrets that some courts now have less than 30% criminal defense, and some even have less than 10%. This is indeed a very abnormal phenomenon." 3. Transferring the copy of the main evidence to the court not only caused a huge waste of resources, but also made the trial a mere formality.
According to the Supreme People's Court's work report in 2000, in 2000, more than 539,000 criminal cases of first instance were concluded by national courts. Assuming that an ordinary prosecution case needs to copy 60 copies of evidence materials, according to the lowest cost of 0. 1 yuan, the life of a copier is 300,000, and the price is 30,000, plus various losses, then the cost of copying prosecution materials alone will exceed10 million yuan in 2000. Many grass-roots procuratorates spend thousands or even tens of thousands of yuan on copying evidence materials every year. Copying a lot of evidence materials is really of little practical significance. Because after the trial, the people's procuratorate will hand over all the evidence presented, read and played in court to the people's court anyway. In this way, on the one hand, a large number of evidence materials have to be copied every year, which brings a burden to many procuratorates who are already very nervous about handling cases. On the other hand, the court is of little use to the large number of copied materials collected by procuratorates, resulting in a huge waste of resources. The revision of the evidence collection system in the Criminal Procedure Law is mainly to prevent judges from getting too much contact with the defendant's materials before the trial, to prevent preconceived trials without trial, and to undermine the neutrality of judges. Although the new criminal procedure law emphasizes the presentation of evidence and cross-examination in court, it does not stipulate that judges should be authenticated and convicted in court. In order to reduce the number of misjudged cases, judges often conduct substantive review of the case after the trial, and the prosecution hands over all the evidence to the court, making the previous trial a mere formality. Because the courts at all levels have raised the requirements for the rate of sentencing in court, some judges always want to know more information about the case before the trial because of their own quality and the difficulty of the case, and hope that the procuratorate can retrieve the whole case file. And some major and complicated cases, even "main evidence", need a lot of copying. In the case of a large number of cases and heavy tasks in the grass-roots procuratorate, many case handlers will be tired of copying, so it is better to directly transfer the whole case file to the court. In this way, the two families are happy, and the judge is still trying according to the original trial method. As for the defense trial law, it's just a change of form and new shoes.
Second, the litigation value of evidence discovery system.
In the face of the problems existing in China's current evidence transfer system, with the further reform of China's trial mode, it is necessary to establish a pre-trial evidence discovery system that matches the adversary trial mechanism. The basic meaning of discovery of evidence is to obtain the information about the case between the two parties before the trial investigation. It is a pre-trial procedure and mechanism for one party to obtain facts and other information related to the case from the other party to prepare for the trial. It is a criminal litigation system which is accompanied by the adversary system of litigant trial in common law system and other countries, and can effectively guarantee the fairness of trial and the efficiency of litigation.
1, through the discovery of pre-trial evidence, is conducive to improving the efficiency of litigation. Both the prosecution and the defense disclosed their evidence to be presented in court in advance. There is no need to give evidence and cross-examine the evidence that the two sides have no objection to, which speeds up the pace of trial. The trial highlights the key points, directly enters the debate on the key issues, and skips the uncontroversial details. Through a comprehensive understanding of the evidence collected by the prosecution, the defense lawyer can choose a suitable defense angle, and will not defend himself unnecessarily because he only heard the story of the defendant. David W. neubauer, an American criminal jurist, said, "From the prosecutor's point of view, defendants often only tell their defense lawyers part of the situation. Therefore, if defense lawyers know the evidence held by prosecutors, they can help them properly judge whether the defendant's litigation struggle is meaningless. " The trial efficiency has been greatly improved. In some cases that usually take two or three days to hear, it only takes half a day to disclose the evidence before the trial. Because of the implementation of pre-trial evidence collection, the trial time of Tai 'an City Procuratorate in Shandong Province has been shortened by more than 40% on average.
2. Pre-trial evidence discovery is conducive to saving judicial resources. The defense can obtain the evidence obtained by the investigation organ using state power through the discovery of evidence before court, which makes full use of the evidence resources. The prosecution can also supplement and improve the flawed evidence presented by the defense through evidence discovery, and re-verify the evidence presented by the other side. The two sides reached a settlement before the court, which undoubtedly reduced the probability that the case was withdrawn for supplementary investigation or acquitted. The court also does not need to adjourn because the prosecution or defense lawyers present new evidence in court, which ensures the uninterrupted trial. Moreover, because the facts of the case are based on reliable evidence, the possibility of the defendant serving his sentence increases, and unnecessary appeals and appeals will be greatly reduced. More than 30 cases/kloc-0 were exposed in Shandong province a year, and no one was acquitted or caused controversy.
3. Pre-trial evidence discovery is beneficial to judicial justice. Although the procuratorial organ exercises the right of public prosecution on behalf of the state in criminal proceedings, it is in an absolutely favorable position in the proceedings and has great advantages in investigation and evidence collection, but it can also have reservations in the transfer of evidence. However, in the trial, the prosecution was at a disadvantage. In order to ensure the success of the accusation against the defendant, the prosecution must collect sufficient evidence and form a complete evidence system. The defense only needs to break one of the weak links to knock down the prosecution. Any link, even a small mistake, is a fatal blow to the prosecution, so the "surprise" in the trial poses a greater threat to the prosecution. Through the discovery of evidence before the trial, the "killer" in the hands of both the prosecution and the defense will be eliminated, the transparency of handling cases will be enhanced, and communication with lawyers will be strengthened, and mutual trust and restraint will be strengthened. During the trial, both parties can maintain their normal mentality, focus on facts and evidence in the trial, and do not have to worry about and guess the "secret weapon" used by the other party to attack themselves, thus ensuring the smooth play of both parties in the court and the trial effect, and safeguarding judicial justice.