Introduce the background
The promulgation of two regulations is in the pipeline. Around 2004, the Supreme People's Court began to draft the exclusionary rules of illegal evidence, but encountered some resistance. The biggest obstacle is the differences between public, procuratorial and legal organs. In 2007, after the Supreme People's Court regained the right to review the death penalty, it carried out a series of criminal justice reforms, one of which was to exclude illegal evidence, especially evidence obtained by torture.
In 2008, the Central Political and Legal Committee drafted guiding opinions on the reform of the judicial system, and improving the evidence system in criminal proceedings is one of them. The formulation of these two regulations is combined and implemented as two components of a job. Around the draft of these two provisions, many scholars' opinions have been solicited, and many disputes have also arisen. Regarding the type, scope and consequences of the exclusion of illegal evidence, the debate among the public, procuratorial organs and legal organs is the most intense.
In fact, regardless of extorting confessions by torture, threats, violence or inducements, although the means are seriously illegal, the evidence obtained may be true or false. Just because the means are illegal, the evidence is excluded, so that it cannot be used as the basis for finalizing the case. Public security organs and procuratorial organs think it is easy to indulge in crime.
At the same time, China's NPC deputies and CPPCC members are mainly composed of officials and social celebrities, and there are not many people in the legal profession. Most of them look at the problem from the perspective of ordinary people and are not particularly interested in the rules of evidence. Therefore, the formulation of evidence rules has almost become a game between the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security.
To sum up, the introduction of the two regulations has two important backgrounds.
First, in recent years, there have been frequent false and wrong cases. The occurrence of Du case and She Xianglin case, especially the recent case, is the direct reason for the publication of these two documents. Behind these unjust, false and wrong cases are almost all cases of extorting confessions by torture and illegally obtaining evidence. According to media reports, in Zhao Zuohai's case, not only he was tortured to extract confessions, but also witnesses and even his ex-wife who were not suspects were tortured to extract confessions. Solving the problems of extorting confessions by torture and illegally obtaining evidence and thoroughly preventing the occurrence of unjust, false and misjudged cases are very important reasons for the introduction of these two regulations.
The second reason is the special circumstances of death penalty cases. Du's case, She Xianglin's case and Zhang's case are all homicide cases. The death penalty was imposed in the first instance, but for various reasons, the evidence did not meet the legal standard, and then the sentence was reduced.
Death penalty cases involve citizens' lives. Once a false and wrong case happens, it will have a great negative impact on the credibility of the judiciary and the prestige of the government. In recent years, judging from the policy trend of national judicial reform, death penalty cases have been strictly controlled, from the restoration of the right of death penalty review to the second trial of death penalty cases, and then to the establishment of the most stringent evidence rules, all of which reflect the efforts to build a set of extraordinary or special procedures centered on death penalty cases.
Six breakthroughs
The function of evidence rules is to establish the admissibility qualification of evidence. In criminal proceedings, the investigation organ collects evidence on behalf of the state. If the means, form and subject of obtaining evidence are illegal, the evidence is not qualified for admissibility. Using cruel and inhuman means to collect evidence, even if it can prove the true situation of the case, can not be used. Because the investigation organ represents the public power of the state, the use of such evidence is tantamount to acknowledging the illegal means of obtaining evidence, which is equivalent to acknowledging that the public power organ of the state can take the lead in undermining the rule of law and infringing on human rights.
The second is to prevent citizens from being arbitrarily convicted. According to China's standard of evidence, it must be "the facts are clear and the evidence is indeed sufficient" to determine that citizens constitute a crime. However, for many years, the law has not made clear its specific meaning, resulting in inconsistent law enforcement standards. The two provisions clarify several requirements of what is "sufficient evidence", especially the detailed provisions on the circumstances under which death penalty cases constitute "sufficient evidence".
Generally speaking, there are many breakthroughs in the two regulations this time.
First, the scope of application, legal consequences, starting procedures, proof standards, investigation procedures and relief methods of the exclusionary rule of illegal evidence are clearly defined. The Criminal Procedure Law only stipulates in principle that it is forbidden to extort confessions by torture and collect evidence by threatening, luring or cheating. The Supreme People's Court and the Supreme People's Procuratorate formulated judicial interpretations around 1998, clearly stipulating that verbal evidence obtained by extorting a confession by torture, threats, seduction and deception cannot be used as the basis for deciding a case, which is a step forward from the Criminal Procedure Law, but it did not solve the above problems. However, the exclusionary rules of illegal evidence have changed greatly on these issues, and the scope of illegal evidence has been defined for the first time, mainly including verbal evidence and physical evidence.
Secondly, three consequences of exclusion are established: first, absolute exclusion. That is, illegal verbal evidence obtained by extorting confessions by torture, violence or threats must be excluded according to law. Even if it is true and reliable, it cannot be used as the basis for finalizing the case, and there is no room for discretion. Second, the exclusion of discretion. That is, the collection of physical evidence and documentary evidence violates legal procedures and affects a fair trial, which can be ruled out. Third, remedial measures that can be corrected. That is, some technical violations can be ordered by investigators to correct.
Third, the defendant can take the initiative to apply for the exclusion of illegal evidence. You can apply before the court session, the stage of examination and prosecution, and before the court debate.
Fourth, it is clearly stipulated that when the court has doubts about the legality of illegal evidence, especially the defendant's confession, it can ask the procuratorial organ to bear the burden of proof. The public prosecutor must prove that the defendant's guilty confession is legally obtained, otherwise it is illegal. Therefore, prosecutors should submit interrogation transcripts, broadcast audio and video recordings, and even summon investigators to testify in court.
Fifth, the "Provisions on Evidence in Handling Death Penalty Cases" has made very detailed and specific provisions on the collection, examination and judgment of all kinds of evidence, and there are more than 20 cases of evidence exclusion. This provides a basis for procedural defense, but also puts forward stricter requirements for the investigation organs, and the most stringent norms and restrictions on the right of public prosecution and discretion of the procuratorial organs.
Sixth, the evidence standard of conviction and sentencing in death penalty cases is clearly defined. The Provisions on Evidence in Handling Death Penalty Cases stipulates the standard of proof that death penalty cases must meet, and requires eliminating the contradiction between evidence, clarifying the position and role of * * * and the defendant in the crime, and the conclusion drawn from the evidence is unique.
Many shortcomings
Of course, the two regulations also have many shortcomings. The main disadvantages of illegal evidence exclusion are:
1. What are the legal consequences of investigators not appearing in court? There is no such provision. Many western countries and regions, including China, Hong Kong, Macao and Taiwan, stipulate that police must appear in court, otherwise it will constitute contempt of court. For the state organs of public power, there are only advocacy provisions, and there is no sanction guarantee, which lays a hidden danger for future implementation.
Second, what responsibility does the defendant bear in court? Under what circumstances does the public prosecutor bear the burden of proof? This provision gives the court the right to decide, but at present, defendants and defenders often extort confessions by torture, but the judge ignores it. Once the court refuses, saying that there is no doubt about the legality of the evidence, the defendant will have no choice but to investigate the evidence.
Third, there is no provision in this provision concerning the issue of "leaving room" judgment. At present, the most serious problem in death penalty cases is to leave room, which is the source of unjust, false and wrong cases. Under the pressure of public security organs, procuratorial organs and political and legal committees, some cases were convicted because of insufficient evidence, but they were not sentenced. This practice seriously violates the provisions of the Criminal Procedure Law on "never suspecting a crime".
In addition, the exclusionary provisions of illegal evidence mainly focus on verbal evidence obtained by means of extorting confessions by torture, threats, seduction, deception, etc., and stipulate the comparative principle for the exclusion of illegal material evidence, and some common illegal acts are not included in the exclusion scope. For example, in drug crime cases, temptation investigation is widely used, including double temptation, intentional temptation, quantitative temptation and so on. The most serious thing is double temptation. Investigators suspected that there was drug trafficking but there was no evidence, so they sent someone to supply them with drugs at a low price and sent someone to buy them at a high price. This is an abuse of investigative power. According to the Supreme Court's opinion, the death penalty is not applicable to double sets of temptations, but this time it is not included in the exclusion of illegal evidence. Second, evidence obtained through long-term detention or deprivation of lawyers' right to meet, read documents and investigate is not excluded.
Generally speaking, the exclusion scope of the two provisions is limited to some serious violations of legal procedures and does not cover all.
Although there are some shortcomings, we should treat them with a kind and cautious optimism. The highest ideal situation is of course to establish the strictest evidence standards for all cases, but at present, the quality of staff in public security, procuratorial and legal departments is still not up to standard, and various law enforcement concepts and the whole external environment are facing many difficulties. Therefore, it is feasible to adopt a step-by-step strategy and apply it to the most serious criminal cases first.
The role of lawyer
The implementation of these two provisions, the role of lawyers is very critical. In cooperation with lawyers associations in Shandong, Henan and Guizhou provinces, the Guiding Opinions on Defending Death Penalty Cases was drafted. In this process, I have three strong feelings about the role of lawyers:
First, the state has introduced a large number of judicial reform measures and judicial interpretations in the proceedings of death penalty cases, which shows that the decision-making organs attach great importance to death penalty cases. For a long time, the lawyer industry has not had the norms and minimum working standards for handling cases, which leads to the lack of necessary guidance and guidance for its members and the low quality of death penalty defense.
Second, in death penalty cases, many lawyers do not protect themselves enough, which leads to professional risks. The most common and serious thing is to investigate criminal responsibility. Therefore, lawyers need to enhance their awareness of occupational risk prevention.
Third, we must standardize the professional ethics and integrity of lawyers. Lawyers live between two dimensions: one is to do business and provide legal services; The second is to safeguard judicial justice. Therefore, we can't bribe judges and prosecutors, forge and destroy evidence and undermine judicial justice purely for the benefit. Lawyers all over the world should establish a suitable middle point between the two dimensions, which can not only safeguard the interests of clients, but also abide by professional ethics and avoid obstructing judicial justice.