On the night of June 20 14 12, a burglary and murder case occurred in a residential area. The police arrived at the crime scene after receiving the alarm. The victim Wang fell in a pool of blood, and the police investigated the scene and found a bloody fruit knife (no transcript attached). After extracting the blood from the scene, it was found that there was another type of O blood besides the type A blood of the victim Wang. The security guard in the community reported that he saw a strange man enter the community at night and came out very late, with a flustered face. The man is wearing a black sweater. After investigation, the police believed that Sun was suspected of committing a major crime. At that time, the police took compulsory measures against Sun. Searched Sun's home without a search warrant. A black sweater and a pair of shoes were immediately found, and blood was also extracted from the gap between the shoes. It was identified as type A blood, and the investigator sent Sun's blood sample for inspection. It was identified as type O blood; However, the physical evidence test showed that no blood was found on a black sweater found in Sun's home. There is no evidence to prove that the fruit knife left at the scene belongs to Sun, and Sun's wife confirmed that Sun was with him at the time of the crime. In the process of handling the case, the case-handling personnel referred Sun from the detention center to the case-handling place for interrogation. During the trial, Sun was not allowed to eat, drink or sleep, and he took off his clothes and put them in the cold night. In the end, Sun couldn't stand the pressure and made a guilty confession. Sun said in his confession that the sweater splashed with blood was hidden in the flowers at the gate of the community. According to Sun's confession, the police did not find the sweater with blood. During the trial, Sun's defense lawyer filed an application for the exclusion of illegal evidence. After examination, the judge found that the defense lawyer's application could not be established, and finally made a verdict that the defendant Sun was guilty. Sun refused to accept the judgment of the first instance and appealed.
question
1. What is the direct evidence of this case? What is circumstantial evidence? What are the rules for the use of circumstantial evidence?
In this case, a bloody fruit knife, blood on the spot, a pair of leather shoes, blood type identification and the testimony of community security can not directly prove the main facts of the case, so it should be indirect evidence. In this case, the guilty confession of Sun Mou, the suspect and defendant, proves that he committed robbery and murder, and the testimony of Sun Mou's wife proves that Sun Mou was not at the scene of the crime and had no time to commit the crime, which can directly prove the main facts of the case, so it belongs to direct evidence. The applicable rules of indirect evidence are mainly embodied in Article 105 of the Interpretation of Criminal Procedure Law. "If there is no direct evidence, but the indirect evidence meets the following conditions, the defendant may be found guilty: (1) The evidence has been verified; (2) The evidence confirms each other, and there are no inevitable contradictions and unexplained questions; (3) The evidence of the whole case has formed a complete proof system; (4) According to the evidence, the facts of the case are sufficient to exclude reasonable doubt and the conclusion is unique; (5) Evidence-based reasoning conforms to logic and experience. "
2. What is the illegal evidence in this case? How to deal with these illegal evidences?
First, the guilty confession of the criminal suspect and defendant Sun Mou is illegal verbal evidence and should be excluded. First of all, according to the second paragraph of Article 1 16 of the Criminal Procedure Law, after the criminal suspect is sent to the detention center for custody, the investigators shall interrogate him in the detention center. It is obviously illegal for investigators to transfer Sun to the case-handling place for interrogation. In addition, during the interrogation, the investigators did not allow Sun to eat or drink, nor did they allow Sun to sleep, and Sun took off his clothes and put them on a cold night, which was a corporal punishment in disguise. Evidence obtained by the above means shall be regarded as illegal evidence and excluded. In addition, Article 8 of the Supreme People's Court's Opinions on Preventing Unjust, False and Misjudged Cases stipulates the legal consequences of violating the statutory interrogation procedures, that is, "except in an emergency, on-site interrogation is needed, and confessions obtained by interrogation outside the prescribed case handling place are not recorded and recorded according to law, and confessions obtained by illegal methods should be excluded."
Second, a fruit knife seized by investigators at the scene of the inquest (no transcript attached) and a black sweater found by investigators at the home of the criminal suspect and defendant Sun Mou without a search warrant belong to illegal material evidence collected in violation of legal procedures. Whether the above two kinds of physical evidence should be excluded should be analyzed in combination with the specific situation. As far as the fruit knife seized at the scene of the inquest is concerned, according to the first paragraph of Article 73 of the Interpretation of the Criminal Procedure Law, "In the process of the inquest, inspection and search, the physical evidence and documentary evidence extracted and seized without records or lists cannot prove the source of the physical evidence and documentary evidence, and shall not be used as the basis for finalizing the case." Therefore, if investigators cannot prove the source of physical evidence and documentary evidence, they shall be excluded and shall not be used as the basis for finalizing the case. For the black sweater found in the home of Sun Mou, the criminal suspect and defendant, according to the exclusionary rule of illegal material evidence, the investigators should first correct it or give a reasonable explanation. That is to say, first, the investigators explain the emergency, the necessity and urgency of obtaining evidence, and reissue the search warrant in time to eliminate, dilute or make up for the adverse impact of illegal evidence collection on judicial justice.
3. In this case, is the court of first instance correct in handling the defense lawyer's exclusion of illegal evidence? Why?
The court of first instance wrongly handled the defense lawyer's application for excluding illegal evidence. According to the provisions of Article 56 of the Criminal Procedure Law, "in the course of court hearing, if the judges think that there may be illegal evidence collection as stipulated in Article 54 of this Law, they shall conduct court investigation on the legality of the evidence collection. The parties, their defenders and agents ad litem have the right to apply to the people's court to exclude evidence collected by illegal means according to law. When applying for the exclusion of evidence collected by illegal methods, relevant clues or materials shall be provided. " Article 57 stipulates: "The people's procuratorate shall prove the legality of evidence collection in the process of court investigation. If the existing evidence materials cannot prove the legality of evidence collection, the people's procuratorate may request the people's court to notify the relevant investigators or other personnel to appear in court to explain the situation, and the people's court may also notify the relevant investigators or other personnel to appear in court to explain the situation. Relevant investigators or other personnel may also request to appear in court to explain the situation. Upon notification by the people's court, the relevant personnel shall appear in court. Therefore. The burden of proof for excluding illegal evidence shall be borne by the prosecution. In this case, the court of first instance decided that the application for excluding illegal evidence was not established only by examining the application of defense lawyers, which obviously made the defense lawyers who applied bear the burden of proof of illegal evidence in disguise, which violated the law.
4. According to the standard of proof in our country, has this case reached the standard of clear facts and sufficient evidence? Why?
According to the existing evidence, it is impossible to reach the proof standard of clear facts and sufficient evidence. According to the provisions of the Criminal Procedure Law on the standard of proof, the evidence is indeed sufficient and should meet the following conditions: the facts of conviction and sentencing are proved by evidence, and the evidence that has been finalized has been verified by legal procedures. Based on the evidence of the whole case, reasonable doubt has been ruled out on the facts identified.
The evidence of guilt in this case obviously does not meet the above standards and requirements, mainly as follows: First, the guilty confession of the criminal suspect and defendant Sun Mou was made under corporal punishment in disguised form, which is illegal evidence and should be excluded. Paragraph 2 of Article 54 of the Criminal Procedure Law also stipulates that evidence that should be excluded in the process of investigation, prosecution and trial shall be excluded according to law and shall not be used as the basis for prosecution opinions, prosecution decisions and judgments. Secondly, in this case, blood type identification is not enough to identify Sun as a criminal. Although there is the victim's blood type A in the gap between the suspect's shoes and the defendant's shoes, Sun's blood type is also consistent with the blood type at the crime scene. Although such appraisal results can't rule out that Sun is suspected of committing a crime, it can't be sure that Sun is a criminal. Blood type identification belongs to type identification, and different people will have the same blood type. Even if there is blood of the same blood type as the victim in the gap between the suspect's and the defendant's shoes, it is not enough to determine that they have hurt the victim, and further determination needs to be combined with other evidence. In this case, except the confession of the criminal suspect and the defendant as direct evidence was excluded as illegal evidence, the black sweater stained with blood, which is crucial to this case, was not found in the end. For the suspect, the alibi of the defendant Sun's wife is also ignored. Therefore, based on the evidence of the whole case, it can be concluded that according to the existing evidence in this case, the standard of guilt with sufficient evidence has not yet been reached.
5. How should the court of second instance handle the defendant Sun's appeal? Why?
The court of second instance shall examine the defense lawyer's application for excluding illegal evidence and make a decision to exclude illegal evidence. According to the relevant provisions of the Criminal Procedure Law, the court of second instance has the obligation to examine the legality of the evidence that should be excluded in the first instance, and if it is found illegal, it should be excluded. If the exclusion of illegal evidence affects the facts ascertained in the original judgment, the original judgment shall be revoked and sent back to the people's court that originally tried for retrial. As far as this case is concerned, the reasons for the defense lawyer to apply for the exclusion of illegal evidence are obviously established. Therefore, the evidence directly affects the court of first instance to determine the facts and apply the law. The court of first instance found the defendant Sun guilty, which was obviously wrong. Therefore, when the court of second instance decides to exclude illegal evidence, it should also decide to revoke the original judgment and send it back to the court of first instance for retrial.