This rule of probative force has been strictly implemented in judicial practice, and even the "Opinions of the Supreme People's Court on Several Issues Concerning the Examination and Judgment of Evidence in the Trial of Death Penalty Cases" (for Trial Implementation) stipulates: "One proof or repeated proof of a single evidence, without other evidence, cannot be used as the basis for finalizing the case." It is foreseeable that in the near future, a long-standing case can not be finalized without isolated cultural and written evidence, and it may rise from a hidden rule to a formal judicial interpretation provision.
2. Reduce the probative force and other rules. As mentioned earlier, some local evidence regulations already have provisions to turn the problem of evidence ability into the problem of probative force. However, these regulations are only a few, or, as mentioned above, just the beginning. In judicial practice, the problem of transforming evidential ability into probative force has surpassed discourse practice and become a reality. At present, the hidden rules gradually formed in criminal judicial practice to deal with the problem of evidence ability do not exclude illegal evidence, but reduce its probative power, and even solve the sensitive problem of evidence ability through lighter sentencing. As a result, the problem of evidence ability is transformed into the problem of probative force and even sentencing.
In the final judgment made by the Liaoning Provincial Higher People's Court on Li Junyan's alleged crime of organizing and leading an underworld organization, it was pointed out that "in view of the specific facts, circumstances and evidence of this case, and the fact that the public security organ can't fundamentally rule out the existence of extorting a confession by torture, Li Junyan was sentenced to death for intentional homicide in the original trial, but it was not executed immediately, and the sentence should be changed." Finally, the Liaoning Provincial High Court suspended Li Junyan's execution for two years. The court held that the possibility of extorting a confession by torture cannot be ruled out, but it is not to exclude evidence. Faced with the same evidence, the reason why the court of second instance changed the sentence is that "the existence of extorting a confession by torture by public security organs cannot be fundamentally ruled out", and the purpose of changing the sentence is achieved by reducing the probative force of the evidence that may be obtained by extorting a confession by torture.
When talking about the trial and review of death penalty cases, some senior people in judicial practice pointed out that "if the defendant's confession is consistent with the on-site inquest and inspection, but other direct evidence is thin, if it is' confession before confession', if the possibility of collusion, retraction and inducement cannot be completely ruled out, the defendant will generally not be sentenced to death immediately." According to the mainstream view of evidence law, if illegal evidence collection cannot be ruled out, the consequence should be to exclude evidence. However, the above viewpoint is to adopt evidence and take care of the defendant in sentencing-execute it immediately and not sentence to death. In essence, this practice turns the problem of evidence ability into the problem of probative force, the problem of defective evidence into the problem of application and the problem of sentencing. Rules such as reducing the probative force are also reflected in the Supreme People's Court's judicial practice. Ma Hongqing's intentional homicide case is not recognized because "the evidence is not standardized, which seriously affects the probative effect of the evidence". The practice of the highest judicial practice department will undoubtedly become the object of imitation by the national courts, and the attitude of high-level people in the field of judicial practice will undoubtedly justify such behavior.
If the above-mentioned cases and the speeches of high-level people in judicial practice are unofficial texts, then the Summary of the Symposium on the Trial of Drug Crimes by Some Courts in China promulgated by the Supreme People's Court in 2008 makes clear the rules of reducing the probative force, which stipulates that: the perpetrator has no intention to commit drug crimes subjectively, but under the temptation and promotion of special circumstances, he forms a criminal intention and then commits a drug crime, which belongs to "criminal intentional inducement" and the defendant commits a drug crime because of "intentional inducement" No matter how many drugs are involved, you should not be sentenced to death immediately. If the perpetrator commits a drug crime under special circumstances, that is, "double inducement", he may be given a lighter punishment or exempted from criminal punishment according to law.
There is no doubt that in the trial of intentionally inducing crimes, the defense will put forward the idea of excluding "illegal" evidence, but the above provisions avoid this problem and turn the problem of evidence ability into a sentencing problem, that is, adopting evidence and giving the defendant a lighter sentence. The essence of such an approach is to turn the defective evidence into application, the problem of evidence ability into the problem of probative force, and then into the problem of sentencing-sentencing the parties lightly.
Of course, in the case of defective evidence, the rule of reducing the probative force should not be adopted, even in the case of major defective evidence, the probative force of evidence should not be reduced. However, it is undeniable that the emergence of rules such as the reduction of probative force needs attention: its appearance shows that China's judicial practice is not powerless to the problem of evidence ability, on the contrary, it provides new ideas and opens new ideas for solving the problem of evidence ability.
3. Strengthen the rules of probative force. The corroboration rule is a brief expression of the confession reinforcement rule. Because of adhering to the principle that isolated evidence cannot be finalized, the rule of confession reinforcement has been recognized to a considerable extent in judicial practice, and the judicial interpretation also stipulates the reinforcement of individual evidence. In addition to the above-mentioned strengthening rules, the current judicial practice has also created a new form of strengthening rules.
The Criminal Procedure Law stipulates that "if there is no confession from the defendant and the evidence is sufficient and true, the defendant can be found guilty and punished". However, there is a phenomenon in judicial practice in some areas: for death penalty cases, even if there is sufficient evidence, if there is no evidence of the defendant, the court will generally not immediately sentence the defendant to death, but make a judgment that leaves room. This is a prudent way to deal with this problem. In the process of dealing with this problem, we have seen another "creative" application of strengthening rules in judicial practice: if there is no defendant population, it is difficult to accept the death penalty immediately only if there is sufficient evidence. Confession is no longer a reinforcing evidence, but a necessary reinforcing evidence for the immediate execution of the death penalty.
In addition to reinforcing evidence in major cases such as death penalty, empirical research shows that "verbal evidence and documentary evidence have been the main basis for deciding a case for 20 years, and the status and role of confession are irreplaceable." The traditional practice of "no confession and no record" has been affecting the judicial practice in China. In the traditional sense, the reinforcement rule only requires the reinforcement of confession, which has changed the tradition. For example, Article 38 of the Japanese Constitution, which initiated the rule of confession reinforcement, stipulates that if the only evidence against anyone is his own confession, he shall not be convicted or punished. This legislative model has become the object of emulation in other jurisdictions. However, China's judicial practice shows us not only the dissimilation rules of confession reinforcement, but also the reinforcement rules of confession reinforcement evidence. Although the judge showed caution in handling the death penalty, it is undoubtedly against the law. Although this practice is debatable, such a controversial phenomenon provides us with a new sample of the rule of observational probative force.
4. The priority rule of probative force. There are a lot of comparative rules of probative force in civil evidence regulations, administrative litigation evidence regulations and local evidence regulations, which stipulate that the probative force of one kind of evidence is greater than that of another kind of evidence. This rule can also be called the priority rule of probative force, that is, it stipulates that the probative force of one evidence takes precedence over that of other evidence. In addition to this written rule of priority of probative force, the rule of priority of probative force, which is common in judicial practice and plays the most important role, is to give priority to the probative force of the investigation case record and take it as the referee basis with superior probative force.
In judicial practice, judges often face some situations: the testimony provided by witnesses in the trial is inconsistent with that provided to investigators, or even several testimonies are contradictory, or the defendant changes his confession to investigators in the trial. In the face of the above situation, defense lawyers often question the probative force of investigation records. For this phenomenon, some scholars believe that, based on the empirical analysis of court judgment documents, "except in a few cases, when the court encounters the above situation, it generally directly uses the testimony written by the prosecution in court as the basis for determining the facts of the case." This judgment also applies to the case where the defendant changes his confession. It can be seen that in judicial practice, judges often give evidence in investigation files, such as witness testimony and defendant's previous statements, which are more probative than new testimony and court statements, which runs counter to the hearsay evidence rule in common law system and the priority principle of court statements in civil law system. We can call this unwritten hidden rule "the priority rule of probative force of investigation record".
5. Presumption rule of probative force. Long-term judicial practice has formed a judicial tradition of "paying more attention to attack and neglecting protection", which makes defendants often at a disadvantage in criminal proceedings. The thinking mode of no doubt and no doubt affects and shapes the behavior mode of judges. With the concept of human rights protection deeply rooted in people's hearts, the principle of presumption of innocence is increasingly respected and valued. In judicial practice, especially in death penalty cases, there is a situation that when there are conflicts and contradictions in the evidence, the judge often makes an explanation that is beneficial to the defendant, that is, the presumption is beneficial to the defendant.
On the issue of probative force, when there are contradictions or conflicts in evidence, how to deal with them? According to the concept of free evaluation of evidence, the probative force of evidence should be freely judged by the fact finder according to experience, reason and conscience, and the law cannot interfere. However, in judicial practice, in this case, there has been a behavior pattern that is conducive to the defendant's handling. This practice is undoubtedly a restriction on free evaluation of evidence. In the judicial practice of some places, this practice has risen to the form of local evidence to be organized and legalized. For example, the local evidence regulations of Jiangxi Province make the following provisions on the determination of facts in the case of evidence conflict: "There are contradictions and doubts between guilty evidence and innocent evidence, and between heavy evidence and light evidence, which cannot be ruled out and reasonably explained, and should be determined in favor of the defendant." When the contradiction between evidences cannot be ruled out in the form of local evidence regulations, and it is necessary to make a determination in favor of the defendant, it is undoubtedly in the form of "legislation" that the judge's power to freely judge the probative force of evidence is restricted, and the judge's freedom to evaluate evidence is restricted in the form of probative force rules.
It should be pointed out that although the presumption of probative force is mainly applicable to death penalty cases, due to the way of collective decision-making in the trial of death penalty cases, the handling of death penalty cases is no longer the behavior of individual judges, but the behavior mode of judges. Moreover, this behavior pattern has a subtle influence on judges, which makes them apply this behavior pattern to other cases, making the presumption of probative force have a divergent and sweeping role in other types of cases.