Some provisions on evidence in criminal proceedings

Provisions on Several Issues Concerning the Strict Exclusion of Illegal Evidence in Handling Criminal Cases In order to accurately punish crimes, effectively protect human rights, standardize judicial actions and promote judicial justice, the following provisions are formulated in accordance with the Criminal Procedure Law of People's Republic of China (PRC) and related judicial interpretations, combined with judicial practice. I. General Provisions Article 1 It is strictly forbidden to extort confessions by torture and collect evidence by threats, enticements, deception or other illegal means, and no one may be forced to prove his guilt. In sentencing all cases, we should attach importance to evidence, investigation and research, and we should not trust confessions. Article 2 A confession made against the will of a criminal suspect or defendant by violent means such as beating, illegal use of coercive means or corporal punishment in disguised form shall be excluded. Article 3 A confession made against the will of a criminal suspect or defendant by threatening violence or seriously damaging the lawful rights and interests of himself or his close relatives shall be excluded. Article 4 The confessions of criminal suspects and defendants collected through illegal detention or other illegal restrictions on personal freedom shall be excluded. Article 5. If a criminal suspect or defendant confesses by extorting a confession by torture, and then the criminal suspect or defendant repeatedly confesses under the influence of extorting a confession by torture, it shall be excluded together, except for the following circumstances: (1) During the investigation, the investigation organ confirmed or could not rule out the illegal replacement of investigators based on complaints, reports or self-discovery, as well as the litigation rights and legal consequences of recanting informed by other investigators during re-interrogation, Criminal suspects (2) During the examination of arrest, prosecution and trial, prosecutors and judges informed them of their litigation rights and the legal consequences of confession retraction during interrogation, and criminal suspects and defendants voluntarily retracted their confessions. Article 6 Witness testimony and victim statements collected by illegal methods such as violence, threats and illegal restriction of personal freedom shall be excluded. Article 7 If the collection of material evidence and documentary evidence does not conform to legal procedures and may seriously affect judicial justice, it shall be corrected or a reasonable explanation shall be made; If it is impossible to make corrections or make reasonable explanations, the relevant evidence shall be excluded. 2. Article 8 The investigation organ shall conduct investigation in accordance with legal procedures, and collect and collect evidence materials that can prove the criminal suspect's guilt or innocence, and the crime is light or heavy. Article 9 After a criminal suspect is detained or arrested, he shall be sent to a detention center for custody according to law. After the criminal suspect is sent to the detention center for custody, the interrogation shall be conducted in the interrogation room of the detention center. If the investigation organ conducts interrogation in a place other than the interrogation room of the detention center for objective reasons, it shall make a reasonable explanation. Article 10 Investigators may record and video the interrogation process when interrogating a criminal suspect. For cases that may be sentenced to life imprisonment or death penalty or other major criminal cases, audio and video recordings shall be made of the interrogation process. Investigators shall inform the criminal suspect to record and video the interrogation process and record it in the interrogation record. Article 11 The audio and video recordings of interrogation shall be uninterrupted and intact. Do not record, edit or delete selectively. Article 12 When interrogating a criminal suspect, an investigator shall make an interrogation record according to law. The interrogation record shall be handed over to the criminal suspect for verification. If there is no reading ability, it shall be read out to the criminal suspect. If there are omissions or errors in the interrogation record, the criminal suspect may make additions or corrections. Thirteenth detention center shall register the arraignment, indicating the unit, personnel, reasons, starting and ending time and the name of the criminal suspect. When a criminal suspect is taken to a detention center, he shall undergo a physical examination. The procurator of the people's procuratorate stationed in the detention center may be present during the inspection. If a criminal suspect is found to be injured or physically abnormal, the detention center shall take photos or videos, and the remand personnel and the criminal suspect shall explain the reasons respectively, which shall be recorded in the medical examination records and signed by the remand personnel, the remand personnel and the criminal suspect for confirmation. Fourteenth criminal suspects and their defenders may apply to the people's procuratorate for the exclusion of illegal evidence during the investigation. The people's procuratorate shall investigate and verify the relevant clues or materials provided by criminal suspects and their defenders. The conclusion of investigation shall be informed in writing to the criminal suspect and his defender. If the evidence is indeed collected by illegal means, the people's procuratorate shall put forward rectification opinions to the investigation organ. The investigation organ shall exclude the illegal evidence found in the examination and shall not be used as the basis for requesting approval of arrest or transfer for examination and prosecution. For major cases, the prosecutors stationed in detention centers of people's procuratorates shall interrogate the criminal suspects before the investigation ends, check whether there are cases of extorting confessions by torture or illegally obtaining evidence, and synchronize audio and video recordings. Upon verification, if it is found that a confession is obtained by torture or illegal evidence is obtained, the investigation organ shall promptly exclude the illegal evidence, which shall not be used as the basis for requesting approval of arrest or transfer for examination and prosecution. Fifteenth after the investigation, the investigation organ shall comprehensively review the evidence materials that prove the legality of evidence collection, and exclude illegal evidence according to law. After excluding illegal evidence, if the evidence is insufficient, it will not be transferred for review and prosecution. If the investigation organ finds that investigators have illegally collected evidence, it shall deal with it according to law, and may assign investigators to re-investigate and collect evidence. Three. Examination of arrest and prosecution Article 16 When interrogating a criminal suspect during examination of arrest and prosecution, he shall be informed of his right to apply for the exclusion of illegal evidence, and of his litigation rights and the legal consequences of pleading guilty. Seventeenth in the process of examination, arrest, prosecution, criminal suspects and their defenders apply to exclude illegal evidence and provide relevant clues or materials, the people's Procuratorate shall investigate and verify. The conclusion of investigation shall be informed in writing to the criminal suspect and his defender. In the process of examination and prosecution, the people's procuratorate finds that investigators use torture or other illegal methods to collect evidence, and shall exclude relevant evidence according to law and put forward rectification opinions. When necessary, the people's procuratorate may investigate and collect evidence on its own. The people's procuratorate shall exclude the illegal evidence found in the examination and shall not be used as the basis for approving or deciding to arrest or prosecute. The excluded illegal evidence shall be transferred with the case and marked as illegal evidence to be excluded according to law. Article 18 After the people's procuratorate excludes illegal evidence according to law, if the evidence is insufficient and does not meet the conditions for arrest and prosecution, it shall not approve or decide to arrest and prosecute. If the people's procuratorate excludes relevant evidence, which makes it impossible to identify the suspected important criminal facts, and thus makes a decision not to approve the arrest or not to prosecute, or makes a decision not to prosecute some suspected important criminal facts, the public security organ or the state security organ may request reconsideration and submit it for review. Four. Nineteenth criminal suspects and defendants who apply for legal aid shall appoint legal aid lawyers in accordance with the provisions. Legal aid The lawyer on duty can provide legal aid to criminal suspects and defendants, and act as an agent for complaints and accusations of extorting confessions by torture or illegally obtaining evidence. Article 20 When applying for the exclusion of illegal evidence, criminal suspects, defendants and their defenders shall provide relevant clues or materials such as personnel, time, place, method and content suspected of illegally obtaining evidence. Article 21 From the date when the people's procuratorate examines and prosecutes a case, the defense lawyer may consult, extract and copy the interrogation record, legal documents for arraignment and registration, compulsory measures or investigation measures and other evidence materials. Other defenders, with the permission of the people's court or the people's procuratorate, may also consult, extract and copy the above-mentioned evidence materials. Article 22 Criminal suspects, defendants and their defenders apply to the people's courts and people's procuratorates for obtaining evidence materials, such as audio and video recordings of interrogation, medical examination records and so on, which have not been submitted and collected by public security organs, state security organs and people's procuratorates. If the people's court or people's procuratorate considers that the evidence materials applied for by criminal suspects, defendants and their defenders are related to the legality of evidence collection, they should be taken; If it is considered that there is no connection with the legality of evidence collection, it shall decide not to adopt it, and explain the reasons to the criminal suspect, defendant and their defenders. V. Trial Article 23 When serving a copy of the indictment on the defendant and his defender, the people's court shall inform him of his right to apply for the exclusion of illegal evidence. The defendant and his defender shall apply for the exclusion of illegal evidence before the trial, except that relevant clues or materials are found during the trial. The people's court shall send a copy of the application and relevant clues or materials to the people's procuratorate before the court session. Article 24 The people's court shall not accept the application of the defendant and his defenders for the exclusion of illegal evidence before the court session, failing to provide relevant clues or materials and failing to meet the application conditions prescribed by law. Article 25 Before the hearing, if the defendant and his defenders apply for excluding illegal evidence and provide relevant clues or materials according to law, the people's court shall convene a pre-trial meeting. The people's procuratorate shall explain the legality of evidence collection in a targeted manner by presenting relevant evidence materials. The people's court may verify the situation and listen to opinions. The people's procuratorate may decide to withdraw the relevant evidence, and the withdrawn evidence may not be presented in court without new reasons. The defendant and his defender may withdraw the application for the exclusion of illegal evidence. After withdrawing the application, if there are no new clues or materials, the application for excluding relevant evidence shall not be filed again. Article 26 If the public prosecutor, the defendant and their defenders fail to reach an agreement on the legality of evidence collection in the pre-trial meeting, and the people's court has doubts about the legality of evidence collection, it shall conduct an investigation during the trial; If the people's court has no doubt about the legality of evidence collection, and there are no new clues or materials indicating that there may be illegal evidence collection, it may decide not to investigate. Article 27 The defendant and his defenders shall apply to the people's court to notify investigators or other personnel to appear in court. If the people's court considers that the existing evidence materials cannot prove the legality of evidence collection, and it is really necessary to notify the above-mentioned persons to testify or explain the situation in court, it may notify the above-mentioned persons to appear in court. Article 28 After the public prosecutor reads out the indictment, the court shall announce the examination and handling of the legality of evidence collection before the court session. Twenty-ninth defendants and their defenders did not apply for the exclusion of illegal evidence before the trial, but applied during the trial, they should explain the reasons. In the above circumstances, if the court has doubts about the legality of evidence collection after examination, it shall conduct an investigation; If there is no doubt, the application should be rejected. After the court rejected the application for the exclusion of illegal evidence, if the defendant and his defender have no new clues or materials and apply again for the same reason, the court will not review it. Thirtieth in the course of the trial, if the court decides to investigate the legality of evidence collection, it should first investigate in court. However, in order to prevent excessive delay in the trial, the investigation can also be conducted before the end of the court investigation. Article 31 Before the end of the investigation, the public prosecutor can show evidence materials such as interrogation transcripts, summons registration, medical examination records, legal documents for compulsory measures or investigation measures, materials for verifying the legality of interrogation, broadcast targeted audio and video recordings of interrogation, and ask the court to inform investigators or other personnel to appear in court to explain the situation, which can prove the legality of evidence collection. The defendant and his defender may present relevant clues or materials and apply to the court for playing interrogation audio and video at a specific time. When investigators or other personnel appear in court, they shall explain the process of obtaining evidence to the court and accept questions about the situation. The court should stop improper questioning methods or contents that have nothing to do with the legality of evidence collection. The public prosecutor, the defendant and his defenders may conduct cross-examination and debate on the legality of the collected evidence. Article 32 If the court is in doubt about the evidence provided by the prosecution and the defense, it may announce an adjournment to investigate and verify the evidence. When necessary, the public prosecutor and the defender may be notified to be present. Article 33 After investigating the legality of evidence collection, the court shall make a decision on whether to exclude relevant evidence in court. When necessary, an adjournment may be announced, which shall be reviewed by the collegial panel or submitted to the judicial committee for discussion, and the decision shall be announced when the court reconvenes. Before the court decides whether to exclude the relevant evidence, it is not allowed to read and cross-examine the relevant evidence. Article 34 If the court confirms the existence of illegal evidence collection as stipulated in these Provisions, the relevant evidence shall be excluded. If the court has doubts about the legality of evidence collection according to relevant clues or materials, and the people's procuratorate fails to provide evidence or the evidence provided cannot prove the legality of evidence collection, it cannot be ruled out that the evidence was collected by illegal methods as stipulated in these Provisions, and relevant evidence should be excluded. Evidence excluded according to law shall not be read out or cross-examined, and shall not be used as the basis for judgment. Article 35 After the people's court excludes illegal evidence, if the facts of the case are clear, the evidence is true and sufficient, and the defendant is found guilty according to law, it shall make a guilty verdict; If the defendant cannot be found guilty due to insufficient evidence, he shall be acquitted, and the accused crime cannot be established due to insufficient evidence; If some facts of the case are clear and the evidence is true and sufficient, it shall be determined according to law. Article 36 The conclusion of the people's court's investigation on the legality of evidence collection shall be clearly stated in the judgment document, and the reasons shall be explained. Article 37 The people's court shall refer to the above provisions when examining and investigating the legality of evidence collection such as witness testimony and victim's statement. Article 38 If the people's procuratorate, the defendant and his legal representative lodge a protest or appeal and disagree with the conclusion of the investigation on the legality of evidence collection made by the people's court of first instance, the people's court of second instance shall conduct a review. The defendant and his defender did not apply for the exclusion of illegal evidence in the first instance procedure, but applied in the second instance procedure, and shall explain the reasons. The people's court of second instance shall review. If the people's procuratorate fails to produce evidence to prove the legality of evidence collection in the procedure of first instance, and the people's court of first instance excludes relevant evidence according to law, the people's procuratorate shall not produce evidence that has not been produced before in the procedure of second instance, except those found after the procedure of first instance. Article 39 The legality of investigation and evidence collection by the people's court of second instance shall refer to the provisions of the above-mentioned procedure of first instance. Article 40 If the people's court of first instance refuses to examine the application of the defendant and his defender for excluding illegal evidence and takes relevant evidence as the basis for finalizing the case, which may affect the fair trial, the people's court of second instance may rule to revoke the original judgment and send it back to the people's court that originally tried it for a new trial. If the people's court of first instance does not exclude illegal evidence that should be excluded according to law, the people's court of second instance may exclude illegal evidence according to law. After excluding illegal evidence, if the original judgment finds the facts and applicable laws correct and the sentence is appropriate, it shall rule to reject the appeal or protest and uphold the original judgment; If the original judgment found that the facts were not wrong, but the applicable law was wrong, or the sentence was improper, the judgment shall be revised; If the facts of the original judgment are unclear or the evidence is insufficient, the original judgment may be revoked and sent back to the people's court that originally tried the case for retrial. Article 41 In the procedure of trial supervision and the procedure of death penalty review, the legality of investigation evidence collection shall be examined with reference to the above provisions. Article 42 These Provisions shall come into force on June 27, 20 17. There are many kinds of evidence in criminal proceedings, the most common ones are documentary evidence, physical evidence and electronic data. According to different standards, evidence can be divided into different types, including direct evidence and indirect evidence, original evidence and transmission evidence, physical evidence and verbal evidence. Please note that there may be overlapping evidence. Some regulations on evidence in criminal proceedings have been introduced above, hoping to provide you with some help.