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Provisions on several issues concerning the examination and judgment of evidence in handling death penalty cases
In order to handle death penalty cases legally, fairly, accurately and prudently, punish crimes and protect human rights, these Provisions are formulated in accordance with the Criminal Procedure Law of People's Republic of China (PRC) and other relevant laws and regulations, combined with judicial practice.
I. General provisions
Article 1 In handling death penalty cases, the Criminal Law and the Criminal Procedure Law must be strictly enforced, so that the facts are clear, the evidence is true and sufficient, the procedures are legal, the applicable laws are correct, and the quality of the case is ensured.
Article 2 The determination of the facts of a case must be based on evidence.
Article 3 Investigators, prosecutors and judges shall strictly abide by legal procedures and collect, examine, verify and identify evidence comprehensively and objectively.
Article 4 Evidence verified by court investigation procedures such as presentation in court, identification and cross-examination can be used as the basis for conviction and sentencing.
Article 5 In handling a death penalty case, the criminal facts of the defendant must be ascertained, and the evidence must be true and sufficient.
True and sufficient evidence means:
(1) There is evidence to prove the fact of conviction and sentencing;
(2) The evidence of each final judgment has been verified by legal procedures;
(3) There is no contradiction between evidence and evidence or between evidence and facts of the case, or the contradiction can be reasonably eliminated;
(4) In the same criminal case, the position and role of the defendant have been ascertained;
(5) The process of ascertaining the facts of a case according to the evidence conforms to the laws of logic and experience, and the conclusion drawn from the evidence is the only one.
In handling death penalty cases, the following facts must be proved to be true and sufficient:
(1) The occurrence of the alleged criminal facts;
(two) the time, place, means and consequences of the defendant's criminal act;
(3) affecting the status of the defendant's conviction;
(4) The defendant has criminal responsibility;
(5) The defendant is guilty;
(six) whether * * * and the defendant's position and role in the crime of * * *;
(7) The fact that the defendant was given a heavier punishment.
Second, the classification of evidence review and appraisal
1, physical evidence and documentary evidence
Article 6 Physical evidence and documentary evidence shall focus on the following contents:
(1) Whether the material evidence and documentary evidence are originals, and whether the photos, videos or photocopies of the material evidence and documentary evidence are consistent with the originals and photocopies; Whether the material evidence and documentary evidence have been identified and evaluated; Whether the photos, videos or copies of physical evidence, copies and copies of documentary evidence are made by more than two people, and whether there is a written explanation and signature of the producer on the production process, the original and the storage place of the original.
(2) Whether the procedures and methods for collecting material evidence and documentary evidence comply with laws and relevant regulations; Whether the physical evidence and documentary evidence extracted or detained by inquest, inspection and search are accompanied by relevant records or lists; Whether the record or list is signed by the investigator, the goods holder and the witness; if not, whether the reasons are indicated; Whether the characteristics, quantity, quality and name of the goods are clearly marked.
(three) whether the physical evidence and documentary evidence are damaged or changed in the process of collection, storage and identification.
(four) whether the material evidence and documentary evidence are related to the facts of the case. Whether the biological evidence, traces and articles such as blood, fingerprints, hair and body fluids that are related to the crime and have the conditions for inspection and identification have been identified with the biological samples, biological characteristics and articles corresponding to the defendant or the victim by DNA identification, fingerprint identification and other identification methods.
(five) whether the material evidence and documentary evidence related to the facts of the case are fully collected.
Article 7 If traces and articles such as blood, fingerprints, footprints, handwriting, hair, body fluids and human tissues that may be related to the facts of a case are found during an inquest, inspection and search, but they should be extracted without inspection, which leads to doubts about the facts of the case, the people's court shall explain the situation to the people's procuratorate, and the people's procuratorate may supplement the collection of evidence, make reasonable explanations or return them to the investigation organ for supplementary investigation and collection of relevant evidence according to law.
Article 8 The final material evidence shall be the original. Only when the original is inconvenient to carry, difficult to preserve, or should be preserved, processed or returned by the relevant departments according to law, can photos, videos or reproductions sufficient to reflect the form or content of the original be taken or made. Photos, videos or copies of physical evidence that have been verified with the original or proved to be true by appraisal, or can be proved to be true by other means, can be used as the basis for finalizing the case. Photographs, videos or reproductions of the original can't reflect the features and features of the original and can't be used as the basis for finalizing the case.
The documentary evidence on which the final decision is based shall be the original. Copies or reproductions can only be used if it is really difficult to obtain the original. Copies and reproductions of documentary evidence, which are verified with the original or verified by appraisal, or can be proved to be true by other means, can be used as the basis for finalizing the case. There are changes or signs of changes in documentary evidence that cannot be reasonably explained, and the copies and reproductions of documentary evidence cannot reflect the original and contents of documentary evidence, which cannot be used as the basis for finalizing the case.
Article 9 If the physical evidence and documentary evidence that have been extracted or detained by inquest, inspection, search are not accompanied by the record of inquest, inspection, search, extraction and seizure list, and the source of the physical evidence and documentary evidence cannot be proved, it cannot be used as the basis for finalizing the case.
The procedures and methods for collecting material evidence and documentary evidence have the following defects, which can be adopted after being corrected or reasonably explained by relevant case handlers:
(1) Collecting material evidence and documentary evidence, and there is no signature of investigators, article holders or witnesses or the characteristics, quantity, quality and name of articles in the records of inquests, checks, searches and extracts;
(2) Collecting photos, videos or copies of material evidence, and the copies and copies of documentary evidence are not marked as the same as the original, and there is no copying time and the signature (seal) of the collector (unit);
(3) Photographs, videos or copies of physical evidence, copies and copies of documentary evidence are not accompanied by the producer's explanation of the production process, the original and the storage place of the original, or are not signed in the explanation;
(four) there are other defects in the procedures and methods of collecting material evidence and documentary evidence.
If there are doubts about the source and collection process of material evidence and documentary evidence, and no reasonable explanation can be given, it cannot be used as the basis for finalizing the case.
Article 10 Material evidence and documentary evidence that meet the requirements for appraisal shall be submitted to the parties or witnesses for appraisal, and appraisal shall be conducted when necessary.
2. Testimony of witnesses
Eleventh witness testimony should focus on the following contents:
(a) Whether the witness directly feels the content of the testimony.
(two) whether the witness's age, cognitive level, memory and expression ability and physical and mental state affect the testimony.
(three) whether the witness has an interest in the parties to the case and the outcome of the case.
(4) Whether the procedures and methods for obtaining testimony comply with laws and relevant regulations: whether to use violence, threats, enticement, deception or other illegal means to obtain evidence; Whether it violates the provisions on individual questioning of witnesses; Whether the record has been checked and confirmed by the witness and signed (sealed) or pressed by handprint; Ask whether the minor witness has notified his legal representative and whether his legal representative is present.
(five) whether the witness testimony and other evidence can confirm each other and whether there are contradictions.
Article 12 Witness testimony obtained by illegal means such as violence or threats cannot be used as the basis for finalizing a case.
The testimony provided by the witness that he was obviously drunk, poisoned by narcotic drugs or drugged by psychotropic drugs, so that he could not express it correctly, cannot be used as the basis for finalizing the case.
The speculative, critical and inferential testimony of a witness cannot be used as evidence unless it is judged to be true according to general life experience.
Article 13 The testimony of a witness under any of the following circumstances cannot be used as the basis for a final verdict:
(1) Testimony obtained without individual questioning of witnesses;
(2) Written testimony without verification, signature (seal) or fingerprinting by witnesses;
(3) Failing to provide interpreters when asking deaf-mute people, ethnic minority people or foreigners who are not familiar with the local spoken and written languages.
Fourteenth witness testimony collection procedures and methods have the following defects, which can be corrected or reasonably explained by adopting the opinions of relevant case handlers:
(1) Failing to fill in the names of the inquirer, recorder and legal representative or the starting and ending time and place of the inquiry;
(two) the witness site does not meet the requirements;
(3) The record of intentionally perjury or concealing criminal evidence without telling the witness that he should provide testimony truthfully is legally liable;
(4) The interrogation record reflects that the same interrogator interrogated different witnesses at the same time.
Fifteenth witnesses in any of the following circumstances, the people's court shall notify them to testify in court; If the written testimony of a witness who has been notified not to testify in court according to law cannot be confirmed by cross-examination, it cannot be used as the basis for finalizing the case:
(a) the people's procuratorate, the defendant and his defenders have objections to the testimony of witnesses, which have a significant impact on conviction and sentencing;
(2) Other persons who the people's court deems necessary to testify in court.
The witness's testimony in court contradicts his testimony in court. If a witness can make a reasonable explanation for his testimony in court and has relevant evidence to prove it, he shall accept the testimony in court.
The written testimony of a witness who does not appear in court shall listen to the opinions of the public prosecutor, the defendant and his defenders, and make a comprehensive judgment in combination with other evidence. There are contradictions in the written testimony of witnesses who did not testify in court, which cannot be ruled out. If there is no evidence to prove it, it cannot be used as the basis for finalizing the case.
Article 16 Where a witness's testimony involves state secrets or personal privacy, it shall be kept confidential.
When a witness testifies in court, the people's court may, when necessary, take protective measures such as restricting the disclosure of witness information, restricting questions, covering up appearances, and changing voices.
3, the victim's statement
Article 17 The above provisions on witness testimony shall apply to the examination and determination of the victim's statement.
4, the defendant's confession and defense
Article 18 The following contents shall be emphatically examined in the confession and defense of the defendant: (1) The time and place of interrogation, the identity of the interrogator, etc. Whether it complies with the law and relevant regulations, whether there are not less than two investigators interrogating the defendant, whether to interrogate the defendant alone, etc.
(2) Whether the production and revision of the interrogation record comply with laws and relevant regulations, whether the interrogation record indicates the starting and ending time and place of interrogation, whether the defendant is informed of his litigation rights such as applying for withdrawal and hiring a lawyer during the first interrogation, whether the defendant checks and confirms, signs (seals) and presses his fingerprints, and whether there are signatures of at least two interrogators.
(3) Whether deaf-mute persons, ethnic minorities and foreigners are equipped with personnel familiar with deaf-mute gestures or translators, and whether their legal representatives are informed and present when interrogating minor accomplices.
(four) whether the defendant's confession was obtained by illegal means such as extorting a confession by torture, and if necessary, the health examination records and transcripts of the defendant's entry and exit from the detention center can be obtained.
(five) whether the defendant's confession is consistent, whether it is repeated and the reasons; Whether all statements and excuses of the defendant have been collected; If the confessions and excuses that should be included in the volume are not included in the volume, whether relevant explanations have been issued.
(six) whether the defendant's defense content conforms to the case and common sense, and whether there are contradictions. (seven) whether the confession and excuse of the defendant and the confession and excuse of the accomplice can confirm each other and whether there are contradictions.
For the above contents, if the investigation organ collects audio-visual materials with the case, it shall review them in combination with relevant audio-visual materials.
Article 19 confessions obtained by illegal means such as extorting a confession by torture cannot be used as the basis for finalizing a case.
Article 20 A defendant's confession under any of the following circumstances cannot be used as the basis for deciding a case:
(a) the interrogation record has not been checked and confirmed by the defendant and signed (sealed) or fingerprinted;
(2) When interrogating deaf-mutes or people who are not familiar with the local spoken and written languages, people who are familiar with deaf-mute gestures or translators should be provided, but they are not provided.
Twenty-first interrogation record has the following defects, which can be corrected or reasonably explained by the relevant case handlers:
(1) There are errors or contradictions in interrogation time, interrogators, record takers, legal representatives, etc. Fill in the report card;
(2) The interrogators did not sign;
(3) The transcript of the first interrogation did not record the content of informing the interrogated person of his litigation rights.
Article 22 The examination of the confessions and excuses of the defendant shall be conducted in combination with all the evidence provided by the prosecution and the defense and all the confessions and excuses of the defendant himself.
The defendant's confession before the trial was consistent, and he retracted his confession during the trial. However, if the defendant can't reasonably explain the reasons for his retraction or his defense contradicts the evidence of the whole case, and the pre-trial confession and other evidence can mutually confirm, the defendant's pre-trial confession can be accepted.
The defendant's confessions and excuses appear repeatedly before the trial, but if the confession in the trial can be confirmed by the confession and other evidence in the trial, it can be accepted; If the defendant's pre-trial confession and defense are repeated, and there is no confession in the trial and there is no other evidence to prove it, the pre-trial confession cannot be accepted.
5. Appraisal opinions
Twenty-third expert opinions should focus on the following contents:
(1) Whether the appraiser has any circumstances that should be avoided but not avoided.
(two) whether the appraisal institutions and appraisers have legal qualifications.
(3) Whether the evaluation procedure complies with laws and relevant regulations.
(4) Whether the source, acquisition, storage and inspection of the materials comply with laws and relevant regulations, whether they are consistent with the contents recorded in the relevant extraction records and the list of seized items, and whether the materials are sufficient and reliable.
(five) whether the procedures, methods and analysis process of the appraisal meet the requirements of the inspection and appraisal procedures and technical methods of this specialty.
(6) Whether the formal requirements of the appraisal opinions are complete, whether the reasons, appraisers, appraisal institutions, appraisal requirements, appraisal process, inspection methods, date of appraisal documents and other related contents are indicated, whether the appraisal institutions are stamped with the appraisal seal, and whether the appraisers sign and affix their seals.
(7) Whether the appraisal opinion is clear.
(eight) whether the expert opinion is related to the facts to be proved in the case.
(nine) whether there is any contradiction between the expert opinion and other evidence, and whether there is any contradiction between the expert opinion and the inspection record and related photos.
(ten) whether the expert opinion is informed to the relevant personnel in a timely manner according to law, and whether the parties have any objection to the expert opinion.
Twenty-fourth expert opinions in any of the following circumstances, can not be used as the basis for the final ruling:
(a) the appraisal institution does not have the statutory qualifications and conditions, or the appraisal items are beyond the project scope or appraisal ability of the appraisal institution;
(two) the appraiser does not have the legal qualifications and conditions, the appraiser does not have the relevant professional skills or titles, and the appraiser violates the withdrawal regulations;
(3) The appraisal procedures and methods are wrong;
(four) the expert opinion has nothing to do with the object of proof;
(five) the identification object is inconsistent with the materials and samples submitted for inspection;
(6) The source of the materials and samples submitted for inspection is unknown, or they are really polluted and do not meet the requirements for identification;
(seven) in violation of the specific identification standards;
(eight) identity documents lack of signature and seal;
(nine) other circumstances in violation of the relevant provisions.
If there is any doubt about the expert opinion, the people's court shall notify the expert to testify in court or issue relevant explanations, and may also supplement the expert opinion or re-evaluate it according to law.
6. Records of inquest and inspection
Twenty-fifth records of the inquest and inspection shall focus on the following contents:
(1) Whether the inquest or inspection is conducted in accordance with the law, whether the making of the written record complies with the law and relevant regulations, and whether the inquest or inspection personnel and witnesses sign or seal, etc.
(2) Whether the contents of the record of the inquest and inspection are comprehensive, detailed, accurate and standardized: whether the reasons for starting the inquest and inspection, the time, place, personnel present, site orientation and surrounding environment are accurately recorded; Whether the location and characteristics of the scene, articles, personnel and bodies are accurately recorded, as well as the process of inquest, inspection and search; Whether the written records are consistent with the physical objects or drawings, videos and photos; Whether the forms and methods of fixed evidence are scientific and standardized; Whether it's websites, articles, traces, etc. Whether it has been destroyed or forged, and whether it is the original site; Whether there is any disguise or change in personal characteristics, injuries and physical conditions.
(3) If supplementary inquest or inspection is made, whether there is any contradiction between the situation before and after the inquest or inspection, and whether the reasons for the inquest or inspection again are explained.
(4) Whether the information recorded in the record of the inquest or inspection can be confirmed with other evidence such as the defendant's confession, the victim's statement and expert opinions, and whether there is any contradiction.
Twenty-sixth records of the inquest and inspection are obviously not in conformity with the law and relevant regulations, and cannot be used as evidence without reasonable explanation or explanation.
If there is no witness in the record of the inquest or inspection, the inquest or inspection personnel and the witness have not signed or sealed, and the inquest or inspection personnel violate the withdrawal provisions, their authenticity and relevance shall be examined in combination with other evidence in this case.
7. Audio-visual materials
Twenty-seventh audio-visual materials should focus on the following contents:
(a) whether the source of audio-visual materials is legal, and whether there is any threat or inducement to the parties in violation of laws and relevant regulations during the production process;
(two) whether to indicate the identity of the producer or holder, the time, place, conditions and methods of production;
(three) whether it is the original, whether there is a copy and a copy; If the retrieved audio-visual materials are copies, whether there is a reason why the original cannot be retrieved, the production process and storage location of the original, and whether there is the signature or seal of the producer and the original audio-visual material holder;
(four) whether the content and production process are true, whether there is any forgery, alteration, addition, deletion and modification;
(five) whether the content is related to the facts of the case.
If there is any doubt about the audio-visual materials, it shall be appraised.
Audio-visual materials should be combined with other evidence in this case to examine their authenticity and relevance.
Twenty-eighth audio-visual materials in any of the following circumstances, can not be used as the basis for the final decision:
(a) the authenticity of audio-visual materials can not be determined through examination and appraisal;
(two) there are objections to the time, place and method of making and obtaining audio-visual materials, and it is impossible to make a reasonable explanation or provide necessary proof.
8. Other provisions
Twenty-ninth for e-mail, electronic data exchange, online chat records, online blogs, mobile phone messages, electronic signatures, domain names and other electronic evidence. , should mainly check the following contents:
(1) Whether removable storage media such as electronic evidence storage disks and storage optical disks are submitted together with printed copies;
(2) Whether the time, place, object, producer, production process and equipment of electronic evidence are specified;
(3) Whether the procedures and links of production, storage, transmission, collection, collection and presentation are legal, and whether the witnesses, producers, holders and witnesses have signed or sealed;
(four) whether the content is true, whether there is any forgery or alteration such as cutting, piecing together, tampering or adding;
(5) Whether the electronic evidence is related to the facts of the case. If there is any doubt about electronic evidence, it shall be appraised.
Electronic evidence should be combined with other evidence in this case to examine its authenticity and relevance.
Thirtieth in any of the following circumstances, the appraisal organized by the investigation organ shall be strictly examined. If the authenticity cannot be determined, the appraisal result cannot be used as the basis for finalizing the case:
(a) The identification was not conducted under the auspices of investigators;
(2) Before the appraisal, the appraiser can see the appraisal object;
(3) The appraiser's appraisal activities are not conducted independently;
(four) the identification object is not mixed with other objects with similar characteristics, or the number of identification objects does not meet the requirements; Except for specific identification objects such as bodies and places.
(five) in the identification, it is obviously implied or obviously suspected of identification.
Under any of the following circumstances, the appraisal results can be used as evidence after correction or reasonable explanation by the relevant case-handling personnel:
(1) There are less than two investigators in charge of appraisal;
(2) Failing to ask the appraiser in detail about the specific characteristics of the appraised object;
(3) There is no special and standardized appraisal record on the appraisal process and results, or the appraisal record is not signed or sealed by investigators, witnesses and witnesses;
(four) the appraisal record is too simple, only the results have no process;
(5) There is only the appraisal record in the case file, and there are no photos, videos and other materials of the appraised object, so it is impossible to know the real situation of the appraisal.
Article 31 If the explanatory materials issued by the investigation organ involve the process of handling a case, it shall examine whether there is a signature or seal of the case-handling personnel or the case-handling organ that issued the explanatory materials.
If there is any doubt about the process of solving the case, or the basis for determining that the defendant is seriously suspected, the investigation organ shall be required to make supplementary explanations.
Third, the comprehensive review and application of evidence.
Article 32 The probative force of evidence shall be examined and judged from the aspects of the degree of correlation between the evidence and the facts to be proved and the relationship between the evidence, etc. in combination with the specific circumstances of the case.
The evidence is intrinsically related, and only when * * * points to the same fact to be proved, and the contradiction can be reasonably eliminated, can it be used as the basis for finalizing the case.
Article 33 If there is no direct evidence to prove that the defendant has committed a criminal act, but the following conditions are met at the same time, the defendant may be found guilty:
(1) The circumstantial evidence on which the case is decided has been verified;
(2) The indirect evidence on which the final decision is based confirms each other, and there are no contradictions and unexplained questions that cannot be ruled out;
(3) The circumstantial evidence on which the final verdict is based has formed a complete evidence system;
(four) based on the facts of the case identified by indirect evidence, the conclusion is unique enough to exclude all reasonable doubts;
(5) Inference based on indirect evidence conforms to logic and empirical judgment. If the case is closed on the basis of circumstantial evidence, special care should be taken when imposing the death penalty.
Article 34. According to the confession and identification of the defendant, extract highly concealed physical evidence and documentary evidence, and check it with other evidence to prove the facts of the crime, and exclude those who are likely to collude, extort confessions by torture, and induce confessions. May be found guilty.
Article 35 The physical evidence, documentary evidence and other evidential materials collected by the investigation organ by taking special investigation measures in accordance with relevant regulations, which are verified by the court, can be used as the basis for finalizing the case.
The process and method of the court not disclosing special investigation measures according to law.
Article 36 After the people's court finds the defendant guilty, in addition to the statutory circumstances, it shall also examine the following circumstances that affect sentencing:
(a) the cause of the case;
(two) whether the victim is at fault and the degree of fault, whether he is responsible for the intensification of contradictions and the size of the responsibility;
(three) whether the close relatives of the defendant assisted in the capture of the defendant;
(four) the defendant's usual performance and attitude of no regrets;
(five) the compensation of the victim's incidental civil action, and whether the defendant has obtained the understanding of the victim or his close relatives;
(6) Other circumstances that affect sentencing.
If there are circumstances such as lighter or mitigated punishment and heavier punishment, it shall be considered according to law.
It cannot be ruled out that the defendant has a lighter or mitigated punishment, and the death penalty should be particularly cautious.
Article 37 Evidence under any of the following circumstances shall be used with caution. If there is other evidence to support it, it is acceptable:
(1) Statements, testimonies and confessions made by victims, witnesses and defendants with physical and mental defects who have some difficulties in understanding and expressing the facts of the case, but have not lost the ability to correctly understand and express them;
(2) Testimony in favor of the defendant made by a witness who has kinship or other close relationship with the defendant, or testimony against the defendant made by a witness who has a conflict of interest with the defendant.
Article 38 If the court is in doubt about the evidence, it may notify the prosecutor, defendant and their defenders who appear in court to supplement the evidence or make explanations; If verification is really necessary, an adjournment may be announced to investigate and verify the evidence. When the court conducts an out-of-court investigation, it may, when necessary, notify the prosecutors and defenders appearing in court to be present. If one or both of the public prosecutor and the defender are not present, the court shall record it.
Evidence supplemented by the people's procuratorate and defenders and obtained through out-of-court investigation and verification, the court may seek the opinions of the prosecutors and defenders who appear in court outside the court. If the two sides disagree and one party requests the people's court to hold a hearing to investigate, the people's court shall hold a hearing.
Article 39 If the relevant authorities refuse to recognize the facts and reasons of surrender put forward by the defendant and his defenders, they shall ask the relevant authorities to provide proof materials or require relevant personnel to testify, and judge whether surrender is established in combination with other evidence.
If the evidence of whether or how the defendant assisted in arresting the accomplice is incomplete, and it is impossible to determine that the defendant has rendered meritorious service, it shall require the relevant authorities to provide evidence or require relevant personnel to testify, and judge whether or not meritorious service is established in combination with other evidence.
If the defendant reports another person's crime, it shall examine whether it has been verified; If it has not been verified, it shall be verified in time.
If the evidence of the defendant's recidivism is incomplete, the relevant authorities shall be required to provide the evidence.
Fortieth review whether the defendant has reached the age of 18 at the time of committing the crime shall generally be based on the household registration certificate; If there is any objection to the household registration certificate, and there are verified birth certificates, testimony of non-interested parties and other evidence to prove that the defendant is dissatisfied with 18 years old, it shall be deemed that the defendant is dissatisfied with 18 years old; If there is no household registration certificate or birth certificate, a comprehensive judgment shall be made based on evidence such as census registration and testimony of no interested party. If necessary, bone age can be identified, and the results will be used as a reference for judging the age of the defendant.
Contradictions between evidences are not excluded. If there is not sufficient evidence to prove that the defendant was 18 years old when he committed the alleged crime, and it is really impossible to find out, he cannot be deemed to be 18 years old.
Article 41 These Provisions shall come into force on July 20 10/day.