1. objectivity The objectivity of litigation evidence means that litigation evidence is an objective fact, not something that people speculate and are false. The objectivity of litigation evidence is the essential feature of litigation evidence, which is determined by the objectivity of the case facts themselves. It includes two meanings: first, the essence of evidence is fact. There are two basic forms of evidence facts: one is objective entities such as objects, traces and documents; One is the fact that people perceive and remember. Any form of fact can be evidence. Second, evidence is an objective fact that does not depend on people's subjective will. With the occurrence of the facts of the case, the evidence facts are not transferred by people's subjective will. The objectivity of evidence provides a material basis for public security judicial personnel to investigate and collect evidence, find out and prove the truth of the case.
2. Relevance. The relevance of litigation evidence refers to the objective connection between litigation evidence and the facts to be proved in the case. Evidence is both an objective fact and a fact related to the facts of the case. There are many kinds of objective facts, not all of which can become evidence, only those facts that are objectively related to the facts of the case can become evidence. The reason why evidence can prove the facts of the case is precisely because there is a connection between evidence and the facts of the case. All facts that are objectively and inevitably related to the facts of the case and meaningful to the investigation of the case can be used as evidence; Any fact that has nothing to do with the facts of the case and is meaningless to find out the case, no matter how true and reliable, cannot be used as evidence.
3. legitimacy. The legality of evidence means that litigation evidence must be factual materials obtained in accordance with legal requirements and legal procedures. This feature of evidence shows that: first, the provision, collection and examination of litigation evidence must meet the statutory procedural requirements. Whether the public security and judicial personnel collect evidence or the parties or other participants in the proceedings provide evidence, it should be legal, otherwise it cannot be used as evidence in the proceedings. It is strictly forbidden to extort confessions by torture and collect evidence by threats, enticements, deception or other illegal methods. Whether it is a criminal lawsuit, a civil lawsuit or an administrative lawsuit, all kinds of evidence must be obtained in strict accordance with legal procedures. Illegally obtained evidence, as far as evidence theory and litigation theory are concerned, strictly speaking, should not have the effect of evidence, let alone be used as the basis for deciding a case. Second, the form of litigation evidence should be legal. That is, the evidence materials used to prove the facts of the case must meet the legal requirements in form, otherwise they cannot be used as litigation evidence. China's procedural law clearly stipulates the types of evidence. For example, the second paragraph of Article 42 of China's Criminal Procedure Law stipulates seven types of evidence: physical evidence and documentary evidence; Witness testimony; The victim's statement; Confessions and excuses of criminal suspects and defendants; Appraisal conclusion; Records of inquest and inspection; Audio-visual materials. Other procedural laws have also made corresponding provisions. At the same time, it also makes clear requirements on the forms of all kinds of evidence that must be attached, such as physical evidence and documentary evidence. If it is impossible to attach, it should be attached by photography, video recording, making models, etc. Testimony of witnesses, statements of victims, confessions and excuses of criminal suspects and defendants, and statements of parties shall be fixed in written form, and shall be signed and sealed by witnesses, protectors, criminal suspects, defendants and parties to civil or administrative litigation after verification; The appraisal conclusion must be made in writing and signed and sealed by the appraiser; The transcripts of the inspection and on-site inspection shall be written, drawn, photographed and recorded in accordance with the provisions, and shall be signed and sealed by the inspectors and on-site witnesses; Wait a minute. Third, the evidence of litigation must be presented and verified through legal procedures. According to the provisions of China's criminal procedure law, witness testimony must be cross-examined by the prosecutor, the victim, the defendant and the defender in court; Physical evidence must be presented in court for the parties to identify; Documents such as transcripts of testimony, expert conclusions and transcripts of inquests of witnesses who fail to testify in court shall be read out in court to listen to the opinions of public prosecutors, parties, defenders and agents ad litem. Materials that have not been verified by the court shall not be used as the basis for finalizing the case. The types of evidence refer to various external forms that show the factual content of evidence. The type of evidence is actually the legal classification and legal form of evidence. The classification of evidence types is legally binding, and evidence materials without legal form cannot be included in the litigation track. The second paragraph of Article 48 of the Criminal Procedure Law stipulates that evidence has the following eight forms: (1) physical evidence; (2) Documentary evidence; (3) Testimony of witnesses; (4) the victim's statement; (5) confessions and excuses of criminal suspects and defendants; (6) Appraisal opinions; (7) Records of the inquest, inspection, appraisal, investigation and experiment; (8) Audio-visual materials and electronic data.
This shows that only the above-mentioned legal forms of evidence can enter criminal proceedings, but the evidence with legal forms is not necessarily objective and relevant. For example, physical evidence may be forged, witnesses may lie, and statements of criminal suspects and defendants may contain false words. Therefore, when understanding and mastering the types of evidence, we should fully understand the concept of evidence and understand that all the facts that can prove the true situation of the case pointed out in Article 42 1 of the Criminal Procedure Law are the connotations embodied in evidence. At the same time, we should pay special attention to understand the third paragraph of Article 48 of the Criminal Procedure Law: the above evidence must be verified before it can be used as the basis for deciding a case. From this, we can understand the close logical relationship between the above three legal provisions. Witness testimony refers to the statement made by a witness to the public security and judicial organs about the case he knows. Witness testimony is generally an oral statement, which is fixed by a written record; The case handler agrees that the written testimony written by the witness is also the testimony of the witness.
Article 60 of China's Criminal Procedure Law stipulates that anyone who knows the circumstances of a case has the obligation to testify. A person who is physically and mentally defective or young, can't distinguish right from wrong and can't express correctly, can't be a witness. Therefore, the witness should be an individual citizen who knows the case, can distinguish right from wrong and correctly express it except the party concerned, and the unit cannot be a witness. In view of the fact that the witness's identity is determined by his perception of the case and the corresponding proof relationship between the cases objectively, it is irreplaceable and cannot be replaced by the case handlers at will; The witness himself shall not testify only in his personal opinion or refuse to testify; Witnesses must personally state or write their testimony, and generally cannot entrust others to act as agents except the case-handling personnel who make transcripts. This "irreplaceable witness" feature also determines the priority of witnesses, that is, when the identity of witnesses in litigation is formed, they will not be able to serve as investigators, prosecutors, judges, appraisers and translators in litigation. The victim's statement refers to the criminal victim's statement of his own victimization and other circumstances to the public security and judicial organs. If the private prosecutor and the plaintiff in an incidental civil action are victims, their statements are also victim statements.
There are two kinds of victim statements: one is a victim statement that has direct contact with criminals or has heard or witnessed criminal acts. This statement can directly identify the criminal process and the characteristics of criminals, and is often direct evidence. The other is that the victim stated that he had no direct contact with the criminal or heard or witnessed the criminal act. The content of this statement is not as rich and specific as the former. The confessions and excuses of criminal suspects and defendants refer to the statements made by criminal suspects and defendants to investigators, prosecutors and judges on relevant cases. Also known as "confession". Its contents mainly include confessions of criminal suspects and defendants admitting their guilt and excuses explaining their innocence and light crimes.
It is generally believed that the nature and content of crimes accused by criminal suspects and defendants should be properly analyzed. Only the criminal suspects and defendants who commit the same crime report and expose the criminal facts of other criminals will it be a confession, otherwise it will be witness testimony.
The statements and excuses of criminal suspects and defendants should be oral statements and fixed in the form of transcripts. At the request of the criminal suspect, defendant or case-handling personnel, the criminal suspect and defendant may also write their own confessions. Expert opinion refers to the written opinions put forward by the appraisers appointed or hired by the public security and judicial organs after appraising the specialized issues in the case. There are many professional problems that need to be identified in criminal cases, such as forensic medicine identification, forensic psychiatry identification, handwriting identification, trace identification, chemical identification, accounting identification and technical identification.
Expert opinion is an expert's analysis and judgment opinion on special issues from the perspective of science and technology, rather than an objective statement of facts directly perceived or hearsay. So unlike witness testimony, a witness can't be an expert at the same time. If the person appointed or hired already knows the case before the lawsuit, he can only be a witness, not an expert witness. The record of inquest refers to the records made by the case-handling personnel when they investigate and inspect the places, articles, traces and bodies related to the crime. Including written records, drawings, photos, videos, models and other materials. Records of inquests can be divided into records of on-site inquests, records of physical evidence inspection, records of corpse inspection, records of investigation experiments, etc.
Because the record of the inquest is an objective record of the object of the inquest by the case-handling personnel in accordance with legal procedures and using certain equipment and technical means, which is objective and reliable. Its main function is to fix the evidence and its various characteristics for further research and analysis, thus helping to find and collect evidence, determine the direction of investigation, expose and confirm criminals, identify the authenticity of other evidence and determine the facts of the case.
Whether the record of the inquest is comprehensive and accurate is often influenced by subjective factors and objective conditions, and it must be examined and verified before it can play its role as the basis for finalizing the case.
(2) Inspection records
Inspection record refers to the objective record made by the case-handling personnel after inspection and observation in order to determine some characteristics, injuries or physiological conditions of the victims, criminal suspects and defendants. Inspection records are mainly written records, and other methods that are conducive to accurate and objective records can also be adopted.
Physical examination must be carried out in strict accordance with legal procedures, and when necessary, personnel with specialized knowledge can be assigned or hired to assist the case handlers.
The record of the inquest and the conclusion of the appraisal are two different kinds of evidence and cannot be confused. The main differences between them are as follows: (1) Records of inquests and inspections are made by case-handling personnel, and expert conclusions are made by appraisers appointed or hired by case-handling organs; (two) the record of the inspection is an objective record of what you have seen and heard, and the main content of the appraisal conclusion is scientific analysis and judgment; (3) The records of inquests and inspections are mostly for solving general problems, while the expert conclusion is for solving special problems in the case. Audio-visual materials refer to information stored in audio and video recordings, electronic computers or other high-tech equipment, which proves the true situation of a case. Audio-visual materials are important products and advanced achievements of modern high-tech development, and their application in criminal proceedings is also one of the important signs of the development of legal research and judicial practice.
Audio-visual materials have the following characteristics: (1) various forms, strong intuition, objective truth and rich content; (2) easy storage, small occupied space, and convenient transmission and transportation; (3) Repeatable, easy to use as evidence, and easy to operate during examination and verification; (4) the possibility of being forged or altered; (5) Require high technical content, and constantly update and change with the development of science and technology. (1) Collecting criminal evidence
Collecting evidence refers to the legal activities of public security and judicial organs and lawyers to collect evidence and evidence materials in accordance with the scope and procedures prescribed by law in order to prove the specific facts of the case. Collecting evidence is the primary work of using evidence, the premise of analyzing and studying cases, and the basis of judging and identifying the facts of cases. Without investigation, there is no right to speak, let alone the right to decide and deal with it. Only by collecting evidence well can we provide sufficient and reliable evidence materials for reviewing evidence and using evidence to determine the facts of the case. If the work of collecting evidence is not done well and the necessary evidence materials are lacking, the so-called use of evidence to find out the facts of the case is empty talk. In this case, it is still impossible to find out the facts of the case without further re-collecting evidence. Therefore, collecting evidence is a very important basic work to find out the facts of a case by using evidence.
The purpose of collecting evidence is to truthfully reflect the true nature of the facts of the case. Find out the truth of the case, and on the basis of obtaining sufficient and reliable evidence, make a correct conclusion about whether the criminal suspect or defendant committed a crime and what crime he committed. A lot of evidence collection work is carried out in the investigation stage, and collecting evidence is the main task of investigation work. However, in the stage of prosecution and trial, if the evidence is insufficient and untrue, the people's procuratorate and the people's court also need to investigate and collect evidence. The scope of collecting evidence is extensive, and all kinds of evidence related to the facts of the case should be collected. According to the different characteristics of specific cases, we should seize the key issues and collect all kinds of evidence related to the case.
(2) Examination of criminal evidence
The review of criminal evidence refers to the judicial personnel's analysis and research on all kinds of evidence materials that have been collected, examination and judgment, identification of authenticity, in order to determine whether each piece of evidence has probative force and the size of probative force, and make a realistic conclusion on the facts of the whole case.
Generally speaking, the review of criminal evidence should include the following three steps:
1. Personal comments. Independent review is to examine each piece of evidence separately, that is, to examine and judge the source and content of each piece of evidence and its connection with the facts of the case to see whether it is true and reliable and how much probative value it has. For those evidence materials that are obviously false and have no probative value, they can be screened out after separate examination. The independent review of evidence materials can be conducted in two orders. One is to examine the evidence materials one by one in chronological order, that is, in the order of the facts of the case proved by the evidence materials. This applies to cases where the time sequence of evidence materials is relatively clear. The other is to examine the evidence materials one by one according to the primary and secondary order, that is, according to the primary and secondary relationship of the case facts proved by the evidence materials and the primary and secondary relationship of the evidence materials themselves. This applies to cases with clear core facts and evidence.
2. Compare comments. Comparative review is to compare and contrast two or more evidence materials in a case to prove the facts of the same case, and to see whether its contents are consistent with the reflected situation and whether it can reasonably prove the facts of the case. In general, consistent evidence materials are often reliable, while contradictory evidence materials may have problems with one or both of them. Of course, we should not blindly believe the evidence materials that are consistent with each other, because collusion, perjury, torture and other factors may also cause false consistency; However, we should not completely deny the contradictory or different evidence materials, but also carefully analyze the reasons and nature of the contradiction or different evidence materials, because it is inevitable that there are differences between different evidence materials. The key of comparative test is not to find out the similarities and differences of evidence materials, but to analyze these similarities and differences to see if they are reasonable and conform to objective laws. There are two basic forms of comparative review: one is vertical comparative review; The other is horizontal comparative review. The former refers to the comparison of multiple statements about the facts of the same case provided by one person to see whether the contents of their statements are consistent and contradictory. The latter refers to comparing different evidences proving the facts of the same case or evidences provided by different people side by side to see whether their contents are consistent and whether there are contradictions.
3. Comprehensive review. Comprehensive review is a comprehensive analysis and study of all the evidence materials in the case to see whether their contents are coordinated with the reflected situation, whether they can confirm and match each other, and whether they can fully prove the true situation of the case. The key to comprehensive review is to find and analyze contradictions, so as to make an overall evaluation of the evidence materials in the case. A comprehensive review should not only examine the authenticity and reliability of the evidence, but also pay special attention to the probative value of the evidence, so that the evidence in the whole case can form a complete chain of proof and the case can be reasonably explained without doubt.
(c) Use of criminal evidence
The application of criminal evidence refers to that the public security judicial personnel determine the case according to the verified evidence after reviewing and verifying the collected evidence materials.
There are both connections and differences between using evidence to finalize a case and examining and judging evidence. The connection between the two is manifested in the use of evidence to finalize the case, which is often combined with the review and judgment of evidence. At all stages of criminal proceedings, there is a gradual and in-depth understanding process for public security judicial personnel to use evidence to finalize the case and examine and judge the evidence. With the progress of criminal proceedings, public security judicial personnel will constantly improve the examination and judgment of evidence and the identification of cases. Through different criminal proceedings, repeated inspections, checks at different levels, examination and judgment of evidence by public security and judicial personnel, and determination of cases must meet the requirements of clear criminal facts and reliable and sufficient evidence. To say that there is a difference between the two means to examine and judge the authenticity of the evidence and the probative force of the case facts, mainly to examine the single evidence itself and judge the probative force of the single evidence to the case. To finalize a case with evidence means to make a judgment on the facts of the case on the basis of examining and judging a single evidence, that is, to finalize a case with evidence.
According to the relevant provisions of China's criminal procedure law and judicial practice experience, we should grasp the following points when using evidence to finalize the case:
1. The principle of emphasizing evidence, investigation and study, and not trusting confessions. Article 46 of the Criminal Procedure Law stipulates that evidence, investigation and study should be emphasized in the trial of all cases, and confessions should not be trusted. If only the defendant confesses and there is no other evidence, the defendant cannot be found guilty and punished; If there is no confession from the defendant and the evidence is sufficient and reliable, the defendant may be found guilty and punished. This provision requires judicial personnel to pay special attention to the investigation and use of evidence other than confession. Emphasize investigation and study, and the decision to handle a case should be based on sufficient and reliable evidence. Because for judicial personnel, the facts of the case are unknown things that happened in the past. Only by going deep into reality, investigating and studying, collecting all kinds of evidence under the umbrella, and through analysis and research, reviewing and judging, can we draw a correct conclusion. At the same time, be cautious about confession, never believe it easily, let alone make a final decision based on it. In * * * cases of the same crime, only the mutual confession of the co-defendants and no other evidence can generally not convict and punish the defendants.
2. The principle of extorting confessions by torture is strictly prohibited. Article 43 of the Criminal Procedure Law stipulates that extorting confessions by torture and collecting evidence by threats, enticements, deception or other illegal means are strictly prohibited. We must ensure that all citizens who are related to or know the case have the conditions to provide evidence objectively and fully. At the same time, in order to ensure the implementation of this provision, Article 247 of the Criminal Law specifically stipulates the crime of extorting confessions by torture. State functionaries who extort confessions from criminals by torture shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. Whoever is disabled by corporal punishment shall be given a heavier punishment for the crime of injury. These regulations show that extorting confessions by torture is a method of collecting evidence strictly prohibited by our laws. Extorting a confession by torture refers to the use of corporal punishment or disguised corporal punishment to force the defendant to confess. It is forbidden to use this method to extract confessions not only when interrogating the defendant, but also when interrogating other participants in the proceedings. China is a country under the people's democratic dictatorship. The nature of the country and the principle of socialist legal system determine that extorting confessions by torture is strictly prohibited. According to the spirit of judicial interpretation, the confession of the suspect, the statement of the victim, the testimony of the witness and the expert conclusion collected by extorting a confession by torture cannot be used as evidence to identify the alleged crime. The collection of the above-mentioned evidence by threats, enticements, deception or other illegal methods, which seriously damages the legitimate rights and interests of criminal suspects, victims, witnesses and expert witnesses, or may affect the objective authenticity of the evidence, cannot be used as evidence for identifying suspected crimes. Physical evidence and documentary evidence collected by illegal means, which can prove the true situation of the case after examination and verification, can be used as evidence to identify the alleged crime. But those who break the law should be held accountable. Practice has proved that extorting confessions by torture completely violates the concept of seeking truth from facts and is also an important cause of unjust, false and wrong cases. Therefore, there are prohibitive provisions in the law that require judicial personnel to abide by this principle when collecting and using evidence.
3. All evidence must be verified before it can be used as the basis for determining the facts of the case. China's criminal procedure law clearly stipulates that all kinds of evidence must be verified before it can be used as the basis for deciding a case. In other words, the subjective understanding of judicial personnel must completely conform to the objective case, and the facts of the case must be objective and true, not "possibly true" or "possibly true". Evidence is the basis for finding out and determining the facts of a case, and it must be verified and reliable before it can be used as the basis for deciding a case. Any evidence that has not been verified, the source is unknown and the authenticity is unknown cannot be used as the basis for finalizing the case. Judicial personnel must carefully examine and judge all kinds of evidence materials collected and verify them as the basis for finalizing the case. In particular, judicial personnel must personally examine and verify all kinds of evidence in court, and all the evidence on which the case is finalized must be investigated and verified by the court, and the parties, defenders and agents are allowed to distinguish the authenticity of the evidence and express their opinions. All the evidence must be investigated and verified by the court before it can be used as the basis for finalizing the case. If the evidence is used as the basis for deciding the case without verification, it will violate the principle of evidence use and will inevitably lead to misjudged cases.
4. The facts of the case are clear and there is corresponding evidence to prove it. The evidence is true and sufficient, excluding all doubts and other possibilities between the evidence and between the evidence and the case, and making a conclusion according to law; If the facts of the case are partially clear and the evidence is indeed sufficient, a partial conclusion shall be made according to law; Make a conclusion that the facts are unclear and the evidence is insufficient according to law; If the people's court discovers new facts during the trial, which may affect the determination of the case, it shall advise the procuratorial organ to supplement or change the prosecution. If the procuratorial organ disagrees, the people's court shall determine the criminal facts alleged in the indictment according to law; Cases with insufficient evidence shall be treated as innocent; "Suspected crime" caused by insufficient conviction evidence should also be regarded as innocence. According to the provisions of the Criminal Procedure Law, if the defendant cannot be found guilty due to insufficient evidence after trial by the court, a verdict of innocence shall be made, because the accused crime cannot be established due to insufficient evidence.
We must be loyal to the principle of truth. Article 44 of the Criminal Procedure Law stipulates that the approval of arrest, the indictment of the public security organ, the indictment of the people's procuratorate and the judgment of the people's court must be faithful to the facts. Anyone who intentionally conceals the truth shall be investigated for responsibility. This provision shows that judicial personnel must treat evidence with a scientific attitude, respect objective facts and truthfully reflect them. In the process of collecting and using evidence, once mistakes are found, they should be corrected realistically. At the same time, we should dare to uphold the truth, eliminate all kinds of interference and pressure, and strive to find out the truth of the case. Never be swayed by considerations of gain and loss, yield to power, conceal facts, distort facts, fabricate facts, arbitrarily choose or reject evidence or arbitrarily infer according to your own subjective needs. If the judicial personnel deliberately conceal the truth of the case, no matter what his motives are, he should be held accountable. Article 399 of the Criminal Law stipulates that: bending the law, a judicial officer, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention if he causes a person who knows that he is innocent to be prosecuted, intentionally shields a person who knows that he is guilty from prosecution, or intentionally violates facts and laws and perverts the law in criminal trial activities; If the circumstances are particularly serious, he shall be sentenced to fixed-term imprisonment of not less than 5 years 10 years; If the circumstances are particularly serious, he shall be sentenced to fixed-term imprisonment of 10 years or more.
6. How to use indirect evidence? The problem of indirect evidence is an important and complicated problem in evidence theory and litigation practice. Many problems in evidence theory are closely related to indirect evidence. The nature, characteristics and significance of indirect evidence, as well as the relationship between indirect evidence and case facts, need to be studied in depth from the evidence theory. Judging from the litigation practice, most criminal cases begin with the discovery, collection and research of indirect evidence because of its wide sources and easy collection. Analyze the existing indirect evidence, determine the direction and scope of investigation, affirm the relevant situation, exclude irrelevant situations, and then look for direct evidence or verify direct evidence. At the same time, there are also many cases in which the facts are ascertained and identified on the basis of indirect evidence. Therefore, indirect evidence is a very important problem to find out the facts of a case.