1 Does this case need to be appraised?
Appraisal is the process of solving special problems by people with special knowledge.
For example, in economic cases with a large number of victims, it is not feasible for investigators to simply add and subtract numbers, and forensic accounting appraisal is needed, which usually appears in cases with a large number of victims such as pyramid schemes, illegal fund-raising and online fraud.
Basis: Article 144 of the Criminal Procedure Law.
In order to find out the case, when it is necessary to solve the specialized problems in the case, personnel with specialized knowledge shall be employed for appraisal.
2 Appraisal qualification
Whether the appraisal institutions and appraisers have appraisal qualifications.
For example, when marking papers, lawyers should pay attention to whether the appraisal institutions and corresponding appraisers have the appraisal qualifications for appraisal issues. For example, the price appraisal needs the signature of the price appraiser, and the price appraiser cannot appraise it alone.
Cross-examination opinion: If the appraisal institution or appraiser does not have the corresponding appraisal qualification, there is objection to the legality of the appraisal opinion.
Basis: Interpretation of the Criminal Procedure Law
Eighty-fourth expert opinions should focus on the following contents:
(1) Whether the authentication institutions and authenticators have legal qualifications;
Article 85 An expert opinion under any of the following circumstances shall not be used as the basis for making a final decision:
(a) the appraisal institution does not have the legal qualification, or the appraisal matters exceed the business scope and technical conditions of the appraisal institution;
(two) the appraiser does not have legal qualifications, does not have relevant professional skills or titles, or violates the withdrawal regulations;
3. Inform the appraisal opinions
Whether the conclusion in the expert opinion is informed to the criminal suspect or the victim.
For example, the author once handled a case of illegally absorbing public deposits. The defendant didn't know the amount of his crime until he got the indictment, and the defense lawyer didn't find the Notice of Appraisal Opinion in this case through careful reading. The case-handling organ that led to this case did not fully protect the defendant's right to apply for re-appraisal.
Cross-examination opinion: the legality is controversial.
Basis: Article 146 of the Criminal Procedure Law.
The investigation organ shall inform the criminal suspect and the victim of the expert opinions used as evidence. If a criminal suspect or victim applies, he may make supplementary appraisal or re-appraisal.
Article 84 of the Interpretation of the Criminal Procedure Law should focus on the following contents: (10) Whether the expert opinions are informed to the relevant personnel in time according to law, and whether the parties have any objections to the expert opinions.
4 the authenticity of the evaluation conclusion
Whether the appraisal conclusion contradicts other evidence in this case.
For example, in the case of intentional injury, whether the appraisal opinions of relevant injuries are confirmed with the verbal evidence of this case and whether they are confirmed with the photos of on-site investigation.
Cross-examination opinion: There are objections to legality and authenticity.
Basis: Article 84 of the Interpretation of Criminal Procedure Law should focus on the following contents of the expert opinion:
(nine) whether the expert opinion is inconsistent with other evidence such as the inquest, inspection record and relevant photos;
5 identification method
Whether the appraisal method meets the requirements.
For example: drug characterization and content identification in drug crime cases. The current national standard for drug testing should be "Gas Chromatography, High Performance Liquid Chromatography and Gas Chromatography-Mass Spectrometry Testing Methods for Methamphetamine in Suspected Drugs" stipulated in the announcement (No.10,2013) approved by People's Republic of China (PRC).
The appraisal opinion of this case was issued by the Drug Inspection Center of Chongqing Public Security Bureau, and its inspection method was CQDJ-05-20 1 1, which was a local standard in Chongqing, not a national standard, and did not belong to the latest standard. Therefore, the appraisal method of the appraisal opinion is wrong, which violates the specific standards of appraisal and cannot be used as the basis for finalizing the case.
Cross-examination opinion: On the premise that the appraisal method is wrong, the defender disagrees with the legality of the appraisal opinion.
Basis: Article 23 of 20 16 General Rules of Judicial Appraisal Procedure;
Judicial appraisers shall abide by and adopt technical standards, technical specifications and technical methods in the professional field in the following order: (1) National standards; (2) Industry standards and technical specifications; (3) Technical methods recognized by most experts in this field.
Interpretation of criminal procedure law
Eighty-fourth expert opinions should focus on the following contents:
(six) whether the process and method of identification meet the requirements of relevant professional norms;
Article 85 An expert opinion under any of the following circumstances shall not be used as the basis for making a final decision:
(six) the identification process and methods do not meet the requirements of relevant professional norms;
6 sample extraction
Whether the source, acquisition, storage and inspection procedures of materials are legal.
For example, in drug characterization and content identification of drug crimes, the source of samples should be compared with the records of seizure and search to ensure the identity of samples; For the extraction of samples, we should pay attention to the procedure of checking whether the samples are sealed before extraction by meeting the defendant, watching synchronous audio and video recordings and consulting the extraction transcripts. For the inspected materials, it is important to check whether the inspection date is exceeded.
Cross-examination opinion: If the source and acquisition procedures of the inspection materials do not conform to the legal provisions and the identity of the inspection materials cannot be ensured, the defender has any objection to the legality, relevance and authenticity of the appraisal opinions. The defender has any objection to the legality of the appraisal opinions when the materials are submitted for inspection beyond the specified time; If the materials deteriorate due to the date of inspection exceeding the specified time, the defender has any objection to the legality, authenticity and relevance of the appraisal opinions.
Basis: Article 84 of the Interpretation of Criminal Procedure Law should focus on the following contents of the expert opinion:
(3) 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 articles, and whether the materials are sufficient and reliable;
(5) Whether the evaluation procedure complies with laws and relevant regulations;
Article 85 An expert opinion under any of the following circumstances shall not be used as the basis for making a final decision:
(3) The sources of the materials and samples submitted for inspection are unknown, or the identification conditions are not available due to pollution;
(four) the identification object is inconsistent with the materials and samples submitted for inspection;
Provisions of Chongqing Municipal Court, Procuratorate and Public Security Bureau on Drug Collection, Storage, Weighing, Sampling and Inspection
(4) Provisions on inspection and acceptance of drug samples
1. Time requirements for inspection
After the suspected drugs are seized, the samples shall be taken in time and sent to the appraisal institution for testing in time. In principle, the main city units should be submitted for inspection within 3 days, and suburban counties should be submitted for inspection within 5 days.
7 identification principle
Whether the principle of appraisal violates the spirit of criminal law.
For example, in economic crime cases, "judicial accounting appraisal" is often used. In the expert opinion, the expert principle is obscure and professional, but as long as the principle of "the interests of doubtful points belong to the defendant" is followed, the defense lawyer will still find clues.
Excerpt of Appraisal Opinions: Principles of Audit Appraisal
1. If there is a victim's inquiry record, the victim's inquiry record shall be compared with the contract and ledger, and confirmed according to the recorded amount;
2. If there is no record of the victim's inquiry, compare the amount of the contract with the amount of the account book. If the contract is incomplete, it shall be confirmed according to the larger amount of both.
Cross-examination opinion: There are objections to legality, relevance and authenticity. The amount of investment should be determined according to the principle of "benefiting the defendant", not according to the larger amount of the two.
8 Sufficient inspection materials
Check whether the samples are sufficient and reliable.
For example, in pyramid schemes, online fraud and illegal fund-raising cases, the judicial accounting audit should take the collected testimony of victims or investors as the examination materials, and only stipulate that pyramid schemes and online fraud cases clearly stipulate that due to the limitation of the large number of victims and other objective conditions, it is impossible to collect the victim statements one by one, and the number of victims can be comprehensively determined by combining the collected victim statements, as well as verified bank account transaction records, third-party payment and settlement account transaction records, telephone records, electronic data and other evidence. Other crimes do not stipulate that it is not necessary to collect all victim statements and investor testimony.
Cross-examination opinion: In cases other than pyramid selling and online fraud, if the testimony of all victims cannot be used as evidence to determine the amount of crime, the defender has any objection to the legality and authenticity of the expert opinion. Because without the testimony of investors or victims, the bank transaction flow can only prove the existence of funds between bank accounts, but can't prove that all the money generated on the payment platform is the investment money voluntarily delivered by investors based on misunderstanding, and the contract and account amount can't prove that the defendant defrauded the investors' money, so the determination of the crime amount in this case should be based on the testimony of all the victims.
Basis: Article 84 of Judicial Interpretation of Criminal Procedure Law.
Appraisal opinions should focus on the following contents:
(3) 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 articles, and whether the materials are sufficient and reliable.