What is a tainted witness ● A tainted witness is a special witness. He is a participant in criminal activities and is tainted with crime. He can testify for the national public prosecution agency in exchange for exemption from criminal prosecution or lighter or mitigated charges.
China's law does not clearly stipulate the tainted witness system, but in practice, tainted witnesses are also used to testify against other defendants.
Improper use of tainted witnesses may hinder the realization of social justice. Therefore, the use of tainted witnesses should be regulated.
A tainted witness refers to a person who cooperates with the state procuratorial organ as a prosecution witness to testify against other criminals in order to reduce or exempt himself from criminal responsibility. A tainted witness is a special witness. Different from ordinary witnesses, he is a participant in criminal activities, tainted with crime, not innocent, and his behavior has already met the constitutive requirements of crime in criminal law. The tainted witness has the following characteristics: (1) The tainted witness is the first person to know the case; (two) the crime is in line with the provisions of the criminal law, and it is a real crime that has not yet been sentenced to punishment; (3) testifying against others as a prosecution witness on the basis that the state procuratorial organ promises to reduce or exempt its criminal responsibility. That is, the person testifies for the national public prosecution agency in exchange for being exempted from criminal prosecution or being given a lighter or mitigated charge.
The tainted witness system has been used in criminal proceedings in many countries and regions. For example, in the United States, it is quite common for prosecutors to bargain with some defendants who have committed the same crime in exchange for the testimony of the defendants. Evidence of the use of tainted witnesses by federal prosecutors can be found in Article 1 1 (e) of the Federal Rules of Criminal Procedure, which stipulates that "a prosecutor who pleads guilty to an accused crime, a minor crime or other related crimes shall do the following: (a) file a dismissal of other charges; Or (b) suggest that the court sentence the defendant to a certain penalty, or agree not to object to the defendant's request for a certain penalty; Or (c) it is appropriate to agree to impose a certain penalty on this case. " The United States "Federal Sentencing Guide", "Federal Sentencing Reform Act" and "Federal Criminal Liability Immunity Act" all have relevant provisions authorizing prosecutors to obtain the true testimony of defendants through plea bargaining. 1998 U.S.A v. Singleton also confirmed that it is not illegal for prosecutors to exchange testimony by reducing the punishment of tainted witnesses. Canada, Australia and New Zealand also use tainted witnesses in specific cases. In China SAR, tainted witnesses are often used to gain judicial immunity in order to crack down on triad forces and other serious criminal offences.
The reason why the tainted witness system is recognized is that (1) according to the requirements of the principle of presumption of innocence and the principle of burden-sharing of proof, the state public prosecution organ needs to bear almost all the burden of proof and proof in criminal cases. If the evidence he has is not enough to convict, he will bear the consequences of losing the case. Therefore, the prosecution is under great pressure to obtain evidence in criminal cases. In bribery crimes, accomplice crimes and organized crimes, criminal acts are often very hidden, and it is difficult to collect other evidence because criminals often form an offensive and defensive alliance. Therefore, it is very necessary to use the participants in criminal activities to prove the crime; (2) According to the principle that no one can be forced to testify against himself, the defendant has no obligation to present any statement or other evidence that may put him at a disadvantage to the court, and the prosecution shall not take any coercive measures to force him to make a statement or provide evidence on the facts of the case. Therefore, although the tainted witness knows the true situation of the case, he is not obliged to identify others as the prosecution witness. In order to use tainted witnesses to identify other criminals who have committed more serious crimes, they need to be given certain benefits and rewards in exchange for their testimony in court.
China's law does not clearly stipulate the tainted witness system, but Article 86 1 of China's Criminal Law stipulates: "If a criminal has made meritorious deeds such as exposing other people's criminal acts, verifying them, or providing important clues to solve other cases, he may be given a lighter or mitigated punishment; Those who have made significant meritorious deeds may be mitigated or exempted from punishment. " The so-called "significant meritorious service", according to the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Law in Handling Voluntary Surrender and Meritorious Service Cases, refers to the act of reporting and exposing other people's major criminal acts that may be sentenced to life imprisonment or more, or providing clues for the detection of equally serious criminal cases. In fact, tainted witnesses are also used to testify against other defendants. Among them, a typical case is that in the process of Chongqing No.1 Intermediate People's Court 1999 hearing the collapse of Qijiang Hongqiao, the procuratorate refused to prosecute the briber Fei Mou for accepting bribes in order to obtain evidence accusing the defendant Lin Mou, and he identified Lin Mou as the prosecution witness. Later, when Lin was sentenced to death, he was given a lighter punishment by the court because he actively reported and exposed the criminal facts of others and took the initiative to act as a prosecution witness. The immediate execution of the death penalty was changed to a two-year suspension. Practice has proved that the use of tainted witnesses is an effective means to combat crime.
First of all, in today's increasingly hidden crime, it is very necessary to use criminal participants to prove the crime; Secondly, from the perspective of safeguarding the interests of the country and society, it is the best choice if necessary to exempt those who commit minor crimes from prosecution or reduce charges in exchange for investigating criminals who commit serious crimes and have great social harm; Third, the use of tainted witnesses is conducive to dividing criminals, implementing the policy of being frank and lenient, and promoting some criminals to admit their crimes, repent and turn over a new leaf, and return to society as soon as possible; Fourthly, from the point of view of using evidence to prove the facts of the case, because tainted witnesses have participated in all or part of the crime, they often have more and more detailed understanding of the facts of the case, so they have incomparable advantages over other evidence; Fifth, the use of tainted witnesses is conducive to effectively collecting other evidence and saving the cost of solving crimes.
However, we must also see that improper use of tainted witnesses may hinder the realization of social justice, ignore crimes, or wronged innocent people, or infringe on the fair trial rights of convicted defendants. Therefore, the use of tainted witnesses should be regulated. Specifically, to construct the tainted witness system in China, we should solve the following problems: First, limit the scope of accepting cases. On the one hand, we should consider the harmfulness of crime to society, and at the same time, we should consider the practical needs of collecting evidence to prove crime. Accordingly, it can be defined as organized crime, bribery crime, accomplice crime and other cases; Secondly, establish the principle that solitary evidence cannot be convicted. Accusing and finding the defendant guilty requires other auxiliary evidence besides tainted witnesses; Third, we should consider the specific situation of tainted witnesses participating in the crime and their role in the crime. Those who are not prosecuted or exempted from punishment because they act as tainted witnesses should be criminal participants who play a secondary role in the crime, such as those who only participate in the crime, accomplices and coerced accomplices. , but not the organizer, leader or main executor of the crime; Fourth, the charges against tainted witnesses shall not be accused or mitigated, and shall not harm judicial dignity and social interests. Therefore, it is necessary to establish a review and restriction mechanism within the procuratorial organs. This factor should also be fully considered in court trials.
What is a tainted witness? The so-called exemption of tainted witness testimony transaction refers to a criminal judicial measure that people with criminal stains can be exempted from criminal prosecution or given a lighter or mitigated punishment or exempted from punishment for testifying for national interests. According to the concrete practice in the case of Qijiang Hongqiao, we can sum up the following basic elements of this concept: _
1. The witness is tainted with crime. A tainted witness is a witness at first. A tainted witness. According to the general theory in China's legal circles, a witness is a natural person who knows the case outside the parties and can correctly express it to the judicial organs. In other words, the witness does not include the parties to the case. China's criminal procedure law divides witness testimony, confession and defense of criminal suspects and defendants, and victim's statement into three different kinds of evidence, and the status of witnesses and parties in litigation is also very important. In theory, accomplices are not allowed to be witnesses to each other, because their status is the same, and the statement of the case belongs to the confession and defense of the suspect and the defendant. However, an accomplice who has not been investigated for criminal responsibility can testify as a witness about the case he knows. Criminal suspects and defendants in different cases can testify to each other. In this case, Lin Shiyuan and Fei Shangli are not accomplices, but accomplices. The judiciary divided them into two cases for prosecution and trial. On the one hand, this is based on the complexity of the case, the large number of defendants involved and the ease of operation. On the other hand, it may be to solve the witness qualification problem of Fei Shangli's bribery crime against Lin Shiyuan, so as to stain the witness. If the two cases are tried together, Fei Shangli and Lin Shiyuan are charged with different crimes, but they are both defendants. Fei Shangli's factual statement about Lin Shiyuan's bribery belongs to the defendant's confession and defense, not to the witness's testimony. According to Article 46 of China's Criminal Procedure Law, "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 true, the defendant can be found guilty and punished. " The strongest evidence that the prosecution accused Lin Shiyuan of taking bribes was Fei Shangli's statement. Defendant Lin Shiyuan never admitted the fact of accepting bribes, and provided written evidence of tainted witnesses to refute the charges. In this case, according to the usual understanding, whether the evidence stated by Fei Shangli is the confession and defense of the defendant or the testimony of a witness is very important for the determination of the crime of accepting bribes. It can be seen that the procuratorial organ in charge of the accusation is ingenious in the use of evidence in this case. Lin Shiyuan and Zhang Kaike are defendants in different cases, and Lin Shiyuan's statement to the judicial authorities about Zhang Kaike's criminal facts is a typical witness testimony. To sum up, the most common tainted witness, like the person involved in this case, is related to the crime of the suspect or defendant, but has nothing to do with it. In underworld crimes and drug crimes, undercover agents sent by the police or informants involved in crimes also belong to tainted witnesses related to the defendant's crimes. _
The difference between a tainted witness and an ordinary witness is that he (she) is defiled by crime, not an innocent person, and his (her) behavior has the constitutive elements of crime in criminal law. If the witness himself has never committed a crime, even if he has made a serious mistake, such as violating party discipline, political discipline or morality, he will not become a tainted witness as mentioned here. The criminal stain of tainted witness can only be present, not historical, and the time limit between them is based on whether the crime has been handled, including the execution of punishment. If a witness has been punished for a crime in the past and the punishment has been executed, then the witness is not a tainted witness, but an ordinary witness, and his past crimes have nothing to do with his current testimony. _
2. The tainted witness testifies for the national interest. Testifying for the national interest is to be a witness for the prosecution, to help the prosecution accuse the crime and prove the crime. Procuratorial organs, as representatives of national interests, exercise the function of accusation in criminal proceedings, take charge of bringing public prosecution cases, ask the court to try crimes and impose criminal penalties on criminals, thus safeguarding national and social interests and maintaining social order. Procuratorial organs should provide evidence of the establishment of a crime when accusing, otherwise, according to the modern principle of burden of proof, procuratorial organs will bear the consequences of losing the case. Therefore, it is very important for procuratorial organs to obtain evidence of defendants, including tainted witness testimony. The interests involved in criminal proceedings include not only national interests, but also the personal interests of private prosecutors or victims, criminal suspects and defendants. Private prosecutors or victims also have the right to accuse crimes for their own benefit. In modern litigation, both criminal suspects and defendants enjoy the right of defense endowed by the Constitution, and have the right to provide evidence to refute the accusation of the procuratorate and safeguard their legitimate rights and interests. In other words, all stakeholders in litigation can prove their claims with evidence. The content of tainted witness testimony may be beneficial to the state, the private prosecutor or the victim and the defense. The content of testimony is determined by the tainted witness's understanding of the case, not his subjective and arbitrary tendency. However, only when the testimony of tainted witnesses is beneficial to the state and procuratorial organs to accuse crimes, it is possible for tainted witnesses to obtain judicial immunity. In this case, the testimony of Fei Shangli and Lin Shiyuan is conducive to investigation and prosecution. _
3. The tainted witness provided important evidence of accusation. Not all tainted witnesses who testify for national interests can get judicial immunity, and which tainted witnesses are granted judicial immunity by the state depends on the situation. Paragraph 1 of Article 68 of China's Criminal Law stipulates that "criminals can obtain judicial immunity only if they have made meritorious deeds such as exposing other people's criminal acts, verifying them, or providing important clues for solving other cases". Combined with the case, the testimony of a tainted witness who has obtained judicial immunity should meet three conditions: (1) The testimony is the initial evidence or clue evidence to discover the crime, that is, the first case to expose others' crimes; (2) Testimony is a rare evidence to prove a crime, and it is direct evidence. (3) According to the testimony, the criminal facts were found out. These three requirements explain the importance of tainted witness testimony to conviction and are the selection criteria for the state to grant tainted witness judicial immunity. _
4. The tainted witness is exempt from criminal trial. The immunity from criminal justice here means that according to the criminal acts of tainted witnesses and the relevant provisions of the criminal law, such criminal acts of witnesses should be investigated or severely punished by the state. However, due to the special reasons of witnesses testifying for national interests, the state decided to give up all or part of the punishment right for their criminal acts. The essence of criminal judicial immunity is the abandonment of state punishment right. The crime of tainted witness should be prosecuted or severely punished, but the state gives up the prosecution or severely punished just because he testifies for the national interests, which is different from the situation that the actor refuses to prosecute because he does not constitute a crime or should be given a lighter, mitigated or exempted punishment according to law because the circumstances of the crime are minor. The criminal judicial immunity of tainted witnesses can be divided into complete immunity and partial immunity, both of which are based on a certain crime. Complete immunity means that the state does not prosecute a specific crime of tainted witnesses, no matter how serious it is; Partial immunity means that the state gives a lighter or mitigated punishment or gives up part of the punishment right, although it is to investigate the crime of a specific tainted witness. The former, such as the prosecution's abandonment of the crime of bribery for profit, and the latter, such as the court's lenient judgment on Lin Shiyuan's bribery crime. If a prisoner testifies for the national interest, in practice, his sentence will usually be reduced. _ 5. The judicial organs have discretion on the degree of judicial immunity of tainted witnesses. The law provides for a lighter, mitigated or exempted punishment for tainted witnesses to testify, and the judicial organs have the right to handle it as appropriate within this limit. In practice, the procuratorate and the court have different understandings of the scope of judicial immunity of tainted witnesses. Usually, the court will not give full judicial immunity to the accused tainted witness's crime, but will only give a lighter, mitigated or exempted punishment after conviction, or reduce the sentence on the basis of the original judgment. Lighter and mitigated punishment has certain limits in criminal law, so the court has less discretion. Of course, in this case, the court of second instance only made a "lighter" judgment on Lin Shiyuan, but did not make a "lighter" judgment on his "significant meritorious service", which is obviously inconsistent with the legal provisions and belongs to the problem of illegality rather than discretion. The procuratorate can grant complete judicial immunity to tainted witnesses, such as not prosecuting; It is also possible to grant partial judicial immunity to prosecute crimes less serious than those committed by tainted witnesses. Judging from this case, the procuratorate can grant complete immunity to the tainted witness regardless of the severity of the crime. Defendant Lin Shiyuan was sentenced to death for accepting bribes, which shows the seriousness of this crime. However, the tainted witness Fei Shangli, who paid bribes to Lin Shiyuan and also caused serious consequences, was not prosecuted by the procuratorate for accepting bribes, which shows that the procuratorate enjoys great discretion in the issue of judicial immunity of tainted witnesses. _
(2) The definition of nature _
The exemption of tainted witness transaction in China is essentially a judicial transaction. This kind of judicial transaction is an exchange of judicial interests between the judicial organs and the tainted witnesses identified in China's criminal law in order to achieve their respective judicial purposes. The contents of this transaction are as follows: the judicial organs give up certain punishment rights for tainted witnesses in exchange for strong evidence to find and accuse others of crimes, and the realization of the state punishment rights has not decreased on the whole; A tainted witness is exempted from criminal investigation or given a lighter, mitigated or exempted punishment by providing assistance to the judicial organs in the proceedings. _
This kind of judicial transaction is legally recognized in China. For example, when the criminal law of our country stipulates the crime of bribery and its punishment, it also stipulates that "if a briber voluntarily confesses to accept bribes before being prosecuted, the punishment may be mitigated or exempted". Bribery and bribery are compatible, and the briber's confession will inevitably expose the briber's bribery behavior. It can be seen that the legislation specifically stipulates the crime of accepting bribes with the special purpose of encouraging surrender and giving testimony. If it is only to encourage surrender, it would be superfluous, because there are special provisions in the general principles of criminal law. Another example is Article 68, paragraph 1 of the Criminal Law: "Criminals who have made meritorious deeds, such as exposing other people's criminal acts and verifying them, or providing important clues to solve other cases, may be given a lighter or mitigated punishment; It is an obvious rule in judicial transactions that people who have made great meritorious service can be relieved or exempted from punishment. The so-called significant meritorious service, according to the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Voluntary Surrender and Meritorious Service Cases (1published on April 6, 1998), refers to the act of exposing and reporting other people's major criminal acts that may be sentenced to life imprisonment or more, or providing clues for the detection of equally serious criminal cases. According to this standard, in this case, Fei Shangli's accusation and testimony against Lin Shiyuan and Lin Shiyuan's accusation and testimony against Zhang Kaike all made significant contributions, so they were granted different degrees of judicial immunity. _
Judicial transaction is an extension of plea bargaining. The so-called plea bargaining refers to a criminal justice way in which the prosecutor negotiates and bargains with the defense lawyer before the trial begins, and the prosecutor withdraws an accusation or lowers the accusation or puts forward a commutation proposal to the court in exchange for the defendant's confession. Plea bargaining is a judicial transaction between the prosecution and the defense. Plea bargaining first appeared in America. In the 1920s, many people held a firm negative attitude towards it. In the 1960s, plea bargaining was legalized in the United States. Then plea bargaining began to appear in Britain, Italy, Spain and Germany. At first, this kind of transaction was conducted among prosecutors, defenders and defendants, and later it developed into a judicial transaction beyond the scope of plea bargaining. For example, in Britain, defense lawyers and judges can also trade before or during the trial.
The British Court of Appeal reluctantly approved the transaction and provided relevant guidance: both defense lawyers and prosecutors should be present when dealing with judges. The defendant may not participate, but shall inform the contents of the transaction. Generally speaking, if the defendant pleads guilty, the sentence will be reduced by 1/4 to 1/3. "① Italian Criminal Procedure Law 1988 stipulates that the defendant and his lawyer can not only deal with the prosecutor, but also plead guilty to the judge, even if the prosecutor disagrees. The defendant benefited from this transaction by reducing the statutory penalty 1/3.
The immunity of tainted witness testimony transaction is another form of judicial transaction different from plea bargaining. The difference between them lies in: First, the participants are different. The former is between the tainted witness and the court or the investigation and control organ, and the latter is between the defendant and his defender and the procuratorial organ. Although in some countries, criminal suspects and defendants are regarded as witnesses when they state the case, tainted witnesses here exclude criminal suspects and defendants and are people other than criminal suspects and defendants. The other party to plea bargaining is the procuratorial organ. The court is neither the prosecution nor the subject of plea bargaining, and the negotiation between the court and the defense belongs to another type of trading behavior. The counterpart of tainted witness transaction can be the investigation and prosecution organ or the court. Second, the content of the transaction is different. In these two cases, the price paid by the state is the same, and both countries have given up certain punishment rights, but the obligations agreed by the other side are different. In plea bargaining, what the defendant should do is to admit his crime and save the prosecutor a certain burden of proof; Stained witnesses should not only admit their own crimes, but also actively testify against others' crimes, which will provide important help for judicial organs to find and prove crimes. In the latter case, it is not natural for a tainted witness to admit that he has committed a crime, or to be given a lighter or mitigated punishment. Drivers' organizations reward tainted witnesses for providing evidence when the state accuses and tries other criminals. In contrast, the former is a negative obligation and the latter is a positive obligation. Third, criminal policies are different. Admitting plea bargaining embodies the humanitarian spirit of lenient treatment for those who plead guilty and repent in different countries and the same requirements for improving litigation efficiency; The exemption of tainted witnesses from testifying reflects the state's encouragement to citizens who actively crack down on crime.
Will tainted witnesses be sentenced for testifying? A tainted witness can be sentenced for testifying, but he can be given a lighter or mitigated punishment; Those who have made significant meritorious service may be mitigated or exempted from punishment. A tainted witness refers to a person who cooperates with the state procuratorial organ as a prosecution witness to testify against other criminals in order to reduce or exempt himself from criminal responsibility.