The process that the court organizes the prosecution and the defense to have a qualitative debate on the three characteristics of evidence is generally called "cross-examination". Therefore, the cross-examination activities in China's judicial practice point to the three characteristics of evidence in content and object, which is called "three-nature cross-examination" mode in theory. From the perspective of both the prosecution and the defense, the qualitative debate on the nature of evidence is cross-examination, while from the perspective of judges, organizing cross-examination between the prosecution and the defense is an evidence investigation activity. Therefore, the "three-sex cross-examination" model is also the basic evidence investigation model in China's criminal trial.
In criminal cases, how to cross-examine the evidence of criminal cases?
I. Documentary evidence and material evidence
1. Documentary evidence refers to all articles, symbols and graphics that can find out the truth of a case according to the expressed thoughts and recorded contents. Its probative power is characterized by objective truth being stronger than verbal evidence. Therefore, the cross-examination of documentary evidence generally aims at:
(1) Whether documentary evidence is forged or altered, that is, whether it is original, original, duplicate or abridged, is controversial. This needs to explain the original extraction and discovery process;
(two) whether the documentary evidence is related to the facts of the case;
(3) Whether the channels for obtaining documentary evidence are legal;
(4) The conclusion of documentary evidence appraisal is controversial;
(5) Review the original author of documentary evidence and whether there is any contradiction with other evidence;
2. Physical evidence is all the items and traces that can be used to find out the real situation of a case. These items and traces include tools for committing crimes, objects infringed by acts, traces and objects left in the course of acts, and other items and traces that can expose and prove the occurrence of cases. Compared with other evidence, physical evidence is more intuitive and easy to grasp, and more objective and true than verbal evidence. The cross-examination of physical evidence is generally:
(1) Whether the material evidence is original, its collection method, source and preservation method;
(2) whether there is any connection with the facts of the case, that is, what is the objective connection with the main criminal facts and what evidence can be proved for the main criminal facts;
(3) Whether there is any other evidence to support it. Such as whether the murder weapon has been identified by the defendant, whether the blood is identified, whether it is consistent with the blood type of the victim or the defendant, whether there is testimony to prove who took the murder weapon, whether it is contradictory with other evidence, and whether it is reasonable to eliminate the contradiction;
Second, witness testimony.
Witness testimony refers to the statement of some or all the facts of a case made by a person who knows the true situation of the case to the case handler. A witness's statement can be heard or seen by himself or told by others. However, the source of information must be stated, and information that cannot be said or heard from hearsay cannot be used as witness testimony. As witness testimony is a statement made to the judicial organ by the witness's perception and memory of the facts of the case, every testimony is influenced and interfered by subjective and objective factors, and every witness will be influenced by personal perception, memory and expression ability, and mistakes will occur. In view of the instability and variability of witness testimony, the focus of cross-examination is:
(1) Whether the testimony was legally obtained. Several people participated in the inquiry, whether it was conducted alone, whether it was in compliance with legal procedures, whether it was extorted by torture, whether it was induced or deceived, whether the location of the inquiry was in compliance with the law, whether the defender asked whether the witness concerned had obtained the consent of the victim, whether it was approved by the relevant department, and whether the testimony obtained by the defender had been examined and prosecuted.
(2) Whether the source of witness testimony is direct or indirect;
(three) whether the testimony provided by the witness is illegally interfered by the outside world, whether it is instigated, bought or threatened by the parties or others;
(four) whether the witness and the parties have an interest in the case;
(5) How to express the witness's feelings about objective things, whether the statement is accurate and profound, the length of memory, the strength of language expression ability, the mental state when feeling things, and the objective environment when feeling things;
(six) whether there is any contradiction between the testimony of individual witnesses and other evidence;
(7) In addition, the character and criminal record of witnesses may also be questioned. If the witness's testimony is repeated many times and there is a record of administrative or criminal punishment, the probative force of the evidence can be reduced.
Three. Statements and excuses of criminal suspects and defendants
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. Because the suspect and the defendant are the center of criminal proceedings, the outcome of the case has a vital interest with him. His position determines that the statements and excuses of criminal suspects and defendants are more likely to be false or mixed. Based on this, court cross-examination should pay attention to:
(1) To analyze the rationality of confession, it is necessary to combine cases;
(two) analysis of the motives and conditions of the defendant's confession;
(3) There is no illegal act in interrogating the defendant. Many defendants retract their confessions because they extort confessions by torture, and the defense will also seize this point;
(4) Whether there is any contradiction between the confession of the defendant and the confession of the co-defendant and other evidence;
Fourth, the victim's statement
The victim's statement is true and reliable in most cases. But as a victim, he hates and fears the defendant, so his statement is not objective, and it is also subjective and variable evidence. The focus of this cross-examination is:
(1) The usual relationship between the victim and the defendant and the ideological quality of the victim;
(2) Whether the source of the victim's statement is direct or indirect;
(3) Whether the contents stated by the victim are contradictory;
(4) Pay attention to whether the young victim's statement is consistent with his age and language skills;
Verb (abbreviation of verb) evaluation conclusion
Expert conclusion refers to the use of specialized knowledge to identify the specific problems of a case, which is the identification and judgment made by using specialized knowledge, and also becomes an important means to review or identify other evidence. The key points of cross-examination are:
(1) Appraiser's qualification, whether the employment is legal, and whether the appraisal is influenced by external and personal factors;
(2) Whether the materials on which the assessment is based are sufficient and reliable;
(3) whether the argument is sufficient, whether the inference is reasonable, and whether all suspicious circumstances are ruled out;
(4) Whether the appraiser has the professional knowledge and experience to solve the appraisal problems, whether the equipment used is perfect, and whether the methods and operating procedures adopted are scientific.
Six, the inquest and inspection record
The record of inquest and inspection is an objective record of judicial personnel's investigation and research on the scene, articles and personnel related to crime. It plays an important role in correctly identifying the facts of the case and identifying the criminals. It is a kind of evidence with comprehensive proof function. The key points of cross-examination are:
(1) Whether the records of the inquest and inspection meet the statutory requirements, such as whether the personnel who carry out the inquest and inspection have the right of inquest and inspection, whether the witnesses are present, whether they are signed and sealed, etc.;
(2) Whether the contents recorded in the transcript are comprehensive and accurate, and whether there are any omissions in the field situation;
(3) Whether the on-site traces and articles recorded in the transcripts have been destroyed or forged, and whether personal characteristics, injuries or physiological conditions have been forged or altered;
(four) whether there is a direct connection with the facts of the case and whether there is any contradiction with other evidence;
Seven. audio-visual material
Audio-visual materials refer to audio and video materials that can reproduce the original sound and image of the case, related materials stored in computers and information provided by other scientific and technological equipment as materials to prove the true situation of the case. This is a kind of evidence closer to the real situation of the case, and its probative power has the characteristics of directness, image, accuracy, science and comprehensiveness. The cross-examination of this evidence focuses on:
Whether (1) has been forged, altered or edited, and whether it has been identified;
(2) Whether the acquisition method is legal;
(3) Whether it is related to the facts of this case and whether the main criminal facts can be confirmed.
In fact, whether it is criminal evidence, civil evidence or administrative evidence, it needs to meet the three characteristics of evidence, namely, the authenticity/objectivity, relevance and legitimacy of evidence. Only evidence that meets the three characteristics can prove the facts of the case, otherwise, it cannot be applied.