1. Theoretical basis of police testimony
1. Prosecution and police integration theory. In order to improve litigation efficiency, save litigation costs, and ensure the success of prosecutions, based on the same prosecutorial functions of procuratorial organs and investigative agencies, whether in civil law countries or common law countries, procuratorial organs are generally given the right to command and participate in investigation activities , guidance power and supervision power, which is the so-called "procuratorate and police integration." [1] Under the integrated model of prosecutors and police, the police are the natural assistants and supporters of prosecutors. On the one hand, during the investigation stage, the police must carry out investigation work under the leadership and command of the prosecutor, collect evidence according to the prosecutor's request, arrest criminal suspects or take coercive measures until the prosecutor considers that the evidence is sufficient to ensure a successful prosecution. On the other hand, during the court hearing, the police shall conduct supplementary investigations and present new evidence materials at the request of the public prosecutor, or when necessary, the public prosecutor shall request the police officers responsible for interrogation, inspection, inspection, search, seizure, and identification to appear in court to testify. , accept cross-examination from both the prosecution and the defense, and use words to explain to the court that the evidence they collected is legitimate income, thereby effectively refuting the evidence and claims put forward by the defense.
2. Illegal evidence exclusion rule. With the continuous development of modern social democratic politics and the continuous progress of human civilization, people's rights are increasingly valued, and the power of the state is increasingly restricted. This is reflected in the increasing emphasis on procedural justice and the protection of human rights in modern criminal proceedings. The state shall not excessively pursue the substantive truth or resort to unscrupulous means due to the need to control crime, nor shall it punish crimes at the expense of the legitimate rights of the parties concerned. The illegal evidence collection behavior of investigators is exactly the opposite of the above thinking. In view of this, both common law countries and civil law countries regulate the illegal evidence collection behavior of investigators by establishing illegal evidence exclusion rules. However, how to confirm the existence of illegal evidence and then eliminate it objectively requires the police to testify in court and explain their evidence collection behavior. This is because, on the one hand, prosecutors lack detailed understanding of the process by which investigators collect evidence. If he only relies on the investigation transcripts or the explanations of the investigation agency, he will not be convincing. And the police responsible for investigating the case are well aware of the entire evidence collection process. At this time, it is most appropriate for the police to appear in court to explain the legality of the evidence. Therefore, objectively, the prosecutor needs the police to testify in court and explain the legality of his evidence-gathering behavior to refute the defense's proposal on the legality of a certain piece of evidence. On the other hand, the defendant knows best whether he has committed a crime and is the subject of evidence collection by investigators, so he knows very well whether the police collected evidence illegally. Of course, he needs the police to testify in court and hopes that illegal evidence will be excluded to protect his legal rights. It can be said that the police's testimony in court is a "win-win" requirement for both the prosecution and the defense.
3. Direct speech principle or exclusion of hearsay rule. In order to ensure the openness of procedures and trials, criminal trials in civil law countries all emphasize the principle of direct speech. An important requirement of this principle is that any evidence presented in court should be presented in the form of oral statements, and all parties to the litigation should conduct their investigation of the evidence orally, such as questioning witnesses, appraisers, victims, etc. Orally, and express opinions on physical evidence, etc. Any evidence that has not been orally presented and investigated in court shall not be used as the basis for a court decision. [2] Although the common law countries have not established the principle of direct speech, they do have the relevant "hearsay rule" (hearsay rule) to exclude hearsay. [3] According to this rule, the original witness who provides testimony or evidentiary materials can, under normal circumstances, The police must appear in court and accept face-to-face cross-examination by the prosecution and defense, and the court is prohibited from admitting "hearsay evidence." The above situation shows that the police must appear in court to make statements to the court regarding relevant evidence collection activities, and cannot use investigation transcripts instead.
[4]
Objectively speaking, the above three theories are not directly reflected or not fully reflected in our country’s criminal procedure law. So in practice, using this as a reason for police officers to testify is flawed. However, it is worth noting that according to the judicial interpretations of the courts in both places, the police are obliged to explain to the court the source of the evidence they collected. According to Article 150 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Implementation of the Criminal Procedure Law of the People's Republic of China" (hereinafter referred to as the "Interpretation") and Article 340 of the "Criminal Procedure Rules of the Supreme People's Procuratorate", the public prosecutor shall examine physical and documentary evidence. Provide necessary explanations on the sources and characteristics of the physical evidence so that the defense can identify and express opinions. Controversy between the prosecution and defense is inevitable. When a dispute occurs, according to Article 341 of the Rules, the public prosecutor shall produce and read out relevant litigation documents, investigate or review the transcripts of procuratorial activities. If the prosecution and defense still have disputes over the above-mentioned transcripts, according to Article 343 of the Rules, the public prosecutor may recommend that the collegial panel notify the person in charge of the investigation to appear in court to state the relevant circumstances. In addition, Article 138 of the "Interpretation" also stipulates: "With the permission of the presiding judge, the public prosecutor may request the presiding judge to summon the producer of the inspection and inspection transcripts to appear in court to testify... The victim and his or her litigation agent, the plaintiff in the incidental civil lawsuit and his or her litigation agent With the permission of the presiding judge, they separately summoned the producers of the inspection and inspection records who have not yet appeared in court to testify... "Obviously, the producers of the inspection and inspection records here include the police.
2. The litigation value of police testimony
1. Police officers testifying in court can help clarify a series of misunderstandings in judicial practice, thereby establishing correct litigation concepts. This is mainly reflected in: (1) Modifying the concept of evidence. In criminal trials in my country, materials such as the "Defendant's Surrender Certificate", "Trial Certificate", and "Crime Report Record" issued by the public security organs are widely used. However, are these materials evidence materials or evidence? If it was evidence, why was it used in the verdict? If it is evidence, what kind of evidence is it? I'm afraid this is difficult to answer. And if the police are allowed to testify in court, these can be considered witness statements. (2) Correct the concept of witnesses. For a long time, my country's theoretical and practical circles have always adhered to the principle of witness priority and the principle of irreplaceability of witnesses, thereby opposing the use of police officers responsible for investigating as witnesses in the same case. And police officers can appear as witnesses to testify. This issue will be elaborated on later, so I won’t go into details here. (3) Correct the idea of ??police privilege. The police bear the heavy responsibility of maintaining social order and investigating crimes, and have always been the protagonists of interrogations or interrogations during the investigation process. For them to condescend to appear in court to testify and accept questions from the defendants and defenders whom they detained, arrested, and interrogated will probably create a huge psychological contrast in the process of changing roles. The reason is the idea of ??police privilege.
2. The police's testimony in court can help solve some problems that have long plagued our country's judicial practice. This is mainly manifested in: (1) Suppressing illegal evidence collection by the police. Due to various reasons, illegal evidence collection by police in our country is quite common in many places. This probably has something to do with the fact that the police did not appear in court to testify. Because when the police do not testify in court, the defense does not have the opportunity to cross-examine the evidence providers, that is, the police, so it is sometimes difficult to expose and prove the illegal evidence collection behavior of the police. Even if prosecutors and judges are alert to this, they often tolerate the police not appearing in court to testify, allowing their illegal evidence collection to go unsolved. (2) Increase the rate of witnesses appearing in court. For a long time, the rate of witnesses appearing in court in our country has been low, which is largely unfavorable to the implementation of new trial methods. But if the police can testify in court, it will undoubtedly set an example for witnesses, which will encourage witnesses to testify in court. (3) Solve the problem of malicious confession. In a criminal trial, if the police can testify and confront the defendant or witness when they recant their confession, it will undoubtedly effectively expose their lies. (4) Protect the legitimate interests of the defendant. On the one hand, it is because the police appear in court to testify, which realizes the defendant's right to cross-examine, thereby demonstrating the fairness of the procedure; on the other hand, it helps the defendant expose illegal evidence collection, allowing the court to eliminate situations that are unfavorable to the defendant.
Evidence, thereby protecting the defendant’s legal rights and improving his defense ability.
3. The police's testimony in court will help to straighten out the relationship between the public prosecutor and the law and help build a scientific judicial system. This mainly manifests itself in the following ways: (1) It helps to change the current situation in which investigative agencies and procuratorial agencies are independent of each other, and prosecutors and police are separated, so that the appeal agency can establish a core position in the pre-trial procedure. (2) It helps to change the status of prosecutors as legal supervisors and promote prosecutors to litigate.
(3) It helps the court establish the status of "final judge" and ensure that the judge occupies the core position in the trial, thereby bringing pre-trial procedures, especially investigation procedures, into the control of judicial review. (4) It helps to achieve equal confrontation between the prosecution and defense, with the judge in the middle, and truly build an adversarial trial model.
4. The police appearing in court to testify will help improve the efficiency of proceedings. During criminal trials in my country, defendants and their defenders often argue that the police engaged in illegal evidence-gathering practices such as torture to extract confessions, and request the exclusion of illegal evidence. Faced with this kind of defense, on the one hand, the prosecutor's office did not collect evidence on its own, and on the other hand, the police did not appear in court to confront it. Therefore, prosecutors are often unable to respond in this case. However, in order to ensure judicial fairness and perform legal supervision functions, public prosecutors have to ignore all this. This often forces judges to extend trials to find out whether investigators illegally obtained evidence. However, due to various obstacles or difficulties in the evidence collection process, police investigations that illegally obtain evidence through torture are often unsuccessful. However, the defense sometimes insists on safeguarding its legitimate rights and interests, which often leads to a long delay in the judgment of the case, which not only violates judicial fairness, but is also detrimental to judicial efficiency. Once the police officer handling the case appears in court to testify, the above issues can be resolved to a large extent in court without delaying the trial, thereby reducing Posner's "error consumption" and improving judicial efficiency.
Third, the definition of police testimony status
At present, most people, whether in academia or practice, are opposed to police officers appearing in court as witnesses. The main reasons are: (1) Witnesses must understand the facts of the case before litigation, so witnesses are irreplaceable. The police only learned the facts of the case after the investigation agency filed the case, that is, during the investigation process. The police can be replaced, so the police cannot testify in court as witnesses. (2) The witness must be a litigation participant other than the parties and has no legal interest in the outcome of the litigation case, that is, he "cannot testify for himself." Police officers are staff members who perform investigative functions. If the police are allowed to testify in court, it will affect the fair handling of the case. (3) According to the provisions of Article 28 of the Criminal Procedure Law, investigators who have served as witnesses in this case should apply for recusal. We believe that, whether from the perspective of learning from foreign experience or from the analysis of procedural jurisprudence, the police who handle the case should appear in court as witnesses to testify, and the police officers who testify in court as witnesses can be called police witnesses. The main reasons are as follows:
1. It is the practice of many countries in the world for the police who handle the case to appear as witnesses to testify. In the common law system, criminal witnesses are a very broad concept, including all persons who provide oral testimony to judicial authorities during proceedings. Therefore, in the judicial practice of countries with common law systems, police officers often appear in court as witnesses for the prosecution to testify. The defense can also summon a police officer to testify in court based on the actual circumstances and specific needs of the case. In the United States, it is common for police officers to testify in court. As long as the case requires, the police must appear in court to testify and take an oath like ordinary witnesses, and then accept questioning and cross-examination by the defense. Otherwise, the police may be guilty of perjury or obstruction of justice. For example, in the famous Simpson criminal case, when the prosecution's main witness, Detective Foreman, testified in court, the defense lawyers seized on the loopholes and saved Simpson from jail. [5] In the UK, the police are regarded as servants of the courts. Police officers have the same obligations and responsibilities as other ordinary witnesses when it comes to testifying in court. [6] In Australia, according to the provisions of Section 33 of the Evidence Act 1995, in criminal proceedings, except for special circumstances, the police officer handling the case may give evidence by reading out testimonies or guiding them based on their previous written testimonies. Provide key evidence for the prosecution. [7]
According to the traditional civil law theory, it is generally believed that a witness is a person who specifically states his knowledge of the case to the judicial authorities and has no other litigation status. Therefore, judges, prosecutors, and police who advocate assisting him in investigating crimes cannot be witnesses at the same time. For example, Article 195 of the Italian Criminal Procedure Code clearly stipulates: "Judicial police and police officers shall not testify about statements learned from witnesses." [8] However, there are also many civil law countries that allow police officers to testify in court as witnesses. For example, in France's misdemeanor trial procedures, after the judge interrogates the defendant, he questions the witnesses. The prosecutor usually questions the witnesses first, the police first, the expert witness last, and then the defendant and civil witnesses. [9] This shows that French police officers, like common law countries, can testify in court as prosecution witnesses. In the former Soviet Union, when a court needs to ascertain the conditions for an investigation or investigation, it can summon investigators or persons performing investigative duties to appear as witnesses.
[10] In Japan, judicial police can be interrogated as witnesses on the day of public trial. [11] In Taiwan Province of my country, when the investigative interrogation transcript does not have an audio tape or is accompanied by an audio tape, the court needs to understand the process of obtaining the defendant's confession as a basis for accepting the confession evidence. Therefore, it is necessary to summon the judicial police officer who has obtained the defendant's statement to appear as a police witness to explain the process of obtaining the defendant's statement. [12]
2. Police testimony does not violate the irreplaceable characteristics of witnesses. According to the general theory in academia, a witness is a person who testifies to the facts of the case based on what he or she knows, so a witness is irreplaceable. The author agrees with this. However, it is not tenable to deduce the "witness priority principle" on this basis and then object to the police being witnesses. First, the cases in which witnesses testify include both substantive and procedural facts. This is because criminal procedure is both a process of applying substantive law and a process of applying procedural law, and the process of applying procedural law will inevitably produce procedural facts; as far as the case itself is concerned, it is a concept of procedural law. Especially when procedural facts become disputed facts between the prosecution and the defense, the judge should discover them rather than ignore them. Otherwise, it will have a certain impact on whether the conviction and sentencing are correct. If we do not understand the investigators' behavior of extorting confessions through torture, it will be difficult to judge the authenticity of the defendant's confession, and it will be impossible to discuss whether the defendant will be convicted and sentenced. Therefore, it is incomplete to argue that witnesses must testify about the case before litigation, thereby objecting to the police's witness status. Second, police officers are indeed replaceable when performing certain investigative tasks. Once the police performs a certain investigation task, he becomes a specific person who knows something about the relevant case. For example, the investigators accept the fact that the suspect surrenders, and what the investigators learned during the tracking, surveillance, and seduction investigation process. Situation etc. At this time, he became an irreplaceable and irreplaceable person.
3. Police testimony is not "self-testimony" and there is no need to worry that it will affect the fair handling of the case. It is undeniable that investigators, as providers of evidence, are both executors and witnesses of evidence collection. Therefore, judging from the content of the police testimony, he was indeed testifying for his evidence-gathering behavior. However, investigators are not parties. Their testimony in court is essentially to support the prosecutor's accusation or to satisfy the defense's need for cross-examination. While a police officer's testimony can sometimes lead to adverse consequences, such as administrative penalties for illegal evidence collection, he is not responsible for the success of the complaint itself. Even if the police officer's testimony is "self-testimony," the testimony he provides, like other evidence, must be reviewed and judged by the court before it can be accepted. Therefore, the occurrence of unjust, false and wrong cases does not depend on who is the witness, but on the fallacy of the content of the proof. Can "not prove oneself" avoid wrongful convictions? 4. Article 28 of the Criminal Procedure Law regarding police avoidance is inappropriate. Academic circles generally believe that the reason why police officers who have served as witnesses apply for recusal is mainly because if investigators have served as witnesses in this case and have provided testimony for this case, they may have prejudgments about the facts of the case or the substantive results of the case, and they can no longer be objective. Calmly collect evidence that leads to injustice. The author believes that this kind of worry is unnecessary and unreasonable. The main reasons are as follows: (1) From the perspective of litigation development, the conviction and sentencing of criminal suspects and defendants can only be finalized after the court trial. When the case is transferred to the court for trial, the investigators have actually completed the investigation of the case. Tasks, there is no possibility of identity competition. In other words, during the court trial stage, the identities of police investigators and witnesses are in a state of separation, or in other words, the identity of the police has changed from investigators in the investigation stage to witnesses in the trial stage. Therefore, those who object to police officers testifying on the grounds that investigators cannot be re-elected are largely because they do not see the law that police officers' identities can be separated or changed. (2) The duty of investigators is to collect evidence, and whether it is objective and fair can only be judged by the judge at the trial stage. If investigators are recused because they may not be able to collect evidence objectively, then there are far more situations in which investigators may be recused. Based on this reasoning, should all investigators apply recusal? (3) Under special circumstances, such as during the process of tracking, stalking, and seduction investigations by investigators, often only investigators and criminal suspects are present at the scene. If criminal suspects and defendants refuse to plead guilty and investigators avoid appearing in court to testify, crimes will inevitably be indulged in.
Fourth, the basic scope of police testimony
Although the police can testify in court as witnesses, the police objectively exercised the power of investigation, so the police are different from other witnesses after all. This determines The police need to be restricted from testifying to all the information they know. Otherwise, it will not be conducive to the smooth development of the investigation work. We believe that only under the following circumstances can the prosecution and defense or the judge require the police to appear as witnesses to provide testimony:
1. If the police witness the crime at the crime scene or capture the criminal on the spot, or When a major criminal suspect surrenders, or when a criminal surrenders, then during the subsequent trial of the case, the police will have to appear in court to prove the criminal process, arrest process, interrogation, and case he witnessed. For example, if the police discover someone stealing items in a warehouse during patrol, he should testify in court and explain the time, location, method, items, etc. of the theft.
2. When the police conduct on-site inspection, inspection, search, seizure, identification and other activities, even if the transcript is produced on-site, there is no guarantee that its content reflects the true situation. If the prosecution and defense have doubts about this, the police should appear in court to provide testimony on the progress of inquests, inspections, searches, seizures, identifications, etc., in order to verify the authenticity and legality of these records in court. For example, in the process of extracting and preserving certain physical evidence obtained by the police during on-site inspection, search, and seizure, if the defense has objections to whether the physical evidence is original, or claims that the physical evidence has been artificially destroyed, or requests the prosecutor to Provide physical evidence that they left at the crime scene, and the police should appear in court to prove whether the entire process of extracting and preserving the physical evidence was legal. For another example, when the defense raises objections to the legality of evidence and its investigation, the police should appear in court to prove that there was no torture to extract confessions, and no illegal search or seizure.
Evidence obtained through undercover police investigations. Covert investigative techniques are usually conducted without the suspect's knowledge, often without the presence of a third party to witness the crime. Most police investigations are self-determined and self-executed and lack necessary constraints, so deviations are inevitable. In order to prevent the police from distorting the wishes of criminal suspects intentionally or unintentionally, it is necessary for the police to appear in court for review to prove the legality of secret investigations. Because at the trial stage, the police secret investigation has been completed and there is no need to keep it secret.
4. If necessary, if the defense really has objections, or the investigation itself is flawed, criminal investigation technicians should appear in court to testify and explain the relevant specialized issues in the investigation activities, such as those involved in the on-site investigation. Photography technology, fixation and judgment of traces, extraction and processing technology of physical evidence, etc. This is even more true under the current situation of self-investigation and self-examination by our country’s investigative agencies.
5. If the defense claims that the criminal suspect’s confession was obtained by the police through illegal means such as torture, or the witness testimony obtained by the lawyer is significantly different from the witness testimony obtained by the police, making it difficult to judge right from wrong, If the above circumstances can arouse reasonable suspicion by the judge, the police should appear in court to confront the defendant and relevant witnesses to determine the authenticity of the confession and witness testimony.
6. Evidence obtained through “seduction investigation”. The use of temptation investigation methods is an objective need for combating crime in modern society. Practice has proved that temptation investigation has achieved twice the result with half the effort in some illegal crimes, organized crimes, and intelligent crime cases without specific victims. However, seduction investigation is like a double-edged sword and can harm innocent people if used improperly. Therefore, it is necessary for the police officers responsible for seduction investigation to appear in court and testify about the situation.
5. The main obstacles to police testimony
6. Some thoughts on police testimony
It takes too long. . . . . . . See /LW/4/daima3063/