First, the establishment of the three basic principles of evidence law
(a) the principle of evidence adjudication. It is the basic principle of criminal procedure in the world today to require evidence as the basis for determining the facts of a case and then as the basis for conviction and sentencing. The Criminal Procedure Law changed the original stipulation that "all facts that prove the true situation of a case are evidence" to "all materials that can be used to prove the facts of a case are evidence", which is not only a change in the expression of words, but also a change in the concept. The concept of evidence has changed from "telling the truth" to "telling the truth".
(2) The principle of legal procedure. Article 62 of the Interpretation of the Criminal Procedure Law stipulates: "A judge shall collect, examine, verify and identify evidence in accordance with legal procedures." This is the embodiment of the basic principles of criminal procedure law in the evidence part. The Interpretation of the Criminal Procedure Law provides detailed standards for the examination and determination of each kind of evidence, and also provides exclusion rules, that is, under what circumstances it shall not be used as the basis for finalizing the case, and under what circumstances it shall not be used as the basis for finalizing the case without supplementary or reasonable explanation. The case-handling personnel shall examine and verify the evidence according to the standards and exclude it according to the rules. Public security and judicial organs have unified standards for evidence identification and consistent rules for evidence exclusion.
(3) The principle of cross-examination in court. Article 63 of the Interpretation of the Criminal Procedure Law stipulates: "Evidence that has not been verified by court investigation procedures such as court presentation, identification and cross-examination shall not be used as the basis for identification, except as otherwise provided by law and this interpretation." This article establishes the principle of court cross-examination, and requires that the evidence must be verified through formal court investigation procedures before it can be used as the basis for deciding the case. In practice, in a few cases, the judge takes the evidence that has not been cross-examined by the court as the basis for deciding the case, which is a serious violation of legal procedures.
Second, about the perfection of the standard of proof.
According to the criminal legislation of our country, the standard of proof of investigation termination, transfer for examination and prosecution, public prosecution and guilty verdict all requires "clear criminal facts and reliable and sufficient evidence". However, there are different understandings of this standard in practice. The second paragraph of Article 53 of the Criminal Procedure Law stipulates: "The evidence is indeed sufficient and shall meet the following conditions: (1) The facts of conviction and sentencing are proved by evidence; (2) The evidence on which the conviction is based has been verified through legal procedures; (3) According to the evidence of the whole case, the ascertained facts have been beyond reasonable doubt. " This is the first time that China's criminal procedure law has made an explanatory provision on "the evidence is true and sufficient".
Three, about the exclusion rules of material evidence and documentary evidence
(a) the physical evidence and documentary evidence extracted or detained during the inquest, inspection and investigation shall not be used as the basis for the final decision without a record or list. In practice, without records and lists, it is impossible to prove the sources of physical evidence and documentary evidence, to ensure the authenticity of evidence, and to rule out the possibility of forging evidence. Such evidence should be absolutely excluded and cannot be used as a basis for finalizing the case.
(2) The collection process and method of material evidence and documentary evidence are flawed, and after correction or reasonable explanation, the following methods can be adopted: 1, the inquest, inspection, investigation, record or seizure list is not signed by the investigator or the witness who seized the goods, or the name, characteristics, quantity and quality of the goods are not specified. 2. Photographs, videos, copies of physical evidence, copies of documentary evidence and copies are not marked as the same as the original, and there is no copy time, or there is no signature or seal of the collector. 3. Photographs, videos, copies of physical evidence, copies of documentary evidence, and copies have no producer's explanation on the production process and the storage place of the original, or the explanation is unsigned.
Four, about the exclusionary rules and admissibility rules of witness testimony
(1) Articles 76 and 77 of the Interpretation of the Criminal Procedure Law stipulate three absolute exclusions of witness testimony that violates the statutory procedures for obtaining evidence, namely, 1, and questioning witnesses is not conducted individually. 2. The written testimony has not been checked and confirmed by the witness. 3. Interrogation should be provided for people who are familiar with deaf-mute gestures, or translation should be provided for people who are not familiar with the local common language, and the testimony of witnesses who meet the above circumstances will not be accepted. At the same time, it also stipulates four relative exclusion situations. If there are flaws in the collection procedures and methods of witness testimony that cannot be corrected or reasonably explained, it will not be accepted, that is, 1, and the names of the inquirer, recorder and legal representative are not filled in the inquiry record, and the starting and ending time and place of the inquiry are not filled in. 2, ask the location does not meet the requirements. 3. The interrogation record does not record the rights, obligations and legal responsibilities of informing witnesses to testify. 4. The record of inquiry reflects at the same time that the same person asks different witnesses.
(2) The Criminal Procedure Law interprets the admissibility rule of witness testimony stipulated in Article 78: namely 1. Rules for the admissibility of testimony in court: if the testimony given by a witness in court is cross-examined by both the prosecution and the defense and verified by the court, it shall be taken as the basis for finalizing the case. 2. Witnesses change the admissibility rules of testifying in court: if the testimony given by a witness in court is contradictory to his testimony in court, and the witness can make a reasonable explanation and be confirmed by relevant evidence, he should be accepted to testify in court; If no reasonable explanation can be given, and his pre-trial testimony is confirmed by relevant evidence, his pre-trial testimony can be accepted. 3. Rules for the admissibility of the testimony of witnesses who did not appear in court: If the testimony before the court cannot be confirmed by other evidence in this case, and the written testimony is inconsistent with other evidence, and the contradiction cannot be ruled out, it will not be accepted. On the contrary, it can still be used as a basis for finalization. Although the Criminal Procedure Law encourages witnesses to testify in court and establishes a system of compulsory witnesses to testify in court, it is unrealistic to require all witnesses to testify in court in judicial practice. Therefore, the third paragraph of Article 78 of the Criminal Procedure Law stipulates: "If a witness refuses to appear in court after being notified by the people's court or refuses to testify after appearing in court, and the court cannot confirm the authenticity of his testimony, the testimony of the witness shall not be used as the basis for finalizing the case." It can be seen that the witness's refusal to appear in court certainly does not rule out his pre-trial testimony.
Verb (abbreviation of verb) Exclusion rules and adoption rules of criminal suspect's confession and defense
(1) Questions about the interrogation record being checked and confirmed by the criminal suspect. Under normal circumstances, the criminal suspect can cooperate with the verification and confirmation of the interrogation record. There are two situations in practice: 1. If the suspect is illiterate and can't write his own name, he can press his handprint. 2. The suspect refused to sign for confirmation. According to the law, it can be proved by witnesses or audio and video recordings, which does not affect the legal effect of interrogation transcripts.
(2) About synchronous audio and video recording. Article 12 1 of the Criminal Procedure Law stipulates: "Investigators may record or video the interrogation process, and for cases that may be sentenced to life imprisonment or death penalty or other major criminal cases, they shall record or video the interrogation process. The whole process should be recorded or videotaped to maintain integrity. " This provision is of great significance for standardizing investigation behavior and putting an end to extorting confessions by torture. Synchronous audio and video recording is not only a requirement for investigators, but also a kind of protection. In practice, it is not uncommon for the defendant to retract his confession on the grounds of extorting a confession by torture or luring a confession in court, and to propose the exclusion of illegal evidence.
(3) Evidence admissibility rules of the defendant's confession in court: if the defendant's confession in court cannot reasonably explain the reasons for his confession or his defense contradicts the evidence of the whole case, and his confession in court is mutually confirmed with other evidence, it can be accepted; The defendant's confession before the trial was repeated, but the confession in the trial was mutually confirmed with other evidence, and the confession in the trial was admissible; If the defendant repeats his confession in court and refuses to do so during the trial, and there is no other evidence to prove it, his confession in court will not be accepted.
Six, on the appraisal opinions, inspection report problems and countermeasures.
Expert opinions are usually used as the most important basis for determining the facts of a case. French scholar florio said: "If the expert opinion is wrong, the referee will make a mistake, that's for sure." The role of expert advice is not exaggerated or excessive. Some scholars have analyzed 20 criminal misjudged cases that shocked the whole country, and found that 15 of these 20 misjudged cases need DNA identification, and 7 of them can and should be DNA identification, but for various reasons, investigators did not conduct DNA identification. Of the 7 cases, 4 cases only passed the blood type identification, and the defendant was found guilty mainly by the same blood type, and 2 cases only passed the identification, and 1 was found guilty according to the identification results. Three other cases should have been identified by physical evidence such as footprints and fingerprints, but they were not identified; Although seven cases were identified, there were problems in the identification procedure and the review of experts' opinions, which led to the misjudgment of the cases.
Seven, after the incident, arrest and other materials for review and judgment.
In practice, every criminal case file has explanatory materials, among which the arrival or arrest process issued by the investigation organ is the most common. Because it is difficult to classify into the types of evidence stipulated in Article 48 of the Criminal Procedure Law, it should not belong to evidence. But most of them are of great significance to accurately identify the facts of the case and determine the procedural matters. For example, the explanation of the suspect's arrival at the case and the description of his voluntary surrender process, if he can truthfully confess the crime, will be meaningful for accurately identifying the plot of surrender. In some cases, the place where the suspect was arrested may be an important basis for the jurisdiction of the case. A good case description plays an important role in confirming the authenticity of the case evidence, accurately identifying the facts of the case and increasing the inner conviction of the judge. On the contrary, an irregular and vague statement will lead to unnecessary doubts and arguments. In practice, we should standardize the situation description from two aspects:
(1) formally standardized. Materials such as case arrival issued by the investigation organ shall be signed and sealed by the case-handling personnel and the case-handling organ that issued the explanatory materials. So that the judge can examine and verify the explanatory materials.
(2) Content standardization. At present, some explanatory materials are too simple to fully reflect the circumstances of the defendant's major suspicion and the whole process of investigation and solving the case, which is not conducive to accurately determining the facts. In some cases, there are still inconsistent or even contradictory explanatory materials, which makes it difficult for the court to review and judge. In practice, the contents of explanatory materials issued by investigation organs need to be standardized in the following aspects: 1. The problems explained in the explanatory materials shall be within the scope of the investigation organ stamped with the official seal. If the problem is beyond the scope of the investigation organ, it may lead to disputes. 2, the relevant materials should be relatively detailed, comprehensively reflect the situation related to the facts of the case, especially for the defendant's surrender, meritorious service and other cases directly related to the case, should be specific and detailed. 3, in accordance with the provisions of the second part of the Criminal Procedure Law, chapter 2, section 8, cases that take technical investigation measures must generally be accompanied by a description of the situation. For example, in drug crime cases, the investigation of the hidden identity of the relevant personnel may affect the defendant's penalty discretion, and the investigation organ needs to issue explanatory materials such as arrival and arrest. According to the relevant provisions of the Criminal Procedure Law, the investigation organ should not refuse to issue relevant explanations on the grounds of confidentiality. Of course, if the relevant explanatory materials need to be kept confidential, they can be listed separately, indicating the confidential transfer, and the judge should also keep them confidential when reviewing the above explanatory materials.
To sum up, the new requirements of the Criminal Procedure Law for evidence have indeed brought a lot of pressure to the public security and judicial organs in handling cases. Facing the new regulations, we are required to strengthen theoretical study, change the concept of handling cases, understand and thoroughly understand the legal provisions, and apply them to all aspects of criminal cases to ensure that every case we handle can stand the test of law and history.
These requirements are not only traditional requirements for many years, but also increased requirements based on judicial practice in recent years. With regard to litigation evidence, it must be remembered that some litigation evidence needs to be kept confidential. If it is not kept secret, it may lead to invalid evidence and even lead to the parties committing crimes.
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