Wen Yu Xingquan, Ma Shengkun.
In recent years, the author has handled a number of cases that have been "supervised" by the special case team, whether it is a case involving organized crime or vice, or a case of crimes abusing public office, and some members of the special case group will participate in the court hearing. If the defendant and the defense lawyer raise the exclusion of illegal evidence, the spearhead of the illegal evidence is directly directed at these "observers"."Under the circumstance that the number of defendants' family members must be limited, do these personnel participating in the investigation and investigation comply with the law?
The basic protection and realization of the right to observe the court is an important connotation of the principle of open trial, and is of extremely important value to judicial fairness. It is not only a specific requirement for judicial democratization and ensuring procedural fairness, but also an effective means to curb judicial corruption. In recent years, for the purpose of unifying the concept of law enforcement and justice, transmitting and standardizing judicial case-handling behavior, standardizing the investigation work of case-handling personnel, and jointly improving the quality of the team, some adjudication organs have carried out activities for investigators to observe court trials with cases, and some localities have even issued corresponding work measures in this regard.
Whether it is the issuance of relevant work measures, or the court's invitation of judicial staff unrelated to the case to observe the trial in accordance with the provisions of law, and the enhancement of the investigative and public prosecution organs' awareness of evidence and procedures, are in essence measures that are beneficial to judicial fairness and judicial openness, and should be supported. However, in some places, restrictions on the types of persons who can observe the trial may be subject to discussion, and the more typical one is to invite the investigators who presided over the case to attend the trial.
Judging from the provisions of the "Rules of the People's Courts of the People's Republic of China" alone, except for the five categories of people stipulated in Article 9, any citizen has the right to participate in the trial of the court. Among these five categories of people, in addition to the "witnesses, evaluators, and persons with specialized knowledge who are ready to appear in court to give opinions" as stipulated in Article 1. They are all groups of people who may cause disorder in the courtroom, and the restriction of their participation in the trial is to maintain the solemnity and solemnity of the judicial trial, so there is no need to repeat this. As for the first category of "witnesses, expert witnesses, and persons with specialized knowledge who are ready to appear in court to give opinions", the fundamental reason for restricting their participation in court hearings is that these groups must independently explain to the court the facts of the case that they have personally experienced and heard with their own ears when testifying. In order to ensure that witnesses, evaluators, and so forth testify independently, and so forth, witnesses and evaluators are to be isolated from the relevant information of the case before testifying, so that their testimony or appraisal opinions will not be contaminated and their authenticity will be lost due to improper interference from the outside world, such as contacting the evidence of the case, observing the trial, or accepting prompts from others.
If they are allowed to observe, the above-mentioned groups have already been exposed to the case before testifying and are aware of the facts of the case as considered by the court, and it is impossible to determine whether the content of their testimony is derived from the facts of the case or from the trial. Since it is impossible to verify the authenticity of his testimony with other evidence in the case, the testimony of a witness cannot be excluded from reasonable suspicion that has been prompted or implied, and naturally it loses its authenticity. The above-mentioned provisions make it clear that witnesses, expert experts and persons with specialized knowledge should be restricted from observing, but they blur the concept of a group of people, that is, investigators and investigators who are directly involved in the handling of the case.
In fact, Article 265 of the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China already stipulates that "witnesses, evaluators, persons with specialized knowledge, investigators, investigators or other persons shall not observe the trial of this case." After relevant persons testify or express their opinions, the chief judge shall inform them to leave the courtroom. The 2012 Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China does not stipulate that investigators and investigators are not allowed to participate in court hearings, but in the new 2021 version of the Interpretation, investigators and investigators are added to the group of "not allowed to participate in court observations", and this judicial interpretation uniformly stipulates that the right of these persons to participate in court hearings shall be restricted regardless of whether they appear in court to testify or express their opinions.
However, returning to judicial practice, the work of restricting witnesses from observing court hearings has been relatively well implemented, and it is not uncommon to invite investigators and investigators directly involved in the handling of the case to participate in court hearings. In the course of hearing a case, some local courts made a record of the questioning of all the defendants' family members, and then forbade the family members to observe the hearing on the grounds that the defendant's family members had been questioned by the case-handling organs and were witnesses. In other local courts, there have even been cases in which investigators and investigators suspected of extorting confessions by torture are present in court and are identified by the defendant in court.
It is worth mentioning that, in addition to the above-mentioned controversial acts in practice, some local judicial documents have also made unduly restrictive interpretations of the restrictions on investigators' participation in observers. A more typical example is to limit "investigators and investigators are not allowed to observe the trial of this case" to "investigators and investigators who appear in court to explain the situation are not allowed to observe the trial of this case", which the author believes is a misreading of the Criminal Procedure Law and judicial interpretations. The core reason why China's Criminal Procedure Law and its judicial interpretations stipulate the witness isolation system is that testimony is the most volatile type of evidence, and in order to prevent witnesses from being affected by other evidence in court and ensure the authenticity of the testimony, they are restricted from observing the trial.
Evaluators and persons with specialized knowledge are also prohibited from participating in court hearings on the basis of the variability of the verbal evidence they provide. In addition, due to the subsequent need for other witnesses to appear in court to testify due to changes in the trial, they are not allowed to participate in the trial as observers, regardless of whether they are arranged to appear in court during the ** process. However, investigators and investigators, as subjects who may also need to appear in court to provide explanatory or verbal evidence due to changes in the trial, have no reason to be treated differently from the above-mentioned categories of personnel, since article 265 of the "Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China" provides that witnesses, evaluators, persons with specialized knowledge, investigators, Investigators or other personnel must not observe the trial of this case, and it should be understood that the above-mentioned persons, as a unified group, should not participate in the trial to observe the trial, regardless of whether they appear in court to give explanations and testify, rather than extracting investigators and investigators from the above-mentioned entities and determining whether they can participate in the trial based on "whether they need to appear in court to explain the situation".
In addition, from an objective point of view, the participation of investigators or investigators directly involved in the handling of the case to observe the trial is also not conducive to the fair trial of the case. On the one hand, for some cases that may involve the extortion of confessions by torture, the trial is an important opportunity for the defendant to personally report the facts of his confession extorted by torture to the courtroom. In particular, in some cases where the defendant is placed under residential surveillance at a designated location, if the investigators or investigators who directly supervised the defendant participate in the hearing, the defendant may face the dilemma of continuing to be under the same roof as the person he designates to extract confessions by torture after the end of the case, resulting in the defendant being afraid of being identified and even afraid to mention the matter of extorting confessions by torture for fear of retaliation after the fact, and it is even more difficult to remedy the defendant's due rights. A member of the Supervision Commission once threatened the suspect during the investigation stage: "Don't think that you can talk nonsense when you go to the court, he has to come if we call the court to come!""When the defendant sees the investigators who have threatened him sitting in the audience, does he think that their energy is really so great?
On the other hand, the defendant's confession, voluntary surrender, meritorious service, and other "criminal circumstances" involving sentencing during the performance of the investigator's duties often determine the defendant's culpability. Once the above-mentioned "criminal circumstances" are recognized by the court as a fact of the substantive law of the case, it will have a decisive impact on the defendant's punishment. In this case, the investigators' statements in court are no different from ordinary witnesses in terms of the reason or purpose of appearing in court, so the law directly stipulates that investigators "apply the provisions on ordinary witnesses".
However, as mentioned above, during the trial, the defendant and his lawyer submitted illegal evidence exclusions for evidence that might be suspected of torture to extract confessions. The legality of the evidence collection process is not only related to the standardization and legitimacy of the performance of duties, but also related to whether the evidence will be excluded because of this. According to the theory of "trial within a trial", investigators who appear in court to explain the legality of evidence collection have been transformed into the person under review, the procedural defendant, in the procedural judgment, and they have formed a direct and close interest in the outcome of the illegal evidence judgment.
However, it should be made clear that the trial process is not completed overnight, and it is entirely possible that the prosecution and defense or the court will consider that it is necessary to present new evidence or require new investigators or investigators to appear in court during or after the trial. Therefore, just like witnesses and evaluators, at the first time, it is obviously impossible to foresee which subsequent investigators and investigators may appear in court to testify, and if the investigators and investigators are allowed to participate in the trial, it is not known whether the defendant's performance in court or the accusation of extorting confessions by torture will have an impact on his subsequent testimony or explanation of the situation, but this is obviously not conducive to restoring objective facts and the fair trial of the case.
Finally, the participation of investigators and investigators directly involved in the handling of the case will inevitably influence the court's judgment of the case to a certain extent. In the criminal justice process in our country, the investigative and investigative organs;The relationship between the public prosecution and the adjudication organ is one of "mutual cooperation and mutual restraint". However, in practice, there is far more "mutual cooperation" than "mutual constraints". As the initiators of the entire criminal procedure, the investigative and investigative organs have the highest degree of inner conviction that the defendant has committed a crime among all judicial organs compared with the public prosecution and judicial organs. This tendency will be even more pronounced when investigators and investigators involved in the handling of this case observe the trial, and it is obviously unrealistic to say that this tendency will not convey or even influence the adjudicator's free will.
To sum up, although the investigators and investigators who are directly involved in the handling of this case observe the trial, although they have the benefit of urging the public security organs to strictly establish awareness of evidence, procedures, and human rights protection, at the same time, they will inevitably produce distorted testimony, improper obstruction of the exclusion of illegal evidence, and influence on the court's judgment. From the perspective of judicial fairness, it is obvious that the harm outweighs the good. In order to ensure that evidence can withstand cross-examination at trial and that cases can withstand the test of law, the author believes that restricting investigators and investigators directly involved in the handling of cases from observing should be a measure that every court should adhere to.
Yu Xingquan, Senior Partner of Beijing Dentons, Executive Director of Dentons Criminal Professional Committee, Independent Director of Listed Companies, Perennial Research on the Prevention and Defense of Duty Crimes and Economic Crimes, and Concerned about the Crime Phenomenon of Private Entrepreneurs. He has handled the bribery case of a private enterprise in Sichuan, the criminal case of a private enterprise in Shanxi, the loan fraud case of a private enterprise in Liaoning, and the infringement of trade secrets by a private enterprise in Hunan.
Ma Shengkun, Xi lawyer at Beijing Dacheng Law Firm, Master of Criminal Law, School of Criminal Justice, China University of Political Science and Law, majoring in job-related crimes and economic crimes.