Not long ago, in the Political Department of the Supreme People's Procuratorate, the first.
I. II.
III. 4. In the second lecture of the series of lectures on improving the ability to appear in court and prosecute jointly organized by the Ninth Procuratorate, Du Miao, the sixth national top ten public prosecutors, national procuratorial experts, and director of the Fourth Procuratorial Department of the Beijing Municipal Procuratorate, gave a lecture on the topic of "The Concept and Method of Accusation and Proving Crimes". "Procuratorate**" specially invites the author to compile part of the lecture content into a text and publish it, so please pay attention.
The prosecutor's charges prove the crime
Four abilities should be promoted
Comprehensive review and use of evidence to comprehensively and accurately determine the facts of the case is the basic work for handling each case with high quality and efficiency. Public prosecutors should improve their ability to invoke the rules of evidence, review individual evidence, construct an evidence system, and determine and reason for facts, strengthen the "basic skills" of accusations to prove crimes, and solidly build an evidence-centered criminal accusation system, so as to ensure that the determination of facts can stand the test of law and history, and lay a solid foundation of facts and evidence for the high-quality and efficient handling of each case.
The comprehensive review and use of evidence by the public prosecutor to comprehensively and accurately determine the facts of the case is the basic work for handling each case with high quality and efficiency. In recent years, with the rapid development of the economy and society, China's criminal structure has undergone a significant change of "one drop and one rise", serious violent crimes have dropped sharply, and crimes that endanger the order of economic and social management have risen sharply, especially crimes in the fields of finance, network, intellectual property rights, etc., which have the characteristics of involving a large number of people, concealed criminal methods, intensive capital exchanges, and complex legal relationships, which have posed new challenges to the accusation and proof of crimes. In this context, the public prosecutor should strengthen the "basic skills" of accusations to prove crimes, solidly build an evidence-centered criminal accusation system, ensure that the determination of facts can stand the test of law and history, and lay a solid foundation of facts and evidence for the high-quality and efficient handling of each case.
Ability to invoke rules of evidence
The rules of evidence refer to the general term of the legal norms that confirm the scope of evidence, adjust and restrict the act of proof, and are the concentrated expression of the law of evidence. In practice, some public prosecutors are able to accurately invoke the norms of criminal substantive law, and use the "four elements" and "three levels" and other theories of crime composition to explain the application of law. Attention should be paid to the following:
First, grasp the diversity of rules of evidence. Freedom of mind is not absolutely arbitrary or unlimited, but is carried out on the premise of abiding by certain principles and limitations. In addition to the strict provisions on evidentiary capacity, China's criminal evidence laws also set up a series of probative force provisions, including the rules for the verdict of concealed evidence, the rules for the defendant's reversal of confession, and the rules for the exclusion of contradictory evidence, etc., showing the characteristics of "new evidence legalism". For example, article 48 of the 2017 "People's Court's Procedures for Handling Criminal Cases in the First Instance of Ordinary Procedures Court Investigation (Provisional)" provides that where there are irreclusable contradictions between evidence and the facts to be proved and other evidence, it must not be used as the basis for a verdict. In addition, the public prosecutor needs to pay attention to the diversity of criminal standards of proof, and strictly apply the standard of proof of "beyond reasonable doubt" for the facts of conviction and the facts of aggravating punishment.
Second, grasp the scattered nature of the rules of evidence. Compared with the 2001 Provisions of the Supreme People's Court on Evidence in Civil Proceedings and the Provisions of the Supreme People's Court on Several Issues Concerning Evidence in Administrative Proceedings, China's criminal evidence rules are characterized by "fragmentation" and are scattered in a number of judicial interpretations and normative documents, which need to be comprehensively sorted out, mastered and accurately applied to avoid omissions. Articles 2 to 4 of the 2017 Provisions of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of Public Security, the Ministry of Justice, and the Ministry of Justice on Several Issues Concerning the Strict Exclusion of Illegal Evidence in the Handling of Criminal Cases, Article 1 of the 2017 Regulations on the Exclusion of Illegal Evidence in the Handling of Criminal Cases by People's Courts (for Trial Implementation), and Article 67 of the 2019 Rules of Criminal Procedure of the People's Procuratorates. Article 123 of the 2021 Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China is basically the same, listing three types of circumstances: "violence", "threat", and "illegal restriction of personal freedom". Confessions obtained without an audio or video recording of the entire interrogation in accordance with law, as well as confessions obtained by illegal means that cannot be ruled out, shall be excluded.
Finally, grasp the specificity of the rules of evidence. In addition to the general provisions that can be applied to all crimes, China's rules of criminal evidence also make special provisions for specific crimes. For example, article 80 of the 2021 Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China stipulates three circumstances in which witnesses may not be served, including those who "have an interest in the case and may affect the fair handling of the case". In the process of handling drug crime cases, attention should also be paid to article 38 of the 2016 "Provisions of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security on Several Issues Concerning the Procedures for Drug Extraction, Seizure, Weighing, Sampling, and Submission for Inspection in Drug Crime Cases", which stipulates that "close relatives of criminal suspects, victims who have been lured, instigated, deceived or forced to take drugs and their close relatives" must not serve as witnesses.
Ability to review individual evidence
Article 50 of the Criminal Procedure Law stipulates that evidence must be verified and verified before it can be used as the basis for a verdict. The prosecutor's reading of the case file always begins with contact with individual evidence, and the evidence materials transferred by the investigating organs with the case or provided by the parties do not necessarily have evidentiary capacity and probative force, and should be carefully reviewed in accordance with the progressive idea of "evidentiary ability first and then probative force", so as to prevent the occurrence of a situation of "ill" evidence in court hearing. In the context of the trial-centered reform of the criminal procedure system, the focus of evidence presentation and cross-examination at trial is becoming increasingly prominent, and key evidence that may affect conviction and sentencing, as well as evidence that is disputed by the prosecution and defense, should generally be "one evidence and one quality". Only by consolidating the evidence base of the case before trial can the public prosecutor effectively deal with all kinds of unexpected situations in the trial and reply to the defense's cross-examination opinions in a reasonable and well-founded manner. Attention should be paid to the following:
First, the evidentiary capacity of individual evidence is reviewed. China's judicial interpretations and normative documents have set up different rules for reviewing the capacity of evidence according to different types of evidence such as criminal suspects' confessions, documentary evidence, physical evidence, electronic data, and technical investigation evidence. For example, for criminal suspects' interrogation records transferred with the case, a review of the interrogation location, interrogation personnel, interrogation duration, interrogation content, and so forth may be conducted against materials such as arraignment vouchers, simultaneous audio and video recordings, to promptly exclude illegal evidence and supplement flawed evidence.
Second, the probative weight of individual evidence is examined. The prosecutor can confirm the probative power of individual evidence from two perspectives: "whether the individual evidence itself is in doubt" and "whether there is contradiction with other evidence". Attention should be paid to the following:One,Analyze the reasons for changes in verbal evidence. Where criminal suspects retract their confessions or witnesses retract their evidence, where the key facts and circumstances are quite different, it is necessary to verify the background, circumstances, and reasons for the changes in the evidence, whether the original confession and original evidence are effectively fixed, and whether they corroborate with other evidence, and so forth, to make a prudent judgment on the probative force of verbal evidence. Second,Discover "hidden" contradictions between the evidence. For different types of evidence such as criminal suspects' confessions, appraisal opinions, documentary evidence, and physical evidence, the method of cross-comparison should be adopted to discover contradictions hidden in key facts and details, and to judge whether reasonable explanations can be made or excluded through other evidence. Thirdly,Dig into the vast amount of evidence for useful information. For the massive amount of objective evidence such as surveillance**, capital accounts, and electronic data, the information displayed in front of the prosecutor is often chaotic and disorderly, and it is difficult to establish a correlation with the facts to be proven. In this regard, the review should not be abandoned because of the excessive volume of evidence, and the key information contained in it should not be "packaged" and presented quickly in the trial. With the development of science and technology, personnel with specialized knowledge can be hired to retrieve massive amounts of evidence through technical means and equipment to extract effective information contained therein. In the process of appearing in court, the prosecutor can also show facts such as the relationship between the characters, the company structure, and the flow of funds through multiple evidence, mind maps, etc., so as to maximize the probative value of massive evidence. Fourth,Identify the rationale for technical evidence. This kind of evidence is highly specialized and has irreplaceable and important value in confirming the facts of the case, but the prosecutor usually lacks the ability to examine it substantively. Where it is necessary to conduct a special review of the key technical evidence on which the verdict is based and the technical evidence on which the prosecution and defense have a larger dispute, such as the evaluation of injuries, the performance of firearms, the function of software, the non-public knowledge of trade secrets, and so forth, it is to be handed over to the procuratorial technical personnel or other persons with specialized knowledge for review and a review opinion to be issued in accordance with relevant provisions, so as to lay a good foundation for the presentation and debate of evidence at trial.
Ability to construct evidence systems
The evidence system is not a chaotic excerpt or enumeration of evidence, but an organic whole composed of several individual pieces of evidence that corroborate, interact with each other, and depend on each other, and jointly play the function of determining the facts of a case. Article 51 of the Criminal Procedure Law stipulates that the burden of proof of the guilt of the defendant in a public prosecution case shall be borne by the procuratorate. The public prosecutor should not only ascertain and determine the facts of the case based on the evidence, but also construct an evidence system to present to the court and persuade the court to accept the accusations and claims. Attention should be paid to the following:
First of all, the content of the evidence system should be complete. Paragraph 1 of Article 198 of the Criminal Procedure Law stipulates: "In the course of court proceedings, the facts and evidence related to conviction and sentencing shall be investigated and debated. "The traditional evidence system mainly includes conviction evidence and sentencing evidence, and as the importance of the disposal of property involved in the case continues to become prominent, a complete evidence system should also include evidence of the property involved in the case, otherwise it will lead to an incomplete accusation of proving the object. For example, in cases of economic and property crimes, the public prosecutor shall insist on paying equal attention to the investigation and verification of the crime and the recovery of stolen goods and losses, and through guiding the investigation and collection of evidence and supplementing the investigation on their own, ascertain the **, use, ownership, and value of the assets involved in the case, and whether there are bona fide third parties, and submit disposition opinions such as the recovery of unlawful gains in accordance with law.
Second, the evidence system should have an internal logical connection. The public prosecutor comprehensively considers the grouping of evidence, the order of evidence, and the purpose of presenting evidence, and arranges and combines evidence with the same direction of proof, a high degree of relevance of the content of the evidence, or the same type of evidence, so as to maximize the overall probative force. For natural offenders such as intentional homicide and theft, they may be sorted in chronological order of preparation, execution, and completion of the crime, so that the evidence in the entire case is included in different "subsystems". For statutory offenses such as the crime of illegally absorbing public deposits, the composition of the crime may be broken down into several subjective and objective elements, and evidence proving the same element may be grouped together, and the facts to be proved may be jointly pointed to. For joint crimes and group crimes in corporatized operations, an evidence system may be constructed in the order of "total first, then divided", first presenting evidence showing the organizational structure and nature of the company's conduct, and then presenting evidence showing the length of tenure, specific conduct, and unlawful gains of the persons involved in the case. Where there are many types of evidence and a large volume of evidence for multiple crimes or consecutive crimes committed by criminal suspects, an evidence system may be constructed in accordance with the idea of "one case and one evidence", so that the context of the case is clearly presented in front of the court.
Finally, the evidence system should be divided between complex and simplified. In order to meet the needs of the litigation procedures of "quick handling of simple cases and intensive handling of complex cases", in cases where the defendant admits guilt and the facts of the case are simple, evidence may be presented in accordance with the types of evidence provided by law on the basis of the circumstances of the case, so that the relevant cases can enter the fast-track trial channel. In cases where the defendant does not admit guilt and the circumstances of the case are complex, an evidence system can be constructed from the perspectives of positive argumentation, negative argumentation, supplementary argumentation, etc., so that the essential facts of the alleged crime can form a complete chain of evidence, and evidence that the defendant's defense cannot be established, and the existence of other possibilities should be ruled out, and finally a convincing and only conclusion can be reached.
The ability to ascertain facts and reason
Reasoning in judicial activities includes reasoning on the determination of facts and reasoning on the application of law. Article 7 of the 2017 Opinions of the Supreme People's Procuratorate on Strengthening the Reasoning of Procuratorial Legal Documents stipulates that "the facts of the case and relevant evidence determined by the people's procuratorate should be accurately explained, the objectivity, legality and relevance of the evidence shall be analyzed as necessary, and the reasons for admissibility and non-admissibility shall be explained", which puts forward clear requirements for the determination of facts and reasoning. If the public prosecutor does not analyze and argue, directly concludes that "the evidence is legal, objective and true, relevant to the case and mutually corroborating each other, and is sufficient to determine the facts of the case", which will reduce the persuasiveness of the accusations and claims, and make it difficult for the public to form a complete understanding of the judicial certification process. Attention should be paid to the following:
First of all, uphold an objective and impartial position. During the courtroom investigation and courtroom debate, the public prosecutor should conduct a necessary analysis of the evidentiary capacity and probative force of the alleged evidence, and explain the facts of the case and the basis and reasons for the ascertainment. A clear response should be made to the defendant's defense of innocence or lesser crimes, as well as the evidence of innocence and lesser crimes submitted by the defender, explaining the reasons for recommending that the court accept and not admit them.
Second, follow the principle of evidence-based adjudication. The principle of evidence-based adjudication refers to the fact that evidence must be relied upon to determine the facts of a case, and the facts of a case cannot be determined without evidence. The public prosecutor shall, on the basis of the verification of individual evidence, determine the facts of the case based on the evidence system, and there must be no situation where "there are case facts without an evidence system", "there are no case facts in an evidence system", or "there are facts of this evidence system and another case".
Finally, apply everyday rules of thumb. The rules of daily experience refer to the laws of the formation of facts that ordinary people know in their daily lives, including the instincts of natural people and the objective laws of things. The daily rule of thumb is an important part of the reasoning of the determination of facts, and in cases that rely on circumstantial evidence for presumption or "one-to-one" evidence contradiction, the application of the daily rule of thumb will have a significant impact on the outcome of the case. Article 401 of the Rules of Criminal Procedure of the People's Procuratorate stipulates that in court proceedings, "common-sense facts known to ordinary people" and "laws or laws of nature" do not need to be proved by evidence. The Supreme People's Procuratorate's 11th batch of Guiding Cases, Qi X ** and Children's Case (Procuratorate Case No. 42), points out that in ** juvenile crime cases, where the victim's statement is stable and natural, the description of details conforms to normal memory, cognition, and expression ability, and the defendant's defense is not supported by evidence, and the evidence in the entire case is reviewed in light of life experience, and a complete proof system can be formed, the facts of the case may be determined. The prosecutor should not only reason from the perspective of evidence corroboration, but also avoid deduction and speculation based on the evidence of the case; It is also necessary to be good at and dare to use "common sense", "common sense" and "common sense" to reason, and avoid mechanically applying the rules of evidence corroboration. Through "one investigation of the circumstances and one evidence", the process of the entire case evidence reaching the statutory standard of proof is fully explained, so that the people can feel the objectivity, fairness, and reasonableness of the determination of facts.
The author is Du Miao, director of the Fourth Procuratorial Department of the Beijing Municipal People's Procuratorate and a national procuratorial expert
Procuratorial ** • Theoretical Edition).