"Approved" on the problem of the investigation organ lawyer interrogation videos can copy the understanding and application of the

Text / Wang XiaodongKang Ying

Thirty-eighth of the criminal procedural law stipulates: "the defense of the people's Procuratorate date, consult, extract, copy the file material. Other defenders, with permission of the people's court, the people's Procuratorate, may also consult, extract, duplicate the above mentioned material." Accordingly, defense lawyer (license other defenders, the people's court, the people's Procuratorate) of the people's Procuratorate date, enjoy the files material consult, extract, copy right.

For the full implementation of the defenders of this right, interpretation of the Supreme People's court "on the application of < in the people's Republic of China Criminal Procedure Law >" (hereinafter referred to as the "interpretation") for the forty-seventh article of the court trial stage of the exercise of the right of further detailed provisions, in addition to the collegiate bench, the judicial committee discussion records and other in accordance with the law, not public material, can consult, extract, copy; the court shall provide necessary convenience for people to exercise the right to defend; copy files, photos, copies of materials can be used to scan mode. "The people's Procuratorate rules of criminal procedure (Trial)" forty-seventh to 49 on the stage of review and prosecution counsel in the exercise of the right conditions, procedures, methods are defined.

In judicial practice, object access, copied, copied from the defender, mostly written documents, such as a variety of documentary evidence, the confession of the defendant and witness testimony, expert opinion, in the different stage of the proceedings the litigation documents and so on, as long as it is not belong to the law does not open the material, the defenders of course have the right to consult, extract, replication. The investigative interrogation of a defendant's video, the defenders have the right to copy, the current criminal procedure law and the relevant judicial interpretations were not clearly defined. The higher people's court in September 4, 2013 in Guangdong Province "defense lawyer can copy the investigation organ interrogation video problem" to the Supreme People's court for.

We think, from the criminal law the thirty-eighth regulation, in the review stage to allow the defence lawyers access, extract, replication is the materials rather than evidence materials, the materials obviously range is greater than the material evidence. In general, the materials include not only witness testimony, confession and defence of the accused and other written materials, including other evidence, evidence and other material are also included. From the legislative provisions on look, consult, extract, copy the target is consistent, defense attorneys can consult, extract can copy. And here's the materials, according to the "Regulations" interpretation of article forty-seventh, where publicly used in court material, as long as it does not belong to the law can not disclosed materials, should be able to copy. Therefore, from the above provisions, in a trial lawyer can copy the investigative interrogation videos, not interrogation video evidence attribute, but depends on whether it belongs to the thirty-eighth criminal procedure law stipulates the archival materials.

From the provisions of the criminal procedure law of 172nd, our country criminal prosecution to transfer files, so the thirty-eighth criminal procedure law "archives" and the 172nd in the "archives" concept should be the same, including all the trial of the open source materials, is not limited to the evidence material. Although the "people's Procuratorate rules of criminal procedure (Trial)" the relevant statement of the 342nd, 344, 345 see, it will "archives" and "interrogating a criminal suspect, the video recording" tied to express separately, but this is due to not all criminal cases have the interrogation of criminal suspects, video recording. Because according to the provisions of article 121st of criminal procedure law, only for may be sentenced to life imprisonment, the death penalty cases or other serious crimes, it should be the sound recording or video recording of the interrogation process. But this is a people's Procuratorate for self investigation cases review decision shall arrest stage but not for examination and prosecution, and as the judicial interpretation of the provisions of the basic provisions of the thirty-eighth criminal procedure can not deny the law, not the interrogation video does not belong to the thirty-eighth criminal law refers to the "archives" conclusion. In addition, from six ministries "several issues concerning the implementation of the criminal procedure law" provisions of article nineteenth of the decision, although there is no scope of the investigation process of synchronous recording included transferred together with the case file materials, namely synchronous recording itself can not move to the court, but this is because the audio-visual data carrier detection process synchronization recording of investigators on the criminal suspect shall interrogate, for the cases of the role is not to prove the facts of the case itself but to prove the validity of the interrogation process. If the court did not put forward the question or the defendant interrogation record validity, did not start the procedure of excluding illegal evidence, generally do not need to court to transmit or obtaining the interrogation recording. However, once the interrogation recording to the court as evidence, publicly used in the trial, or the exclusion of illegal evidence has been initiated, the court has access to and use in the trial stage, it belongs to the materials, a defense lawyer in a right of access and at the same time, certainly have the right to copy.

Needs to be pointed out is, after all, the criminal suspects' interrogation recording is different from other general materials in the case, may be related to personal privacy and even state secrets, defense lawyers in accordance with the law after the copy, should strictly abide by the relevant laws and regulations and the lawyer specification, use of the recording limit the criminal proceedings in cases of, to assume the obligation of confidentiality to copy the video recording and safekeeping. If there is any violation, negative effects, should be given the necessary disciplinary.

(the author unit: the Supreme People's court)

From "people's justice" in 2014 third pp. 25-26

Guangdong Provincial Higher People's court

Notice on issues related to the investigation organ interrogation videos lawyer can copy

Guangdong, Law No. [2013]324

The intermediate people's court, the Guangzhou Railway Transportation Intermediate court:

A defense lawyer can copy the investigation organ interrogation video problems, according to the case from the Supreme People's court, the Supreme People's court to (2013) the punishment he Zi No. 239th the answer in our hospital:

According to the "criminal procedural law" the regulation of the people's Republic of China in thirty-eighth and the Supreme People's court "on the application of people's Republic of China Criminal Procedure Law > interpretation" of article forty-seventh, of the people's Procuratorate date, the defense lawyer may consult, extract, copy the materials. Therefore, the investigative interrogation audio and video, such as the prosecution has been used as evidence the material transfer to the people's court. Does not belong to the law can not open the material, presented in the defense lawyers requested a copy of circumstances, should be allowed to.

Notice is hereby given

Guangdong Provincial Higher People's court

October 15, 2013