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The new "criminal procedural law" and the three lawyers

 

Hebei Jingwei law firm  Lawyer Feng Xuezhao

 

    The newly revised "Criminal Procedure Law" implement in, in order to adapt to the new "criminal procedural law" requires lawyers to defend the framework, I am the new "criminal procedural law", "two high school department handling death penalty cases" rules of evidence ", illegal evidence exclusion rules" are ex ante self-study, as well as the legal preparation the new criminal defense. This paper tries to argue the evidence from the start, to determine the criminal evidence evidence ability and the certificate for the case of force. On the legal person criminal case in defence if no evidence of defense, so there is no legal value of defense.

Standard of evidence, a new "Criminal Procedure Law" have new breakthrough.

What is the evidence really, full of new "criminal procedural law" the fiftieth have expressly. The evidence is reliable and sufficient, the applicant shall meet the following conditions:

(a) the conviction and sentencing facts have evidence;

(two) according to the verdict evidence are verified by the statutory procedures;

(three) the comprehensive evidence of the case, the fact is beyond reasonable doubt.

The new "criminal procedural law" 193rd requirements: "the process of trial, conviction and sentencing, on the facts, evidence should be investigated, debate".

"For death penalty cases reviewed to determine the provisions on some issues of evidence" (it can be understood as rules of criminal evidence) comprehensive review of the evidence and the application is also made special provisions.

Article thirty-second evidence that force, should combine the concrete conditions of the case, to check and judge the degree of connection between the evidence and the facts to be proved, the evidence of the link.
   Have the intrinsic relation between evidence, common to the same facts to be proved, and can reasonably eliminate contradictions, can be taken as a basis.
   Thirty-third there is no direct evidence that the defendant committed the crime, but also meet the following conditions can be found the defendant guilty:
    (a) according to the verdict the indirect evidence has been verified;
    (two) according to confirm each other between indirect evidence in the case, there is no contradiction can not be excluded and can not explain the question;
    (three) according to the indirect evidence to verdict has formed a complete proof system;
    (four) based on the indirect evidence of the facts of the case, the conclusion is the only, enough to beyond all reasonable doubt;
    (five) using indirect evidence reasoning logic and experience judgment.
   Based on indirect evidence, sentenced to death should be particularly careful.

Clause fourth: Handling death penalty cases through exhibits, identification, quality certificate, court investigation procedures verified evidence, can be used as the basis of the conviction and sentencing.
   Article fifth: Handling death penalty cases, determination of the defendant's criminal facts, evidence, must be fully.

The evidence is true, fully refers to:
(a) the conviction and sentencing facts have evidence;
(two) every verdict evidence have legal procedures verified;
(three) there is no contradiction or conflict can be reasonably excluded, between the evidence and the evidence and facts;
(four) in a case of joint crime, the status of the defendant, effects are verified;
(five) based on the facts of the case evidence and logical experience rule, by the evidence draws the conclusion that the only conclusion.
 Handling death penalty cases, to prove the fact must be sufficient evidence:
(a) was of the facts of the crime accused;
(two) the defendant committed a crime to commit a crime and the defendant in time, place, and other circumstances, the consequences;
(three) the identity of the defendant convicted;
(four) the accused has the capacity of criminal responsibility;
(five) the defendant's guilt;
(six) whether the common crime and the accused in the common crime in the position, role;
(seven) the defendant shall be given a heavier punishment in.

All the above is the basis for the judge to review evidence.

The new "criminal procedural law" will be the first criminal evidence really, full of connotation make provisions, "beyond reasonable doubt" formally absorbed into the proof standard of conviction, and the rules of criminal evidence and matching is also a corresponding provision. The standard of proof in criminal evidence, for the evidence of criminal defense lawyer defense specified direction, combined with case defense evidence very strong operation.

Two, the new "criminal procedural law" to be extended to more scientific legal evidence.

China's criminal procedure to implement the legal principles of evidence, the types of evidence, the examination of evidence, evidence shall abide by the law. For the needs of the new situation and new "criminal procedural law" the category of evidence is broadening the recognition transcripts, electronic data evidence, the "conclusion" to "expert opinion" and making it more scientific, prevent expert testimony "conclusion", is inevitable in criminal cases. At the same time, the measures of technical investigation to obtain material, used for crime investigation, prosecution and trial also made provisions, but also to investigative experiments such as transparency provisions, to apply a new need."

The new "criminal procedural law" the provisions of article forty-eighth, can be used to prove the material facts of the case, is evidence.

Evidence includes:

(a) evidence;

(two) documentary evidence;

(three) the testimony of a witness;

(four) statement of the victim;

(five) the suspect, the defendant confession and exculpation;

(six) the expert opinion;

(seven) the inquest, inspection, identification, Investigative Experiment record;

(eight) the audio-visual, electronic data.

Evidence must be verified before it can be taken as a basis.

Three, the new "criminal procedural law" the burden of proof of the prosecution, defense lawyers in the special case of negative ahead of the burden of proof

The new "criminal procedural law" the forty-ninth stipulation: "the burden of proof of defendant's guilt in the public prosecution cases shall be borne by the people's Procuratorate, the burden of proof of defendant guilty the case of private prosecution shall be borne by the private prosecutor". This provision effectively avoid court defense put wrong concept innocence should bear the burden of proof in practice. The criminal law stipulated the prosecution shall bear the burden of proof to prove the defendant guilty, is of important significance in both theory and practice.

Theoretically speaking, the burden of proof not only requires the prosecution should provide relevant evidence to prove the defendant guilty, but also must bear the evidence to prove the defendant guilty degree, also is to reach the standard of proof of conviction. China's new "Criminal Procedure Law" to "the criminal facts are clear, evidence really fully", "beyond reasonable doubt" to end the standard.

From a practical perspective, the defense lawyers to the prosecution to produce each evidence from "nature", from the relationship between evidence and case facts, evidence and the evidence that the purpose of the same nature quality certificate, evidence is legal, compliance with logic, is in accordance with the laws of nature and conventional, in order to avoid having the evidence ability (the qualification of evidence to prove), artificial force.

I think that the "new criminal law" article fortieth relates to the collection is not in the preliminary evidence site, below the legal age of criminal responsibility and mental state is defense to bear the burden of proof of the exception (this is debatable). Can be called the pretrial procedure entity defense evidence burden of proof.

The new "criminal procedural law", the rules of criminal evidence and illegal evidence exclusion rules, gives the defendant and the defense burden of proof of illegal words evidence, to start the procedure of illegal evidence exclusion effect.

In conclusion, increased in the new "criminal procedural law" "no person shall be forced to prove their crimes case", so the suspect in the silent condition, the burden of proof is even more necessary, system design and the role of both sides in the theory forward position, a step forward, look forward to the application and in their defense in practice.

Evidence and application frame four, the new "criminal procedural law" the schedule

 

Evidence and application framework of the new "criminal procedural law" the schedule

1Serial number	2The name of legal evidence	3Classification theory and Practice	4A review of the basis	5The exclusion of illegal evidence	6Examination content
(a)	Evidence	Evidence	The criminal law section sixth seizure of material evidence, documentary evidence rules of criminal evidence rule Sixth	The "criminal law" the fifty-fourth the first paragraph after paragraph; illegal evidence exclusion rule fourteenth. ② conditionally adopted or exclude.	The material, documentary evidence and the facts of the case whether the association; The collection procedure, whether legitimate, collection, storage is the norm; The identification of; ④ whether mutual confirmation and other evidence.
Two.	Documentary evidence	Documentary evidence	The "criminal law" the fifty-fourth the first paragraph after paragraph; illegal evidence exclusion rule fourteenth. ② conditionally adopted or exclude.
Three.	Testimony of witness	Verbal evidence	1   The criminal law provisions of the witnesses. ②   Article eleventh of criminal evidence rules	The "criminal law" the first paragraph of article fifty-fourth paragraph of the illegal evidence exclusion provisions of article second, article nineteenth of criminal evidence rules. The pretrial procedure in accordance with the law, exclusion	The witness of the facts of the case is a personal perception or hearsay, whether with inference or speculation. The witness is flawless. The testimony made way, procedures are in compliance with the laws and the relevant provisions of the parties to the case; the witness and the outcome of the case, there is no relationship; the key witness for the court to witnesses for questioning, questioning.
Four.	The statement of victims	Verbal evidence		The statement of the victim of crime time, place, after the damage caused by the victim, whether real; ② whether mutual confirmation and other evidence.
Five.	The suspect, the defendant confession and exculpation	Verbal evidence	The criminal procedure law about criminal suspects in criminal evidence rules; eighteenth.	Ditto	There is no evidence of illegal situation, whether to start the illegal evidence exclusion procedure before trial; ② pretrial confession and the confession in court is consistent. Compared with the other accomplice confession is consistent, pointed out the contradictions and questions.
Six.	Expert opinion	Expert testimony	Identification of the relevant provisions of the criminal procedure law of the rules of criminal evidence; twenty-third	Re identification or supplementary appraisal	Apply for court by the specialized knowledge appearing in court confrontation and identification of human; ② to apply for re identification; the identification of places that doubts, the identification results of case proves that there is no predetermined effect; it is of the same sex identification for sure.
Seven.	Record of investigation, inspection	Evidence	The "criminal law" section fourth; criminal evidence rule twenty-fifth	The "criminal law" the fifty-fourth the first paragraph after paragraph; illegal evidence exclusion rule fourteenth. ② conditionally adopted or exclude.	The inquest, inspection of the main program, system, legality and requirements; the inquest, inspection, whether the witness who sign the record, seal; the record is a comprehensive, accurate, consistent with the facts of the case; the other evidence can confirm each other.
Eight.	Identification record	Evidence	Regulations of the principle of the criminal procedure law; the rule of criminal evidence thirtieth	Ditto	The identification of whether the investigation personnel under the auspices of the recognized separately; the identification of have no obvious implicit or explicit identify suspected; ③ identify whether the object with other objects with similar characteristics in the transcripts to identify whether the specification.
Nine.	Technical investigation record	Evidence	1   The relevant provisions of the criminal procedure law in section eighth of the rules of criminal evidence; thirty-fifth.	Ditto	Whether through strict approval procedures; ② whether induce others to commit a crime; and when necessary, may apply for the judges to verify the evidence out of court.
Ten.	Audiovisual materials, electronic data	Evidence	The relevant provisions of the criminal procedure law; the criminal evidence rule twenty-seventh, twenty-ninth.	Ditto	The legality of the source, whether submitted together with the original; the content and the production process is true, there is no editing, editing, editing and increase forged, altered the case for identification.