editorial comment/note The Supreme People’s Procuratorate’s "2018-2022 Procuratorial Reform Work Plan" emphasizes that the criminal accusation system with evidence as the core should be improved and the working mechanism of evidence review and judgment should be improved. Proof is an important method of evidence review and judgment, which runs through the whole process of fact finding. In this issue of "Views and Topics", legal experts and procuratorial experts are invited to discuss the theme of "How to use proof in evidence review and fact determination", so please pay attention.
Proof: Theory, Rules and Innovation
Professor and doctoral supervisor of Sichuan University   Long Zongzhi
Proving the facts of a case through mutual corroboration of evidence is a basic way of ascertaining the facts, which is universal. But for a long time, China criminal procedure has put special emphasis on corroboration and proof, which can be said to form a proof mode. For example, the word "confirmation" is widely used in judgment documents and judicial documents. Among the eight provisions of the "two evidence regulations" implemented in 2010, the word "confirmation" appeared 11 times; In 2012, the word "corroboration" appeared 10 times in seven articles on judicial interpretation of criminal procedure law in the Supreme People’s Court. The most recent example is Article 40 of the Supervision Law of People’s Republic of China (PRC), which was passed in March 2018. It requires the supervision organs to collect evidence and should form a "mutually corroborating, complete and stable chain of evidence". "Proof" has become a formal legal term.
The proposition and reform of the theory of "confirmation and proof mode" Based on the experience of handling cases in procuratorial work and the thinking and comparative study after I became a professor, I wrote the article "Proof and Free Evaluation of Evidence —— Proof Mode of Criminal Procedure in China" in 2004 and published it in Legal Research. The article holds that the criminal proof method in China is generally manifested as "confirmation proof mode" in practice, which is similar to the typical "free evaluation of evidence" in western countries, because the law does not determine the existence and size of the probative force of evidence in advance, so it also belongs to the type of free evaluation of evidence. However, in China’s criminal procedure, the objective verification between different evidences is particularly emphasized, that is, the "externality" of evidence is emphasized, and obtaining directly supported evidence is regarded as the key to proof. This is a basic feature of the proof mode. After 2004, domestic research began to prove that a large number of articles were published one after another. The practical and theoretical circles further promote the research and reflection on the confirmation model, including exploring its theory, analyzing its practical application and problems, and suggesting its reform direction. In 2017, I also published the article "A New Exploration of Confirmation Proof" in Legal Research, responding to some queries and putting forward some new views, including the reflection on the confirmation model and the way to reform it.
From the practical effect, the practical deduction of the verification model has indeed played an important and fundamental role in ensuring the quality of criminal cases. However, we should also see that in recent years, there is a tendency to overemphasize verification and simplify the application of verification, which has a negative impact on criminal proof. The main manifestations are: First, under the pressure of "confirmation mode", illegal evidence collection, forced confirmation, violation of "natural laws", and even artificial production of confirmation evidence. Second, under the influence of the "confirmation mode", it pays too much attention to the confirmation fact itself, ignores the coordination between the confirmation fact and other factual evidence of the case, and ignores the "comprehensive verification". Third, ignoring the function of evaluation of evidence, violating the law of proof, and having a negative impact on judicial practice. Specifically, judicial personnel are afraid and not good at making evaluation analysis in litigation practice, so some cases that have the conditions for finalization according to the appearance of the evidence system but have inherent reasonable doubts are improperly finalized. On the other hand, for some cases that are sufficient to establish evaluation evidence, but the evidence of the whole case is not confirmed to a high degree, or some important circumstances are slightly lacking, they dare not prosecute or make a guilty verdict, which hinders the crackdown on crimes. These drawbacks are not the inherent problems of the method of proof, but the result of excessive and improper application of the method of proof by criminal proof.
In view of the above disadvantages, we should improve the proof method and change the proof method. However, due to the introduction of "excluding reasonable doubt" in the revision of the Criminal Procedure Law, the establishment of judicial responsibility system in judicial reform, and the promotion of "trial-centered" and "substantive trial" in criminal proceedings, certain conditions have been met for the reform of the confirmation model. Content of reform: First, adhere to the leading role of confirmation. Under the given conditions such as the reliability of evidence sources, corroborative evidence review undoubtedly has a more important methodological position than single evidence review. Therefore, we should adhere to the verification method as the main method to examine the authenticity and legality of individual evidence, and at the same time adhere to the verification method as the main method to determine the facts of a case, that is, to judge the facts comprehensively. The second is to strengthen the function of heart syndrome. It is necessary to establish subjective standards in criminal proof. That is to say, the proof standard of "the facts of the case are clear and the evidence is true and sufficient" is explained and enriched by "excluding reasonable doubt". Secondly, we need to strengthen the inference of indirect evidence and indirect facts to the main facts of the case, and strengthen the application of empirical rules. It is also possible to adjust the proof requirements and even the proof standards of some cases. For example, the proof requirements of objective proof can be appropriately reduced and the standard of evaluation of evidence can be adopted to finalize the case. The third is to pay attention to the role of pursuing evidence. Strengthening the pursuit of corroboration evidence group, especially the main sources of evidence, and conducting a comprehensive and effective review of evidence sources and evidence formation methods to ensure their reliability and prevent evidence distortion are the key links in the application of corroboration proof methods.The fourth is to play the role of verification. The facts required to be verified should be able to be verified, so that they can be reasonably embedded in the overall evidence structure. Including the corroborating facts formed by witness, that is, subjective evidence, which can be verified by objective evidence or objective facts; The partial confirmation of facts should be coordinated with the overall factual evidence of the case.
Theoretical explanation of proof. Proof is proved by comparing different information, which emphasizes the "consistency" of evidence information. Proof also refers to the relationship and state of proof formed by this method. The key to the validity of confirmation is identity, that is, the identity of information contained in different evidences. The identity mentioned here includes the identity and coincidence of information, as well as the identity and coordination of information.
Proof can be divided into two types: one is suitable for fact judgment and the other is suitable for evidence judgment. In fact judgment, all the facts to be proved can be confirmed and proved. Therefore, the scope of proof includes substantive law facts, procedural law facts and evidence facts. Evidence judgment refers to the judgment of objectivity and legality of evidence, because it is difficult for a single evidence to prove itself to be true and legitimate, so it is suitable to prove it. The judgment of evidence relevance mainly depends on experience perception. Professor Waltz said: the relevance of evidence depends on a feeling, which is easy to identify and difficult to describe. In some cases, it is necessary to emphasize proof. This is mainly in the case of difficulties in proof, such as judging the reliability of witness. The judicial interpretation of the Supreme Court has made special provisions on the proof of evidence. For example: First, when the defendant recants his confession and the witness recants his testimony, the evidence is accepted with emphasis on confirmation. Second, the acceptance of special testimony pays attention to confirmation. For example, statements, testimonies and confessions made by victims, witnesses and defendants who have physical and mental defects and have certain difficulties in understanding and expressing the facts of the case, but have not lost their ability to correctly understand and express; Testimony in favor of the defendant made by witnesses who have kinship or other close relationships with the defendant, or testimony against the defendant made by witnesses who have conflicts of interest with the defendant. This special testimony can only be adopted if it is confirmed by other evidence. Third, when there is no direct evidence and only indirect evidence is used to finalize the case, the requirements for confirmation are emphasized. Fourth, hidden evidence is found according to the confession, and the condition for finalizing the case is that the evidence confirms each other.Article 55 of the Criminal Procedure Law makes special requirements for the reinforcement (confirmation) of confession.
Evidence rules of corroboration. In judicial practice, the problems that should be paid attention to can be summarized into several rules by using the method of proof. The first is the information fit rule. Is to seek the consistency of information from different independent information sources. The same information and the same direction are the coincidence of evidence. To analyze the degree of conformity, we should pay attention to different types of cases, different evidence facts, such as the facts of constitutive requirements and sentencing, the facts against the defendant and the facts in favor of the defendant, and so on. The second is the rule of evidence reliability, or the rule of evidence quality. The most important and important thing to pay attention to is that the sources of evidence involved in verification are reliable. To ensure the reliability, we must follow the "natural law" of evidence acquisition, that is, to ensure the natural state of evidence information, and we must not artificially distort evidence information. The third is the rule of clear information. The evidence itself and the verification results should meet certain clarity requirements, and should not be vague and specious. The fourth is to confirm the thickness rule. There must be at least two independent sources of information for verification, but if a variety of independent evidence can verify each other, its verification effect is obviously higher. If the proof is relatively thin, it is still difficult to meet the proof standard. The fifth is the best evidence rule. The best evidence mainly talks about objective evidence, especially hidden evidence, which is the best evidence in confirmation. The sixth is the reasonable difference rule. Verification rules pay attention to information consistency, but don’t pursue consistency excessively. Excessive consistency and lack of differences do not conform to the law of the existence and development of things, and may be a "case made."The seventh is the overall coordination rule. To see whether the confirmed facts contradict other facts in the case and whether the confirmed evidence is reasonably embedded in the overall evidence structure. The eighth is the rule of excluding reasonable doubt. That is, the facts confirmed by the confirmation certificate should conform to the rules of experience, eliminate reasonable doubts and have reasonable acceptability. This is an internal test standard for mutual confirmation of evidence.
Combination of formal confirmation and substantive judgment
Prosecutor of the Second Branch of Beijing Municipal People’s Procuratorate   Du Miao
Proof of evidence refers to the state that two or more evidences completely overlap or partially cross in the factual information contained, that is, the factual information contained in the evidence has been mutually verified. Proof is a method of ascertaining the facts of a case, and proof methods and standards cannot be confused with each other. It is necessary not only to confirm the formal confirmation of the case evidence, but also to make a substantive judgment on whether the identified criminal facts can "exclude reasonable doubt": First, strictly examine the legality and objectivity of the criminal suspect’s confession; The second is to eliminate the contradiction between confession and other evidence or make a reasonable explanation; The third is to make a comprehensive judgment on whether the facts of the case conform to the rules of experience. Otherwise, even if the case evidence is confirmed on the surface, it does not mean that it has reached the "true and sufficient" proof standard.
Specifically, in judicial practice, the confirmation of evidence needs to be accurately grasped from the following aspects:
Proof of evidence does not rule out the existence of evidence contradiction. Evidence proof and evidence contradiction are two sides of the same coin. If the contents of evidence proof are "inconsistent", it means that there is contradiction between them. The evidence of a specific case is extremely complicated, and it is very likely that some of the contents of the suspect’s confession are mutually confirmed and some of them are contradictory to other evidence. This requires specific analysis of specific issues to judge whether it is a fundamental contradiction that can affect the conviction or a non-fundamental contradiction that does not affect the conviction. On the one hand, if the main content of the suspect’s confession is inconsistent with other evidence, it is necessary to exclude or give a reasonable explanation, otherwise a conclusion in favor of the suspect should be made; On the other hand, if the confession of the criminal suspect is consistent with the main plot reflected by other evidence, and only a few plots are inconsistent and will not affect the conviction, it can be confirmed that the criminal facts have been ascertained. In an ideal state, all contradictions in the evidence of the whole case should be eliminated one by one. It is worth noting that even if there are contradictions in the key evidence on which conviction and sentencing are based, attention should be paid to finding out the reasons and giving a reasonable explanation, otherwise it may turn into a fundamental contradiction that affects conviction.
Evidence can point to some criminal facts. Criminal facts usually have a process of crossing time and place, and criminal proceedings are a retrospective proof activity. Due to the influence of many factors such as evidence loss, sometimes only indirect evidence can be collected to prove a certain link of the crime, that is, the so-called evidence "connection point". In many cases, the confirmation of the suspect’s confession and other evidence can only be the confirmation of the "connection point". There is a "connection point" where confession and other evidence are mutually confirmed. In the same criminal fact, the more "connection points" of evidence, the stronger the authenticity of guilty confession.
Common "connection points" include: (1) time. From the perspective of time and space sequence, whether intentional crime or negligent crime, there is a process of occurrence, development and change. Criminals may leave corresponding traces at each time node, especially in the case of continuous crime and continuous crime, the criminal behavior may last for a long time, and the evidence will show a fixed order and be unique in time and space order. The authenticity of the confession can be verified by collecting objective evidence such as call records and bank transfer vouchers. (2) location. The place of crime can be subdivided into the place where the crime was committed and the place where the crime result occurred, such as the place where the tools were prepared, the place where the contradiction occurred, the place where the fight took place, etc. The changes of the above places correspond to the development process of the crime. Corresponding to several locations related to the crime, the authenticity of the confession can be verified by collecting objective evidence such as mobile phone tracks, tickets, air tickets and accommodation records. (3) items. Common articles related to crime include crime tools, stolen money and so on. If the characteristics of the articles are consistent with the confession of the criminal suspect, the authenticity of the confession can be verified.
Proof of evidence should be concrete proof. Evidence confirmation can be divided into concrete confirmation and general confirmation. Concrete confirmation refers to the fact that the details reflected by the evidence are completely coincident with the confession, which can reflect the unique characteristics of people and things. For example, in a fraud case, the criminal suspect confessed that he used a company document with forged signature to defraud the victim’s trust and defrauded a huge sum of money from the victim. After identification, the signature of the legal representative on the company document was written by the criminal suspect, thus forming a concrete confirmation and drawing the only conclusion that the criminal suspect forged the signature of others. General confirmation means that the contents of the evidence are coincident with the confession in a certain range, and other possibilities cannot be ruled out. From the point of view of ascertaining criminal facts, evidence confirmation should be specific enough to reflect the uniqueness of case facts, which is also the inevitable requirement of the standard of "excluding reasonable doubt". For example, in a case of intentional homicide, no physical evidence with personal orientation was extracted from the crime scene. The suspect once confessed that he rode a bicycle to the crime scene. After collecting the surveillance video near the crime scene, a man was indeed found riding a bicycle near the crime scene. However, the surveillance video was not clear enough and the shooting angle was not good, so it was impossible to identify the man in the video as the suspect, and it was also impossible to identify the bicycle in the video with the bicycle of the suspect. After the suspect overturns the previous confession, in the absence of other evidence, the above evidence alone is not enough to determine the facts of the crime.
The judgment of probative force insists on confirming the "four principles"
Ph.D. candidate of Southeast University Law School and Deputy Procurator-General of jianye district People’s Procuratorate in Nanjing, Jiangsu Province   Li Yong
Evidence ability refers to the qualification of evidence as the basis for deciding a case, while probative force refers to the role and value of evidence in proving the facts of a case on the premise of evidence ability. Evidence ability is the premise of probative force, and evidence without evidential ability is not probative force at all. The basic method of judging the probative force is verification. Confirmation is the mutual verification relationship between two or more evidences, that is, the state that the factual information contained in two or more evidences has been mutually verified, which is commonly called "evidence mutually confirms". How to use proof to examine and judge the probative force? We should focus on the following four "principles":
First of all, adhere to the "evidence ability review first, confirmed later". This is determined by the logical relationship between evidential ability and probative force. Proof is a method to standardize how judges evaluate the value of evidence, "belonging to the level of proof, so the applicable premise must be that they have obtained the evidence ability". When examining evidence, we should first examine the evidential ability of the evidence, and only the evidence with evidential ability can be further judged by verification; The key to prevent "false confirmation" is to directly exclude those who have no evidential ability and do not need to judge the probative force. For example, a confession of a defendant obtained by torture has no evidential ability from the beginning, and even has no qualification as a basis for finalizing the case. It is directly excluded from the final view, and there is no need to judge its role and value in determining the facts of the case.
Secondly, make good use of "two-way contrast". Proof is directly manifested in judicial practice as comparison, that is, comparing and contrasting two or more evidential materials that prove the same fact in a case, and examining whether the contents confirmed by them are consistent, so as to determine the probative force of the evidential materials. The comparison here can be divided into horizontal comparison and vertical comparison. Horizontal comparison refers to the comparison of different kinds of evidence that prove the facts of the same case to test whether they can confirm each other, whether there are contradictions and how to eliminate them. It includes the confirmation between verbal evidence and documentary evidence, physical evidence, recorded evidence and expert opinions, the confirmation between the defendant’s (criminal suspect’s) confession and the victim’s statement and witness testimony, and the confirmation between different witnesses, multiple documentary evidences and multiple physical evidences. Vertical comparison is mainly aimed at verbal evidence, that is, comparing multiple statements or confessions of the same fact made at different times to see whether the contents of the statements before and after are consistent, whether there are contradictions and how to eliminate and solve them. Inconsistencies often occur in witness testimony, victim statement and criminal suspect confession. In the process of examination, it is necessary to verify the witness face to face, focusing on two points: first, whether the witness or the confession can make a reasonable explanation, and second, whether it can be verified with other relevant evidence.
Thirdly, the principle of "doubt is beneficial to the defendant" should be applied accurately. The key to judge’s evaluation of evidence is to weigh the probative force between all kinds of guilty evidence and innocent evidence and eliminate possible doubts. There are a lot of cases where the evidence can’t be confirmed and the authenticity is unknown. However, the referee shall not refuse to make a ruling on this ground. The principle of "doubt is beneficial to the defendant" provides a channel to solve this problem. It is worth noting that we cannot mechanically think that "as long as there is doubt, there will be no doubt" or "as long as there is doubt, there will be no guilt". In practice, doubt sometimes manifests as "yes" and "no" doubt, that is, qualitative doubt. At this time, it should be presumed to be none. For example, whether the criminal suspect A beat B, the evidence can’t confirm each other, and whether there is doubt about the fact of beating B, it is presumed that A didn’t beat B; Doubt is sometimes manifested as "more" and "less" doubt, that is, the doubt of quantity, which is presumed to be "less"
Finally, the use of verification methods should follow the principle of preventing misunderstandings. First, it is necessary to prevent only a few non-major plots from being confirmed and being considered as final. Whether a case can be denied depends on whether there is corresponding evidence to prove the facts that constitute the elements, and it is not enough to finalize the case only if a few non-main circumstances are confirmed by evidence. The second is to prevent all the details from being confirmed before you dare to finalize the case. There are subtle contradictions between some evidences, which do not affect the probative force within a reasonable range. On the contrary, some verbal evidence is even more doubtful when all the details are exactly the same. For example, in judicial practice, there is often a high degree of consistency in details between verbal evidence transcripts, which is obviously problematic. Third, it is necessary to prevent only focusing on the confirmation of evidence that is conducive to the finalization and ignoring or belittling the confirmation of evidence that is not conducive to the finalization, and vice versa. Especially as a prosecutor, we should not only pay attention to or even take it out of context, but also ignore the contradictions that are not conducive to finalizing the case. The fourth is to prevent the absoluteness of confirmation. We can’t "verify for the sake of verification", and we can’t violate the laws of nature, experience and logic for the sake of verification.
How to confirm the amount of evidence in different cases
Director of the Second Division of Public Prosecution of Suzhou People’s Procuratorate, Jiangsu Province, and national expert in procuratorial work   Wang Yong
In judicial practice, confirmation method runs through the process of reviewing evidence and ascertaining facts, which is not only a key step to form conviction and verifying facts, but also an important method to resolve evidence contradictions in difficult cases. In the amount crime, if the amount confessed by the defendant can be mutually confirmed with other evidence, there is no dispute about the determination of the amount. However, in reality, typical cases in which the evidence is completely consistent are not common, and more are atypical cases in which the contents of the evidence are not completely consistent. How to determine the number of crimes requires full use of verification methods.
The amount of evidence given is different, how to identify it? When the amount of the defendant’s confession is inconsistent with other verbal evidence, and there is no other way to identify it, the lower amount is identified, which is the principle of low identification in the confirmation rules. For example, in a bribery case, the briber proved that he paid a bribe of RMB 80,000, while the defendant confessed to receiving property of RMB 50,000. On the premise that the evidence related to criminal facts can be verified and reach the standard of proof, the confirmation rules should be considered for the determination of the amount of crime: the defendant’s confession and the briber’s testimony can be confirmed in the fact of 50 thousand yuan, which can be confirmed; The difference of another 30 thousand yuan depends on whether there is other evidence to confirm each other.
A common problem in practice is: the amount of crime confessed by the defendant is constantly changing in different stages of litigation, how to determine it? At this time, according to Article 83 of the Supreme People’s Court’s Interpretation on the Application of the Criminal Procedure Law of People’s Republic of China (PRC) (hereinafter referred to as the Interpretation), "If the defendant withdraws his confession during the trial, but he can’t reasonably explain the reasons for his withdrawal or his defense contradicts the evidence of the whole case, and his pre-trial confession is mutually confirmed with other evidence, his pre-trial confession can be accepted. If the defendant’s confession and defense before the trial are repeated, but it is confessed during the trial and confirmed with other evidence, his confession at the trial can be accepted; If the defendant’s pre-trial confession and defense are repeated, and he does not confess during the trial, and there is no other evidence to confirm it with the pre-trial confession, he may not accept his pre-trial confession. "
It should be noted that the principle of "low" means that the amount of crime cannot be confirmed by the verification method, and the method of determining the amount of crime according to the principle of "doubt is beneficial to the defendant" should not be adopted if the amount of crime can be determined by other means.
Can the victim-free statement confirm the facts? In some cases, the victim cannot be found for some reason, and there is a dispute over whether the facts can be ascertained. Article 105 of the Interpretation stipulates: "If there is no direct evidence, but the indirect evidence meets the following conditions at the same time, the defendant can be found guilty: (1) The evidence has been verified; (2) The evidence confirms each other, and there are no unavoidable contradictions and unexplained questions; (3) The evidence of the whole case has formed a complete proof system; (four) according to the evidence, the facts of the case are sufficient to eliminate reasonable doubt, and the conclusion is unique; (5) The reasoning based on evidence conforms to logic and experience. " According to the provisions of this article, there is no case that a case cannot be finalized without some kind of evidence. The key is to see whether the evidence conforms to the proof mode and reaches the proof standard of excluding reasonable doubt.
For example, in stakeholder cases such as telecommunication network fraud, the number of victims is so large that it is difficult to obtain evidence one by one, and sometimes the victims cannot be found due to the limitation of means of obtaining evidence, but objective evidence such as account books, bank card transaction records or performance sheets is enough to confirm the act of collecting property. For such cases, the emphasis of evidence reinforcement should be documentary evidence rather than verbal evidence. If all kinds of documentary evidence confirming the amount of fraud are confirmed by other evidence, and the possibility of legal income is ruled out, the criminal facts can be determined on this basis. Therefore, the Opinions on Several Issues Concerning the Application of Laws in Handling Criminal Cases such as Telecommunication Network Fraud stipulates that if it is really impossible to collect the victim statements one by one due to the limitation of objective conditions such as the large number of victims, the criminal facts such as the number of victims and the amount of fraudulent funds can be comprehensively determined by combining the collected victim statements, verified bank account transaction records and third-party payment and settlement account transaction records.
How to determine the value of physical evidence without corresponding purchase records after annihilation? In some cases, the physical evidence was annihilated, and the corresponding purchase records and other documentary evidence were lacking. How to determine the value of the original physical evidence became a difficult problem. For example, in the theft of Huang, the court of first instance failed to identify some of the stolen goods accused in the indictment on the grounds that the specific model of some cables could not be judged and the number of thefts was only the witness testimony of the injured unit. After the prosecution filed a protest, through investigation and evidence collection from the purchasing and warehouse management personnel of the victim unit at the time of the crime, the case-handling personnel collected all the sales invoices of the supplier company, thus confirming the types of cables purchased by the victim unit at the time of the crime, and finally effectively identifying the value of the relevant cables in combination with other evidence.
Therefore, the handling of such cases needs to fully explore the "source" and "destination" of the original material evidence, and use it as a clue to confirm the testimony of relevant witnesses and the statements of victims, so as to confirm the value of the annihilated items. In other words, many facts that can be confirmed by objective evidence are not limited to the elements presented by themselves, but need to be excavated and explained by the case-handling personnel through empirical rules.