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   The Rules of Criminal Evidence in China
Chen Ruihua
1. The Concept of Evidence

The concept of evidence is always argued among scholars in criminal proceeding area. However, there are actually three explanation to it in accordance with article 42 of the criminal procedure law: firstly it is “evidential facts”, namely “all facts that prove the true circumstances of a case shall be evidence”; secondly it is “evidential materials, namely the legal form of seven evidence such as documentary evidence, material evidence, testimony of witnesses and statements of victims, which are established by criminal procedure law; thirdly it is “the basis for deciding cases”, namely “evidence verified as facts”. This means that there are three different interpretations to the concept of “evidence” in the criminal procedure law of china.

It can be seen that the concept of evidence will generally go through three basic formation stages in the criminal proceedings; A. The stage of “objective evidence”. Cases, which have taken place, will bring a number of changes to both the nature and human society, forming some marks and materials. It will also bring some subjective impression on some persons. Threes evidential facts are still in the status of “objective existence”, which have not entered the subjective vision of the people and not recognized by them either. B. The stage of “subjective evidence”. At this stage, the original evidential facts have been known by people and collected through legal means. C. The stage of “the basis for deciding case”. Judges of facts will undertake a comprehensive review on the evidential materials collected, then take those “verified facts ” as the basis for deciding case, and on this basis the final judgment for the criminal responsibility of the accused.

It is apparent that the criminal procedure law has not provided many legal qualification for transferring evidential materials into basis for deciding case. Although researchers always insist that evidence will at the same time bear such characteristic as objectivity, interdependence and legality, the criminal procedure law only mentions the requirement of “verifying the facts”, namely the requirement of objectivity.

2.The General Principles of the Application of Evidence

The same requirement for the collection and application of evidence by the criminal prosecution and adjudication organs has been raised up by the criminal procedure law. These requirements may be taken as the general principles for the application of evidence by the investigation, the procuratorate organs and the court.

Firstly, the public security, procuratorate organs and the court must “be faithful to the facts and true circumstances”. According to the scholars specialized in criminal proceedings, this rule actually requires that the above-mentioned three organs involved in the criminal proceedings should verify the facts and true circumstance of the case through collecting and examining evidence.

Secondly, judges, procurators and investigators must collect evidence through procedures prescribed by law, this is also summarized by a number of scholars as “the principle of following legal procedure”. Based on this, not only investigators and procurators but also judges, when collecting evidence, must strictly follow the legal procedures. This principle requires that the government officials in the criminal proceedings should not collect evidence by illegal means, which clearly limits the collection of evidence by legal procedures.

Thirdly, judges, procurators and investigators must comprehensively collect evidence so that various kinds of evidence to prove guilty or innocent of the suspect and accused as well as the seriousness of the crime can be collected. This principle requires not only the judges of facts but also government officials especially in charge of criminal prosecution to have equal treatment with and collect all the evidence either favorable or unfavorable to the accused. Only by doing this can the facts and true circumstances of the case be timely verified.

Lastly, courts, procuratorate and public security organs are all entitled to collect evidence from relevant units and individuals. Different from the investigation of evidence undertaken by defence lawyers, the collection of evidence undertaken by the above-mentioned organs is enforced by the state, it does not have to seek for the consent of the units and individuals where evidence can be collected and investigated, these organs shall have the authority to collect or obtain evidence from units and individuals concerned, the individuals and units concerned shall provide truthful evidence. Therefore, the criminal procedure law also provides that legal responsibility of anyone who falsifies, conceals or destroys evidence should be investigated according to law.

3.The Rules of the Confession by the Accused

The criminal procedure law has taken a cautious attitude towards the confession and allegation of the suspect and accused. This is closely related with the persistent stands on the so-called “evidence” based on the Chinese politicians, legislators and the litigation jurisprudence. In accordance with this standards, “adjudications of all cases must attach importance to evidence and investigation, never merely relies on oral confession”, and “extorting confessions by torture” are strictly forbidden. These remarks originated from the work of late Mao Zedong, the former state leader of China, are even directly incorporated into the Criminal Procedure law. Thus the Criminal procedure law has provided the following principles of the confessions by the accused.

Firstly, collection of the confession by the accused must be undertaken in accordance with law. The Criminal Procedure Law has provided restrictive rules in five areas by judges, procurators ding extorting confessions by torture, b. forbidding collecting evidence by intimidating means, c. forbidding collecting evidence by luring means; d. forbidding collecting evidence by deceiving means; e. forbidding collecting evidence by all other illegal means. Although almost no courts have given any explicit judicial explanations to the above rules, these forbidden actions of collecting evidence are clearly in violation of laws and regulations, the above restrictions mainly concerns with the confession by the accused. Among them, extorting confession by torture will force the accused to confess crime because of the suffering both physically and mentally, this is also against to the humanity of the criminal litigation, so it is explicitly banned by law.

Secondly, the examination of confession by the accused should follow the spirit of emphasizing evidence and investigation, not relying on oral testimony. The essence of this spirit requires that criminal and adjudication organs cannot unilaterally rely on the confession by the accused, cannot exaggerate the testing role of the confession by the accused, but treat them equally with various kinds of evidence. Two extremely important rules are established in the criminal procedure law: one is that “a defendant can not be found guilty and sentenced to a criminal punishment if there is only his statement but no other evidence”; the second one is that “the defendant may be found guilty and sentenced to a criminal punishment if evidence is sufficient and reliable, even without his statement”. Thus, the criterion for judging whether the defendant is guilty is not only because if he or she has made confession of guilty but concerned with the fact that if the evidence is reliable and sufficient. Once such evidence is provided, the defendant will be convicted, even if he or she has not made any confession; otherwise, if the evidence is not qualified for the above criterion, the defendant will not be convicted, though he or she has confessed the facts. Even though the defendant has made guilty confession, the court may still undertake court trial, it will also have a comprehensive examination, from the objective point of view, on whether the defendant is guilty. It shows that the criminal litigation in china is closer to the traditional method used by continental Europe where civil law is dominated, while a sharp contrast has been formed between the criminal litigation in china and the guilty defence system practiced in England and the United States.

4.The Rules of the Testimony of Witnesses

Different from the evidence law in England and America as well as the criminal procedure law in civil law countries, the legal restriction for the testimony of witnesses in china’s criminal procedure law is extremely simple. Particularly, the Criminal procedure law in china does not provide any explicit and concrete limitation to the legal qualification of the witnesses and the force of law of the testimony. Rules for the testimony of witnesses in the present Criminal Procedure Law also applies to the conclusion of appraisal and oral testimony such as the defendant’s confession.

The first matter to look at is the legal qualification of the witnesses, a comparatively explicit regulation is provided in the criminal procedure Law: “All those who have information about a case shall have the duty to testify.” Based on this, anyone can be regarded as witnesses if he or she knows the true circumstance of the case no matter what relationship the witness has got with the party, what is the witness’ profession and how the witness learns from the facts of the case, so the testimony provided for the judge, prosecutor and investigator by the witness also possesses the force of evidence. However, as the age and spiritual status of the witness will directly influence the truthfulness of the testimony, minor restriction for the qualification of the witness is seen in the Criminal procedure Law: “physically or mentally handicapped persons or minors who can not distinguish right from wrong or can not properly express themselves shall not be qualified as witnesses.” Thus it can be seen that any adult who is normal both physically and mentally, and knows the true circumstance of the case will possess the legal qualification of the witness and bear the legal duty to testify truthfully.

The second matter to be addressed is that the Criminal Procedure Law has also provided for the legal qualification of the testimony of the witnesses. Generally speaking “the testimony of a witness may be used as the basis for deciding a case only after the witness has been questioned and cross-examined in the courtroom by both sides, namely the public prosecutor and victim for one side, and the defendant and defenders for other, and the testimonies provided by the witnesses on behalf of both sides have been heard and verified. According to this regulation, the precondition for the testimony of witness to be taken as the basis for deciding a case is that the witness should be present in person and give oral testimony in the court, directly answering questions and cross-examinations by both sides (the public prosecutor and victim as well as the defendant and defenders). Theoretically, if the witness does not testify in person but provides documentary evidence or record of testimony to testify, such testimony has can not be used as the basis for deciding a case, however, this is not explicitly provided in the Criminal Procedure Law. Moreover, the Criminal Procedure Law does not provide for any legal duty on the witnesses if they refuse to testify in court without justified excuse.

Principles for protecting witness are also seen in the Criminal Procedure Law. Courts, procuraorate and public security organs shall insure the safety of the witnesses and their close relatives. Anyone who intimidates, humiliates, beats or retaliates against a witness or his close relatives shall be investigated for criminal responsibility according to law, however there is no special legal provisions to the physical protection of the witnesses, even more the Criminal Procedure Law does not provides if the witnesses who testify in court according to law will be entitled for proper economic compensation from the court.

5.The Rules of the Truthful Statement of the Criminal Suspect

It is provided in Article 93 of the Criminal Procedure Law that “the criminal suspect shall answer the investigators’ questions truthfully.” Based on this rule, the criminal suspect assumes duties in two regards when questioned by the investigators at the investigation stage: firstly the suspect must answer questions by the investigators and they must not keep silent; secondly questions must be answered truthfully and no false statement is allowed. Thus the criminal suspect will not be entitled for the right of reticent, neither will he or she have the freedom of choice for giving confession or not.
Such legal duty of the criminal suspect originates from the so-called criminal policy, that is “leniency toward those who acknowledge their crimes but severs punishment of those who stubbornly refuse to do so.” Based on this policy, the state judicial organs will give lenient conviction and punishment to those who actively confesses his or her guilty, in this way the principle of “combination of punishment and leniency” will be reflected. While severe discretion of punishment will be given to those who refuse to confess guilty. China’s criminal Law provides that whether the suspect confesses guilty or not and how his or her attitude towards it will be regarded as an importance circumstance in the process of conviction. If the suspect does not confess in an active attitude when questioned by the investigator, but give a false statement instead or remain silent, the investigator, but give a false statement instead or remain silent, the investigator will file this with the suspect’s record. Such circumstance will not become the evidence unfavorable to the suspect and defendant if the suspect is not finally convicted by the court. Otherwise, if the court, after hearing the case, has convicted the defendant, the above circumstance will be directly taken as the basis of facts for the court to give severe punishment to the suspect. In any case, judges and juries cannot draw the conclusion of guilty only on the basis that suspect remains silent when questioned.

Apparently, under certain conditions the facts that the suspect remains silent during the investigation will turn out to be a direct ground for making a judgment unfavorable to the defendant by the court under certain conditions, however there is no such explicit provision in the Criminal Procedure Law. It seems that the rule of “truthful statement” is only taken as an obligation which does not bear legal responsibility, but in practice suspect who does not perform this obligation will be under heavy psychological pressure and face the danger of being punished severely. It is just because of this that most suspects in the criminal proceedings will, at least in the period of investigation, make confession of guiltiness instead of defence of innocence. Thus the rule of law in regard to “the truthful statement” will not only deprive the right of defence of the suspects but also make them lose their right to free choice, in the end they have to testify their guiltiness and actually act as “the witnesses for the prosecution”.

6. The Rule of Excluding Evidence

The court may, in accordance with law, exclude those evidence illegally obtained by prosecutors from the basis for deciding case. In many countries, this is called “rules of excluding evidence.” This rule is an important means for the court to carry out judicial control on the police and procedural guarantee to prevent the police from abusing the right to criminal prosecution and arbitrarily infringing upon the fundamental right and freedom of the citizens. China’s Criminal Procedure Law provides that both criminal procuratorate or adjudicative organs must, in accordance with the legally prescribed process, collect various kinds of evidence, and no one is allowed to extort confessions by torture and collect evidence by threat, enticement, deceit or other unlawful means. However, if the public security and procuratorate organs has not observed, in their investigation, the proceeding process provided by law, but extorted the defendant for confession through illegal research and detention. In such a case, will the court take this illegal evidence as the basis for deciding case? For a long time, there is no explicit provision in the Criminal Procedure Law to address this question. In the past, once the court discovers that illegal action has been undertaken by the investigation organs for collecting evidence, this kind of case will generally be returned to the investigation organs for the so called “supplementary investigation”, and the case will be tried only after the illegal action has been corrected. However, after the Criminal Procedure Law has been revised, the court is not entitled to directly return the case to the investigation organ for supplementary investigation, but may propose that procuratorate organ under-take some supplementary investigation so that certain remedies will be made. However, both in the past and present, the court may still directly take this evidence obtained by illegal means as the basis for deciding case except for those causing serious consequence (such as death and severe injury caused by extorting confession by torture).

In order to have judicial control for the illegal collection of evidence by investigation organs, the Supreme People’s Court of China has established “the rule of excluding evidence” in its recent judicial interpretation: that is “all testimony of evidence, victim’s statement and defendant’s confession obtained through illegal means such as extorting by torture, threat, enticement and deceit will not be taken as basis for deciding case”. According to this interpretation, the object that the court will exclude in its trial is only concerned with testimonial evidence including testimony, victim’s statement and defendant’s confession; the illegal means for collecting evidence which is aimed at by the court is mainly concerned with extorting confession by torture, threat, enticement and deceit will not be taken as basis for deciding case”. According to this interpretation, the object that the court will exclude in its trial is only concerned with testimonial evidence including testimony, victim’s statement and defendant’s confession; the illegal means for collecting evidence which is aimed at by the court is mainly concerned with extorting confession by torture, threat, enticement and deceit; all of which could be excluded by the court from being taken as the basis for deciding case. As for the documentary, material evidence and audio-visual materials collected by police and prosecutors, though obtained through means such as illegal search, detention and even eavesdropping, the court cannot refuse to take it as basis for deciding case. It can be seen that the judicial interpretation from the Supreme Court of China only aims at collecting evidence by illegal means such as extorting confession by torture which gravely infringes upon the personal right of the citizen, while it does not mention too much about the evidence obtained through means of violating the right to privacy of the citizens.

7. The Rules of Judicial Proof
Due to the fact that both the investigation and prosecution examination are undertaken by public security and procuratorate organs at the stage before the judicial trial, judges are not generally involved with the above criminal prosecution and can not carry out effective judicial control over the enforcement measures concerned with personal freedom of citizens, neither can they undertake judicial review on the public prosecution initiated by the procuratorate organ, thus the judicial proof mentioned here is mainly seen in the trial stage. Although the public security and procuratorate organ making decisions such as filing the case, arrest, conclusion of investigation and the initiation of public prosecution will also have to be provided with sufficient evidence and prove the facts by legal means, however, neither the above two organs can act as judge nor the principal entity bearing responsibility of proof, thus typical judicial proof is not seen at this stage.
According to the interpretation by the Supreme Court of China, facts of case to be proved by evidence in the trial stage are mainly those “facts concerned with conviction and discretion of punishment”. These facts include the defendant’s identity, if the charged crime exists or not and if the charged action is carried out by the defendant, the intention and aim of the crime and action of the defendant, the time, place, means and consequence of the action, the responsibility of the defendant and the relationship between defendant and the accomplice, if there is any circumstance for which the defendant can be given severe, lenient and mitigating punishment as well as exemption of punishment. These are all evidence and facts to be provided and examined by the party responsible for proof. It is generally called “the object of proof” or “facts to be proved”. This is the first rule concerned with judicial proof.
The second proof concerns with the distribution way of responsibility to prove. It is generally accepted that, in the court trial, persons responsible for providing evidence and testifying the guiltiness of the defendant are mainly prosecutors (in the public prosecution case) and private prosecutor (in the public prosecution case ) and private prosecutor (in the private prosecution case). Such responsibility for proof cannot be transferred and is fully embodied in the new trial procedures. As in such process, all the evidence from the prosecution will be provided to the court by the prosecutors who will also ask the court to demonstrate, read and broadcast these evidence; all the witnesses from the prosecution will be summoned after the application is submitted to the court by the prosecution, firstly the witnesses will be questioned, inquired and refuted by the defence, in such case the judges will not bear main responsibility for investigating evidence. On the other hand, the defendants are generally not responsible for proving their guiltiness or innocence, but they possess the right to defence. In the court trial, though the defendants and defence lawyers always provide evidence and refute charges, but this is only their right, not obligation of prosecution. If the defendant cannot provide evidence, the consequence is only limited to that the active defence he or she proposes can not be established, it will not lead to the conviction of the defendant.

However, there are some exceptions to the principle that the defendant does not bear responsibility for proof. According to the Criminal Law of China, the state employees must bear the responsibility to explain the legality of the source of their property if o big gap between their income and expenditure remains. If the defendant cannot prove the legality of the above-mentioned property, thus the extra part will be taken as illegal property, the defendant will be convicted for possessing a huge sum of property whose source is not clear. Apparently in such case, the defendants will bear responsibility, under certain conditions, for proving the legality of their source of property, otherwise they may be investigated for criminal responsibility.
The last rule is “judgment of acquittal will be made if there is no sufficient to prove guilty”. According to the provision in the criminal Procedure Law, the defendant can not be convicted if the evidence of guiltiness provided by prosecutors is not sufficient, and in this way Judgment of acquittal will be made on the ground that the evidence is not sufficient and the crime charged can not be established. It also shows that prosecutors responsible for testifying the guiltiness of the defendant will also bear the risk of “losing a suit” if they can not provide sufficient evidence of prove that the accusation of the defendant charged is established, undoubtedly this rule embodies the fundamental spirit of the principle of assumption of innocence.



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