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Rules Concerning Questions About Examining and Judging Evidence in Death Penalty Cases (continued)

 

Article 9 Any physical or documentary evidence obtained through on-site investigation, inspection, search, or confiscation that is not accompanied by a record of on-site investigation or inspection, a search record or record of requisition, or an invoice of items confiscated may not serve as a basis for conviction if its origins cannot be verified.
     If there are any of the following flaws in the procedures or methods used to collect physical or documentary evidence, [the evidence in question] may be used if the relevant officer rectifies [the error] or provides a reasonable explanation:
     (1) For physical or documentary evidence that has been collected or obtained, the record of on-site investigation or inspection, search record, record of requisition, or invoice of items confiscated is not signed by the investigator, the person who possessed the items, or witness, or the distinguishing features, number, quality, or names of the items are not clearly described;
     (2) For photographs, video recordings, or replicas of physical evidence or duplicates or facsimiles of documentary evidence that have been collected or obtained, there is no notation that they have been checked against the original items and found to be identical, the time of production is not noted, or the signature (chop) of the person (unit) from whom [the evidence] was collected or obtained is missing;
     (3) Photographs, video recordings, or replicas of physical evidence or duplicates or facsimiles of documentary evidence do not have a written explanation from the person who produced them about the production process and the location of the original document or item or that explanation has not been signed.
     (4) There are other flaws in the procedures or methods [used to] collect physical or documentary evidence.
     If there are questions about the source of or collection procedures for physical or documentary evidence and no reasonable explanation is given, that physical or documentary evidence may not serve as a basis for conviction.

Article 10 Physical or documentary evidence that satisfies the conditions for identification should be identified by a party to the case or a witness, or, if necessary, submitted for authentication.

 

2. Witness Testimony

Article 11 In examining witness testimony, emphasis shall be placed on the following:
     (1) Whether the testimony is [based on] the direct perception of the witness;
     (2) Whether at the time given the testimony of the witness might be influenced by his or her age, cognitive level, capability of recollection and expression, or physiological or psychological state;
     (3) Whether the witness has an interest with respect to a party in the case or the outcome of the case;
     (4) Whether the testimony was obtained using procedures and methods in compliance with the law and relevant regulations; whether violence, threats, inducements, deception, or other illegal methods of obtaining evidence were used; whether there were violations of regulations requiring witnesses to be questioned individually; whether the transcript was checked for accuracy by the witness and a signature (chop) or fingerprint affixed; whether in questioning a juvenile witness his or her legal representative was called to appear and whether the legal representative did appear or not;

     (5) Whether the witness testimony corroborates other testimony or evidence or whether there are contradictions;

Article 12 Witness statements obtained through violence, threats, or other illegal means may not serve as a basis for conviction.
     Testimony by witnesses who are clearly under the influence of alcohol, narcotics, or psychotropic drugs such that they cannot properly express themselves may not serve as a basis for conviction.
     Witness testimony involving conjecture, opinion, or inference may not be used as evidence, except empirical judgments based on daily life that accord with the facts.

 

Article 13 The following kinds of witness testimony may not serve as a basis for conviction:
     (1) Testimony obtained without questioning witnesses individually;
     (2) Written testimony that was not checked for accuracy by the witness and a signature (chop) or fingerprint affixed;
     (3) Questioning of a deaf-mute or a member of an ethnic minority or foreigner who does not understand the local common vernacular or written language, when a translator should have been provided but was not.

Article 14 If there are any of the following flaws in the procedures or methods used to obtain witness testimony, [the testimony in question] may be used if the relevant officer rectifies [the error] or provides a reasonable explanation:
     (1) The [record] does not provide the name of the questioner, recorder, or legal representative or the start and stop time or place of the interview;
     (2) The location where the witness was interviewed does not comply with regulations;
     (3) The interview record does not note that the witness was told that he or she should give a truthful statement and that intentionally giving false testimony or withholding evidence of a crime is punishable under the law;
     (4) Interview records show that the same interviewer was interviewing a different witness at the same time.


Article 15 Under the following circumstances, the people’s court should call a witness to give testimony before the court. Written testimony from a witness who has been summoned in accordance with the law but who does not testify in court may not serve as a basis for conviction if there is no way to verify it under cross examination:
     (1) The people’s procuratorate and the defendant and his or her defense counsel disputes the testimony of a witness and that witness testimony [will have] a major impact on conviction or sentencing;
     (2) Others the people’s court determines should appear in court to give testimony.
     When the testimony of a witness in court contradicts his or her pretrial testimony, if the witness can provide a reasonable explanation in court for recanting his or her [earlier] testimony and there is related evidence to corroborate it, [the court] should accept the testimony given in court.
     [The court] should listen to the opinions of the procurator appearing in court and the defendant and his or her defense counsel regarding the written testimony of a witness who does not appear in court and make a general determination in consideration of other evidence. If contradictions appear in the written testimony of a non-appearing witness and those contradictions cannot be ruled out and there is no corroborating evidence, [the testimony] may not serve as a basis for conviction.

Article 16 When witness testimony concerns state secrets or individual privacy, it should be kept secret.
     When a witness testifies in court, the people’s court may, if necessary, take protective measures such as restricting the publication of the identity of the witness, limiting questioning, shielding the face, or altering the voice.

3. Victim Statements

Article 17 The aforementioned provisions for witness testimony should be applied as relevant for the examination and determination of victim statements.

 

 

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