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

 

4. Defendant Declarations and Defense Statements

Article 18 In examining a defendantís declarations and defense statement, emphasis shall be placed on the following:
     (1) Whether the time and place of the interrogation and identity of the interrogator was, at the time of interrogation, in compliance with the law and relevant regulations; whether there were fewer than two investigators interrogating the defendant; whether defendants were interrogated individually;
     (2) Whether the interrogation record was produced and revised in compliance with the law and relevant regulations; whether the interrogation record noted the start and stop times and location of the interrogation; whether at the first interrogation the defendant was told of his or her procedural rights such as [the rights] to request recusal or engage a lawyer; whether the defendant checked [the interrogation record] for accuracy and affixed a signature (chop) or fingerprint; whether fewer than two interrogators signed [the interrogation record];
     (3) Whether a person proficient in sign language or a translator is present for interrogations of individuals who are deaf-mute, ethnic minorities, or foreigners; whether, in an interrogation of a juvenile accomplice, his or her legal representative was called to appear and whether or not the legal representative did appear;
     (4) Whether a defendantís declaration was obtained through illegal means such as coercing confession; if necessary, [the court] may request a defendantís medical examination records from the time of entry in the detention center;
     (5) Whether a defendantís declarations have been consistent or, if the statements have changed, whether reasons for the changes were given; whether all of the defendantís declarations and defense statements have been included in the case file; and, if all of the declarations and defense statements that ought to be in the file are not, whether an explanation has been provided;
     (6) Whether the defendantís defense statement comports with the circumstances of the case and common sense, or whether there are contradictions;
     (7) Whether the defendantís declaration and defense statement is consistent with the declarations and defense statements of co-defendants, or whether there are contradictions.
     In the aforementioned situations, if the investigating organ has provided audiovisual documentation, it ought to be examined in combination [with the relevant declarations].

 

Article 19 If a defendantís declaration has been obtained through use of illegal means such as coercing confession, it may not serve as a basis for conviction.

Article 20 Defendant declarations may not serve as a basis for conviction under the following circumstances:
     (1) The interrogation transcript has not been checked for accuracy by the defendant and a signature (chop) or fingerprint affixed;
     (2) Interrogation of a person who is deaf-mute or does not understand the local common vernacular or written language without providing the required person proficient in sign language or a translator.

 

Article 21 If there are any of the following flaws in the interrogation record, it may be used if the relevant officer rectifies [the error] or provides a reasonable explanation:
     (1) The interrogation times, interrogatorsí names, or name of the legal representative are recorded in error or there are contradictions;
     (2) The interrogators did not sign their names;
     (3) The record of the first interrogation does not note that the person being interrogated was informed of his or her procedural rights.

Article 22 [The court] should examine a defendantís declaration and defense statement in consideration of all of the evidence submitted by the prosecution and defense as well as all of the defendantís declarations and defense statements.
     If a defendantís pretrial declarations are consistent but he or she retracts the declaration during the trial proceeding without providing a reasonable explanation for the retraction or if the defense statement contradicts the totality of the the evidence in the case, when the pretrial declaration is corroborated by other evidence [the court] may accept the defendantís pretrial declaration as reliable.
     If a defendant has repeatedly changed his or her pretrial declaration or defense statement but admits guilt during the trial proceeding, [the court] may accept the declaration made at trial as reliable if there is other evidence that can corroborate that declaration. If a defendant has repeatedly changed his or her pretrial declaration or defense statement and does not admit guilt during the trial proceeding, without other evidence to corroborate the pretrial declaration [the court] may not accept the declaration made at trial as reliable.

 

5. Expert Opinions

Article 23 In examining expert opinions, emphasis shall be placed on the following:
     (1) Whether the expert should have recused himself or herself but did not;
     (2) Whether the expert and his or her organization possess legal qualifications;
     (3) Whether the expert evaluation procedures were in compliance with the law and relevant regulations;
     (4) Whether the [processes for] sourcing, obtaining, storing, and transporting the specimen were in compliance with the law and relevant regulations; whether the record of how the evidence was obtained or the invoice of items seized is in order; whether the specimen is sufficient and reliable;
     (5) Whether the procedures, methods, and analytical process [used in] the expert evaluation satisfy the required professional inspection and evaluation procedures and techniques;
     (6) Whether the formal criteria for the expert evaluation have been satisfied; whether the explanation includes identification of the subject for evaluation, the party requesting the evaluation, the institution conducting the evaluation, the evaluation requirements, the evaluation process, the inspection methods, and the date of the certification report; whether the expert institution has affixed the appropriate chop and the expert conducting the certification has signed [the report] and affixed a chop;
     (7) Whether the expert opinion is clear;
     (8) Whether the expert opinion is relevant to a fact of the case needing to be proven;
     (9) Whether the expert opinion contradicts other evidence; whether the expert opinion contradicts the inspection record or relevant photographs;
     (10) Whether relevant persons were notified of the expert opinion [results] in a timely manner in accordance with the law; whether the parties to the case dispute the expert opinion.

 

Article 24 Expert opinions may not serve as a basis for conviction under the following circumstances:
     (1) The expert institution lacks the legal qualifications and capacity or the matter for certification exceeds the institutionís area of expertise or capabilities;
     (2) The expert lacks the legal qualifications and capacity, lacks the relevant professional technical skills or job title, or violates the regulations on recusal;
     (3) There are errors in the evaluation procedures or methods;
     (4) The expert opinion has no relevance to the subject needing confirmation;
     (5) The subject being evaluated is not the same as the specimen or sample that was sent for inspection;
     (6) The source of the specimen or sample sent for inspection is unclear or was contaminated such that it does not meet the conditions for evaluation;
     (7) There are violations of specific evaluation standards;
     (8) The expert report lacks a signature or chop;
     (9) Other violations of relevant regulations.
     If there are questions about an expert opinion, the peopleís court should call on the expert to give testimony in court or prepare an appropriate explanation, or it may also order additional evaluation or a new evaluation.

 

 

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