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Rules Concerning Questions About
Examining and Judging Evidence in Death Penalty Cases
III. General Examination
and Use of Evidence
Article 32 The probative force of evidence shall be examined and
judged in combination with the specifics of the case, the degree of
relevance between each item of evidence and the fact to be proven, and
the relationship between items of evidence.
Only pieces of evidence that are intrinsically related,
that together point toward a fact to be proven, and that reasonably rule
out contradictions may serve as a basis for conviction.
Article 33 If no direct evidence exists to prove that a criminal
act was committed by the defendant, the defendant may still be convicted
if the following conditions are met:
(1) Indirect evidence to be used as the basis for
conviction has been examined and verified to be true;
(2) Indirect evidence to be used as the basis for
conviction is mutually corroborating, there are no contradictions that
cannot be rule out or questions that cannot be explained;
(3) Indirect evidence to be used as the basis for
conviction forms a complete body of proof;
(4) The facts of the case established by the indirect
evidence lead to only one conclusion and can rule out all reasonable
(5) The reasoning with which the indirect evidence is
used comports with logic and empirical judgment.
Extreme caution should be used in imposing the death
penalty for a conviction based on indirect evidence.
Article 34 Deeply concealed physical or documentary evidence
uncovered through a declaration or identification made by the defendant
may [be used] to convict if it is corroborated by other evidence proving
the fact of the crime and the possibility that the statement was based
on collusion, coercion, or inducement can be ruled out.
Article 35 Physical, documentary, and other evidence collected by
the investigating organ using special investigative measures in
accordance with relevant regulations may serve as a basis for conviction
if the court has verified it to be true.
The court shall, in accordance with the law, not reveal
procedures and methods [used in] special investigative measures.
Article 36 Once the
defendant has been convicted, the peopleís court should examine the
following circumstances having an influence on sentencing, in addition
to those that are specified by law:
(1) The cause of the crime;
(2) Whether the victim was at fault and the degree of
fault and whether [the victim] was responsible for exacerbating a
conflict and the degree of responsibility;
(3) Whether the defendantís immediate family members
assisted in apprehending the defendant;
(4) The defendantís normal behavior and whether he or
she has shown remorse;
(5) Whether the victim filed an associated civil suit
for compensation and whether the victim or the victimís immediate family
have shown understanding toward the defendant;
(6) Other circumstances influencing sentencing.
If there are circumstances that warrant lenient or
reduced punishment as well as circumstances that warrant heavier
punishment, [the court] shall consider the circumstances in their
entirety in accordance with the law.
If circumstances warranting lenient or reduced
punishment cannot be ruled out, extreme care should be used in imposing
the death penalty.
Article 37 Evidence should be used with care in the following
circumstances and accepted as reliable if other evidence can corroborate
(1) Statements, testimony, or declarations made by
victims, witnesses, or defendants who are physically or mentally
handicapped, who have definite difficulty in understanding or expression
with respect to the facts of the case but who have not [fully] lost
their ability to understand and express themselves properly;
(2) Testimony benefiting a defendant given by a witness
who is a relative or having other close ties to that defendant, or
testimony harmful to a defendant given by a witness having a conflict of
interest with that defendant.
Article 38 If the court has questions about evidence, it may call
on the appointed procurator or the defendant and his or her defense
counsel to produce additional evidence or provide an explanation. If it
is necessary to conduct verification, [the court] may call a recess in
order to investigate and verify evidence. If the court conducts an
external investigation outside the courthouse, it may, if necessary,
call on the appointed procurator and defense counsel to be present. If
either the appointed procurator or the defense counsel or both parties
are not present, the courtís record shall become part of the case file.
The court may solicit opinions from the appointed
procurator and defense counsel regarding evidence supplemented by the
peopleís procuratorate or defense counsel or obtained through the
courtís external investigation and verification. If the two sides are
not in agreement and one side requests that the court hold a hearing to
investigate, the court shall hold a hearing.
Article 39 If a defendant and his or her defense counsel claim
[that the defendant] voluntarily surrendered but the relevant organ has
not established this fact, [the court] shall request that the relevant
organ provide documentation or request that the relevant personnel
testify and judge, in consideration of other evidence, whether [the
claim of] surrender is valid.
If there is incomplete documentation to prove whether
or how a defendant assisted in the apprehension of other co-defendants
such that it is impossible to determine whether the defendant rendered
meritorious service, [the court] shall request that the relevant organ
provide documentation or request that the relevant personnel testify and
judge, in consideration of other evidence, whether [the claim of]
meritorious service is valid.
If a defendant reported or exposed crimes committed by
another person, [the court] should examine whether or not the veracity
[of the report] has been investigated; if it has not been investigated,
it shall be investigated at once.
If there is incomplete documentation to prove whether
the defendant is a repeat offender, [the court] shall request the
relevant organ provide documentation.
Article 40 Generally, [the court] shall use household
registration records as a basis of proof in examining whether a
defendant was at least 18 years old at the time the crime was committed.
If there is a dispute over the household registration records and
investigation finds there to be valid documentation of birth or
testimony from an uninterested party confirming that the defendant was
not at least 18 years old, [the court] should find that the defendant
was not 18 years old. If there is no household registration record or
documentation of birth, [the court] shall make a general judgment based
on census records, testimony from an uninterested party, or other
evidence; if necessary, [the court] may conduct an investigation of
skeletal age and use the results as a reference in judging the
When contradictions between items of evidence cannot be
ruled out and there is insufficient evidence to prove that a defendant
was at least 18 years old at the time the alleged crime was committed,
if there is truly no way to determine [the truth, the court] may not
determine that he or she was at least 18 years old.
Article 41 These rules take effect on July 1, 2010.
Notice from the Supreme Peopleís Court, Supreme Peopleís Procuratorate,
Ministry of Public Security, Ministry of State Security, and Ministry of
Justice Regarding the Issue of "Rules Concerning Questions About
Examining and Judging Evidence in Death Penalty Cases" and "Rules
Concerning Questions About Exclusion of Illegal Evidence in Handling
Rules Concerning Questions About Exclusion of Illegal Evidence in
handling Criminal Cases