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

 

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 doubt;
     (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 it:
     (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 defendantís age.
     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.

 

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Related Links:

 

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 Criminal Cases"

 

Rules Concerning Questions About Exclusion of Illegal Evidence in handling Criminal Cases

 

 

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