A Study On Inspection And Examination Graphology

This Dissertation is divided into three parts. Part One is a general introduction to the following contents: the definition of inspection and examination graphology, the handling of such graphology in various countries, the legal status and evidence qualities of inspection and examination graphology; Part Two is a procedural study on inspection and examination graphology, mainly discussing the excution and control of inspection and examination, the guarantee of the objectivity of inspection and examination graphology, the handling of illegal inspection and examination graphology; the last part is focused on the evidence investigation of inspection and examination graphology, mainly dealing with the problems present in the evidence investigation of inspection and examination graphology in our country, and putting forward some suggestions.Inspection and examination graphology is objective records of the inspections and examinations of the spots, articles and bodies related to crimes. In the concept of inspection and examination graphology, inspection and examination are two key words. They not only are the basis and premises of records, but also directly decide the contents of the records. Based on a study of the qualities, significance and modes of inspections and examinations, the writer defines the inspection and examination graphology as: a mode of evidence collection by legal subjects for the needs of clarifying case facts and evidence investigation. It is a mode of evidence collection which is fulfilled by direct contact with the crime-related spots, articles, corpses andhuman bodies, hence getting perceptive cognition of such external characteristics as existence, location or shape of the objects. The body examination mentioned here does not include such acts as collecting natural organism. What's more, people with special knowledge assigned or entrusted by the legal subjects of inspection and examination are experts. As a legally stipulated approach of evidence collecting, inspection and examination has the four characteristics of Specific Objects, Comprehensive Evidence Collecting, Direct Perceptiveness of Acts and Superficial Recognition of the Probative Value of Real Evidence. There are differences between rummage and inspection and examination. The former stresses on the collecting of evidence while the latter stresses on the preservation of evidence. They also have different modes of act; Compared with expert conclusion preparation, they are different in such aspects as subjects, grounds, recognition of the probative value of real evidence and mode of act. It is a legal procedure to prepare a graphology of the results of inspection and examination. The graphology is an approach to preserve the process and result of inspection and examination. In addition to written records, there are also othre types of inspection and examination records such as photos, drawings, videos, etc. There's no substantial difference between such types of records and written records. They are applied according to the various purposes and situations in inspection and examination. As an independent kind of evidence, inspection and examination graphology has the four characteristics of varied probative effects, indirect and comprehensive probative value, objectivity and standardization. It is quite different from other forms of evidence such as real evidence, documentary evidence, witness and audio-visual materials.Inspection and Examination graphology is used in litigation of the two Law Families. In common law countries, different evidence rules are applied according to different types of inspection and examination records. When prepared in written form, the records are taken as hearsay. Limited by the hearsay rules, such records are only used in exceptional situations. While if prepared in the forms of drawings, photos or videos, the record is regarded as demonstrative evidence, which belongs to real evidence. Besides, during the process of a trial, the judge or jury may alsoinvestigate evidence outside the court in the way of inspection or examination. In Continental law countries, various rules are stipulated concerning the act of inspection and examination, and the use of such graphologies. There are stipulations about inspection and examination in the Criminal Procedural Laws of Germany, Italy, Russia, Japan, France and Chinese Taiwan, but there exist great differences. Most countries, except Russia which take inspection and examination graphology as a kind of independent type of evidence, treat such graphology as documentary evidence, and lay many restrictive rules on its use.With regard to the legal status of inspection and examination graphology, some scholars in our country look on it simply from the angle of evidence concept, and think that it is only a reflection of fact, but not fact itself. It is not evidence but a reflection of real evidence. This view does not conform to the general rules of litigation. It doesn't state the fact that in litigation, all evidence are combination of subjective thoughts and objective facts. Inspection and Examination graphology is a reflection of facts, but because it can provide proof to the judgment of case facts, so it can be used as evidence. There are twi reasons for the criminal procedural law of our country to list inspection and examination graphology as an independent type of evidence: one is that there is a need in reality to use such graphology as evidence; the other is that it's determined by the mode of evidence legislation in our country. The criminal procedural law of our country list inspection and examination graphology as an independent type of evidence, but there are still many problems concerning such graphology that are not mentioned. This lead to severe deviation between legislation and judicial practice. We should modify our law and -widen the range of graphologies. The general opinion on the evidence quality of inspection and examination graphology is that it's a kind of real evidence. As I see it, although such graphology has some characteristics of real evidence, it is actually the result of the perception, memory and statement of relative real evidence by the subjects of graphology. It can only exert its evidential effects via the statement, report or other specific acts of the subjects. Hence, it should belong to testimonial evidence.In the procedure of preparing inspection and examination graphology, three main questions are concerned: one is how to keep balance between the protection of human rights and the effectiveness of inspection and examination? the second is how to guarantee the objectivity of inspection and examination graphology? the third is the probative vlaue of illegal inspection and examination graphology. To determine whether an act is inspection and examination or an act of random investigation, we can consider whether the act has violated the lawful rights of a citizen. Since most inspections and examinations may directly violate the lawful rights of the objects, we need necessary restriction on the right of inspection and examination, and try to keep balance between the protection of human rights and the effectiveness of inspection and examination. That is to say, inspeciton and examination acts must abide by legal procedures and the ways of inspection and examination must abide by the proportional rule. Presently .the procedure of inspection and examination in our country has problems in both aspects. On the one hand, there lacks necessary procedural control on the execution of inspection and examination; on the other hand, there's not enough protection of human rights in the process of inspection and examination. The writer puts forward three suggestions based on the judicial practice in our country. Firstly, strengthen the judicial supervision by procuratorial organization; Secondly, in exceptional situations, investigative organizations can conduct necessary forcible inspections and examinations; Thirdly, standardize the body examination from the aspects of purpose, range, conditions and approaches.The probative effects of inspection and examination graphology lies in the relevancy between case facts and the contents that the graphology preserves. Hence, the basic requirement on this kind of evidence is that it should be an objective and comprehensive record of the process of inspection and examination. The objectivity of inspection and examination graphology mainly depends on two conditions: one is the objective and impartial inspection and examination by the subject; the other is the objective and exact record of the process. Due to the suspicion about the impartiality and sound knowledge of the subjects in inspection and examination, weneed measures to guard against the intellectual and personal defects of the subjects, so as to guarantee the objectivity of the graphology.Illegal inspection and examination graphology refer to such graphology which doesn't have legal sources, or which are prepared not according to legal procedures. The writer holds that in order to ensure the implementation of the rules concerning inspection and examination, illegal inspection and examination graphology should be generally excluded. According to the different rules violated, different modes of exclusion can be adopted: For the graphology which is prepared by its subjects in illegal means, it should be excluded with certain exceptions. For those which have violated the rules of witness, or which lack signature of witness and subjects, or which is incomplete in contents, they should not be used as evidence at all.The approach of evidence investigation of inspection and examination graphology is to read it in court. This directly leads to two problems: First, it violates the right of confrontation of the defender; second, its objectivity can not be ensured. From the angle of ensuring the right of confrontation and hence guarantee the objectivity of graphology, we need to modify this approach of evidence investigation. Generally speaking, we must have witness in court to give testimony about the truthfulness of the graphology, then the graphology can be used as evidence in litigation. However, for the efficiency reason, if there's no substantial need to gain such testimony, or if such testimony is impossible to attain, the graphology can be read in court and then directly used as evidence. We should not put too much restriction on the range of witness who can give testimony on the truthfulness of the graphology, when the subject who prepares the graphology can not appear in court, other witnesses who can prove the truthfulness of the graphology can also be called to give testimony. The procedure of giving testimony by such witnesses is the same as the procedure gone through by common witnesses. What should be stressed is that the testimony given by such witnesses does not take the place of graphology as evidence, it is used to ensure the confrontation of the parties and to help judge the truthfulness of the contents of graphology. So there should be differences in some details.