Investigating The Problems Concerning Documentary Evidence

This dissertation investigates the problems concerning documentary evidence in two parts: Part One on theory and Part Two on practice.Part One focuses its attention on the concept, scope, admissibility and effectiveness of documentary evidence.Indeed, the way documentary evidence is defined in a country reflects how this country understands and reveals the nature of evidence. Documentary evidence is defined differently in the legislations of different countries, but since it is used in legal proceedings in all countries and the ability to understand and reveal the nature of things is universal, legal theorists from different countries share the same understanding of the concept of documentary evidence in legal culture and logic. The consensus is largely on its formation, forms, and testifying power. This country's traditional concept of documentary evidence, which is similar to that of many other countries, is scientific and rational. However, treating this traditional concept as a standard may result in overlaps and confusion with other forms of evidence making it difficult to identify. The fundamental cause of the problem lies in the fact the denotation of documentary evidence does not agree with our legal practice, for no single criterion is used in our legislations and too many categories are established. Therefore, the author, with the special particularities of judicial evidence in mind, defines documentary evidence as, other than other forms ofjudicial evidence, any material carrying information or communicating ideas that can be used as a means of ascertaining the truth of a case.Despite a close consensus of the denotation of documentary evidence, different countries are sometimes divided when it comes to its scope. The two major legal systems, for example, share the same understanding of the traditional concept of documentary evidence, but they do no agree over the nature of such sources of evidence as sound recordings, audiotapes, photographs, computer databases and other scientific and technological means. Countries in the Anglo-American legal system do not group all scientific and technological means with any single classic type of evidence like documentary evidence, nor have they established them as a new independent type. Instead, they classify each of them into either documentary evidence or evidence of witnesses according to the characteristics of each means, applicable evidence rules, and forms of manifestation. Continental European System countries are not uniform in their practice. Sound recordings are used as real evidence also known as objective evidence or demonstrative evidence. China groups scientific and technological means either with authenticated material or audio-video materials.There are similarities and differences between classic types of evidence and scientific and technological means. Any attempt to treat them as a single type may obscure their similarities and differences. Instead it would be more appropriate to identify each of them according to how much it has in common with documentary evidence. Hence those video forms of evidence like photographs and computer databases, the interpretation of which relies mainly on sight, is relegated to quasi-documentary evidence under documentary evidence, while sound recordings, videotapes, and other scientific and technological means including authenticated material are assigned to audio-video evidence, which is renamed scientific and technological evidence.The admissibility of documentary evidence determines which items of documentary evidence may be permitted to use in legal proceedings. As it is universally agreed that evidence has such characteristics as authenticity, relevance,and legality, this dissertation discusses these four aspects of documentary evidence: a) the relationship between its admissibility and effectiveness, b) its authenticity, c) its relevance, and d) the admissibility of illegal documentary evidence.Like any other type of evidence, documentary evidence must be admissible and effective. Although, unlike continental European legal system countries, Anglo-American legal system countries do not classify the effectiveness of documentary evidence into formal effectiveness and substantial effectiveness, their theory that documentary evidence must be examined in form and substance step by step resembles continental European system's concepts of formal effectiveness and substantial effectiveness. Considering the separation of formal effectiveness and substantial effectiveness in practice, it is very important to establish formal effectiveness and substantial effectiveness.Similarly, the authenticity of documentary evidence may be classified into formal authenticity and substantial authenticity. The former referring to the authenticity in the formation or making of an item of documentary evidence whereas the latter refers to the authenticity of the information contained or the expression of information. As the authenticity of formal evidence and substantial evidence are likely to separate, we have to ensure that the authenticity of documentary evidence contain both. The formal authenticity of documentary evidence includes the authenticity of any form of proof of a document's nominal producer and his signature or seal. The authenticity of the indicator of the nominal producer is likely to be affected by legislation, the authenticity of documentary evidence varies according to legislations and the nature of proceedings. In legal proceedings, an item of documentary evidence must be examined to establish its authenticity. Four methods of authentication are usually used: inspection by the judge, identification by the producer of evidence, technical identification, and inference by the judge.Likewise, the relevance of documentary evidence may be divided into formal relevance and substantial relevance according to the degree of relevance of the content of the document to the case. As long as a document bears formal relevance, i.e. its content of the document relevant to the case, its relevance is established and itcan be admitted as evidence. Nevertheless, a relevant document does not necessarily bear substantial relevance, i.e. effectiveness in proving the truth of a case. Therefore, the relevance of documentary evidence and its effectiveness are two different concepts.Any type of document outlawed can be termed as illegal documentary evidence which is classified into procedural illegality and substantial illegality. Substantial illegality does not affect effectiveness. Any item of documentary evidence formed or collected in an illegal procedure is procedurally illegal documentary evidence. However, as the procedure for the formation of documentary evidence is not governed by law, the effectiveness of document is not affected. The effectiveness of a document acquired in an illegal procedure is not affected by the illegal act, either. Therefore, the effectiveness of illegal documentary evidence should be determined according to the nature of the proceeding.The section on the effectiveness of documentary evidence focuses on the best evidence rule and a comparison between the effectiveness of documentary evidence and that of evidence of witnesses. The effectiveness of copies, official and personal documents, defective documents, and contradictory documents is dealt with elsewhere.Much research has been carried on the best evidence rule by legal theorists. This dissertation examines its concept, exceptions, recent development, the effectiveness of copies, and its application in China. The author thinks that the spirit of the rule is still in agreement with the requirements of the values of modern legal proceedingSj and that copies have some inherent limitations but are still applicable in legal proceeding now. Nevertheless, modern technological advances, broadened scope of the audience to which evidence is to be disclosed, and the influence of legal precedence in which copies are admitted, all have worked together to conflict with the best evidence rule which requires the use of original documents. Consequently, the rule is sometimes inapplicable. Since the pursuit of the best proof of the truth of a case is an objective requirement of all legal proceedings, the best evidence rule, though having evolved under the Anglo-American legal system,applies to China. The spirit of the rule is embodied in our legislations, but no clear statements are found as to what are original documents, what are copies, or under what circumstances copies may be admitted. Therefore, the best evidence rule in the strict sense of the term has not yet established, and improvements are yet to be made.Generally, the effectiveness of different evidence items cannot be compared and none is superior or inferior to the other, for the classification of evidence is done according to its source, way of manifestation, and rules of admissibility, not according to its effectiveness. However, in practice, effectiveness varies due to the various degrees of relevance of different evidence items. In this perspective, the effectiveness of different evidence items is comparable. Thus the author examines and compares the relevance and authenticity of documentary evidence and evidence of witnesses.Part Two is on practice. The author concentrates his attention on problems with the acquisition, disclosure, and cross-examination of documentary evidence, and meanwhile offers an analysis of such common evidence in legal practice as official documents, personal documents, defective documents, and contradictory documents.A party planning to disclose to the other party or to present to the judge a document as evidence must acquire the document in advance. Due to the differences in their modes of prosecution, Anglo-American and continental European system have different rules for the acquisition of documentary evidence. In Anglo-American system countries, it is the litigants that are responsible for the presentation of all evidence necessary. The court does not collect any evidence for a lawsuit. If a party fails to collect evidence relevant to the case, it will definitely lose the suit. Rules governing evidence acquisition mostly pertain to the exhibition procedure before the court. On the contrary, in the continental European system, to ensure justness of a verdict and pursue substantial truth, the law court is endowed with certain responsibility to acquire evidence. If a part cannot acquire the evidence necessary for objective reasons, or if the court feels it necessary for itself toacquire certain evidence, the court itself may collect evidence. Consequently, rules have been made concerning the procedures for a party's requesting for the court to collect evidence. Such rules include those governing the acquisition of documentary evidence. Civil laws under the continental European system have provisions concerning situations where documentary evidence cannot be acquired, solutions to the problem, and the consequences resulting for refusing to present documentary evidence. A thorough review of China's laws and interpretations to the laws will indicate that such provisions are not present. To ensure justness and efficiency of lawsuits, improvements have yet to be made in this respect. As China, still under the Anglo-European system, shares the same problems as experienced by other countries under the system, it would be more convenient and easier for her to learn from other countries under the continental European system in the area of evidence acquisition.Although, unlike continental European system countries, they have no rules governing the procedure for evidence acquisition, Anglo-European system countries have rules concerning the disclosure of evidence before the court. An examination of the evidence disclosure rules under the Anglo-American system will reveal that their criminal laws do not include special provisions for evidence disclosure while detailed rules are found in their civil laws. Lawsuits differ in nature, and therefore the scope of the audience to which documentary evidence is to be disclosed and the impact of the disclosure will be different. Considering the graveness of the results of criminal suits, the rule of disclosure to all sides is employed in criminal case except for those very few items of evidence excluded by law or those reckoned confidential for the purpose of investigation. As for those items that should be disclosed but have not yet been disclosed, in principle, no action should be taken to forbid their presentation to the court. Instead, a procedure should be established for their make-up exhibition. However, considering the leniency and remediability of civil cases, in civil cases we should abide by the rule of disclosure to all sides and no disclosure of those items excluded by law. As for those items that should be disclosed but have not yet been disclosed, an action may be taken to prohibit theirpresentation to the court. An examination of China's legislations concerning the disclosure of evidence will reveal that some provisions exist in the criminal law, and that restrictions are placed upon the of the disclosure of evidence. The insubstantial provisions mean that a procedure has yet to be established. The Supreme People's Court's legal interpretations of evidence in civil and administrative cases have shaped the framework of an evidence disclosure procedure, which, as something foreign newly adopted from the Anglo-American system has yet to be tried by legal practice. Naturally, due to the lack of a sound procedure for evidence disclosure, rules governing the disclosure of documentary evidence cannot be well developed. And a procedure for documentary evidence disclosure will depend upon a well-developed procedure for evidence disclosure.Cross-examining the evidence disclosed by the other party is an importance legal right bestowed by law to both parties. But this right should be exercised correctly and prudently. No abuse of it is allowed. Therefore, cross-examination needs to be regulated. How to regulate cross-examination of documentary evidence is a problem yet to be solved in China's legislation. Occasionally instances occur where a party for no reason at all disputes a document disclosed by the other party, pestering the other side or the judge and disrupting the normal order of the court. If no action is taken to stop such behavior, the efficiency value of legal proceedings will suffer. Other countries have regulations requiring both parties to abide by the principle of credibility, which means no doubt should be raised on no grounds about the authenticity of a document. Deliberately or mistakenly disputing the authenticity of a document and disrupting the order of the court will be punished by the court. Therefore, China's cross-examination procedure has yet to be improved.In theory, documents are usually classified into official documents and personal documents according to authority, both of which are very common in legal practice. China's legislations and legal interpretations include no provisions as to the definition or scope of either official or personal documents. The authorities can arbitrarily authenticate both official and personal documents and determine theireffectiveness as evidence, thus giving much trouble to legal practice. In comparison, other countries have rules concerning official and personal documents. In most countries, legislations bestow official documents with the effectiveness of formal evidence and official document are presumed to be authentic. As legal evidence, official documents are supposed to be more effective than personal documents. And the authentication procedure for official documents has been simplified. On the other hand, because of the arbitrariness of the subject and the method of creating a personal document, all countries require that both parties prove the authenticity of the documents they disclose. In comparison, China is short of legislations concerning official and personal documents and efforts should be made in this area. Accordingly the author makes some theoretical suggestions.Defective documents and contradictory documents, which are not uncommon in legal proceedings, are difficult to deal with. As less research has been done in this area, due attention is given to them in this dissertation. Their concepts, types, characteristics, and admissibility and effectiveness are examined, and some suggestions are made as to their uses.