The Study On The Criminal Judge’s Power Of Investigation Of Evidence

What role do the criminal judge plays:only the neutral adjudicators or the active investigators? This is an argumentative topic. After China’s Criminal Procedure Law (CPL) was revised in 1996, it provides for an adversarial system in trial, encouraging both parties to fully argue their case to find the true, and defining a new role for judges as neutral adjudicators rather than investigators of a criminal case. So far, the CPL already has put in practice for 13 years, we must reflect it again. This paper includes an introduction, four chapters and a conclusion.Introduction relates the reason of writing this paper, the status quo of the subject, and the means of the research. Whether the common law system countries, or traditional continental law system countries, the judges all can investigate evidence, only the degree of the power is different. In China, I introduce three cases, want to put out some questions: whether China’s judges can investigation? When and how? Moreover, the paper analysises else authors’s research, and piont out that we focus on these subjects:comparing the judges’ power of investigating evidence in England, US, France, German, Italy and Japan; the legal regulations and practice about the judge’s power of investigation in China; the Reform measures. Altogether, the aim and end-result in the paper is not that the power is not needed, but that how to control and regulate it.Chapter one firstly explores the concept of the investigating power of evidence. It means that the judges take on some measures, for example, collect evidence, have the evidence transferred, summon the witnesses or expert witnesses to appear in court, investigate for verifying evidence out of court, and examine the witnesses and defendants, in order to find the true, verify evidence, or take impersonal attention obligation on defendants. Secondly, this paper discusses the reasons why judges investigate evidence in China. There are some problems need judges to resolve after the parties fully argue their case, because criminal judges must find the truth and verify evidence. In addition, China’s criminal trial is "the adversary system" when criminal procedure was reformed in 1996, but the accused is weak, because he can’t counteract the action of prosecutor. If the judges are "negative and formal neutrality" in practice, the accused do not accept the adjudge. So, we must advice criminal judges take impersonal attention obligation, the aim is that we should assure the parties are virtually equality. Thirdly, the distinction between the judges’power of investigation of evidence and the parties’burden of proof. It’s unreasonable if China’s criminal judges only play an entirely passive role without carrying out any investigation of evidence, but the judge should also bear supplementary legal obligation of proof, rather than bear the burden of proof on the parties. So, in China’s criminal trial, the judge can investigate evidence in court only in some exceptional case.Chapter two compares the judges’power of investigation of evidence in England, US, France, Germany, Italy and Japan. In England and US, the judge can question witnesses or expert witnesses, and summon the witnesses to appear in court. In some criminal trial, questions also can be posed to witnesses by the jury when they appear in court. Moreover, judges become more inquisitorial when the trials are absent of a jury. According to one study comparing a Diplock court (without a jury) and a jury court presided over by the same judge, the number of witnesses questioned by the judges and the amount of time were far greater in Diplock court. Although European trends toward adversary styles in Criminal procedure and evidence, France and Germany inquiry systems of criminal justice are official, judicial inquiries, rather than contests between opposing parties; the primary responsibility for presentation of evidence rests with judge, he calls and first questions the witnesses or defendants, and investigate evidence out of court. There are an adversarial systems in Japan and Italy which encourage both parties to fully argue their case to find the true, rather than the judge present evidence fully. Even so, the judge also can question witnesses and defendants, notify witnesses to be appearing in the court, and still can investigate evidence out of court. There are a lot of reasons which can explain this difference about the judge’s power of investigation of criminal trial in the six countries, such as the culture of law, the trial with or without a jury, and the aim of the justice.Chapter three analyses the criminal legislation and the practice about the judge’s power of investigation of evidence. As far as the criminal legislation is concerned, there are some problems, for instance, the judge rather than the parties call the witnesses, expert witnesses and the victim to be present in court; there aren’t clearly provides for the time when the judge question the witnesses and the way how to question, so the judge may arbitrary examine the witnesses. Though the judge can make a compulsory transfer of evidence to the court from people’s procuratorate, any units and individuals, whether an accused or a defender apply to the court or not, we can not make sure what nature may be of this investigation:investigate evidence out of or in the court? And when the judge verify evidence out of court or transfer evidence, the court may not notify the parties to be at presence, so both the defense and the prosecution have not right to be present at anytime. What’s more, when the judge investigate evidence out of court, the condition about when he verify the proof is confused, and the law lacks of regulation about how to use the evidence investigated by the judge under the CPL.Now, as regards the practice on the power of the investigation of evidence, Fourth chapter focus on empirical studies based on 50 courtroom records. The judge question the defendants and witnesses sometime, but he don’t investigate for verify evidence out of court, or summon the witnesses and expert witnesses to appear in court, and have the evidence transferred. In order to prove the truth of the conclusion, we introduce other’s studies and some classical cases. All these show that a passive and un-neutral judge (except for posing question to the defendants) and one side dominating role of public prosecutor, and treating the accused unfair. Besides, the power of investigation of evidence is irregular in the trial.Based on the problems of the legislation and the practice, chapter four studies the legislative proposal on reforming the judge’s power of investigating evidence. Firstly, to realize the effective exercise of the investigating power, it is not enough just to improve the power only. We must create an institutional environment by developing China public-prosecutor-and-defense-dominated trial, and the parties can fully perform their burden of proof, and the judge only bear a supplementary burden of investigation of evidence. Secondly, this paper discusses the general provision or principle on the judge’s power of the investigation. Such as the neutral judge, maintain party symmetry, and a supplementary role when he investigating evidence. The close or last part, it is out of this consideration that the contents of legislative proposal was drawn up, which contains two levels:one reforming plan was proposed directly in respect the improvement of the judge’s power of investigating evidence in the court, which contains improving the questioning witnesses, defendants, and collect evidence, and to summon witnesses, and for compulsory transfer of evidence and so on. The other reforming plan was for the power out of court, which stipulates that the court notify the parties to be at presence when the judge verifies the evidence out of court.