Research On Discovery System Of Criminal Procedure

The criminal litigation, as a form of litigation for the settlement of the conflict of interests between the state and its citizens, reflects the conflict and equity between the rights of the citizens and the powers of the state. It has always been a dilemma to protect human rights while punishing the criminals. The procedure of discovery in the common law can provide a satisfactory solution to the above dilemma. Discovery, as an important procedure prior to the trial in the adversary system is intended for the disclosure of evidence between the parties. Discovery is of particular importance in the litigation structure in which the prosecutor and the defendant lawyer bear the burden of proof to the court while no transfer of files is involved. The establishment of the discovery procedure not only enables the defendant lawyer to gain access to the evidences provided by the prosecutor, but also enables the prosecutor to share the evidence obtained by the defendant lawyer. Such a reciprocal system design takes the surprise element out of the litigation by encouraging both the prosecutor and the defendant lawyer to make proper preparation for the debate in the court by doing their homework.According to the Chinese Criminal Procedural law of 1996 (unrevised),the defendant lawyer can participate in the litigation during the preparation period before the trial and can look up and read the case files transferred to the court by the prosecutors and then on the basis of the above make preparations for the defense. But the revised the Chinese Criminal Procedural law of 1996 imposed restrictions on the kind of materials presented to the court by the prosecutor, because the lawmakers , intending to introduce the adversary system to China, believe doing so can reduce the forejudge of the judges before the trial. But such a intended imposition on the judges makes it very difficult for the defendant lawyer to look up the case files because the defendant lawyer can usually gain access to the case files in the court. According to the revised Chinese Criminal Procedural law of 1996, the prosecutors need only to present the copies of the main evidence materials rather than all the evidence to the court, thus limiting the defendant lawyer from gaining full access to evidences in the case files. The difficulties faced by the defendant lawyer have stirred up much discussion as to the problem of gaining access to the evidence in the case files. Some local procurators and court, together with the associations of the lawyers, believe a Chinese style discovery procedure can effectively solve the above problem.The difficulty to seek evidence on the part of the defendant lawyer is another reason to introduce the discovery system. Our laws impose too many restrictions on the evidence finding activities of the defendant lawyer. The defendant lawyer usually can only get the evidence from the prosecutors, who represent the state. Taking advantage of being the state public prosecutor and having the procurator surveillance power, the imbalance between the powers on the part of the prosecutors and on the part of defendant lawyer turns into a game of "The Weak are the Prey to the Strong." The prosecutors, by their natural advantages, make charges against the defendant, who is obviously on a disadvantage. The establishment of the discovery system can correct the above imbalance of powers, strengthen the powers of opposition and realize the equality between the prosecutor and the defendant.The discovery system is still to be established in our country. It is a meaningful attempt to do some research into the significance of the system and learn from the successful experiences of other countries so as to construct a discovery system of China.