Standards Of Proof In Capital Cases

As the power of capital punishment review is retrieved in the hand of the Supreme Court in recent years, the reform of death penalty proceedings has become the focus in the society. Being the core in the evidential theory, standard of proof involves the issue that whether it applies to the capital punishment or not. As such, the standard of proof in capital cases has become the 'core' in the 'coral nut'. So far, the standard of proof legislated is 'the fact is clarified, evidence is authentic and sufficient'which is provided in Section 162 in Criminal Procedural Code. The standard of proof is of over objectivity in wording and not able to apply to the sentencing stage. It fails to distinguish the capital cases from ordinary criminal ones, which makes it ineffective in the term of checking the use of death penalty and improve the quality thereof. Several far-reaching misjudged cases expose the problem that our justice did not fulfill their duty in the aspect of standard of proof. Thus, in order to diminish the probability of misjudged cases, raising the level of standard of proof and strengthening the burden of proof of the persecution in death cases is of necessity. This paper will analyze the flaws in the legislation of standard of proof in capital cases and its appliance injustice. Then the comment will be put on some doctrines concerning standard of proof in capital cases. Taking into consideration of the peculiarity of capital cases, it will re-establish the system of death penalty in capital cases which argues that the standard of proof should be uniformed both in the stage of conviction and sentencing. And then the complementary reforms necessary will be explored and refined.This paper comprises four parts and over 30,000 words in its main body.The premises of theory and the purpose are included in the part of introduction. As the wave of controlling the capital punishment world-widely, Chinese scholars are pro the idea of diminishing the number of capital cases and nullifying them gradually. Nevertheless, it is the criminal policy of emphasizing the use of death penalty to punish and the psychological reliance in death penalty that determines the space to control the use of death penalty in legislation is minimal. As such, checking the number of capital punishment by the way of due process is more practical. If the standard of proof is refined, the probability of mis-verdict cases will be reduced and therefore, the aim to minimizing the use of death penalty will be achieved. Part I is the status quo of standard of proof of capital cases in China. Alike other ordinary criminal cases, the standard of proof legislated is 'the fact is clarified, evidence is authentic and sufficient'(authentic and sufficient criterion). Its features can be described as objective in wording and not able to apply to sentencing stage. The problem of standard of proof lies in its varied appliance injustice, the want of standard of proof in sentencing stage and the criminal policy in capital cases substituting its legal standard. Besides that in the aspect of policy in death penalty,'Reserve the decision by pending the death penalty' is misled, leading to the consequence that large number of defendants who should be acquitted is sentenced to pending death, life prison or long term prison, which is against the basic rationale of 'no dice—no conviction'.Part II exemplifies some theories relative and adds comments to them. Theories about standard of proof in capital cases can be classified into three categories, namely raising the standard in conviction, standards in conviction and sentencing should be distinguished and others. The opinion of raising the standard in conviction holds the standard of proof in capital cases should be stricter than ordinary criminal cases, which can represent the cherishing of human life. Because it does not address the standard in sentencing, this theory is incomplete. The theory of standards in conviction and sentencing should be distinguished believes that the standard of proof in conviction should use the 'beyond reasonable doubt' as all criminal cases, whereas the standard in sentencing should adopt the higher criterion of 'beyond all doubts'. This theory has some flaws in logic in negative the higher standard in the capital case. Furthermore, other theories including renunciation of standard of proof in capital cases, 'beyond all doubts' when defense on the ground of innocent and using the same group of jury in sentencing stage. However, the three ideas cannot be transplanted in our justice due to the status quo in our country. Owing to its overestimation of the recognition of judge in the theory of 'beyond all doubts' and its vagueness which is hard to handle, the theory of 'beyond all doubt' lacks the reasonableness and feasibility.Part III involves the re-establish the system of standard of proof in capital cases, which maintains that uniformed standard of 'beyond reasonable doubts' should be adopted in the conviction and sentencing phrases in capital proceedings. This part is of critical importance. 'Beyond reasonable doubt'is feasible in capital case. Nevertheless, it is flexible, rather than a fixed stick-yard. Different standard of proof of criminal cases matches different quantification in the set of 'beyond reasonable doubt'. The standard of proof in conviction of capital cases is higher than other criminal cases, which approaches the ceiling of absolute certainty. In the aspect of sentencing, the standard of proof of 'beyond reasonable doubt' is also applicable. Due the flexibility of 'beyond reasonable doubt', the standard of proof in sentencing in capital cases is approaching its ceiling. Thus, the peculiarity of the adoption of death penalty is represented and it can connect the death policy perfectly. The circumstances of sentencing in capital cases are also required to be proved. Because the aggravator affect defendants' constitutional rights substantially, the standard of proof should be to the extent of 'beyond reasonable doubt'. Whereas the capacity of the body that bears the burden of proof should be considered when determine the diminishing circumstances, and the standard to the extent of 'balance of probability' is enough.Part IV is on the complementary measures concerning the standard of proof in capital case. What is most critical is to establish relative sentencing procedure and refine the remedy for the violation of standard of proof. The successful experience of the American death proceedings can be introduced when the sentencing procedure is designed. It includes the investigation process, the participation of victims and the hearing. As far as the remedy for the violation of standard is concerned, when a judge interprets the standard too broadly, both parties are entitled to appeal to the higher court, requesting for a retrial. But when a judge interprets it too strictly when the defendant bears the burden of proof, the defendant is entitled to appeal on the ground of 'wrong in law, misappropriate in sentencing'.In the part of conclusion, the purpose of writing is echoed, which claims that as the supreme standard within human rationality, the standard of proof is directed by the limits of the system of evidence. Hopefully, by establishing the standard of proof in conviction and sentencing, the discretion of judge can be guided and curled appropriately.