On The Common Statement Of The Accused

The nature of the statements of co-defendant determines his role in the criminal proceedings, as well as the application of the evidence rule. Thus it affects greatly on the co-defendants' rights. There is no provision about it in our Criminal Procedure Law and interpretation, that's result in the dispute in the academia and at loose ends in the trial. So this dissertation dedicates to study the system of the statements of co-defendants. It will begin at study of the nature of the statements of co-defendants, solving the problem of how to ascertain the nature of the statements and how method of statements to be obtained bases on researching of the provisions of three representative countries. In the end the article will put forward the suggestions of consummate our system of statements of co-defendants, and give the reasoning of the consummate.There are five parts in the dissertation, which about 36,000 words.The introduction part will introduce the motive, aim, study method and the problems which will be solved in the article. It points out that, because there is no provision about the statements of co-defendants in our Criminal Procedure Law and interpretation, that's results in the dispute in the academia and justice scopes. There are two theories about this question, confession of defendant or testimony of witnesses. So the article dedicates to solve the problem which from the justice practice scopes.First part: The Definition of Co-defendants. In this part it will introduce the connotation and extension of the co-defendants. It points out that the conception of co-defendants which the article use is one of the conceptions which usually used in criminal procedure, it indicates that the two or more persons who are jointly charged in the same public prosecution. It contents that, the defendants who are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses, all defendants need be charged in same court, and also the defendant is a nature person.Second part: The Nature of Statements of Co-defendants. In this part it will introduce the two contrary theories of the nature of co-defendants in academia, the theory of confession of defendant and the theory of testimony of witnesses. And will analyze the relation of two arguments. The arguments focus on two points, first is whether or not the co-defendants competent for the prosecution, second is whether the co-defendant can be convicted if there no other evidence but co-defendants' statements only. There are double relations above, first, the two questions on two tiers, and second, the solving of the two questions has no necessity connection.Third part: Comparative Researching of the Statements of Co-defendants. In this part it will research the provisions about the statements of co-defendants in three countries, resolve three questions, that is what's the provision of that country, the reason of this provision had to be instituted, the illumination to consummate our system. Above all, the reason researching is the keystone. It points out that, there are varies provisions about statements of co-defendants in American, German, or Japan. According to The Federal Rule of Criminal Procedure, a defendant is competent to be a witness on his own behalf, he has the right to decided whether or not to go to the box and give testimony. But according to the Criminal Procedure of German and Criminal Procedure of Japan, the co-defendant is not competent to be a witness even on his own behalf. For obtain the statements evidence form co-defendants, the German procedure developed the temporarily separate trials, the Japan procedure adopt the separate trials and jointly trials coexistent. According to American law, if the joinder of offense or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials. That provides relief from prejudicial joinder. So sever or not bases on the necessary for protect the defendant's right and the prejudice the defendant may be faced. The method of German law has adopts aim to get the evidence legally. It's a choice balanced the necessary of charge the defendant and protect the defendant' right. According to that method, the court can find out the reality of a case in one hand, and protect the defendant' rights perfectly in another. The method of Japan law has adopts aim to protect the defendant' rights, the court base on balance the necessary of protect the defendant' Right to keep silence and the Right to be confronted with the Witnesses against him decided to sever the trial or not. The most illumination to consummate our system of statements of co-defendants is that what is our aim of the system will adopt, we should find out the balance point, the point which balanced the protecting of defendant' rights and find out the reality of a case.Fourth part: The Suggestions of Consummate our System of Statements of Co-defendants. On the base of comprehensive analysis the system about statements of the co-defendants in aforementioned three parts, the article presented the suggestions to consummate the system in the coming of Re-amendment of the Criminal Procedure Law, and the author also gives the feasibility and reasonableness of the proposals. This is the most important part in the dissertation. It points out that, about the nature of the statements of co-defendants, the author suggested to segment to two types, confession of defendant or testimony of witnesses, base on the statements' content. The segmentable theory respect the traditional view of the defendant is not competent to be a witness in criminal procedure, and it also be within the standards of ascertain the evidence type upon the Criminal Procedural Law. It is a flexible method to deal with the problem depending on the specific circumstances. The adoption of the segmentable theory can be very clearly defined the application of section 46 of the Criminal Procedural Law, resolving the disputes in judicial practice. The method of statements obtained suggested learning from Japan, adopts the style of the separate trials and jointly trials coexistent. The reason of suggest learning from Japan, mainly taking into account the factors of China's judicial tradition, the advantages of the type which Japan adopts, and the implementation of the new system constituted. The reason disagree with the replacement of the court after the severs is that China does not use jury trial, and in a long time in trial practice will prevail "silence trial" or " archives trial", adopts the method of replacement of the court can not attain the effect American law achieved. Based on the judicial system settings on full confide in the judge, the purpose of sever the defendants' trial positioning for the protecting the defendant's Privilege against self-incrimination and Right to be confronted with the Witnesses against him. For ensure that the defendant's rights to be real protected, endue the defendant right to appeal if he consider the judge' decisions infringe his rights. The appeal court should remand the case to the court which originally tried it for retrial if the first trial judge' decisions infringe his rights.