Criminal Defense Evidence To Know The Right Research

Study on the Right of the Defendant to knowing the Truth of the Evidence in the Criminal ProcedureIn the criminal Procedure, it is very important for the defendant to know the truth of the evidence provided by the prosecutor. As one of the important rights of the defendant, the right to knowing the truth of evidence can substantially safeguard the defendants' interests by balancing the rights among the parties in courtroom debates and ensure the procedural due process to facilitate the settlement of the litigation without any negligence or misconduct. Though disparities exist in different systems of advocacy, protective measures are taken to secure the right of the defendants to knowing the truth of evidence in the respective law of all nations in the world. In the inquisitorial system, the defense attorneys can know the truth of evidence by reviewing the files provided by the prosecutor. In the adversary system, evidence disclosure system is adopted to satisfy the defendants' or their attorneys' right to knowing the truth of evidence. In the mixed system, both the file-reviewing system and the evidence disclosure system are available for the defendants or their attorneys. The new Criminal Procedure of the PRC strengthens the adversary system in courtroom trial. There are many limitations on the right to reviewing the files in practice. In many cases, the defendants are in a disadvantageous position in the courtroom debates with respect to the obtainment of evidence. The author strives to explore the deep social factors, in addition to the legislative defects, that contribute to the limitation on the right to reviewing the files. The paper is divided into five parts.The first chapter offers a general introduction of the right to knowing the truth of evidence. The right to knowing the truth of evidence refers to the right of the defendants or their attorneys to know about the substantive or procedural evidence from the prosecutor in the criminal proceedings. It includes, like any other right, the subject and the object. The subject is the suspect(s), the defendant(s) or the defense attorney(s). The object refers to evidence. Evidence means all the things that can testify the truth. It can be the facts, the relevant materials, the means or even the reasons that the judge believes to be the cause of the event. It covers a large scope, and differs between laws of different countries.Chapter 2 mainly discusses the legal value of the right to knowing the truth of evidence from the following perspectives: 1. safeguarding the procedural justice; 2. facilitating the disclosure of the truth; 3.securing human rights; and 4.making full play of the judicial sources and improving the efficiency in the settlement of litigation.Chapter 3 focuses on the realization of the right to knowing the truth of evidence in different systems of advocacy through comparison and analysis. There are three systems of advocacy existing nowadays, e.g. the adversary system, the inquisitorial system and the mixed system.In the common law countries, like the UK and the U.S.A where the adversary system is popular, the evidence disclosure system is adopted to make up the defects of the adversary system to balance rights between the parties. The continuous reform and improvement of the evidence disclosure system have effectively brought up the realization of the right to learning the truth. The system operates as follows: with the presence of the pretrial judge, the prosecutor with the investigator(s) and expert(s) of the prosecutor should disclose all their evidences available to the defendants and their attorneys during the period from the beginning of the investigation to the settlement of the litigation.In Germany and France which are the representative countries where inquisitorial system is popular, the file-reviewing system is adopted to secure the defendant(s)' s right to learning the truth of evidence.In the transitional period, Italy and Japan adopt the mixed advocacy system in which the advantages of both the disclosure system in the adversary system and the file-reviewing system in the inquisitorial system are absorbed to balance and secure the right of defense of the suspect(s) and the defendant(s). Chapter 4 probes the realization of the right to knowing the truth of evidence in the current legal system of China. In China, the right to knowing the truth of evidence is realized by the defense attorney(s) through reviewing the files. This system has been provided for by Criminal Procedure of the PRC, Law of the PRC on the Lawyers, and the Regulations promulgated by the six "Ministries and Committees" . Before the latest revision of Criminal Procedure, the people' s procuratorate should transfer to the people' s court all the files which were available to the defense attorney(s) after the decision the people' s court to hold a hearing had been made. In this system, although the engagement of the defense attorney(s) into the litigation was late, the complete details of the case were available by reviewing all the evidences collected during the period of investigation and preparation for prosecution. The latest revised Criminal Procedure provides an earlier engagement of the defense attorney(s) who can meet the suspect(s) and offer legal service to them as early as in the investigation period. But no further guaranties have been made in respect to the right of the defense attorney(s) to reviewing the files. The Regulations promulgated by the six "Ministries and Committees" further defines the scope of materials that the people' s procuratorate should transfer to the people' s court and the scope of files that are accessible to the defense attorney(s). But it expressively stipulates that the scope of "material evidence" should be determined by the people' s procuratorate. Thus, it is more difficult for the defense attorneys to access the substantial evidences. The new Law of the PRC on Lawyers provides no radical solutions to the problem concerning limitations on the right of defense attorneys to reviewing files. In a nutshell, the legislative defects on the right of the defendant(s) to learning the truth of evidence are as follows: 1. too much limitation on the scope of files accessible to the defense attorneys; 2. the place where files are accessible is unclear; 3. no judicial remedies for the "right to reviewing files". The reasons are as follows: 1. the negative influence of the inquisitorial system; 2. the poor personal quality of the staff in the judicial and law enforcement areas. Chapter 5 explores the construction of the file-reviewing system in the legislation in China. Nowadays, academically there are two views on the solution to the limitation on file-reviewing in China: constructing the evidence disclosure system and improving the "file-reviewing" system. The author advocates that we should follow the practice of Italy to continue to improve the traditional "file-reviewing" system by absorbing the reasonable elements of the evidence disclosure system. It is comparatively more practical to reform the existing file-reviewing system to realize the right of the defendant(s) to learning the truth of evidence. The evidence disclosure system is not practical in China because: 1. The poor social status of the defense attorneys make it impossible for them to seek for balance between themselves and the powerful prosecutors; 2. It is difficult to establish the corresponding system of time limitation on evidence adducing and the system of loss of right to evidence; 3. The judges are not neutral or powerful enough to supervise and regulate the obligations of the procuratorate organs to disclose their evidences. 4. The defendant-convenience-orientated advocacy system is not available.The construction of the file-reviewing system should operate as follows: 1.With respect to the subject, not only the defense attorney, but also the defendant(s) should be entitled to access the files. 2. With respect to the object, all information about the evidences provided by the prosecutor(s) should be accessible to the defendant(s). 3. With respect to the time limitation, enough time should be available for the defendant(s) to find relevant evidence. 4. With respect to the venue, specialized office in the people' s procuratorate should be available for the defendant(s) to review relevant files.Judicial remedies for the right to file-reviewing should be realized by: 1 .application by the defendant(s) for postponement of the trial; 2. appropriate punishment for violation; 3. recalling the verdict of guilty.