On Rule Of Evidence In Sentencing Procedure

In China, the existing relatively independent sentencing procedure implementedby the Supreme People’s Court is a special trial procedure which focuses on how todetermine specific penalty for defendants based on the closure of convictionproceeding in a relatively independent time frame and space. The reason forsentencing procedure being separated from conviction proceeding is that it has basisof value and mode of trial that are distinguishable from conviction proceeding andmode of trial, and this unique mode of trial is reflected through the specific rule ofevidence. The amendment to China’s Law of Criminal Procedure this time defines thestatus of facts and evidences for sentencing in the form of legislation for the first time.However, no independent rule of evidence applicable for sentencing procedure isformulated due to the lack of further regulations and improvements, which results in asituation that the distinction between sentencing procedure and conviction proceedingis not definite enough and thus causes the lack of an institutional guarantee for arelatively independent sentencing procedure. Therefore, discussion on rule ofevidence in sentencing procedure can be viewed as the focus and core of researcheson sentencing procedure.The theoretical foundation of rule of evidence in sentencing procedure can beunderstood from the perspective of Three Transformations: The first one is thetransformation from Retribution Theory on Penalty to Purpose Theory on Penalty; thesecond one is the transformation from Accurate Conviction to Individualization ofPenalty; the third one is the transformation from Dominance of Presumption ofInnocence to Temporary Failure of Presumption of Innocence. These threetransformations lay a foundation for the establishment of rule of evidence insentencing procedure, reflect the core value orientation of sentencing procedure andthus reveal the objectives and principles that must be followed by rule of sentencingevidence. Meanwhile, these three transformations, as the foundation for the author in structuring rule of sentencing evidence, are mentioned throughout the whole processof discussion on rule of sentencing evidence and play an important guiding role.Sntencing evidence refers to various facts and materials which can only be usedin sentencing procedure to determine specific penalties for criminal suspects anddefendants. The key to clarify the concept of sentencing evidence lies in thedifferences between sentencing evidence and convicting evidence, which arespecifically reflected in three aspects: Firstly, they have different purposes.Convicting evidence aims to lead to an accurate conviction for defendants, butsentencing evidence aims to realize the individualization of penalty; secondly, theyare restricted by presumption of innocence in different ways. Convicting evidence isrestricted by presumption of innocence, but sentencing evidence can be free fromsuch restriction on a temporary basis; finally, they have different bases. Convictingevidence is based on convicting information related to constitutive requirements ofcrime, but sentencing evidence is based on information for sentencing, includingsevere punishment, lenient punishment or exemption from criminal punishment.For the temporary failure of presumption of innocence and the establishment ofequal status between accusers and the accused in lawsuits, sentencing procedure nolonger concerns the special protection for the accused. Meanwhile, for the purpose offully reflecting the personal danger of the accused and the social harm caused by hisor her crime, the attribute of relevance of sentencing evidence should be relaxed in aproper way. Therefore, the author believes that the scope of evidences should bebroadened in sentencing procedure and corresponding rule of evidence access shouldbe relaxed in order to ensure the comprehensive collection of evidences forsentencing. In summary, it should be reflected in three aspects: The first one is theaccess of hearsay evidence; the second one is the access of character evidence; andthe third one is the conditional access of the illegally obtained evidence.Issues concerning the legal status of social investigation report, as a materialwhich may have an influence on penalty, should be urgently clarified. Only after theattributes of social investigation report can be clarified, its legal effect and bonding force on each party in a lawsuit can be determined, and thus it makes the operation ofthis system feasible and applicable. The author believes that in view of giving fullplay to the functions of social investigation report in sentencing procedure, it shouldbe endowed with the attributes of evidence and introduced into the category ofsentencing evidence. There are three reasons herein: Firstly, the newly amended lawof criminal procedure should provide an amplified interpretation for the concept ofevidence; secondly, the three attributes of evidence based on traditional theory onevidence should not be surely adopted in sentencing evidence; thirdly, from theperspective of the functions and effects of social investigation report, it should beused as an evidence, which may play an important supplementary role.Proof for sentencing is an important content in rule of sentencing evidence. Inthis paper, rule of proof in sentencing procedure is discussed from four aspects,including object of proof, burden of proof, standard of proof and method of proof.Object of proof is limited to sentencing facts, namely various facts and situations thatare used to explain the severity of crime committed by the accused and thusdetermine whether and which criminal penalty should be imposed on the accused. Asfor burden of proof, the characteristic of antagonism between accuser and the accusedbas been weakened based on the situation that rights of the accused have beenguaranteed to the highest degree in conviction proceeding. Therefore, the authorproposes the principle of Whoever Claims Should Present Evidence, namely thatburden of proof should respectively fall on defendant and the public prosecutionorgan for their own claims. The author proposes that standard of proof which isindependent from conviction proceeding should be established in sentencingprocedure, and different standards of proof should be applied for different objects ofsentencing proof. Specifically speaking, clear and credible standard of proof shouldbe adopted for legal facts of sentencing, and preponderant evidence standard shouldbe adopted for discretional facts. Finally, as for method of proof for sentencingprocedure, the author believes that the method of free proof should be applied topromote the efficiency of court trial.