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During the trial, the judge's judgment on the admissibility of the evidence presented by the prosecutor not only has a great influence on the measurement and judgment of the prosecution's evidence before prosecution, but also has a great influence on the investigation and evidence collection behavior of the investigation organ. Because, if the requirement of judging the admissibility of evidence is violated, the prosecutor's investigation and evidence collection activities and public prosecution activities will not achieve the ultimate goal of prosecuting and punishing crimes. It can be seen that the judgment of evidence admissibility is a very important issue. The author intends to discuss this problem from two aspects: evidence ability and evidence probative force.

First, the concepts of evidential ability and probative force.

Criminal evidence, like other evidence, has its inherent probative force and probative force. Evidence ability is the concept of evidence theory in civil law system, which is equivalent to the "admissibility" of evidence theory in common law system, that is, whether it is qualified as evidence. Whether a certain material is used to strictly prove the facts advocated by both the prosecution and the defense, and which needs to be judged by the fact judge, depends entirely on the evidential ability as evidence. In judicial practice, it is generally required that evidence ability has the legitimacy of evidence: first, evidence must have a legal form; Second, evidence must be collected and extracted by legal personnel in accordance with legal procedures; Third, the content and source of evidence must be legal. Judging the admissibility of evidence means judging the ability and legitimacy of evidence.

The probative force of evidence and probative force are completely different concepts. It shows the value of evidence, the power of evidence in ascertaining facts, and whether evidence proves and how many facts to prove. The probative force includes the credibility of evidence and the probative force in narrow sense. Credibility is to judge whether the evidence itself is credible without the relationship between the evidence and the facts to be proved; In a narrow sense, probative force refers to whether evidence can prove the facts to be proved and to what extent.

Second, the relationship between evidential ability and probative force.

The probative force and probative force contained in the evidence itself have their inevitable connections and differences. The connection between the two is that whether a piece of evidence has evidential ability and probative force ultimately depends on the relevance between the evidence and the facts to be proved. An obviously unprovable evidence will not cause the problem of evidence ability in litigation; Similarly, evidence that has no evidential ability according to law must also have no probative force. The ability of evidence formally solves the problem of evidence qualification, while the probative force essentially solves the problem of whether or not the evidence is valuable and how valuable it is. Evidence with evidential ability may not have probative force, such as false confession out of the defendant's free will; Evidence without evidential ability may have probative power, such as a true confession obtained by torture. The evidence as the basis for deciding a case must have both probative force and probative force. When examining and judging evidence, judicial personnel should first examine whether the evidence has evidential capacity, and then judge whether the evidence has evidential capacity, otherwise it is not necessary to consider whether it has probative capacity.

The ability of evidence solves whether the evidence can be presented in court, so that the judge (judge) can see and hear it. The probative force of evidence is to judge the credibility and relevance of the evidence presented in the trial, which should be determined according to the evidence of the whole case when commenting and forming a judgment. Evidence ability is the core issue of evidence law in common law system, which is decided by professional judges; Under the civil law system and China's participation system, judges and jurors jointly examine and judge the evidence ability and probative force.

The concept of evidential ability has not been adopted in the current laws and judicial interpretations in China. In judicial practice, when it comes to this issue, it is generally expressed as "not as the basis for deciding a case", "not as evidence" and "having no evidential effect". Some scholars advocate using the concept of evidential ability in legislation. The purpose is that both parties can apply to the court for unprovable evidence before and during the trial, and ask the court to exclude it, and explain the legal provisions on which their application is based. This can improve the trial quality and litigation efficiency.

Third, the basic principles to be followed in judging the ability of evidence

1, related principle. Evidence in criminal proceedings (manifested as evidence ability)

Its essential attribute is relevance, namely relevance. It means that there is some objective connection between the evidence materials as the content of evidence and the facts to be proved. Such as causality, time, space, chance and necessity, direct and indirect, positive and negative. These connections must be certain, can reflect some facts related to the case, and can be recognized by people. In a specific case, the judgment of whether a particular evidence ability is relevant depends on the facts to be proved, the nature of the dispute between the prosecution and the defense, and the characteristics of the evidence ability itself. When necessary, the corresponding technical appraisal method can be used to determine. In the process of investigation, it is necessary to investigate and collect evidence closely around the case to prevent the scope of evidence investigation from expanding indefinitely and affecting the evidence ability.

2. The principle of substantive justice. Seeking truth from facts, being loyal to the facts and returning the true colors of the case are the keys to collecting evidence. The process of collecting evidence is also the process of judging the ability of evidence. When examining the ability of evidence, the procuratorial organ should exclude hearsay evidence that may be unreliable and cannot be verified by the main question and the counter-main question, so as to prevent evidence that may not be true from entering the court. Similarly, the judge should comprehensively measure and examine whether the evidential ability of the evidence produced by the public prosecution agency is substantive and fair, and must go through court investigation and cross-examination before deciding whether to accept and identify it.

3. The principle of procedural justice. The process of obtaining evidence must conform to legal procedures, strictly follow the exclusionary rules of illegal evidence in the Criminal Procedure Law, and reject the evidence extracted by the investigation organ in a way that infringes on citizens' basic rights, so as to prevent the abuse of investigation power from infringing on citizens' basic rights, which is also an important link that can not be ignored when judging the ability of evidence.

Fourth, the judgment subject of the probative force of evidence.

All the evidence in criminal cases will eventually enter the trial before deciding whether to accept it or not. Therefore, the judge is the main judge of the probative force of evidence.

The law should make detailed provisions on the ability of evidence, and should not make too many provisions on the proof of evidence. Otherwise, it will go back to the old road of legal system. The legal system tries to stipulate the probative force and choice of evidence in advance by law, and requires judges to make judgments mechanically according to legal rules in order to limit judges' discretion. The result often stifles the judge's rationality, making it difficult for the judge to make a judgment that conforms to the facts.

China's criminal procedure system should establish the principle of "free evaluation of evidence". The judgment of the probative force of evidence is completely left to the judge's free judgment, and the judge (fact judge) can judge freely according to his own rational thinking and conscience, so as to avoid the mechanical and rigid judgment that binds the fact judge to determine the facts. Because the probative force of evidence is complex and concrete, judges need to make rational judgments. Judges are allowed to freely judge the probative force of evidence according to logical rules and empirical rules, and are not limited by legal rules. In order to ensure that the judge's judgment on the probative force of evidence is more in line with scientific principles, more conducive to finding out the truth of the case and realizing judicial justice, it is necessary to add some procedural provisions for reviewing the probative force of evidence and necessary rules for judging the probative force according to judicial practice experience. For example, the interference of the law on the probative force of evidence is limited to "it is impossible to finalize the case by confession alone" and "it is impossible to finalize the case by isolated evidence alone".

Because the evidence ability is to solve the problem of whether a piece of evidence can be accepted by the court, the evidence with controversial evidence ability should be put forward by both the prosecution and the defense, and the judge will try and review it, and finally decide whether to accept it. Therefore, before initiating a public prosecution, the procuratorial organ should weigh its own evidence according to the standard of evidence admissibility (evidence ability) to decide which evidence should be presented in court and which evidence should not be presented in court, so as to ensure the quality of prosecution and finally realize the purpose of prosecuting and punishing crimes.

Evidence is the cornerstone of litigation. The ultimate goal of all criminal litigation activities around evidence is to correctly handle cases with evidence on the basis of finding out the facts. This requires that the evidence provided must reach a certain level and standard in quantity and quality, that is, the proof standard of evidence in criminal proceedings. The ultimate requirement of the criminal procedure law for the standard of proof of evidence is that the evidence must reach "the facts of the case are clear and the evidence is true and sufficient". In judicial practice, due to the lack of a unified understanding standard of what "evidence is true and sufficient", the public, procuratorial organs, legal organs and lawyers have conflicts due to differences in understanding the standard of proof when examining and confirming evidence, especially as the procuratorial organ in the middle of litigation, it has to spend a lot of time and energy on this dispute, which leads to the passive work. Therefore, the problem of how to determine the ultimate proof standard of evidence in criminal proceedings can not be solved, and the debate around what is "evidence is true and sufficient" will be endless.

First, the relevant provisions on the standard of proof and its shortcomings

The standard of proof of evidence is different in different links of criminal proceedings, and the later links, the higher the requirements for evidence. There are many foreign advanced experiences to learn from in this respect. For example, some scholars in the United States divide the standard of proof into seven grades according to the order from low to high, namely: meaningless proof, reasonable doubt, probable reason, superior evidence, superficial evidence, proof excluding reasonable doubt, and absolute guilt proof. China's criminal procedure law only stipulates the following principles for the standard of proof: the standard of filing a case is "criminal responsibility needs to be investigated for criminal facts"; The standard of detention is "flagrante delicto or major suspect" (seven cases stipulated in Article 6 1 of the Criminal Procedure Law); The proof standard of arrest is "there is evidence to prove that there is a criminal fact, and it may be sentenced to more than fixed-term imprisonment"; The standard of investigation, prosecution and guilty verdict is "the facts of the crime are clear and the evidence is true and sufficient". It can be seen that the provisions of the Criminal Procedure Law on the standard of proof have the following two defects:

1. The provisions on the standards of investigation termination, public prosecution and judgment are not reasonable enough, which violates the objective law that the standard of proof rises step by step. The Criminal Procedure Law stipulates the same standard of proof for the above three different litigation links, but in judicial practice, the three different litigation links have different understandings of "the facts of the case are clear and the evidence is true and sufficient". According to the standard of proof, the standard of investigation termination should be lower than the standard of public prosecution, and the standard of public prosecution should be lower than the standard of judgment.

First of all, the requirements for the quantity and quality of evidence at the end of investigation are low, and the understanding of "evidence is true and sufficient" is still at a low level. The probative force of evidence does not require that it must reach the level of "beyond reasonable doubt", as long as the evidence provided can prove that a criminal fact did occur in quantity, type and quality, and that the criminal fact was indeed committed by a criminal suspect, and there are no contradictions and loopholes between evidence and evidence that cannot be reasonably explained. Because the evidence in the final stage of investigation is still in the preliminary proof stage, the evidence is still in an uncertain state and needs to be improved, which can be supplemented and improved at any time. After being transferred to the procuratorial organ for examination and prosecution, the public prosecutor can examine the evidence. If the facts are unclear and the evidence is insufficient, he can return it to the public security organ for supplementary investigation, or he can conduct his own investigation, and he has two opportunities to return it for supplementary investigation.

Secondly, the understanding of "evidence is true and sufficient" requires more evidence in quantity and quality than investigation. Although the probative force of evidence does not require that it must reach the level of "excluding reasonable doubt", it requires that it must be strictly examined, not only to exclude all illegal evidence, but also to eliminate the contradiction between evidence and evidence by supplementing and perfecting evidence, so as to reach the level of confirming the crime beyond doubt. Although there is a high demand for evidence in the public prosecution stage, the evidence is still in a relatively uncertain and imperfect state, because the understanding and grasp of the probative force of evidence in the public prosecution stage is based on the conclusion that the suspect is guilty after reviewing the existing evidence, and it is convinced that the existing evidence system is enough to prove the crime, that is, investigators are convinced that the evidence is enough to meet the proof standards required for public prosecution. Whether the evidence can finally be used as the basis for deciding the case still needs to be cross-examined by the prosecution and the defense in court, and it can only be finally adopted after confirmation. The public prosecution organ still has the right to supplement new evidence during the trial, and the defender and agent ad litem also have the right to apply for notifying new witnesses to appear in court, for obtaining new material evidence, and for re-appraisal or inspection. It can be seen that in the prosecution stage, if the standard of proof meets the proof requirements, it may not be reached in the trial stage, and the standard of final judgment in the trial is higher than the standard of prosecution. In judicial practice, some people equate the standard of proof of public prosecution with the standard of judgment, that is, they must reach the level of "excluding reasonable doubt" and set the standard of proof of public prosecution too high, which leads to the fear of prosecuting cases that should be prosecuted because of the high standard of proof in the process of examination and prosecution, thus causing the possibility of indulging in crimes and adversely affecting criminal proceedings.

As for the extent to which evidence can be presented in court in quantity and quality, there is still no exact standard in judicial practice. The author believes that the standard of proof of public prosecution should be lower than the standard of judgment, as long as the quantity and quality of evidence are enough to prove the suspect guilty and reach the level of conviction of ordinary people. In view of this, the author suggests that the relevant authorities should formulate the standard of proof according to the different requirements of the three different litigation links, so as to make the standard of proof more accurate, scientific and practical.

2. The standard of proof of different specific cases in different types of cases and similar cases. The first is the standard of proof of various cases. According to the different nature of crime, criminal law divides crime into ten different types in specific provisions. Due to the different characteristics of different types of criminal cases, the constitutive elements of crimes have their own characteristics, and the requirements for proof standards in various cases are also different. For example, the crime of infringing on property stipulated in Chapter V and the crime of corruption and bribery stipulated in Chapter VIII of the Specific Provisions of the Criminal Law are all property-related crimes, but the subject and object of their infringement are different, and the types of evidence involved are also very different, which determines that they have different requirements for the standard of proof. The second is the standard of proof of different specific cases. The specific provisions of the criminal law stipulate more than 400 different crimes in ten categories. Because of the different characteristics between cases, the constitutive elements of crime also have their own characteristics. Therefore, different cases require different standards of proof, such as theft, robbery, rape and arson. Even if the nature of the crime of corruption and bribery is the same, the standard of proof is quite different: in addition to the written evidence such as the confession of the suspect and the testimony of the witness, the crime of corruption can also be obtained through documentary evidence such as documents and accounts, forensic accounting appraisal and handwriting inspection, which requires higher standards of proof. However, the crime of accepting bribes occurs under the circumstances that outsiders are difficult to know. Obviously, there is little and single evidence, so it is difficult to form a complete evidence system between evidences, and even a large number of isolated evidences appear. The third is the standard of proof concerning specific issues in criminal proceedings. If the substantive and procedural issues related to criminal proceedings, such as voluntary surrender and self-defense, are identified, it is urgent to formulate specific proof standards for these criminal issues in judicial practice. In addition, there is some lack of evidence. In judicial practice, due to various reasons, evidence is partially missing (or lost) in some links and cannot be obtained everywhere. Such as intentional homicide, intentional injury, theft, robbery and other crimes, such as the loss of money and stolen goods, or because the victim can not be found, or because the witness refuses to testify. For example, three suspects robbed a bus, and after being brought to justice, all three suspects made confessions about the criminal facts of the robbery, and the confessions were consistent, and the robbed items were seized. It can be said that both of them got the stolen goods, but because the victim could not be found, their testimony could not be obtained. In the case of incomplete, unreliable and insufficient evidence, can the suspect be convicted and sentenced? If a crime is charged, what level of evidence should it be?

Because the Criminal Procedure Law has no specific provisions on the standard of proof in the above three aspects, in view of the different nature and characteristics of various cases and similar cases, and in view of some specific events often involved in judicial practice, it is urgent to formulate concrete and feasible evidence rules for the standard of proof in judicial practice. The author thinks that the public, procuratorial and legal organs should strengthen coordination, reach a consensus on the standard of proof as soon as possible, and formulate relevant standards of proof in general and in principle for different types of cases, so as to play a theoretical guiding role; For specific cases of different crimes, we should find typical cases selectively and emphatically, and formulate concrete and feasible evidence rules for the degree and standard that evidence must reach in quantity and quality; Specific problems encountered in criminal proceedings and entities can be solved through judicial interpretation.

Second, on the issue of "excluding reasonable doubt"

According to the requirements of the standard of proof, the judgment standard requires that the evidence must reach the level of "excluding reasonable doubt" before it can be used as the basis for finalizing the case and making a guilty verdict on the suspect. But how to understand "excluding reasonable doubt" and grasp the boundary of "excluding reasonable doubt" in practice? Because of the diversity and complexity of causality, there are many causes everywhere. Specific to a case, if only from the causal relationship, there may be many different inferences, and each inference is logical and reasonable. But logical rationality is not equal to factual rationality, and there can only be one objective fact. How to exclude other non-objective facts that are only logically reasonable, that is, how to "exclude reasonable doubts"? We might as well look at a case first: A student aged 15 found that a woman often stayed at home alone because she had no money to play video games. On the pretext of finding the key, she tricked the woman into opening the door and breaking into her home. Without saying anything, she put her hands around her neck and pushed her to the ground. Because the victim struggled to resist and called for help, the suspect fled and failed to commit the crime. After the incident, the subjective purpose of the suspect's confession is to rob money, and the victim's statement may be rape. According to the criminal suspect's confession of subjective intention, the procuratorate prosecuted for robbery. After hearing the case, the court held that there was only violence in this case and the crime was not over. No one knows what the suspect wants to do and how far the case will eventually develop. There is no other evidence to prove that the defendant has the intention of robbery, and the possibility of rape or other crimes cannot be ruled out. In the absence of other evidence, the defendant's subjective and intentional confession cannot be trusted, other reasonable doubts cannot be ruled out, and the defendant cannot be convicted and sentenced. This is a typical case of applying the standard of "excluding reasonable doubt". In the same situation, we might as well make the following assumption: a criminal suspect stood on the side of the road with a wooden stick at night and saw a woman riding a bicycle. Without saying anything, he knocked the woman off her bike with a stick and dragged her to the roadside ditch. When he committed the crime, he was caught by the public security police passing by here. If there is no subjective and intentional confession of the criminal suspect in this case, it is logically speculated that there are many possibilities for his behavior: intentional homicide, intentional injury, rape, robbery, indecency, insulting women, etc. If we logically speculate on any possibility according to the viewpoint of "excluding all reasonable doubts", not only the above cases are difficult to grasp, but also most cases in judicial practice may be difficult to withstand the speculation of excluding all doubts. The author believes that the understanding of "reasonable doubt" should be limited to a reasonable range, and we should not blindly doubt or doubt everything. Some people argue that all the evidence in a case must be exclusive and unique, which obviously violates the principle of diversity of causality. Therefore, on the issue of proof standard, we advocate "excluding reasonable doubt" and oppose the view of doubting everything. If too much emphasis is placed on "excluding reasonable doubt" in judicial practice, it will only lead to agnosticism and adversely affect criminal proceedings.

The above are two related papers I found. I hope they can help you.