On the evidence of effectiveness and Victim Statement System Victim Statement

Keywords:: victim statement / evidence of effectiveness / improve the system

Summary: statement is a direct evidence of the victim, because such evidence is conducive to timely detection investigation depArtment, directly accused of a crime, what is this paper from the victim, characteristics, statements of victims to collect, review, judgments on the effectiveness of the Victim Statement expounded, from the clearly illegal evidence exclusion principle, change the statements of victims, the implementation of the principle of direct language, the defendant is not evidence, retracted, and the establishment of the investigation the victim witness statements to change the system. three areas proposed to improve the Victim Statement system.



First, the victim statement evidence of effectiveness

Correctly understand and grasp the victim statement evidence of effectiveness, we must first determine the concept and characteristics of the victim statement. I believe that the statements of victims, Criminal behavior is directly infringed by the person to the public security organ, the People's Procuratorate or the people suffer for their crimes court against the facts and the relevant Criminal suspects, the statement made by the defendant's case. In Criminal proceedings, the victim is the direct victims of crime, Criminals committed the crime of time, place, method, process, results, more detailed statements have and comprehensive. due to various subjective and objective impact victim statement may be false, untrue. it is necessary to explore, we should correctly understand the statements of victims, we must first grasp the concept and characteristics of the victim.

(A victim has the following characteristics:

(A victim of the pArties in Criminal cases

The victim is not only a crime to bear who is also the crime side pArties. In their legitimate rights and interests subject to criminal acts against the same time, the victim has also experienced a crime in the whole process to understand the crime, the truth. Victim's statements, the investigation out the real situation the case is important. many countries as a witness to the testimony of the victim's statement, asked the victim to testify as a witness, but also due to this result. Therefore, to ascertain the facts of cases, they can not do without the cooperation of the victim and cooperation, whether investigative or judicial authorities, should be mobilized to actively pArticipate in the proceedings of the victims and encourage them to faithfully present the case, bold testify in court.

(2 victims are people with an interest in ending litigation

The legitimate rights and interests of the victims suffered as a crime against the people who cooperate with the police, or directly pArticipate in the proceedings, the purpose is to safeguard their legitimate rights and interests, through the request for compensation or compensation to restore their legitimate rights and interests. In order to achieve this purpose, the victim should be participating in litigation activities the right place in the proceedings, have to maintain and restore their legitimate rights and interests of right of action necessary. presided over the proceedings of state organs shall listen to the views of victims of the court cases dealing with the request and restore their rights to make the handling of the case more justice.

(A victim should be subjected to criminal acts against the people directly. In criminal cases, the victim's parents, children or spouses and other relatives and friends although subject to some degree of damage, but these people do not belong to the victims of criminal cases.

(B must be subjected to infringement of their legitimate rights and interests of the people, according to the provisions of Code of Criminal Procedure, legal rights, including their personal rights, democratic rights, property rights and other legal rights. The legitimate rights and interests of the person subjected to criminal acts against

This is the most significant features of the victim. Only through legal rights have been violated, only into its victims. The founder of one of the victims, Israel's Lawyer, Benjamin? Mendelssohn with the "victim" of [1] to summarize the concept of the common characteristics of victims, but also reflect this characteristic. From the point of being against the interests of the victim is the legitimate rights and interests are infringed upon, that is legally protected rights and interests, both personal rights, property rights, including other rights and interests. from Causation point of view, the legitimate rights and interests of the victims suffered from criminal acts of infringement. Although the definition of crime in different countries, the types of crimes, the provisions of different charges, but must be subjected to criminal crime victims against the person. in criminal activities in the implementation of the same process to produce a thing of two aspects: Offenders and Victims, perpetrators of crime and criminal behavior bearer. Of course, some cases are not victims of crime, which category of cases in the United States and Europe called "victimless crime" cases. [2] These criminal acts against the object of public order or public interest, even though it's obvious there is no direct victim, but there are still indirect, potential victims . such as drug trafficking cases, the voluntary purchase of drugs and drug addicts can not be victims, but the implementation of drug treatment, drug family or community to pay the high costs, so that the families of drug users or taxpayers become indirect victims. but this kind of indirect Victims are generally not regarded as criminal victims.

(C victims of either a natural person, can also be a legal person. The traditional theory of criminal proceedings has been the natural person as a victim. In recent years, whether as a victim on the legal, procedural Law scholars in China have a different understanding, some scholars still adhere to traditional criminal litigation theory that can not serve as legal victims, however, China announced in 1987, announced after the Customs Law and the National People's Congress Standing Committee supplementary regulations and the decision or October 1, 1997 came into effect the provisions of the Criminal Code are clearly legal (in Some crimes can be subject to legal debate can become a criminal subject to an end. It can be seen in the business activities of corporate criminal behavior must be directly responsible by their representatives and staff. Also, criminal proceedings by legal representatives of victims can also participate in the proceedings, or to entrust agents ad litem involved in litigation to expose crime, confirmed that crime. In short, we believe that victims should be included in corporate, legal victims should and can have their own statements, this statements made by its legal representative and may also appoint and authorize the legal representatives involved in litigation, agency action and the act authorized. (4 identity of the victims of crime as a result of acts, so the victim should be a specific person, with the irreplaceable nature. determine the specific nature of the victims of its exclusive representation, which can not be replaced by others, and statements of victims murdered by the facts. If other people aware of this crime that only the identity of the witness to testify. Even his legal representatives or legal representatives to act on the participation of victims in legal proceedings, to propose specific action requirements, but also not a substitute for the victim to present its case to provide victim statement evidence of such an action. As a case there is no victim, or a few victims to vary by case.

(B characteristics of the victim statement

The concept and content of victims, and victims themselves in criminal proceedings in which the special status of the proceedings, determine the characteristics of the victim with statements:

1, the victim's statement identifying the case and determined on the facts of the case has a special role. In general, the more real and objective statements of victims, but also has a direct, vivid, concrete, vivid features. Of criminals committing the crime of the time, place, methods, procedures, results reveal comparatively clear and specific. particularly those with criminal elements have had direct contact, such as robbery, rape, kidnapping, injury and other violent crimes.

2, the victim statement with the real to the enemy, the actual situation crossover features. A variety of complex reasons, the victim statement may intentionally or unintentionally, exaggerate or reduce the objective facts. It was also deliberately fabricated facts, false facts. Their specific performance in the following areas: (1 Sustaining crime because the harm arising from revenge, emotional extreme and exaggerated circumstances, lead to a false statement, (2 in some cases, the spirit of the victim of high tension, observation is not small, faded memories, and lead to unclear statements, or even subjective inference misrepresentation, (3 out of personal interests of individual victims or other purposes can not be advertised, much ado about nothing, create false statements implicate another person, (4 some victims out of personal considerations, future, reputation, family relationships, child benefits, etc., are ashamed to mouth, not justly to expose crime, major issues to minor ones, and (5 victims out of kinship or some treat or gift, or money to buy, or foreign interference, coercion and intimidation, and making false statements, and so on.

Therefore, some scholars define as a victim statement supporting evidence, as the screening of the suspect, the confession of the accused and the defense, witness testimony and other evidence of the authenticity of the reference.

Analysis of this point, I believe that at least can be summarized with the following evidence of the effect of statements of victims:

1, the victim statement is an important evidence in criminal proceedings,

2, the victim statement evidence of effectiveness is limited, it can not be alone as the basis for deciding,

3, the victim statement to corroborate other evidence if there is an important decision can be used as evidence

4, the victim statement confirms the other evidence as the final decision according to the time the next, must be verified.

Of course, statements of victims to have the evidence of effectiveness, but also made the confession must be excluded illegal factors. That is, statements of victims to have the evidence to be effective, must be judges, prosecutors, investigators made in accordance with legal procedures. The collection of statements of victims and legal, judicial interpretation of the provisions are: the collection of statements of victims, mainly the way by asking for the procedure with the questioning of witnesses in the investigation, prosecution part of the main ways is to produce transcripts asked to be fixed and preservation. investigators, prosecutors personnel in the production of transcripts of the questioning of victims, it should be in accordance with our current Code of Criminal Procedure, Supreme Court and the Supreme People's Procuratorate of the judicial interpretation of the rules of criminal evidence collection to the relevant provisions. These regulations are amended in 1996 <<People's Republic of criminal Procedure>> Article 43 provides: "Judges, prosecutors, investigators must follow the legal procedures to collect to prove a criminal suspect or defendant guilt or innocence and gravity of his crime evidence. prohibited torture and the threat of temptation, deception, and other illegal methods to collect evidence. "Part II of the Act to section 89 of chapter 118, section 131 provided on the investigation also included the rules of criminal evidence collection .1998 September 8 date of implementation of the <<Supreme Court on the implementation of <Criminal Procedure Law> Interpretation of Several Issues> "(hereinafter referred to as <" Intepretive>> Article 61 provides: "No to illegal methods to collect evidence. who have been confirmed really belongs to the use of torture or a threat, enticement, deceit and other illegal methods to obtain witness testimony, statements of victims, the accused confessed, can not serve as the basis for deciding. "January 18, 1999 implementation of the Supreme People's Procuratorate <<People's Procuratorate Criminal Causes Rules> "(hereinafter referred to as <" Rules>> Section 265 provides: "No to illegal methods to collect evidence. to torture or threat, inducement, fraud and other illegal methods to collect statements of criminal suspects, statements of victims, witnesses testimony can not serve as the basis for criminal charges. "14 May 1998 the Ministry issued the <<Public Security Organs in Handling Criminal Cases by the provisions of>" (hereinafter referred to as <<provided>> Article 51 provides: "Public security organs must follow the statutory procedures, collection can prove the criminal suspect's guilt or innocence and gravity of his crime all the evidence. strictly forbidden to extort confessions by torture and threats, enticement, deceit or other unLawful means to collect evidence. must be guaranteed for all to understand the merits of the case or citizens, there is objective evidence sufficient to provide the conditions, except in special circumstances, they may be assist in the investigation. "<<provided>> the provisions of Chapter IX on the investigation also includes the rules of criminal evidence collection. above the existing laws of our country judicial interpretation of criminal rules of evidence collection. So by threat, enticement, deceit and other illegal methods to take statements and do not have evidence of effectiveness.

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Second, the victim statement System.

1. Further clarify the illegal evidence exclusion principle. Mainly should be made clear the absolute exclusion of illegal evidence. Criminal Procedure Law Article 43: prohibit torture and the threat, inducement, fraud and other illegal methods to collect evidence. <"Intepretive>> Article 58 states: Where it really belongs to verify the use of torture or threat, enticement, deceit and other illegal methods to obtain witness testimony, statements of victims, the accused confessed, can not serve as the basis for deciding. Obviously, in direct statements, not decision is based on the evidence as "testimony of witnesses, statements of victims, the accused confessed," this type of verbal evidence. for the illegal collection of physical evidence, documentary evidence such as exclusion of evidence or not, neither a clear legislative and judicial interpretation. This is undoubtedly evidence system improve the barrier. Although scholars advocate the establishment in China relative to the Exclusionary Rule in order to facilitate the fight against crime [3], but evidence of illegal acts, after all, a suit directly against the legitimate interests of citizens of all of the public poses a potential hazard. at the same time Criminal procedure in practice of torture and other illegal acts evidence is more than a long ban and legislation to some extent related to tolerance. Again, absolutely rule out the rules of protection of the rights implicit in the concept of enhanced and new criminal law protect the rights of the accused to adapt. Thus, China in the legislation should be clearly stated in a more rigorous principles of absolute exclusionary rule.

2, change the statements of victims or the defense that the victim in the implementation of pre-trial cross-examination untrue statement of principles

Most of the original victim statement evidence, direct evidence and incriminating evidence, it reflects an important source of evidence facts of the case, played a key role on the decision. The kind of evidence that changes often affect the handling of the whole case, to judicial officers to deal with cases with to great difficulties, such as Lin robbery, the victim statement of changes Liu prosecution stage, saying that a robbery was being raped Lin, and explain its statement to the investigation organ was not the fact that the thought of our own reputation. After ideological struggle for some time that the facts should be charged with rape, and rape when the state saw a knife marks Lin right lower abdomen, was raped and their genitals readily picked up a towel and put a towel stuffed into The gaps. victims of the within the critical knowledge evidence, regardless of its interpretation is reasonable, credible are high. The investigation of Lin had done appendectomy, but also by extracting the towel scene investigation, DNA identification of a forest by Ryu, a semen residue and secretions. lam though not confessed the fact of rape, but there are statements of victims and material evidence, conclusions can still be found to support Lin rape. Again, such as Ryu, rape trial, the defense provides the victim Xiaomou written testimony, said Liu Instead of adultery rather than rape, a sudden change for the statements of victims, prosecutors in a timely manner to grant an adjournment, and find the victim Xiaomou asked, after a detailed conversation, the victim revealed the defendant's sister, brother in law bribe the victim to bring a gift many times, and force the sum of the facts. the defendant's brother in law out of the prepared testimony of adultery, victims of signature Nayin required, the request to change his statement to the forced signing Na Yin, is not the true meaning of that Therefore, statements of victims caused by changes in the growing phenomenon of public concern of justice.

China <<Criminal>> Article of the forty-seven criminal cases, evidence can be used as the basis for deciding. But also provides evidence that the seven must be verified before it can used as the basis for deciding. About how to verify the evidence, <<Criminal>> provided the evidence for each is different, in which the physical evidence, documentary evidence, conclusions (except for the appearance of appraiser, inspection, examination transcripts, audio-visual materials, only requires the trial to show, listen to all views of the parties, the court can review confirmed the legal effect of such evidence. And on the testimony of a witness, confession of the accused and the defense of two review of the evidence, "<Criminal>> have done a more specific provisions. the provisions of the testimony of witnesses After the trial the prosecutor asked the victim and the defense cross-examination, listening to the views of the parties to review the confirmation of effectiveness. counsel and the defendant has the right to request witnesses for their cross-examination. Accordingly visible in the legislative review on the testimony of a witness can Let the parties to fully exercise their litigation rights, court review of witnesses is rigorous, "<Criminal>> on the confession of the accused and the defense review, more stringent regulations, because the main content of the trial the accused is questioned no doubt the defendant's confession and the excuse is the most carefully review the fullest. <<Criminal>> just not on the statements of victims to cross-examination, the need for court, the judge, counsel, the right to ask the victim whether the defendant such issues appear to make clear. trial practice generally only the victim's written materials or handling organ inquiry transcript read out in court to hear the views of all parties recognized the force of law. <<Criminal>> appear in court to victims The reason why the request did not do more, no doubt considering the various interests of the protection of victims. But the victim and the defendant has a direct interest, trial practice, often leaving the victim because of this special relationship is hard to determine the authenticity of the statement court slightest mistake will put the victim identified as untrue statement of reliable evidence to be finalized. and the general situation, handling organ of the victim to the transcripts relative to the defendant's confession and the excuse is more likely to be believed, with evidence for the decision. Therefore, statements in the legislative review of the victim should also have specific requirements, whether the victim should appear before a cross-examination, the defendant, counsel has the right to apply for the victim to appear, the judge asked whether the right to cross-examination to appear before the victim is worthy of study and discussion, because sometimes the victim is a direct impact on court findings of fact. and if the defendant, counsel can not ask the court for cross-examination the victim is deprived of the procedural rights of the accused. China after WTO members to fulfill the other side of the same as "law enforcement open and fair" commitment, if not publicly cross-examine the victim's statement is inconsistent with relevant WTO rules. from the following with rape cases can be more fully recognized in some cases, in criminal proceedings requires the victim to appear accept the need for cross-examination. victim Zhang, Lee and colleagues at Chang having sex. A month later, it was revealed Lee prostitution, Lee summoned by the public security organs, public security authorities summoned the next day, Lee accountable to the public security organs have their own sexual behavior took place with Zhang and Zhang accused of raping her. After the public security organs Communications Zhang, Zhang and Liu acknowledged the fact that sexual relations occurred, but denied that the act is rape, Lee said the initiative is looking to borrow money Zhang, in Zhang Sexual intercourse. After the defense lawyers entrusted by marking, meeting with the defendant, the victim's statement that the transcripts have many doubts and questions, and communicate through and trial , asked the victim to appear in court asked detailed plot. The case is just the victim but also to hire a lawyer represent it in litigation. The court will notify the victims appear, in the course of the trial, the presiding judge allowed the defendant's defense counsel asked the victim in detail, statements of victims exposed to a lot of contradictions. are: First, Lee is a victim with their cell phone to Zhang and Zhang contacted, but they made up the victim in the public security organs are on the road, said Zhang Zhang met , was cheated of Zhu. then counsel to produce a certain mobile company in the phone call list extracted from Lee, the victim speechless, without any explanation. Second, the public security organs, said Lee is on the way home passing Zhang Zhang when to go, but counsel asked her route home, she made up lies, when the defender told her that the line is not leading to the residence, she was again unable to answer. whatever the answer does not meet the victim everywhere at the facts. After cross-examination, the court denied the victim in the statement of the public security and the prosecution material. Finally Zhu defendant not guilty verdict.

Full consideration of the Criminal Procedure Law of victims in criminal proceedings in which the victim and the special position and special interest in criminal cases, and given the status of the victim to party and enjoy the unique right of action, making the victim in the investigation, prosecution, each stage of the trial the statements made, can be used as evidence in court. At the same time there is no mandatory requirement of law obligation to appear in court for victims, victim statements often appear in court in writing. In a number of statements of victims through litigation aspects of the situation under a variety of factors likely to be the impact of changes in state occur. To ensure the authenticity of the statements of victims, should increase the cross-examination of the statements of victims, the testimony of criminal procedure must be approved by the court on cross-examination of witnesses, while the statements of victims in criminal Procedure not provided for cross-examination procedures. the court cross-examination of victims legislation, evidence of the prosecution and the defense cross-examination to go through the debate can be able to distinguish the authenticity.

3, the defendant is not evidence, retracted, and the establishment of the investigation the victim witness statements to change the system.

Statement of the victim to change the face of the phenomenon, so that the legality of the prosecution evidence was controversial and even questionable circumstances, a witness in the investigation of the system set up to demonstrate outside the trial evidence of statements of victims outside the legitimacy of such trials, it has become very necessary. First, a system of investigation witnesses, the prosecution the burden of proof is a logical extension. As noted above, the prosecution is not only the burden of proof on the real facts, such as evidence for the fact that the legality of such proceedings the burden of proof. control parties outside the trial in order to prove the legitimacy of the victim statements received, of course, to record the questioning process by providing the audio and video tapes as well as a way to write a proof of the victim, investigators still have to testify in the positive sense: First, beneficial to the implementation of Direct Speech criminal trial. investigators appear to process the relevant facts testify to receive inquiries from both parties, it is a criminal trial embodied the principle of direct language. Second, it helps to clarify the facts and expose the victim of false, untrue words maintenance of investigative agencies, investigative department's image. practice shows that the vast majority of cases, changes in state court, pure victims and they have not been unreasonable, but almost invariably the subject of a statement claiming to be forced investigators to trick due Although prosecutors also be rejected, but only investigators to testify, the probative force and truly convincing. Third, the investigators testify in court, is conducive to promoting the appearance of witnesses. witnesses reluctant to appear in court, witnesses to court low has become a way of troubled change the current criminal trial of a prominent problem. In such cases, investigators appear to play virtually a "model", "model" role.

Notes:

[1] <"International victims within>>, Hans? Joachim? Schneider book, Hui Zhang Yun such as translation, the Chinese People's Public Security University Press, p. 2.

[2] <<Legal Translations>> No. 3 of 1987 contained <"State intervention and victimless crime>>, [United States] George. P. Wilson waited.

[3] <<On the use of illegal evidence in the Value Conflict and Choice>>, Song Yinghui the set <"China Law>> 1993 3.





Notes:
[1] Fan Chongyi editor of the <<Evidence>>, the Chinese People's Public Security University Press, 2001
[2] He Jiahong editor of the <<Evidence forums>> The fourth volume published in 2002, the Chinese Procuratorate Press
[3] POLITICS AND editor <<criminology textbook>> Law Press, published in 2000
[4] Bian Jianlin editor <<Criminal>> Legal Press, 2002.

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