- The key to effective cross-examination is to establish a referee’s thinking, think about the problem from the perspective of the judge, and strive to influence the formation of the judge’s certification and mentality.
- The cross-examination is very simple in terms of method. It is possible to conduct a challenge argumentation based on the evidence ability and proof of evidence. However, how to achieve effective cross-examination is not easy.
- For criminal defense lawyers, to achieve effective cross-examination, first of all, problems need to be discovered. The key and substantive evidence materials submitted by the public prosecution that are beneficial to the defense party must be discovered in time before the court reading, and clearly marked; secondly, defend The party can reveal the key problems and substantive problems previously discovered to the court through trial and verification. Finally, through professional and rigorous theoretical proof, it strives to influence the formation of the judges’ certification and the testimony, thus making the identification and referee in favor of the defense.
- Returning to the case, a municipal food and drug administration (hereinafter referred to as the “Food and Drug Administration”) found that three defendants were suspected of constituting a sale of food that did not meet the safety standards during the administrative law enforcement process, and then transferred the thread to a certain city. Public Security Bureau (hereinafter referred to as “the Municipal Bureau”). After receiving the case, the Municipal Bureau fixed and applied the inspection report made by the Inspection and Quarantine Technology Center of a certain entry-exit inspection and quarantine bureau in the process of administrative law enforcement as evidence of the case.
- However, during the scoring process, the defender found that in conjunction with the Criminal Procedure Law of the People’s Republic of China and the Interpretation of the Supreme People’s Court on the Application of the Criminal Procedure Law of the People’s Republic of China, the inspection report is far from reaching the above two legal documents. Mandatory requirements for opinions, there are cases where the statutory requirements are missing, such as whether the appraisal institution and the appraiser have statutory qualifications, whether the materials are sufficient and reliable, whether the appraisal institution affixes the special seal for judicial appraisal, and the appraisers sign and seal the appraisal process. And whether the method meets the requirements of relevant professional specifications.
- Whether it can affect the formation of judges’ certification and the development of the card, the theoretical proof at the stage of the trial and verification is very important.
- The cross-examination is formally the defense party’s questioning and argumentation against the prosecution’s “three sexes” and the proof of evidence, but the essence is that the prosecution and the defense both testify to the judge, thus helping the judge to judge the evidence and the facts involved. In the Qing Dynasty, this requires the defense party to establish the referee’s thinking in the process of cross-examination, and to carry out professional and rigorous theoretical proof of key issues and substantive issues.
- During the trial, the defender conducted a rigorous and sufficient argument around the question whether the test report has the evidence carrier qualification and the evidence facts. The defender always believes that the appraisal opinion collected by the Food and Drug Administration in the process of administrative law enforcement (that is, the test report) lacks the formal requirements and substantive requirements of the criminal procedure law, and does not meet the requirements and standards for criminal litigation activities. It should not be accepted as a basis for finalization and should be excluded according to law.
- The court finally adopted the defender’s cross-examination opinion and proposed to the public prosecution agency to supplement the investigation. At the second hearing, although the public prosecution agency submitted the relevant information as supplementary evidence, the court ruled out the inspection report in accordance with the law and adopted all the defense views of the defenders.
- At the same time, in explaining the defendant’s interpretation of the law, since the criminal proceedings involved the criminal responsibility of the accused, the procedures for collecting evidence were more stringent, and the examination of the evidence of administrative law enforcement in criminal proceedings could not be based solely on administrative procedures. The requirements should be more strictly defined in the procedures for obtaining evidence in order to comply with the basic principles of criminal law, “criminality of crimes” and “suspect of crimes”.
- Practice is the sole criterion for testing truth. Whether it can influence the formation of judges’ certification and voicing is the only criterion for evaluating the validity of the syndrome.
- The process of administrative law enforcement and the process of criminal evidence transformation is the process of seeking common ground while reserving differences. If the conditions of criminal proceedings are met, the evidence shall be transformed and applied, otherwise it shall be excluded. The evidence standard of administrative law enforcement is lower than the evidence standard of criminal litigation. If it is the evidence of administrative law enforcement that allows conversion, it is necessary to examine the ability to cross-examine evidence.
- Therefore, in criminal trial activities, criminal defense lawyers need to distinguish whether the evidence of administrative law enforcement can be transformed into criminal evidence, and to be effective in identifying key issues and substantive issues after the transformation.
- references:
- [1] Chen Ruihua. The concept and legal type of evidence. The law applies, 2012, (1).
- [2] Long Zongzhi. How to adjust the evidence system in the revision of the Criminal Procedure Law. Modern Law, 2011, (6).
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