Empirical Study On The Application Of Evidences Obtained By Inductive Investigation In Criminal Trial

The inductive investigation was formally stipulated in China’s Criminal Procedure Law in 2012,and the legislative achievements on inductive investigation have been recognized by the theoretical and practical circles.But it remains to be verified that whether the system’s operation effect in the judicial practice can reach the expectation of the legislators and the evidences obtained by inductive investigation can be used normatively in criminal trials,fully protecting the accused’s legitimate rights and interests while they are convicted and sentenced.By the method of empirical research,this paper takes the drug cases involving inductive investigation tried by an intermediate people’s court of one city as samples and combines with the classic cases from China’s Judicial Documents Network to try to objectively and truly reflect the application situation of inductive investigation evidences in the trial practice after the revision of China’s Criminal Procedure Law in 2012,and further analyzes the problems existing in practice so as to explore the new way of standardizing the application of the inductive investigation evidences in criminal trials.In addition to the introduction and conclusion,the paper includes three parts with about30000 words.The first part analyses and summarizes the specific application of inductive investigation evidences in drug cases tried by an intermediate people’s court in the inspection area.The author has made a survey from the following six aspects:the number of drug cases involving inductive investigation evidences,the judges’ attitudes towards distinguishing the two types of inductive investigation,the basis for affirming the legality of inductive investigation,the cross-examination of inductive investigation evidences,the deraignment against the legality of inductive investigation and related evidences put forward by the accused,the deraignment adopted by the judges and the exclusion of illegal inductive investigation evidences.The investigation results show that the vast majority of drug cases involve using inductive investigation to collect evidences,and the judges have negative attitudes towards distinguishing the types of inductive investigation when most of them hear drug cases.The judges mainly determine the legitimacy of inductive investigation according to“the presentation of the situation” issued by the public security organ.During the court cross-examination,whether the investigative organ sets up an "investigation trap" for the accused is the focus of the dispute between the prosecution and the defence.However,the investigation personnel who help the judges to find out whether there is an “investigation trap” do not testify or explain the situation in court.Sometimes,depending on the special circumstances of a particular case,the judges verify the evidences obtained by the inductive investigation out of court,but the defense lawyers usually do not participate in the out-of-court verification procedure.In addition,in drug crime cases,there are few cases in which the accused proposed the defense against the legality of inductive investigation and evidences.However,even if the accused proposes the deraignment,the judges rarely accept them,so there are only a few cases in which the judges really rule out the evidences because of the illegality of inductive investigation.The second part analyzes the main problems and their causes reflected in the practical application of inductive investigation evidences.First of all,because China’s Criminal Procedure Law does not so clearly stipulate the starting conditions of inductive investigation that the means of inductive investigation are easy to be abused in practice and its legitimacy is worrying,and the examination and approval materials of inductive investigation are not transferred with the case,so the judges uses “the presentation of the situation”,which have low credibility and probative force,as the main basis of determining the legality of inductive investigation,which has aroused the dispute of the defense.Secondly,the cross-examination of inductive investigation evidences seems to walk through.The main performances include that the judges will usually use "the presentation of the situation" to determine that the inductive behavior and the collection procedures of evidences are legal and then adopt relevant evidences;the investigators do not testify or explain the situation in court in order to rule out the defence’s reasonable suspicion of the inductive investigation evidences;the defence does not participate in the out-of-court verification of the inductive investigation evidences.The reason is mainly that the criminal cross-examination mechanism of inductive investigation evidences in our country is imperfect.Finally,the evidences obtained by illegal inductive investigation is greatly affirmed by the judges,and the exclusionary rules of illegal evidences seems useless in the cases involving inductive investigation.The main reason is that the judges have been hearing this kind of drug cases for a long time according to the relevant provisions of the Symposium Minutes on the Trial of Drug Crimes by Some Courts throughout the Country in 2008(hereinafter,the Minutes).At the same time,China does not establish the authentication rules of inductive investigation evidences.In a word,its root lies in the imperfect legislation of temptation investigation in our country.The third part discusses the countermeasures of standardizing the application of inductive investigation evidences in the trial of drug cases.In view of the above problems exposed in judicial practice and the existing analysis of the reasons,the author gives some suggestions from three aspects.Firstly,make the starting standards of inductive investigation clearer and make the examination and approval procedures more strict to standardize the use of inductive investigation measures,and then transfer the materials of examination and approval with the cases as well as improve the relevant relief measures.Secondly,improve the cross-examination mechanism of the inductive investigation evidences in court.For one thing,the procuratorate should bear the duty of the legality of inductive investigation and related evidences.For another,take the court cross-examination as the principle and the out-of-court verification as the exception,stipulating the applicable conditions and participants of the out-of-court verification and establishing the system for investigators to testify in court.Thirdly,construct the authentication rules of inductive investigation evidences from two aspects:the distinguishing method of the legality of inductive investigation and the establishment of the exclusionary rules of illegal inductive investigation evidences.At the same time,the relevant trial provisions of the Minutes should be revised to make them conform to the stipulations of China’s Criminal Procedure Law and the notion of law ruling.Only in this way will the application of inductive investigation evidences in trial practice not be criticized.