On The Use Of Rules Of Thumb In The Perspective Of Criminal Defense

The rule of thumb is the basic law for judging and using evidence in criminal proceedings,and it is also the key and fundamental to accurately grasp and understand the probative power of evidence and then rationally use evidence.In criminal justice trials,whether the defense can effectively use the rule of thumb to defend is directly related to the interests of the defendant,and it is also an important tool to test the prosecution’s proof system and persuade the judge to form inner conviction.Therefore,as far as criminal defense is concerned,the rule of thumb is also the cornerstone rule for the accused and his defender to effectively use evidence in defense.However,as a fundamental rule of law and a major premise in judicial proof,the rule of thumb is uncertain and may lead to misapplication of the criminal defense based on it.Based on the idea of "examining examples,discovering problems,analyzing problems,and solving problems",this book provides a new perspective on the study of rules of thumb in criminal proceedings,exploring the practical problems in the application of rules of thumb in criminal defense with an empirical research approach and a case study approach,in an attempt to build a rationalized path for the application of rules of thumb in criminal defense.The study will explore the practical problems in the application of the rule of thumb in criminal defense,and attempt to build a rationalized path for the application of the rule of thumb in criminal defense.The first part describes the theoretical definition of the rule of thumb and the specificity of its application in criminal proceedings.Firstly,it introduces the rule of thumb as a constant phenomenon that is repeatedly tested and practiced in everyday life and has multiple properties,thereby clarifying the object of the study.Secondly,it is explained that the application of rules of thumb in criminal proceedings has special characteristics compared to civil proceedings,i.e.,the application of rules of thumb in criminal proceedings requires a higher standard of application,which provides a basis for studying the phenomenon of misapplication by the defense.The second and third sections examine examples of problems with the use of rules of thumb in the context of criminal defense.The relevant judgment documents are searched by means of websites and limited keywords.Taking into account the concealment of the offence of passive bribery and the single form of evidence,the search was expanded to include the same keywords as well as other offences where the rule of thumb was used to defend,and the current situation of the application of the rule of thumb in criminal defense was examined in terms of the types of defenses using the rule of thumb,its functions,common defenses,responses and adoptions,and specific explanations.In the third part,we analyze the specific problems in the application of the rule of thumb in criminal defense in relation to specific cases.The fourth section analyses the causes of the misapplication of rules of thumb in the context of criminal defense.From a normative perspective,the lack of legislation on rules of thumb and the simplicity of judicial interpretation,the lack of legislative support and the lack of clarity of its provisions may lead to the lack of clear guidelines for the defense to follow when applying them.From the analysis of the theory of proof in criminal proceedings,the influence of the objectification of criminal proof,the excessive promotion of evidence-only theory,mutual corroboration between evidence and objectivism of evidence may limit the space for the rule of thumb to survive,and may even lead to the neglect and misuse of the rule of thumb.From the analysis of the inherent characteristics of the rule of thumb,the rule of thumb is derived from people’s life experience and is strongly subjective,ambiguous and abstract,these inherent characteristics determine that people’s understanding and grasp of the rule of thumb cannot be completely uniform.In terms of the defense itself,each person’s experience is different,and the limitations of the defense’s individual cognition and the ineffective implementation of the concept of effective defense may lead to the misapplication of the rule of thumb.The fifth part proposes a rationalized path for the application of rules of thumb in criminal defense.In the legislation on criminal procedure,the legal status of the rule of thumb as a method of proof is determined,the role played by the rule of thumb as a major premise of presumption is clarified.and in the judicial interpretation,the existence of the underlying facts is clarified as the basis for application,and a high degree of conclusiveness and non-falsification as the premise for application,so as to provide the defense with guidelines for the application of the rule of thumb.In practice,the relationship between the rule of thumb and the rules of evidence and corroboration is clarified.with the rule of thumb being applied in accordance with the priority of objective proof and the complementarity between the corroboration model and the rule of thumb.In the area of defense counsel,the argmentation angle of the defense counsel’s use of the rule of thumb is explained in detail,and advice is given on the detailed proof of the rule of thumb in terms of the content,object and manner of proof,and the rule of thumb itself and the facts underlying the case are used as the object of attack to provide an argumentative angle for the flexible falsification of the rule of thumb.At the same time,the defense lawyers should pay attention to the generation of empirical rule awareness and concepts,not only in the understanding of litigation and evidence judgment,but also in the understanding and grasp of common sense,common knowledge and common reasoning,so as to enhance the defense’s awareness of using empirical rules for defense.In terms of supporting mechanisms,the establishment of a detailed reasoning mechanism,the grasp of the main body of the argument and requirements,the application of the rule of thumb in the process of detailed argumentation,and the introduction of an effective defense assessment mechanism,from the assessment of the main body and assessment standards to regulate two aspects,to deepen the concept of effective defense of the defense.