Research On Criminal Opinion Evidence Rule In China

The Criminal Opinion Evidence Rule aims to separate opinion from fact and ensure that testimony contains only the facts directly perceived by the witness.2012China’s Criminal Opinion Evidence Rule was initially established in the form of“principles + exceptions”,but in practice due to its relatively simple provisions,general,exceptions lack of judgment standards and other factors,resulting in weak operation.In 2012,China’s Criminal Opinion Evidence Rule was initially established in the form of “principles + exceptions”,but in practice,due to its simple provisions,the exceptions lack of criteria for judgment and other factors leading to weak operability,coupled with the judge’s review of the lack of ability to determine the evidence,the verdict in the argument and other reasons,the Opinion Evidence Rule in China’s judicial practice did not play the desired effect.The object of this paper focuses on the rules of ordinary people’s opinion evidence stipulated in paragraph 2 of Article 88 of the Interpretation of the Criminal Procedure Law,and puts forward proposals to improve the Criminal Opinion Evidence Rule in China through semantics analysis and empirical research analysis.This paper first defines the meaning of opinion evidence,compares the meaning of “opinion” in the Chinese context with the British and American contexts,and considers it from the perspective of the differences between the expression habits of Chinese and Western languages;analyzes the meaning of Criminal Opinion Evidence Rule,and considers them from the perspective of general and specialized issues;analyzes the reasons for the creation of Criminal Opinion Evidence Rule and compares the origin and development process of Criminal Opinion Evidence Rule.We analyze the reasons for the creation of the Criminal Opinion Evidence Rule and sort out the origin and development process of it.Secondly,through the empirical research method,we analyze the current situation of the operation of the Criminal Opinion Evidence Rule in China in terms of court level,trial procedures,geographical distribution and court results,and find that the existence of opinions is widespread,and the problems in their application include the difficulties in identifying opinions,the lack of attention to the basis of perception,and the inadequate reasoning in judgments: The reasons for the problems in the application of the Criminal Opinion Evidence Rule include: unclear definition of the connotation and extension of “opinion”,unclear meaning of “general life experience”,doubtful “judgment in accordance with the facts”,vague characterization of the exceptions and poor operating environment.Based on the above study,we propose the improvement of the Criminal Opinion Evidence Rule in China.First,the Criminal Opinion Evidence Rule should be incorporated into the legislative provisions.It is recommended that the legal provisions of it be added to article 62,paragraph 3,of the Criminal Procedure Law,specifically“speculative,commentary,inferential testimony of witnesses shall not be used as evidence.” Second,to improve the principle of Criminal Opinion Evidence Rule.By clarifying the nature of the opinion and consider the cognitive process of opinion formation,it is recommended that the principle provisions of Article 88,paragraph 2 of the Interpretation of the Criminal Procedure Law is amended to “the opinion of the witness shall not be used as evidence in principle,except on the basis of factual perception and in accordance with the following conditions:(a)reasoning,inference,describing the color,speed and other facts of the thing itself;(b)reasoning,inference,judging the value of the thing,inference,judging the value of things.” Third,improve the exceptions to the Criminal Opinion Evidence Rule.Clarify the test of “general life experience”,that is,universality,repeatability and testability;clarify the meaning of“judgment in accordance with the facts”,through the rules of adjudication and guiding cases issued some of the scope of evidence can be given the ability to evidence.Fourth,improve the relevant operating procedures in judicial practice.In the pre-trial stage,we will improve the notification of the rights and obligations of witnesses to strengthen the awareness of witnesses to testify truthfully,promote the investigation authorities to make the evidence collection process more standardized,scientific and legal,and construct the synchronous audio and video recording system for the examination of witnesses.Specific initiatives at the court trial stage include including applications for exclusion of opinion evidence in the pre-trial conference,implementing a system for witnesses to testify in court,implementing rules for cross-examination,and improving judges’ ability to review judgmental opinions.