People's Procuratorate's Guide for Prosecutors Appearances in Court to Produce and Debate Evidence

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Promulgation Date: 2018-7-3
Title:最高人民检察院关于印发《人民检察院公诉人出庭举证质证工作指引》的通知
[Document Number]
Expiration date: 
Promulgating Entities:Supreme People's Procuratorate
Source of text: http://www.spp.gov.cn/tt/201807/t20180719_385387.shtml

People's procuratorates of all provinces, autonomous regions and directly governed municipalities; people's liberation army military procuratorates and the people's procuratorate for the Xinjiang Production and Construction Corps:

《人民检察院公诉人出庭举证质证工作指引》(以下简称《指引》)已经2018year5 months2日最高人民检察院第十三届检察委员会第一次会议通过。 现印发你们,供参考。 现提出如下工作要求。

一、充分认识加强举证质证工作的重要意义。 出席法庭支持公诉是刑事公诉工作的龙头,举证质证是出庭支持公诉的核心环节。 举证质证的质量,直接影响指控犯罪的质量和出庭支持公诉的效果。 随着刑事诉讼立法和实践的不断发展变化,特别是以审判为中心的刑事诉讼制度改革、刑事案件认罪认罚从宽制度试点的深入推进,包括举证质证工作在内的公诉人出庭支持公诉工作面临着新的更高要求,公诉人在庭前审查预测和准备、把握庭审主动权、有效应对庭审变化等方面面临新挑战。 加强出庭举证质证工作,对于检察机关深化诉讼制度改革,全面贯彻证据裁判规则,有效应对庭审实质化具有重要意义。 各级人民检察院要切实加强举证质证工作,更好发挥公诉人在庭审中的职能作用,着力提高出庭公诉质量和效果,不断提升司法公信力。

二、全面理解和准确把握《指引》的内容。 《指引》适应建立完善多层次诉讼体系需要,着眼于构建以庭前准备为基础,以当庭指控证实犯罪为核心,认罪与不认罪案件相区别的出庭公诉模式,提升公诉人出庭举证质证水平,对举证质证的概念内涵、目标任务、遵循原则、基本要求、一般方法等作了规定,为公诉人出庭举证质证工作提供了基本遵循。 要全面理解和准确把握《指引》内容,熟练掌握运用举证质证原则和方法,更好履行指控犯罪职能。 要坚持实事求是,恪守客观公正立场,尊重辩方,服从法庭,理性文明。 要推进繁简分流,优化司法资源配置,疑难复杂案件按照庭审实质化要求举证质证,简单案件简化举证质证。 要加强举证质证的准备,特别是有效运用庭前会议整理争点、解决争议、确定举证方式等。 要加强证据合法性的举证和证明,积极质证答辩,保证公诉案件客观公正,符合程序正义。 要熟练掌握和运用各类举证质证方法,通过构建证据体系,证明公诉主张,有效反驳辩解,掌握庭审主动权,确保指控犯罪有力。

三、切实抓好《指引》的学习培训。 《指引》充分吸收了各级公诉部门和优秀公诉人实践经验,基本涵盖了举证质证工作全过程的常见问题,对于提升公诉人出庭整体水平具有重要指导作用。 各级人民检察院要高度重视,将《指引》作为学习培训的重要内容,通过举办业务培训班、开展庭审观摩、听庭评议等,教育引导公诉人准确掌握举证质证工作理念原则、基本要求和常用方法,规范出庭履职行为,围绕保证庭审在查明事实、认定证据、保护诉权、公正裁判中发挥决定性作用,有效提高举证质证工作质量,有力指控和证明犯罪。 要加强对司法实践中举证质证新情况新问题的研究,及时总结推广优秀公诉人的成功办案经验,不断丰富完善举证质证方法策略。 要加强案例指导,注重收集和编发具有典型意义的公诉人出庭举证质证案例,发挥典型案例的示范引领作用。

执行《指引》过程中遇到的重要情况和问题,请及时报告最高人民检察院公诉厅。

Supreme People's Procuratorate

2018年7月3日

People's Procuratorate's Guide for Prosecutors Appearances in Court to Produce and Debate Evidence

Chapter I: General Provisions

Chapter II: Preparations for production and debate of evidence.

Chapter III: Production of Evidence

Section 1: Basic Requirements of Producing Evidence

Section 2: Ordinary Methods for Production of Evidence

Section 3: Requirements for production of each type of evidence

Chapter IV: Debate of Evidence

Section 1: Basic Requirements for Debating Evidence

Section 2: Reply to the defense's debate on evidence

Section 3: Debate of Defense Evidence

Chapter V: Supplemental Provisions

Chapter I: General Provisions

Article 1: This Guide is drafted on the basis of the "Criminal Procedure Law of the People's Republic of China" and relevant provisions, together with actual procuratorate work conditions, so as to adapt to the requirements of the reform of trial-centered system of criminal proceedings, comprehensively implementing the rule of evidence-based judgments, to further strengthen and improve prosecutors work of appearing in court to production and debate evidence, to connect distinct work models for cases in which guilt is admitted or guilt is not admitted, and to strengthen the effect of criminal charges.

Article 2: Production of evidence refers to litigation activities during appearances in court in support of public prosecutions, in which prosecutors present, read out, or play relevant evidence materials to the court, and make explanations, question persons who appear in court to testify, to prove the propositions of the public prosecution.

Debate of evidence refers to litigation activities by which the prosecution and defense challenge and refute the admissibility, probative value, and corroborative value of presented evidence and of the testimony of persons appearing in court to testify, to determine whether it can be a basis for deciding the case.

Article 3: Prosecutors appearing in court to produce evidence shall have dialectical materialist theory of knowledge as their guide; have the facts as their basis and the law as their measure; pay attention to legal rules of logic and experience; forcefully uncovering and effectively confirming crimes; increasing the quality, efficiency, and effect of evidence production and debate; respecting and protecting the procedural rights of criminal suspects or defendants and other litigation participants; and striving to let the public feel fairness and justice from every judicial case.

Article 4: Prosecutors' producing evidence shall comply with the following principles:

(1) Be practical and realistic, objective and just;

(2) Stress key points, have definite targets;

(3) Respect the defense, be rational and civilized;

(4) Comply with legally-prescribed procedures, follow court directions.

Article 5: Prosecutors may employ different models for evidence production based on whether or not the defendant has admitted guilt.

In cases where the defendant admits guilt, the production and debate of evidence may be simplified after the prosecution and defense reach a consensus through discussions and the courts consents.

In cases where the defendant does not concede guilt or the defender will conduct a not-guilty defense, there shall generally be a comprehensive and detailed production and debate of evidence. However, for evidence on which the defense has no objections, the production and debate of evidence may also be simplified after the prosecution and defense reach a consensus through discussions and the courts consents.

Article 6: Production and debate of evidence by the prosecutor shall emphasize combining modern scientific tactics, actively using multimedia presentation of evidence, electronic case files, and unified platforms for court appearances, to strengthen the efficacy of trial allegations.

Chapter II: Preparations for production and debate of evidence.

Article 7: When prosecutors review cases they shall fully consider preparations for appearing in court and the needs of producing and debating evidence at trial, and draft a focused review report.

Article 8: Based on the needs of preparing to appear in court and the of producing and debating evidence, prosecutors may take relevant case file materials and evidence back from the people's courts, or read electronic files, before in-court proceedings begin.

Article 9: Before in-court proceedings begin in public prosecutions, the prosecutor shall further familiarize themselves with the circumstances of the case, understand the evidence, thoroughly research legal and policy issues relevant to the case, familiarize themselves with specialized knowledge that might be involved with the case, and draft an outline for production and debate of evidence and complete preparations for production and debate of evidence, rotating around the facts and circumstances of the crimes alleged in the indictment documents.

The following aspects shall be emphasized in drafting the outline for production and debate of evidence:

(1) whether the evidence was obtained in accordance with legal provisions;

(2) Whether the evidence complies with legally-prescribed forms;

(3) Where the evidence is the original document, original item, picture, video, reproduction, or so forth, and whether the copy is consistent with the original document or item.

(4) The objective environment when the evidence was discovered;

(5) The reason for the form of the evidence;

(6) Whether the witness or person providing evidence has an interest in the case;

(7) The relevance and relationship between the evidence and the matter to be proven;

(8) The relationships between pieces of evidence;

(9) whether the evidence points to the same facts to be proven, where there are any contradictions that cannot be eliminated or doubts that cannot be explained, whether all the evidence in the case forms a complete system of evidence, whether the facts ascertained by the totality of case evidence is sufficient to eliminate reasonable doubt, and whether there is only one possible conclusion;

(10) Whether the evidence is admissible and other issues of its probative value.

Article 10: Prosecutors shall participate in the pretrial conference to promptly understand the evidence provided by the defense, and fully understand the defendant and their defender's main objections to evidence, and communicate about points of contention in the case and methods of presentation of evidence with the adjudicators presiding, to determine the order and methods for production of evidence. As needed for production of evidence, prosecutors may apply for witnesses, expert evaluators, investigators, or persons with specialized knowledge to appear in court, and submit objections to the list of persons to appear in court;

Where adjudicators organize displays of evidence in the pretrial conference, the prosecutors shall present the evidence that they will present at trial, clear up evidence that is in contention, and hear the defendant and their defender's opinions.

Where defendants and their defenders apply for the exclusion of illegal evidence before court opens for trial, and provide leads or materials in accordance with the relevant legal provisions, but upon inspection the prosecutor does not find that there are acts of illegal evidence collection, they shall use methods such as presenting relevant evidence during the pretrial conference to explain the legality of the evidence collection in a focused manner.

During the pretrial conference, prosecutors may withdraw the relevant evidence. Evidence that is withdrawn must not be presented in court absent new grounds.

On the bases of consensus opinions reached through the pretrial conference on the methods of production of evidence, the prosecutors shall revise and improve the outline for production of evidence.

Article 11: Where the prosecutors received written materials from the people's court, defendant and their defender, victims, witnesses, and so forth, reflecting that there is illegal collection of evidence, they shall conduct a review. Where during the review for arrest and review for prosecution periods it was already raised and upon review confirmed that there was no illegal collection of evidence, the people's court shall be informed, or the parties and defender notified, and trial preparation is to be done in accordance with the confirmed circumstances. As to new materials or leads, it may be requested that the investigation organs provide explanations or submit relevant evidence materials; it may itself conduct an investigation to verify that evidence was obtained legally when necessary.

Article 12: Evidence lawfully collected by the prosecutors after the pretrial conference shall be promptly transferred to the people's court before court proceedings begin, and is to learn of any new evidence submitted by the defendant and their defender. If there is new evidence, the prosecutors shall conduct a review of that evidence.

Article 13: Before in-court trial proceedings begin, prosecutors shall use methods such as interrogating the defendant, hearing the defender's opinions, participating in the pretrial conference, and communicating with the court, to understand all materials collected that show the defendant is innocent, that the crime was mild, or that reflect illegal evidence gathering, ans shall further familiarize themselves with the evidence to be presented at trial, rotating around the evidence's veracity, relevance, and legality, comprehensively predicting arguments that might be made by the defense in debating evidence, and making and improving a focused outline for debating evidence.

Chapter III: Production of Evidence

Section 1: Basic Requirements of Producing Evidence

Article 14: Production of evidence by prosecutors shall generally comply with the following requirements.

(1) Prosecutors producing evidence shall generally fully present all evidence; and when presenting, reading out, or playing each item (group) of evidence, shall generally present the entire content of the evidence. Based on the methods of producing evidence determined by the ordinary procedures, simplified procedures, and the pretrial conference, and the the specific circumstances of the case, presentation may also be simplified, but must be arbitrarily abridged or taken out of context. Where a pretrial conference was not convened, the prosecutors may consult with the defense at court and determine the methods for producing evidence with the court's permission.

(2) Before prosecutors produce evidence, they shall first make an explanation of the methods for producing evidence; and where a consensus opinion was reached at the pretrial conference on simplifying the presentation of evidence, an explanation of this is to be made as well.

(3) Before the presentation, reading aloud, and playing of each item (group) of evidence, the prosecutors shall generally first give an overview explanation to the court of the orientation of the evidence, its type and name, the entity that collected it and the time of collection, as well all the content to be proven.说明。

(4) When producing non-critical evidence over which the prosecution and defense have no objections, explanations may be only of the name of the evidence and the matters it proves; for key evidence that might impact conviction or sentencing and evidence on which the prosecution and defense dispute, as well as evidence that the court finds must be investigated and verified, shall be presented in detail.

(5) After production is completed, a recollection and summary of the evidence presented shall be conducted, clarifying what they hope to prove.

(6) Where multimedia presentations are used, they shall be conducted together with the prosecutors production of evidence.

Article 15: Prosecutors' production of evidence shall primarily rotate around the following facts, and be conducted with emphasis on content that the prosecution and defense dispute:

(1) The identities of the defendants;

(2) whether the alleged criminal facts exists, whether it was the defendant who committed the crime;

(3) the time, location, method, means, and results of the crime and the defendant’s behavior after committing a crime;

(4) the status and responsibility of those party to criminal gangs or other joint crimes;

(5) Whether or not the defendant has the capacity to bear criminal responsibility, whether there was intent or negligence, and the motive or purpose;

(6) whether circumstances exist showing that the defendant should not be subject to criminal liability, whether he or she is entitled to lighter or mitigated punishments or even exemption from punishment;

(7) main characteristics of the crime, tools used in the crime, the source, quantity and whereabouts of money related to the crime;

(8) where the defendant wholly or partially objects to criminal facts charged in the indictment, whether the reasoning and basis of such denial can stand;

(9) Other facts related to guilt or sentencing.

Article 16: For evidence on which the prosecutors simplified presentation, where the defenders request that the prosecutors make a detailed presentation, it may be handled in accordance with distinct circumstances. In any one of the following circumstances, the prosecutors shall make a detailed presentation:

(1) The adjudicators request a detailed presentation;

(2) The defense requests a detailed presentation and the court agrees;

(3) The evidence given a simplified presentation might impact the efficacy of the production of evidence.

In any one of the following circumstances, prosecutors may explain the reasons to the court, and upon the court agreeing, may opt to not make a further detailed explanation:

(1) The prosecutors have already given detailed presentation of the evidence, and the defense makes a redundant request;

(2) The evidence on which presentation was simplified can prove the facts of the case and refute the defense's objections;

(3) The content that the defense requests a detailed presentation of have no relation to the facts in the indictment;

(4) the defendants admit to the alleged facts and circumstances of the crime.

Article 17: Where the defense applies at court to have the prosecutors read out and present evidence in the case file that is advantageous to the defendant but that has not been accepted by the prosecutors, they may recommend to the court that the defense read it our or present it, and explain the reasons it was not accepted. Where the court accepts the defense application for the prosecution to read out or present it, the prosecutors shall present it.

Article 18: Where prosecutors or defendants and their defenders have not reached a consensus on the legality of the confessions' collected from the defendants, and the people's courts conduct investigations into the legality of evidence at court, based on the interrogation record, detention records, records of being brought for interrogation, intake and exit detention center health examination records, hospital medical histories, records of conversations with detention center guards, legla documents on adoption of compulsory measures or investigative measures, documents from the investigating organ on the legality of the interrogation process, conclusions of investigating organs or procuratorates from investigations to verify the legality of evidence gathering, conclusions of procurators based in detention centers from investigations confirming the legality of interrogations conducted before the investigation concluded, and so forth; the prosecutors may conduct proofs of the legality of the defendants' pretrial interrogation and request that the court play the simultaneous audio or video recordings of the interrogation, and when necessary, may apply to the people's courts to notify investigators or other personnel to appear in court and explain the circumstances.

Where the prosecution and defense have a dispute as to the legality of collecting witness testimony, victim statements, collection of physical and documentary evidence, and so forth, or as to other procedures and facts, the procurators may refer to the preceding paragraph to provide proof by presenting or reading out the related legal documents, investigation records, records of activities in the review for prosecution, etc. When necessary, it may be suggested that the people's court notify responsible investigators and authenticating witness to activities such as searches, sealing, seizure or freezing, inquests, inspections, identifications, or investigative tests, to appear in court to testify.

Section 2: Ordinary Methods for Production of Evidence

Article 19: Production of evidence shall usually be separated by crime and by facts for production, making it coherent, structured, and logical.

Article 20: The sequence for production of evidence shall have the goal of being conducive to proving the prosecutors' stance, and the prosecutor may reasonably arrange and adjust the procedures based on the different types of cases, their characteristics, and trial conditions. Ordinarily, evidence for conviction is presented first, and then sentencing evidence; with primary evidence presented first, and then secondary evidence.

Prosecutors may produce evidence in accordance with sequences for production determined through consultation with the defense and approved by the court.

Article 21: Based on the specific circumstances of the case and the state of evidence, together with the defendants' attitude, the production of evidence may be by production of groups, or individual items of evidence.

In cases that where the circumstances are complicated, there are many co-defendants, or there is larger amount of evidence, production of evidence will usually be in groups, with individual production as a supplement.

When evidence is divided into groups, it shall follow the internal logical relationships between the evidence, and evidence that has a commor orientation or similar content may be aggregated into one group; grouping may also be by the type of evidence, with attention paid to the hierarchy and progression of the content in each group of evidence.

Article 22: Evidence that might impact the verdict or sentencing that is key evidence, or which the prosecution and defense have a dispute over, shall be independently produced.

In a case where the defendant has admitted guilt, presentation may be simplified for evidence on guilt that the prosecution and defense do not dispute, with presentation of evidence rotating around sentencing evidence and other evidence in contention.

Article 23: In cases where the defendant has not admitted guilt, positive and negative proofs shall be offered towards proving the prosecution's assertions by using reasonable production of evidence to build a system of evidence and refute the defendant's defenses. The focus is normally on evidence forcefully showing that the alleged criminal facts were carried out by the defendant and on evidence showing that the defendant's defenses that they are innocent cannot be sustained, and evidence on the allegations and refutations may be presented together.

Where defendants recant a confession, the evidence shall be comprehensively used to illuminate the timing, reasons, and rules for the defendants' recanting the confession, and to indicate unreasonable, nonobjective, and contradictory areas in the recanting.

Article 24: Production of evidence in 'zero confession' cases may employ the method of prioritizing key evidence. On the basis of the specific case circumstances, prosecutors prioritize presentation of key evidence, focusing on the presentation of physical and documentary evidence, records of crime scene inspections, and other objective evidence, to directly establish an objective connection between the defendant and the case, and built a system of all case evidence on this foundation.

In cases with a larger number of points for debate, the method of first producing simple evidence, and then complicated evidence, may be employed. Based on the circumstances of case evidence and the viewpoints of the defendants and defenders learned of through the pretrial conference, prosecutors are to first present evidence that the defendants and defenders have no objections to, or over which the disagreement is smaller, and then present evidence over which the prosecution and defense have larger disagreements on, making the presentation of evidence more fluid and in preparation for concentrating energy on the debate of evidence that is contented evidence.

In cases relying on circumstantial evidence where the defendant has not admitted guilt, a method of producing evidence by cumulative progression may be employed. Prosecutors shall fully use logical deduction and reasonably arrange a sequence for the production of evidence in which one piece (group) of evidence and the next are to have a close relation, each linking together, cumulatively progressing, using logical analysis to uncover the inherent connections between each piece of evidence, comprehensively proving that the case has excluded reasonable doubt.

Article 25: In cases where one defendant and one relatively simple set of criminal facts, evidence may be presented by type based on the circumstance of the case evidence and in accordance with legal provisions.

Article 26: In cases where one defendant has multiple crimes, each set of criminal facts may be a unit with evidence proving the criminal facts produced in groups or one at a time. Of these, evidence on sentencing circumstances involved with each crime shall be presented in the production of evidence for that crime; and evidence on sentencing circumstances related to the entire case shall be presented at the end of the entire case.

Article 27: In cases where several defendants have a single crime, based on each defendant's position, role, and circumstances in the joint crime, evidence showing the crime of the primary offender is generally to be presented first, and then evidence showing the crimes of the accomplices.

Article 28: In cases where several defendants have several crimes, a sequence for production of evidence by different groups may be employed, or chronological sequence of when the crimes were committed, or having the the crimes of the primary offender as the main thread, or using the number of participants as a standard, and focus on distinguishing criminal conduct of a criminal gang, ordinary joint crimes, and the criminal conduct of individuals, to separately produce evidence.

Article 29: In cases of crimes by units, evidence showing that the unit has constituted a crime shall be presented first, and then present evidence showing that its management staff or other directly responsible personnel constituted crimes. Evidence common to the alleged crimes of the defendant unit, the unit's management personnel, and other directly responsible personnel may be presented duplicatively, but only upon explanation.

Section 3: Requirements for production of each type of evidence

Article 30: Presentation of physical evidence shall ordinarily be of the original item. Where the original item is not easily moved, not easily stored, or has already been returned to the victims, a photograph, recording, or reproduction that reflect the exterior and character of the original may be presented, and an explanation is to be made to the court regarding the circumstances and the similarity to the original item.

Presentation of documentary evidence shall ordinarily be of the original document, but where obtaining the original documentary evidence is difficult, a copy or reproduction may be presented, and an explanation is to be made to the court regarding the circumstances and similarity to the original document.

When presenting physical and documentary evidence, an overall explanation shall be made of the content to be proved by the physical and documentary evidence and the circumstances of its collection, and a request may be made to the court to have litigation participants such as parties or witnesses identify it. Where physical and documentary evidence have undergone technical evaluations, the appraisal opinion may be read out.

Article 31: Questioning of witnesses who appear in court to testify shall comply with the following principles:

(1) Questions shall be asked individually;

(2) Questions shall be asked simply and clearly;

(3) Questioning shall employ a one question, one answer format, not suitable for concurrent asking of several questions with different content;

(4) Questioning shall especially focus on facts that are closely related to conviction and sentencing.

(5) Questions must not be asked in a leading manner;

(6) Witnesses must not be threatened or misled;

(7) Witness's dignity must not be harmed;

(8) Witness's personal privacy must not be disclosed.

(9) Questioning of minors shall consider the physical and psychological characteristics of the minor;

Article 32: Where witnesses appear in court, the prosecutors may request the witnesses make statements regarding to their understanding of facts related to the case, and may also directly ask questions. Where witnesses testify in language that is speculative, conclusory, or inferential, the prosecutors shall remind them to objectively express the facts of the case they know.

Prosecutors that feel that the response made by a witness is decisive or has a major impact on the determination of case facts and circumstance, may request the court take note.

Where there are contradictions between the testimony of witnesses who appear in court to testify and the testimony they provided before trial, the prosecutor shall ask questions to clarify the reason, and question that witness to clarify the facts. Where it is found that the reasons are not sustained, the content of records from before the testimony was changed may be read out, and relevant evidence summarized to refute it.

For witnesses that do not come to court, the record of their testimony shall be read out at court. Before it is read out, the witness's relationship to the case shall be explained. When there is doubt concerning the record of witness testimony, and it is truly necessary for the witness to appear in court for a statement or where there are new witnesses, the prosecutors may request an extension of trial, and the people's court is to notify the witnesses to come to court and provide testimony and accept cross-examination.

Based on the circumstances of the case, prosecutors may apply to implement remote video witness testimony.

Where the prosecution and defense have no objections to witness testimony and the witnesses do not need to appear in court, or where witnesses cannot appear in court for objective reasons and further cannot use methods such as video to testify, the prosecutors may present or read out written evidence materials or audiovisual recordings of testimony created before trial.

Article 33: Where witnesses that the prosecutors have requested appear in court who change their testimony at court, and victims who change their pretrial statements, the prosecutors may question them as to the reason their language has changed, and where they find that the reason is not sustainable, may selectively and with focus read out portions of their testimony or statements from the investigation and review for prosecution phases in a targeted fashion, or read out other evidence, to question and refute the witnesses or victims.

Article 34: The provisions on questioning witnesses are applied by reference to the questioning of victims, evaluators, investigators, and persons with specialized knowledge.

Article 35: Reading out of defendant confessions shall be conducted based on the circumstances of the defendants' confessions at court. Where defendants have several confessions and the content is essentially the same, usually the one or few with the most probative value is to be presented. Where the content of defendants' confessions at court and pretrial confessions is substantively the same, the pretrial confession might not be read out again, but an explanation shall be made to the court; where the defendants confessions at court have substantive differences from pretrial confessions, prosecutors shall ask questions to clarify the reason, and where they find that the reason is not sustainable, they shall read out the content of the pretrial confession that has the substantive difference, and summarize the relevant evidence to refute.

Article 36: Where defendants make a not guilty defense or where the content of pretrial confessions and confessions at court differ, sufficient to influence conviction or sentencing, the prosecutors may read out the record of the defendants' pretrial confessions in a targeted fashion and interrogate the defendants regarding the confessions in the record, or present other evidence to carry out proof or refutation, and request that the court not accept their confession at court. Where an investigation for verification needs to be carried out on the content of a recanted confession, it may be suggested that the court to grant an adjournment or postponement.

Article 37: Appraisal opinions, as well as records such as of inquests, inspections, identifications, and investigative tests, shall be read out in court, and an explanation is to be given as to the relationship of the evaluators, inquisitors, inspectors, identifiers, or persons conducting the investigative tests' identify, qualifications, and relationship with the parties and the case, and when necessary provide evidence to prove this. As needed for production of evidence, prosecutors may apply for witnesses, expert evaluators, investigators, or persons with specialized knowledge to appear in court, and submit objections to the list of persons to appear in court; When asking questions, apply the relevant requirements for questioning witnesses.

Article 38: In the playing of audiovisual materials, an overview explanation shall first be made of the source, production process, production environment, producers, and all content that it will prove. The playing shall generally be continuous, and may also be broken into segments based on the case circumstances, but the original form of the materials shall be preserved and f the audiovisual materials must not be spliced.

In playing audiovisual materials, the original medium of the audiovisual materials shall be presented to the court. Where it is truly difficult to provide the original storage media, a reproduction may be provided, but the reasons shall be explained to the court.

Presentation of audio materials may also be by reading out of a written transcript of the language content in the audio materials.

Article 39: In presenting electronic data that is stored, processed, or transferred in digital form, a brief explanation is to be given as to the evidence's the original storage medium, the process of obtaining it, and so forth, rotating around the authenticity, completeness, and legality of the electronic data, as well as present evidence showing that the defendants' network IDs and real identities are the same.

Chapter IV: Debate of Evidence

Section 1: Basic Requirements for Debating Evidence

Article 40: Prosecutors debating evidence shall be carried out based on the evidence presented by the defense and challenged to prosecution evidence it raised, rotating around the case facts, evidence, and applicable law.

In debate of evidence, one proof shall have one challenge and one response. Debate in the evidence debate phase shall usually revolve around the authenticity, relevance, and legality of the evidence, focusing on its admissibility as evidence and the size of its probative value. As for connections between evidence and issues of the overall role of evidence as proof, this is usually addressed in the courtroom debate phase.

Article 41: Evidence impacting the verdict or sentencing that is key evidence, or which the prosecution and defense have a dispute over, is ordinarily to be independently debated.

Debate of evidence over which the prosecution and defense have no dispute may be simplified at court.

In a case where the defendant has admitted guilt, debate of evidence is to rotate around sentencing evidence and other evidence in contention, and it may be decided to not further debate evidence on guilt that the prosecution and defense do not dispute.

Article 42: As necessary, prosecutors may combine the production and debate of evidence, and interrogation and questioning, and appropriately refute the defense stance during the debate of evidence phase; but with the border debate of evidence and debate shall be distinguished, with the focus on the authenticity, relevance, and legality of the evidence itself.

Article 43: After the debate on each piece (group) of evidence, or on all the evidence, is completed, based on the specific case circumstances, the prosecutors may ask the court to confirm the evidence.

Section 2: Reply to the defense's debate on evidence

Article 44: Prosecutors shall make a complete, timely, and focused response to defense comments in evidence debate on the authenticity, relevance, and legality of evidence that the prosecution presents, reads out, or plays at court

For defense comments in evidence debate that are not related to the admissibility or probative value of evidence, or that have not relation to the prosecution position, prosecutors may explain the reason for not addressing them and request that the court not admit them.

Prosecutors' responses shall usually be made immediately after the defense submits the comment in evidence debate. In situations where it will not impact the efficacy of the trial, as necessary it may also be combined with other evidence for comprehensive expressing of opinions in the courtroom debate phase, but shall explain this to the court.

Article 45: For defense debate of evidence that complies with the facts and laws, the prosecutors shall be practical and realistic, objective and just in expressing opinions.

Where the defense debates evidence because it incorrectly understands the content of the evidence, the prosecutors may make a brief explanation of the evidence.

Article 46: Prosecutors replying to defense challenges to evidence shall mainly focus replies on debate viewpoints that shake or reduce the admissibility or probative value of evidence, and may opt to not address or briefly address viewpoints that do not impact admissibility or probative value.

Article 47: Where the defense challenges contradictions between testimonial evidence, prosecutors may combine all case evidence, based in the system of evidence and proofs, conduct key responses from perspectives such as the ability to know, the relationship to the parties, and the objective environment, to reasonably explain contradictions between evidence.

Article 48: Where defenders questioning witnesses or victims have any of the following circumstances, the prosecutors shall promptly remind the chief judge to stop it, and when necessary shall remind the court not to accept that statement or testimony:

(1) ask questions in a leading way;

(2) threaten or mislead witnesses;

(3) Cause victims or witnesses to give speculative, conclusory, or inferential opinions as statements or testimony

(4) have content in questioning that is irrelevant to the case;

(5) Ask questions that are insulting to the victims or witnesses;

(6) Other situations in violation of Law.

For the defenders debate of evidence by questioning of investigators, expert evaluators, and persons with specialized knowledge, refer to the provisions of the preceding paragraph.

Article 49: Where the defense raises contradictions between witnesses' testimony at court and pretrial testimony, prosecutors may ask focussed questions of the witnesses, and may also request the court make a decision to have the defendant confront the witnesses on the content in question to clear it up, and make reasonable explanations of contradictions or omissions in the course of asking questioning or cross-examination.

Article 50: Where the defense makes a challenge saying that defendants' pretrial confessions are illegal evidence that should be excluded, prosecutors may employ the following methods to prove the legality of evidence collection:

(一)宣读被告人在审查(决定)逮捕、审查起诉阶段的讯问笔录,证实其未曾供述过在侦查阶段受到刑讯逼供,或者证实其在侦查机关更换侦查人员且再次讯问时告知诉讼权利和认罪的法律后果后仍自愿供述,或者证实其在检察人员讯问并告知诉讼权利和认罪的法律后果后仍自愿供述;

(二)出示被告人的羁押记录,证实其接受讯问的时间、地点、次数等符合法律规定;

(三)出示被告人出入看守所的健康检查记录、医院病历,证实其体表和健康情况;

(四)出示看守管教人员的谈话记录;

(五)出示与被告人同监舍人员的证言材料;

(六)当庭播放或者庭外核实讯问被告人的录音、录像;

(七)宣读重大案件侦查终结前讯问合法性核查笔录,当庭播放或者庭外核实对讯问合法性进行核查时的录音、录像;

(8) Apply for investigators to appear in court to explain the circumstances of case handling.

When the public prosecutor cannot prove that evidence was obtained legally in court and needs to carry out an investigation for verification, he or she may suggest that the court to grant an adjournment or postponement.

Article 51: 辩护人质疑收集被告人供述存在程序瑕疵申请排除证据的,公诉人可以宣读侦查机关的补正说明。 没有补正说明的,也可以从讯问的时间地点符合法律规定,已进行权利告知,不存在威胁、引诱、欺骗等情形,被告人多份供述内容一致,全案证据能够互相印证,被告人供述自愿性未受影响,程序瑕疵没有严重影响司法公正等方面作出合理解释。 必要时,可以提请法庭播放同步录音录像,从被告人供述时情绪正常、表达流畅、能够趋利避害等方面证明庭前供述自愿性,对瑕疵证据作出合理解释。

Article 52: 辩护方质疑物证、书证的,公诉人可以宣读侦查机关收集物证、书证的补正说明,从此类证据客观、稳定、不易失真以及取证主体、程序、手段合法等方面有针对性地予以答辩。

Article 53: 辩护方质疑鉴定意见的,公诉人可以从鉴定机构和鉴定人的法定资质、检材来源、鉴定程序、鉴定意见形式要件符合法律规定等方面,有针对性地予以答辩。

Article 54: 辩护方质疑不同鉴定意见存在矛盾的,公诉人可以阐释不同鉴定意见对同一问题得出不同结论的原因,阐明检察机关综合全案情况,结合案件其他证据,采信其中一份鉴定意见的理由。 必要时,可以申请鉴定人、有专门知识的人出庭。 控辩双方仍存在重大分歧,且辩护方质疑有合理依据,对案件有实质性影响的,可以建议法庭休庭或者延期审理。

Article 55: Were the defense raises doubts concerning the records of inquests, inspections, or searches, the prosecutors may respond in a focused manner from the following perspectives, that the inquest or inspection was lawfully performed, that the record was drafted according to legal provisions, that the personnel involved in the inquest, inspection, or search and the authenticating witnesses have signed it and affixed a seal, and so forth.

Article 56: Where the defense raises doubts concerning records of identifications, the prosecutors may respond in a focused manner from perspectives such as the identification process and methods, as well as the compliance of the drafting of the identification records with relevant regulations.

Article 57: Where the defense raises doubts concerning the records of investigative tests, prosecutors may respond in a focused manner from the perspectives of the approval, process, methods, legal basis, technical regulations or standards, the testing environment and its degree of similarity to the case, the scientificness of the conclusions, and so forth.

Article 58: Where the defense raises doubts concerning audiovisual materials, the prosecution may respond in a focused manner from perspectives such as additions not being possible in this type of evidence so it has strong authenticity, that its content is continuous and complete, that the words and actions of the perpetrator reflected in it are coherent and natural; that the collection, reproduction, or production were lawful; the degree to which content is related to the case facts, and so forth.

Article 59: Where the defense raises doubts concerning electronic data, the prosecution may respond in a focused manner from perspectives such as the collection, reproduction, or production were lawful, and the degree to which content is related to the case facts, and so forth.

Article 60: Where the defense raises doubts concerning the legality of evidence materials that were obtained through technical investigative measures, the prosecutors may respond in a focused manner by explaining the legal provisions for employing technical investigative measures, presenting the legal documents approving the use of the technical investigative measures, and so forth.

Article 61: 辩护方在庭前提出排除非法证据申请,经审查被驳回后,在庭审中再次提出排除申请的,或者辩护方撤回申请后再次对有关证据提出排除申请的,公诉人应当审查辩护方是否提出新的线索或者材料。 没有新的线索或者材料表明可能存在非法取证的,公诉人可以建议法庭予以驳回。

Article 62: 辩护人仅采用部分证据或者证据的部分内容,对证据证明的事项发表不同意见的,公诉人可以立足证据认定的全面性、同一性原则,综合全案证据予以答辩。 必要时,可以扼要概述已经法庭质证过的其他证据,用以反驳辩护方的质疑。

Article 63: 对单个证据质证的同时,公诉人可以简单点明该证据与其他证据的印证情况,以及在整个证据链条中的作用,通过边质证边论证的方式,使案件事实逐渐清晰,减轻辩论环节综合分析论证的任务。

Section 3: Debate of Defense Evidence

Article 64: Prosecutors shall earnestly review the evidence presented by the defense to the court. Where it was not given to the court five days prior to the beginning of in-court proceedings, this may be pointed out at court, and based on the circumstance, decide whether to request access to the evidence or recommend an adjournment; and in the following circumstances, the court may requested to not accept it:

(1) Evidence does not meet the requirements of veracity, relevance, and legality;

(2) evidence provided by defenders is obviously contrary to logic;

(3) Other circumstance where the court needs to be requested to not accept it.

For evidence on innocence provided by the defense, prosecutors shall conduct debate in line with the principle of being practical and realistic, objective and just. For evidence that is not consistent with the case facts, the prosecutors shall challenge the veracity, relevance, and legality of the evidence in a focused manner, to negate the evidence's probative value.

For the defendants' evidence that has a major impact on guilt or sentencing, where it is difficult to assess at court, the prosecutors may recommend that the court adjourn or extend the trial.

Article 65: For witnesses who the defense has requested to appear in court, the prosecutors may debate the evidence from the following sides:

(1) Whether or not the witness has an interest in the parties or the results of the case handling;

(2) The age, cognition, memory and expressive ability of the witness and whether or not their physiological or psychological state influenced their testimony;

(3) The content and source of testimony;

(4) whether the content of the testimony is directly known by the witness, and the environment, conditions, and mental state of the witness when they perceived the case facts;

(5) Whether the witness testimony has been interfered with or influenced by the outside world;

(6) The relationship between the witness and case facts;

(7) Contradictions between earlier and later testimony;

(8) Whether or not the testimony is mutually corroborative with other evidence, or there are any contradictions.

Article 66: 辩护方证人未出庭的,公诉人认为其证言对案件的定罪量刑有重大影响的,可以提请法庭通知其出庭。

对辩护方证人不出庭的,公诉人可以从取证主体合法性、取证是否征得证人同意、是否告知证人权利义务、询问未成年人时其法定代理人或者有关人员是否到场、是否单独询问证人等方面质证。 质证中可以将证言与已经出示的证据材料进行对比分析,发现并反驳前后矛盾且不能作出合理解释的证人证言。 证人证言前后矛盾或者与案件事实无关的,应当提请法庭注意。

Article 67: For appraisal opinions presented by the defense, and evaluators they requested appear in court, prosecutors may debate the evidence from the following sides:

(1) Whether the evaluation organization and evaluator have the statutory qualifications;

(2) Whether any situations exist that call for recusal;

(3) whether the source, obtainment, storage and delivery of the evaluation materials was done in accordance with law and relevant regulations, whether it is consistent with relevant records, lists of seized articles or content of other such records, and whether the evaluation materials are complete and reliable;

(4) Whether or not the formal requirements of evaluation opinions are complete, whether or not the reason for the evaluation, the person calling for the evaluation, the evaluation organization, the evaluation request, the evaluation process, the evaluation method, the date of the evaluation and other relevant content are noted; whether or not the evaluation organization has attached the special judicial seal and whether the evaluator has signed and affixed a seal;

(5) Whether the evaluation procedures complied with laws and relevant regulations;

(6) Whether the evaluation process and methods were compliant with the relevant professional regulatory requirements;

(7) Whether the evaluation opinion is clear;

(8) Whether the evaluation opinion alligns with the other facts of the case

(9) Whether there are any contradictions between the evaluation opinion and records or inquests or examinations and relevant photographs or other evidence;

(10) Whether relevant parties were promptly informed of the evaluation opinion, and whether the parties have any objections to the evaluation opinion.

When necessary, prosecutors may apply to the court to notify a person with specialized knowledge to appear in court to give necessary interpretation and explanations of appraisal opinions presented by the defense.

Article 68: For physical and documentary evidence presented by the defense, prosecutors may debate evidence from the following sides:

(1) Whether the physical and documentary evidence is the original item or document;

(2) Whether photographs, videos and reproductions of physical evidence have been verified as faithful to the original;

(3) Whether copies and reproductions of documentary evidence have been verified as faithful to the original;

(4) Whether the procedures and methods for collecting physical and documentary evidence complied with laws and relevant provisions;

(5) Whether the physical and documentary evidence was damaged or altered in the course of gathering, storage or evaluation;

(6) Whether there is any connection between the physical and documentary evidence and the facts of the case.

Article 69: For audiovisual materials presented by the defense, prosecutors may debate evidence from the following sides:

(1) Whether the procedures for its collection were legal, whether their source and the purpose of reproducing them is clear;

(2) Whether the item is an original or reproduction, whether there is an explanation for the reproduction;

(3) whether there were any circumstances violating laws or related regulations in the creation process such as threats or enticements.

(4) whether the contents and drafting process are accurate, whether there has been any editing, additions, deletions or other similar circumstances.

(5) Whether the content is relevant to the case.

Article 70: For electronic data presented by the defense, prosecutors may debate evidence from the following sides:

(1) Whether the original storage medium was transferred, and when there are circumstances where the original storage medium cannot be sealed and stored or is not conveniently transferred,, whether there is an explanation of the process of its collection or reproduction;

(2) Whether the procedures and means of collection and regular laws and technical regulations;

(3) whether the electronic materials are accurate, have any deletions, revisions, additions or similar situations;

(4) Whether the process of reproducing the electronic data was was influenced by violent conversion or enticement;

(5) Whether the electronic data is relevant to the case.

Article 71: Where due to specialized issues debate opinions cannot be expressed on relevant evidence, an adjournment may be recommended, and information may be sought from persons with expert knowledge. When necessary, an extension of trial may be recommended, to conduct evaluations or new evaluations.

Section 4: Confrontation at Court

Article 72: Where there are contradictions between the evidence presented by the prosecution and defense on the same facts, the prosecutors may request that the court notify relevant personnel to come to court.

Article 73: If the defendant and witness dispute the same fact in a way that warrants verification, the public prosecutor may suggest that the court summon relevant defendants and witnesses to attend the court proceedings at the same time to confront each other.

Where there are contradictions between statements by each defendant on the same matter that need to be confronted, the prosecutors may recommend that the court conduct the confrontation after all defendant statements have been made.

Article 74: 辩护方质疑物证、书证、鉴定意见、勘验、检查、搜查、辨认、侦查实验等笔录、视听资料、电子数据的,必要时,公诉人可以提请法庭通知鉴定人、有专门知识的人、侦查人员、见证人等出庭。

辩护方质疑采取技术侦查措施获取的证据材料合法性的,必要时,公诉人可以建议法庭采取不暴露有关人员身份、不公开技术侦查措施和方法等保护措施,在庭外对证据进行核实,并要求在场人员履行保密义务。

对辩护方出示的鉴定意见等技术性证据和提请出庭的鉴定人,必要时,公诉人可以提请法庭通知有专门知识的人出庭,与辩护方提请出庭的鉴定人对质。

Article 75: During the confrontation process, prosecutors shall ask questions focussing on contradictions between evidence, and use other evidence at appropriate times to point out untrue, nonobjective, or contradictory evidence materials.

Chapter V: Supplemental Provisions

Article 76: This Guide applies to cases in which people's procuratorates appoint personnel to appear in court in support of first-instance trial prosecutions that are not applying the expedited procedures As for second-instance trial and retrial cases where personnel are appointed to appear, this Guide may be consulted for courtroom production and evidence of evidence.

Article 77: This Guide takes effect from the date of its issue.

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