I. An overview of the characteristics of cases involving organized crime
Compared with other criminal cases, gang-related cases have their distinctive characteristics:
First, the number of people involved is huge. The number of people involved in underworld criminal organization cases ranges from a dozen to dozens or even hundreds;
Second, there are many crimes involved. In addition to the crime of organizing and leading an underworld criminal organization, there are also common crimes such as picking quarrels and provoking trouble, illegal detention, intentional injury, intentional homicide, forced transactions, false litigation, extortion, opening casinos, gambling, organizing prostitution, and illegally possessing firearms and ammunition.
Third, there are many facts of crime. For example, in a case involving organized crime handled by the author, there were 17 cases of picking quarrels and provoking trouble, 11 cases of illegal detention, and 6 cases of general illegal acts. In this case alone, there are as many as 34 criminal facts, compared with those cases with only one criminal fact, handling one criminal case is equivalent to handling 34 criminal cases;
Fourth, there is a lot of verbal evidence. First of all, there are many suspects in gang-related cases, if one suspect has 5 confessions, 10 suspects will have 50 confessions. Second, there are many victims in such cases, and there are also many records of victims. Thirdly, such cases involve an equally large number of witness testimonies.
In practice, the vast majority of the evidence listed in the verdicts of many criminal cases found to be verbal evidence for the organizational characteristics and harmful characteristics of the crime of organizing and leading participation in underworld organizations, that is, the confessions and justifications of the defendants in this case, the statements of the victims in this case, and as many as dozens of witness testimony.
So, can verbal evidence alone be the basis for a verdict in a criminal case?
(Picture taken from the Internet)
II. Overview of Verbal Evidence
Verbal evidence refers to evidence in which a person's statement is used as the form of existence and expression, also known as "human evidence". It includes victim statements, confessions and justifications of criminal suspects and defendants, witness testimony, appraisal conclusions, identification records, telephone recordings, and so forth. The collection of verbal evidence is mainly to employ the method of questioning or interrogating the person, and when reviewing verbal evidence, various factors of the person providing the verbal evidence shall be comprehensively considered.
The provision of verbal evidence in written form or the transcript of verbal evidence is a form of expression of verbal evidence and a fixed method of verbal evidence. Verbal evidence can systematically and comprehensively prove the facts of the case and the source of evidence is not easy to be destroyed, however, verbal evidence is easily affected by various subjective and objective factors and is false or distorted, and verbal evidence is highly subjective and less stable.
From a subjective point of view, due to the different interests of the presenter and the case, there may be situations where different presenters make different or even contradictory statements about the same facts. Victims, suspects, and defendants in criminal proceedings all have a direct interest in the outcome of the proceedings, and this interest will prompt them to make statements that are beneficial to themselves and different from each other. Although witnesses generally have no direct interest in the case, they may also make distorted statements due to their cognitive ability, moral character or psychological tendencies, or they may not be able to make truthful statements because they are coerced or induced.
At the same time, in a specific period and on a specific occasion, due to the emergence of special circumstances, the parties may make false statements that are unfavorable to themselves, and once the time and environment change, the parties' thoughts will also change dramatically, so that they can make different, or even completely opposite statements on the same facts, which is what we usually call "retracting confessions".
The formation of verbal evidence is mostly through the facts we see and observe, which are processed by the brain and presented through language or writing. But is what the eye sees and observes true?"Is what you see necessarily what you think it is?" In fact, the eye sometimes deceives us. Let's start with a picture:
(Picture taken from the Internet)
This diagram is called the "white illusion". There are only three colors in the picture, black, gray and white. However, most people will see four colors, and in addition to black and white, they will see two grays: dark gray and light gray. Dark gray underneath A and light grey underneath B. The fact that the shade of gray below A and B is the same, is a color, and what we see is only an illusion. Our perception of gray is determined more by the color around it, so if the gray is black around it, it will look lighter. And if the gray is white around it, it looks darker.
For example, the circle in the middle of the picture below, which do you think is bigger?
(Picture taken from the Internet)
Most people's first reaction is definitely that the circle on the right is bigger, because when we judge the size of the circle, we will subconsciously judge the size by using the surrounding objects as references, and this process is the "Ebbinghaus illusion". In fact, the two circles are equally large.
There are many similar illusions in life, and these illusions also tell us that what we see with our eyes may not be real, "what you see is not necessarily what you think".
Verbal evidence based on such unconscious and distorted visual perception deviates from the truth of the facts themselves, and is indeed biased as the basis for a verdict.
From an objective point of view, the formation of verbal evidence is a rather complex process, which generally goes through three stages: perception, memory, and statement. At each stage, distortion may occur due to the influence of various objective factors, making it impossible for verbal evidence to accurately and truthfully reflect the objective facts of the case. In practice, most of the crimes of picking quarrels and provoking trouble, assembling a crowd to fight, and intentional injury in gang-related cases occurred several years or more than ten years ago, and the specific objective facts of the case cannot be restored to the greatest extent due to the impact of the on-site situation and the suddenness of the case, especially in the absence of on-site audio and video recordings, and the specific objective facts of the case will become blurred as people's memories fade.
The verdict determines whether the defendant participated in picking quarrels and provoking troubles or intentionally causing harm, mostly based on the confessions of the parties. However, in the same case of picking quarrels and provoking troubles or intentional injury, most of the confessions between the defendants are contradictory to each other, and there are big discrepancies. It is no longer possible to ascertain the objective facts of the case.
Since verbal evidence is a fact that has been "processed" by the brains of the parties, in the process of "processing", it is inevitably affected by natural factors, social factors, environmental conditions, personal cognition, etc., so that verbal evidence has the characteristics of volatile and subjective. Based on this, verbal evidence alone cannot objectively and accurately determine the facts of the case.
(Picture taken from the Internet)
III. Only when physical evidence is combined to form a complete chain of evidence can it be used as the basis for a verdict.
According to Article 55 of the Criminal Procedure Law of the People's Republic of China (2018 Revision), "the sentencing of all cases must emphasize evidence, investigation and research, and not trust confessions." Where there is only a confession by the defendant and there is no other evidence, the defendant cannot be found guilty and given a punishment; "Evidence must form a chain of evidence before it can be used as the basis for conviction, only the defendant's confession of guilt and no other physical evidence, and only verbal evidence cannot judge the facts of the case, cannot form a complete chain of evidence, and cannot be convicted on this basis.
In cases involving organized crime, in addition to verbal evidence, it is also necessary to combine physical evidence such as physical evidence, documentary evidence, audio-visual materials, electronic data, and other evidence to achieve the effect of each piece of evidence corroborating each other, forming a complete chain of evidence, and only then can it be used as the basis for the verdict of a case involving organized crime and vice.
Author: Chen Dongmei, trainee lawyer at Beijing Guozi Law Firm
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