SPC Guiding Cases: The presentation of evidence at a pretrial conference cannot replace the presentation, cross-examination, and authentication of evidence at trial

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Gist of the Adjudication: During the pretrial conference, the people's courts may lawfully handle procedural matters that might lead to the interruption of the trial, organize the display of evidence, and summarize the focus of the dispute between the prosecution and defense, but must not use this as a substitute for a formal trial. Evidence that has not been verified to be true through court investigation procedures such as presenting, identifying, or debating evidence in court, must not be the basis of a verdict.

1. Basic facts of the case

Defendant Wang Weinan, male, born on April 18, 1982. Arrested on 10 January 2018. The People's Procuratorate of Chengde City, Hebei Province, charged the defendant Wang Weinan with the crime of fraud and filed a public prosecution with the Chengde Intermediate People's Court. Defendant Wang Weinan and his defender have no objection to the characterization of the crime of fraud charged by the public prosecution with Wang Weinan, but only to the amount of fraud. The Chengde Municipal Intermediate People's Court ascertained through open trial that from May 2013 to 2016, the defendant Wang Weinan used his identity as a member of the Chengde Municipal Cultural Relics Bureau's Summer Resort and the surrounding temples' cultural heritage project headquarters (hereinafter referred to as the project headquarters) to fabricate many projects in the Chengde Municipal Cultural Relics Bureau's Summer Resorts and surrounding temples, and in the name of introducing the project to others, he successively defrauded Ji Wenge of 9,479,955 yuan, Liu Jianfei of 3.73 million yuan, and Jing Lichun of 1,496,000 yuan. Guo Jinglong 1.1675 million yuan and Liu Nianhai 170,000 yuan, with a total amount of 16.043455 million yuan. Wang Weinan used all the proceeds of fraud for personal squandering.

2. Judgment results

The Chengde City Intermediate People's Court found that the defendant Wang Weinan had committed the crime of fraud and sentenced him to life imprisonment, deprivation of political rights for life, and confiscation of all personal property. After the verdict was announced, the defendant Wang Weinan was not satisfied and appealed. After trial, the Hebei Provincial High People's Court found that the original trial court violated the provisions of law and that the litigation procedures were illegal and erroneous, and ruled to revoke the original judgment and remand for a new trial. After a new trial, the Chengde Intermediate People's Court found the defendant Wang Weinan guilty of fraud and sentenced him to 15 years imprisonment and a fine of 6 million yuan. After the verdict was announced, the Chengde Municipal People's Procuratorate raised a protest, and the Hebei Provincial People's Procuratorate supported the protest. After trial, the Hebei Provincial High People's Court found that the facts ascertained in the original judgment were clear, the evidence was credible and sufficient, the conviction was accurate, the fine was appropriate, and the trial procedures were lawful. The defendant Wang Weinan was sentenced to life imprisonment, deprived of political rights for life, and fined 6 million yuan for the crime of fraud.

III. Main Issues

Is it necessary to conduct court investigation procedures such as presenting evidence that the parties have no objection to after the pre-trial conference?

IV. Grounds for the Trial

During the trial, the court of second instance found that in order to simplify the trial procedures and improve the efficiency of the trial, the court of first instance convened a pretrial conference attended by the prosecutor, the defender, the victim, and the defendant. At the pretrial conference, the opinions of the prosecution and defense were solicited on matters such as case jurisdiction, recusal, open trial, and exclusion of illegal evidence, and relevant evidence was organized to be displayed. The pretrial conference decided that the collegial panel would accept the false contract and the notice of winning the bid forged by the defendant Wang Weinan for the purpose of committing fraud presented by the public prosecutor at the pretrial conference, and that the collegial panel would not present evidence at trial. Cross-examination: The collegial panel confirmed the fact that Wang Weinan had defrauded Liu Nianhai of 170,000 yuan, and since the prosecution and defense had no objections, the collegial panel confirmed that no longer conducted a court investigation into the amount of the fraud against Jing Lichun; the collegial panel confirmed the fact that Wang Weinan returned 110,000 yuan to Ji Wenge for the amount of defrauded Jing Lichun. The court of first instance used the aforesaid documentary evidence as evidence in the verdict without the court's investigation procedures such as adducing and cross-examining evidence.

Is it still necessary to conduct court investigation procedures such as the presentation of evidence to which the two parties have no objection after the pretrial conference? The court of second instance had two different opinions during the trial: one opinion held that the defendant had already identified this part of the evidence at the pretrial conference, and both the defendant and the defender indicated that they had no objection, and that the defendant had no objection to the facts of the crime, and the appeal only held that part of the amount of fraud determined by the original judgment was incorrect, and that part of the evidence of the original trial court had not been adduced by the court. Although there were procedural flaws in the courtroom trial, the original trial court did not violate the litigation procedures prescribed by law, nor did it deprive or restrict the defendant's procedural rights, and should be sentenced in accordance with law after ascertaining the amount of fraud raised by the defendant in the appeal. The second opinion holds that the original trial court's acceptance of some of the evidence without investigation by the court and only through the pretrial conference and as the basis for the verdict violated the litigation procedures prescribed by law and should be remanded for a new trial. We agree with the second opinion for the following main reasons:

(1) In the pretrial conference, the people's courts may lawfully handle procedural matters that might lead to the interruption of the trial, organize the display of evidence, and summarize the focus of the dispute between the prosecution and defense, but must not use this as a substitute for a formal trial

Paragraph 2 of Article 182 of the Criminal Procedure Law of 2012 stipulates that: "Before the trial begins, adjudicators may convene the public prosecutor, parties, defenders, and agents ad litem to understand the situation and hear opinions on issues related to the trial, such as recusal, the list of witnesses appearing in court, and the exclusion of illegal evidence." [1] This provision marked the formal establishment of the pretrial conference system in criminal procedure in mainland China, and the subsequent judicial interpretations of the Supreme People's Court and the Supreme People's Court further stipulated the application of pretrial conferences. At this point, the "pre-trial conference" has officially become a feasible system in mainland China from a theoretical concept. Since 2016, the trial-centered reform of the criminal procedure system has been in full swing in the mainland, and in order to comprehensively advance the reform, the Supreme People's Court has formulated the "Three Regulations" on the basis of the "Implementation Opinions on Comprehensively Advancing the Trial-centered Reform of the Criminal Procedure System", including the "Rules for Pretrial Conferences in the Handling of Criminal Cases by People's Courts (for Trial Implementation)" (hereinafter referred to as the "Pretrial Conference Procedures") The pretrial conference system has been further refined in judicial practice, and has also become an important provision that people's courts at all levels must comply with when convening pretrial conferences.

Carefully studying the legislative background of the pretrial conference system, the process of gradual improvement, and the purpose of the trial-centered reform of the criminal procedure system, it is not difficult for us to find that the pretrial conference in criminal proceedings is located after the public prosecution review. Before the court hearing, it is the core content of the pre-trial preparation procedure, mainly to sort out the procedural issues and some substantive issues of the case, aiming to clear the obstacles for the trial, so as to ensure that the court focuses on continuous trial, and improves the quality and efficiency of the trial。

Article 2 of the "Pretrial Conference Procedures" stipulates: "During the pretrial conference, the people's court may learn about the situation on issues related to the trial, hear opinions, handle in accordance with the law matters that may lead to the interruption of the trial, such as recusal, the list of witnesses appearing in court, and the exclusion of illegal evidence, organize the prosecution and defense to display evidence, summarize the focus of disputes, and carry out mediation in attached civil cases." Generally speaking, it mainly includes two aspects: on the one hand, the content is that the pretrial conference has the right and must make a disposition of these procedural matters that may lead to the interruption of the trial, and the disposition decision made by the pretrial conference has legal effect, and if the prosecution and defense have no new reasons to raise relevant applications or objections on the above matters again during the trial, the court shall reject them in accordance with law. In this case, the original trial court handled matters such as recusal, open trial, and exclusion of illegal evidence at the pre-trial conference in accordance with the law, ensuring the quality and efficiency of the trial and achieving the desired results, which is worthy of recognition and learning. The second aspect is that the people's courts may organize the display of evidence that the prosecution and defense decide to present at trial, hear the opinions of the prosecution and defense on the evidence in the case, and sort out the evidence that is in dispute. It should be noted that the pretrial conference is to organize the prosecution and defense to present evidence, not to present evidence. Presentation means to show evidence and tell the other party what evidence we want to present in the trial, and to show evidence to the other party to solicit the other party's opinions.

In this case, the trial court confused the two concepts and substituted the presentation of evidence for the presentation of evidence during the pretrial conference, which did not comply with the relevant provisions of the Pretrial Conference Rules. Article 19 of the "Pretrial Conference Rules" clearly stipulates that "for evidence materials that are not disputed by the prosecution and defense in the pretrial conference, the presentation and debate of evidence at trial may be simplified for the purpose of the presentation of evidence by the prosecution and defense at the pretrial conference and the handling of evidence after the presentation of evidence." "As mentioned above, the pretrial conference cannot replace the trial, and the purpose of convening the pretrial conference is to ensure the smooth progress of the trial. In this case, the original trial court presented evidence at the pretrial conference, and since there was no dispute between the prosecution and defense, it decided not to present or debate the evidence at trial, which confused the difference between the pretrial conference and the trial, and violated the law.

(2) Evidence must not be the basis of a verdict if it has not been verified to be true through court investigation procedures such as presenting, identifying, or debating evidence at court

In accordance with the principle of evidence-based adjudication, the determination of case facts must be based on evidence. Evidence is the core and foundation of criminal proceedings, and without this foundation, the so-called "facts" determined can only be water without a source and a tree without roots. However, in order for evidence to be used as the basis for a verdict, it must also go through the presentation and cross-examination of evidence at trial, and the judge should review and judge the legality, authenticity, and relevance of the evidence provided by the prosecution and defense. Evidence must not be authenticated without cross-examination, which is the concrete implementation of the principle of evidence-based adjudication in criminal proceedings, and it is also a principle that judicial personnel must abide by in practice. Especially in recent years, with the comprehensive advancement of the trial-centered reform of the criminal procedure system, this principle has played a positive role in promoting the realization of the substantiation of court trials, ensuring the quality of cases, and ensuring judicial fairness. At the same time, a series of laws, regulations and policy documents that have been promulgated have also reaffirmed this principle and made more detailed provisions, such as Article 6 of the "Provisions of the Central Political and Legal Commission on Effectively Preventing Unjust, False and Wrongly Decided Cases", which stipulates: "Adhere to the principle of evidence-based adjudication...... Where evidence has not been presented at court, identified, debated, or otherwise verified to be true, it must not be the basis of a verdict. Article 11 of the "Opinions of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of State Security, and the Ministry of Justice on Promoting the Reform of the Criminal Procedure System with Trial as the Center" stipulates: "Standardize court investigation procedures, and ensure that litigation evidence is presented in court and case facts are ascertained in court. Evidence proving the defendant's guilt or innocence, or the severity or seriousness of the crime, shall be presented in court, and the right of the prosecution and defense to debate evidence is to be ensured in accordance with law. Where there is controversy between the prosecution and defense about evidence for conviction or sentencing, the evidence shall be debated separately ......." In addition, the Supreme People's Court's "Implementation Opinions on Promoting the Reform of the Criminal Procedure System Centered on Trial" and the "Court Investigation Procedures for the First Instance of Criminal Cases Handled by the People's Courts (for Trial Implementation)" also clearly stipulate that the evidence of the prosecution and defense must be presented and cross-examined in court, otherwise it must not be used as the basis for a verdict. In this case, the court of first instance did not present or debate evidence at the trial at the first trial, and used the evidence presented at the pretrial conference as the basis for the verdict, which did not conform to the principles of evidence adjudication in criminal proceedings, violated the relevant laws and regulations, and should be corrected in accordance with law.

The "Three Regulations" formulated by the Supreme People's Court are of great significance for giving full play to the decisive role of trial, especially court hearings, in criminal proceedings, and for building a more sophisticated, standardized, and substantive criminal trial system, and are the regulations that we must abide by in criminal trial practice. It is true that in the process of implementing the "three regulations", it may be necessary to further improve them through practice, and during the trial period, the people's courts at all levels and the vast number of criminal adjudicators may carry out some appropriate innovations and explorations that conform to the provisions of the law within the framework of the provisions, but they must resolutely not violate or break through the basic principles and provisions of evidence adjudication, no certification without debate, and no pretrial conference to replace court hearings, otherwise it will cause serious procedural violations and may even lead to the occurrence of wrongful convictions. Therefore, in the practice of criminal trials, we must conscientiously implement the basic principles of criminal procedure, strictly abide by the provisions of laws and regulations, ensure the quality of trial of cases, and ensure judicial impartiality, so as to achieve good political, legal, and social effects.

In summary, the court of first instance did not present evidence and debate evidence at the trial in the first trial, and although the defendant and the defender did not raise any objection to this, the court of second instance still adhered to the principle and remanded for a new trial, which is correct.

(This case is the Supreme People's Court's Criminal Trial Reference No. 1422 Guiding Case: Wang Weinan's Fraud Case)