Reflection on the Criteria for Determining the Use of High Probability in Criminal Cases: From the Perspective of Smuggling Cases

Foreword

In criminal justice practice, due to the nature of the case and the protection of human rights, the strictest standards are adopted for the identification of evidence. The "beyond reasonable doubt" standard, as the golden standard for criminal conviction, is aimed at safeguarding judicial fairness and the legitimate rights and interests of the defendant. When faced with smuggling cases, such as smuggling cases, where there are a large number of people involved, a long time span, and a mixture of domestic and foreign evidence, some judicial organs may adopt the standard of "high probability" in the determination of certain evidence chains. Although this practice is conducive to the efficiency of case handling, it is premised on the premise of impartiality. This paper discusses the practical effects and existing problems of the use of the "high degree of probability" criterion in light of criminal smuggling cases, in the hope that the judicial authorities will consider them when determining the facts of the case.

1. Related concepts

According to Zhang Jiajun's article "Research on the Construction of Phased and Diversified Proof Standards for Environmental Public Interest Litigation in Environmental Public Interest Litigation ———Based on the Perspective of Comparison between Private Interest Litigation and Public Interest Litigation" published in Hebei Law in November 2023, the current mainland legislation or judicial interpretation only shapes three identification methods: high probability, beyond reasonable doubt, and high probability. In judicial practice, the adjudicator shall determine which method to apply in accordance with the provisions of the law, the type of case, and the specific circumstances. (1) Overview of High Probability: High probability refers to a method of determining the facts of a case when the persuasiveness of evidence on one side is significantly stronger than that of the other party, and the judge can form an inner conviction through discretion. Article 108 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China (2022 Amendment) clarifies the use of a high degree of probability in civil litigation, which stipulates that: "Where the people's court is convinced that the existence of the facts to be proved is highly probable after reviewing and considering the relevant facts, the people's court shall determine the existence of the facts to be proved. In criminal justice practice, when the evidence on which the verdict is based cannot meet the standard of "beyond reasonable doubt", some judicial organs may adopt this method. For example, the (2019) Jin 1127 Xingchu No. 56 Criminal Verdict states: "Defendants Chen X 1 and Zhang X had drug trafficking and seized drugs from them, and there was a high degree of probability that the two defendants who were seized were trafficking drugs, so it is presumed that they will be used for trafficking, that is, the 1.39 grams of drugs seized should be included in the amount of drugs trafficked." "(2) Overview of the Elimination of Reasonable Doubt The relevant responsible person of the Legislative Affairs Commission of the Standing Committee of the National People's Congress explained the meaning of the elimination of reasonable doubt, proposing that the elimination of reasonable doubt refers to the determination of facts that no longer conforms to common sense and well-founded doubts, and has actually reached the level of conviction, which is the highest standard of proof in criminal proceedings. Paragraph 2 of Article 55 of the Criminal Procedure Law of the People's Republic of China (2018 Amendment) further emphasizes the importance of the elimination of reasonable doubt in criminal proceedings in mainland China, which stipulates that "the evidence is credible and sufficient, and the following conditions shall be met: (1) the facts of conviction and sentencing are supported by evidence; (2) The evidence on which the verdict is based has been verified as true through legally-prescribed procedures; (3) Summarizing all the evidence in the case, reasonable doubt has been eliminated as to the facts ascertained. "This method of determination can not only ensure the quality and efficiency of the trial and fully protect the lawful rights and interests of the defendant, but also has great significance for improving judicial credibility and safeguarding judicial fairness. (3) Overview of greater likelihood Relatively likely refers to a method for determining the existence of case facts in civil litigation when the court finds that the facts of the case are more likely to exist in response to some specific facts. According to the second paragraph of Article 86 of the Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings (2019 Amendment) Fa Shi [2019] No. 19), it stipulates that: "Where the people's court considers that the existence of the relevant facts is more likely to exist in light of the parties' explanations and relevant evidence, the people's court may determine the existence of such facts." Therefore, this method of determination is mainly applicable to the relevant facts of procedures such as recusal and litigation preservation in civil litigation.

II. Standards for Determining Criminal Cases

(1) Characteristics of Criminal CasesCriminal cases are serious, punitive, and authoritative. First of all, seriousness is reflected in the close connection between criminal cases and the public interest and legal order, requiring adjudicators to apply the law accurately and with rigorous procedures, so as to ensure the accuracy of the application of law. Second, punitive means that criminal cases are directly aimed at criminal acts, and crimes are deterred and prevented through strict national sanctions, so as to protect the personal and property safety of citizens and the public interest. Finally, the authority stems from the fact that criminal judgments are legally binding, have strong social influence, and are coercive, and once they are made, they must be enforced, reflecting the stability and authority of the law. Based on the purpose of criminal proceedings to punish and sanction criminal acts and to pursue criminal responsibility of criminal suspects, once the adjudicator determines that the defendant has committed a crime and the evidence is credible and sufficient, the defendant may face serious legal consequences such as deprivation of personal liberty or even deprivation of life, which determines that the standard of proof in criminal cases is inevitably higher than the standard of proof in civil or administrative cases. (2) Difficulties in the identification of criminal casesWith the development of society and the progress of science and technology, the emergence of new types of crimes and cross-border crimes has brought new challenges and difficulties to the identification of criminal cases, and the difficulties are mainly manifested in the following two aspects: 1. It is difficult to collect evidence. Investigators may have lost or tampered with various forms of evidence collected at the scene of the crime, which may have increased the difficulty of evidence collection. Secondly, the progress of science and technology has led to the gradual high-tech of criminal methods, and the professional requirements for evidence evaluation have also gradually increased, and in this process, it is necessary to ensure the scientificity and accuracy of evidence identification. Finally, due to the particularity, cross-border and transnational nature of criminal acts in criminal cases, judges need to construct a complete chain of evidence based on existing evidence, which requires higher professional quality and case-handling experience from customs departments and judges. 2. The standard of evidence identification is high. The judicial practice of criminal procedure requires that the determination of the facts of a case must meet the standard of "beyond reasonable doubt", and it is necessary to ensure that all evidence reaches the level of undoubted before the defendant can be found guilty. This standard requires the adjudicator to completely exclude all evidence of innocence before reaching a guilty verdict against the defendant to ensure the fairness of the verdict. However, due to factors such as evidence limitations and technical limitations, it may be difficult to completely eliminate reasonable doubt, and the adjudicator may consider using a "high degree of probability" standard lower than this standard, but the use of this standard may bring problems such as inconsistent judicial application and different judgments in the same case. (3) Similarities and differences between criminal cases and civil cases: 1. Similarities between criminal cases and civil cases: (1) Both hope to achieve the same social effect. The purpose of criminal cases is to investigate the legal responsibility for criminal acts and protect the public interests of the state and society, so as to realize the punishment and crime prevention functions of the law; The purpose of civil litigation is to resolve disputes over private rights between natural persons, between legal persons, or between natural persons and legal persons. However, on the whole, both are part of the socialist rule of law system, and both hope to maintain social order, protect the legitimate rights and interests of the people, and promote judicial fairness through legal procedures. (2) Evidence is the key to a verdict. Evidence is the basis of a litigation case, the basis on which the adjudicator bases the verdict, and the key to the trial of the case. In court, the basis for conviction put forward by the prosecutor or the litigation request put forward by the party must present corresponding evidence to support the reason for the conviction or the request. Therefore, once the litigation stage is reached, both parties should pay attention to the collection and collation of evidence, and ensure that the evidence they provide can effectively prove the points they have raised. (3) Illegal evidence is excluded. The principle of exclusion of illegal evidence originates from the theory of "the fruit of the poisonous tree" in American judicial practice, which means that illegally obtained evidence should be a "poisonous tree", and evidence derived from the "poisonous tree" is the "fruit of the poisonous tree", which should be excluded from the case and cannot be used as the basis for a verdict. In mainland criminal proceedings, the Provisions on Several Issues Concerning the Strict Exclusion of Illegal Evidence in the Handling of Criminal Cases provide specific guidance on the use of the exclusion of illegal evidence, which clarifies that in criminal proceedings, illegal verbal evidence shall be absolutely excluded, and illegal physical evidence shall be excluded at its discretion; In civil litigation, Article 106 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China (2022 Amendment) clearly stipulates that: "The people's court shall, in accordance with legal procedures, comprehensively and objectively review the evidence, and in accordance with the provisions of the law, use logical reasoning and the rules of daily life experience to make judgments on whether the evidence has probative force and how strong it is, and disclose the reasons and results of the judgment." Based on the above, both criminal and civil proceedings have relevant provisions on the exclusion of illegal evidence to ensure that judicial fairness and human rights are fully protected. 2. Differences between criminal cases and civil cases (1) The standard of proof is different. Under the law, criminal proceedings require beyond a reasonable doubt to be convicted, and the standard of proof is more stringent. The reason for this is that the legal consequences of criminal cases involve personal liberty and even the right to life, and a higher standard of proof is used to ensure that the case is fairly adjudicated. In civil litigation, a high degree of probability is often used. (2) The subject of the burden of proof is different. In criminal proceedings, the burden of proof is mainly borne by the public prosecution, which provides sufficient evidence to prove that the defendant has committed a crime, and the court rules whether the defendant's criminal conduct constitutes a crime; Civil litigation, on the other hand, usually follows the principle of "who asserts the claim shall bear the burden of proof", that is, the parties need to bear the burden of proof for their own claims. (3) The legal consequences are different. Criminal cases may result in the defendant being subject to criminal penalties, such as fixed-term imprisonment, life imprisonment or even the death penalty and financial penalties such as fines; Civil cases, on the other hand, are more concerned with the protection of damaged rights, and the legal consequences are usually civil remedies such as compensation for losses and restitution.

3. The reasons and problems arising from the use of the high probability standard in criminal cases

(1) Reasons for the emergence of a high degree of probability in the determination of criminal cases1. The case is difficult and complex, and it is difficult to collect evidenceIn the practice of criminal case investigation and judicial determination, because some criminal cases are indeed difficult, complex, and novel, it is extremely difficult to collect evidence, and the corresponding legal provisions lag behind. Cross-border cases such as smuggling crimes are very likely to cause the problem of broken evidence chains, and it is inevitable to use the probable standard to identify some evidence. 2. Intentionally ignoring the rules of evidence in litigationThe rules of evidence mainly include rules for the exclusion of illegal evidence, hearsay evidence, opinion evidence, etc., and in judicial practice, first of all, some investigators intentionally circumvent the rules for the exclusion of illegal evidence, and make suspects "actively" confess through the application of different compulsory measures; The second is to undermine the rules of hearsay evidence and touch the inner confirmation of the procuratorate through a large amount of hearsay evidence (out-of-court evidence); Thirdly, it is to repeatedly fix opinion evidence, forming a large number of speculative and inferential testimony, and even hoping to fill in the missing chain of evidence through the expression of similar speculative testimony and confessions by different parties. 3. The confusion of criminal proof standards at different stages should be clear, the criminal proof standards at different stages are different, and the use of probability in the investigation stage is due to the investigative nature of the investigation department's presumption of doubtful guilt, and the existence of criminal facts at this time is sufficient for the existence of prima facie evidence. Because the investigation department suspects the existence of criminal facts and needs to pursue criminal responsibility, it should file a case. According to Article 128, Paragraph 2 of the Supreme People's Procuratorate Rules, having evidence to prove the existence of criminal facts refers to the following circumstances at the same time: (1) there is evidence to prove that a crime has occurred, (2) there is evidence to prove that the criminal facts were committed by the criminal suspect, and (3) the evidence proving that the criminal suspect has committed the criminal act has been verified to be true. It can be seen that from the beginning of the arrest, the standard of proof is much higher than that at the beginning of the investigation. At the stage of initiating a public prosecution and making a guilty verdict, it is required that the facts of the crime be clear and the evidence is credible and sufficient. As a prosecutor, Gai cannot completely continue the investigation department's case-handling thinking and its standard of proof, because the entire proof has changed from "there is no doubt about the guilt" to "there is no doubt about the guilt", and if it cannot be reached beyond reasonable doubt, either a non-prosecution will be made or a not-guilty verdict will be rendered. (2) The problem that the use of the probability standard in criminal cases is easy to deriveThrough the above analysis, we find that there is indeed room for the mixing of the probative standard, and now the number of staff in the judicial organs is insufficient, the workload is large, and the slightest carelessness can easily enter the convenient mode of "quick handling and quick settlement", and it is natural to use a high degree of probability. However, there are obviously many problems in the mixed use of the probability standard in criminal cases, and here are a few of them, with a view to strengthening the legal position. 1. It is easy to weaken the seriousness of criminal justiceCriminal justice, as the last line of defense to maintain fairness, justice and social order, if the high probability standard is used, it will undoubtedly lower the threshold of proof, expand the discretion of the adjudicator, and increase the uncertainty of the judgment. Especially in cases involving the right to life, this uncertainty can lead to public doubts about the judicial system and judicial fairness. 2. Increase the probability of unjust, false and wrongly decided cases If inconsistent standards of proof are adopted, there will be differences in the identification and collection of evidence, which may lead to differences in judicial adjudication and application of law in similar cases, and judges will face difficulties and challenges when judging whether the evidence is sufficient and whether the standards for conviction are met, which will ultimately affect the outcome of the case judgment and even lead to the occurrence of unjust, false and wrongly decided cases. 3. The use of the high probability standard in criminal cases that are likely to harm the defendant's lawful rights and interests may not be properly protected due to insufficient evidence or inaccurate subjective judgment by judges. Based on this, criminal proceedings should be cautious about the use of the high probability standard in judicial practice, so as to avoid harming the lawful rights and interests of the defendant by lowering the standard of proof.

IV. Difficulties in the identification of evidence in smuggling cases and the selection of standards of proof

From the perspective of the smuggling criminal cases that the author is good at, this paper explains the reasons why the strict standard of proof should be adhered to through the characteristics and difficulties of proof in smuggling cases. (1) Case characteristics and difficulties in proving smuggling cases 1. The biggest feature of smuggling cases is that they are cross-border, which means that the domestic evidence and overseas evidence in the whole case are interspersed and intertwined, and key evidence such as logistics and capital flows can easily be generated and retained abroad. At the same time, due to the complexity of smuggling cases as joint crimes committed by gangs, it is more difficult for judicial organs to collect evidence, which can easily lead to insufficient evidence or evidence confirmation in the course of investigation or trial. Based on the difficulty of identification, in the process of undertaking cases, the author also feels that when collecting evidence and convicting them, some judicial organs will rely on a certain piece of evidence and cover the entire case on the grounds that the case is relatively complex and difficult to collect evidence, so as to determine the number of cases involved in the defendant's crime of smuggling and then convict. 2. Smuggling cases have the characteristics of a long time span of crimes, which will lead to the inability to obtain existing evidence due to the passage of time, and the smugglers' awareness of anti-investigation is increasing, and the software and hardware involved in the case are consciously and frequently replaced. At the same time, the Criminal Procedure Law clearly stipulates that evidence is emphasized over confessions, and the suspect's confession is obtained through sudden interrogation to make up for the lack of evidence chain, which is also very likely to become invalid due to the change of confessions in the later stage. 3. The evidence system of smuggling cases is cumbersome and complex, generally speaking, smuggling will involve logistics, capital flow, document flow, etc., and the gang crime is not only detailed in the division of labor between the upstream and downstream, but also in the internal work of the gang. This makes the chain of evidence in smuggling cases much more complex than in ordinary criminal cases, and if the standard of determination beyond reasonable doubt is followed, in fact, it is difficult for the evidence in many smuggling cases to meet this standard one by one. (2) Regardless of the various difficulties in the course of handling the case, the elimination of reasonable doubt as a criterion is a principled provision, and behind the criterion is the credibility of the law. 1. From the perspective of safeguarding judicial authority and improving judicial credibility, this standard should be adhered to. "The law is a fair judgment, and the judiciary is a fair balance." The premise for the existence of judicial authority is judicial fairness, and the premise of judicial fairness is to handle cases in accordance with the law. In mainland China, the use of the standard of proof beyond reasonable doubt in criminal proceedings has a legal basis and is a standard that judicial organs should abide by when adjudicating cases. When the public sees that the judicial organs strictly adhere to the law and convict smuggling cases according to law and high standards, they will have more confidence in the authority of the judicial system, which is also an important way for the judicial organs to show their commitment and practice to judicial fairness and the construction of a country under the rule of law, and enhance the public's recognition and respect for judicial authority. However, if the high probability standard is used in smuggling cases, the requirements for evidence are lowered, which is likely to lead to the weakening of judicial authority and the reduction of judicial credibility. 2. Although it is extremely difficult to collect evidence in some cases, relying only on the probability to identify criminal cases will produce a series of negative effects, and it is difficult to determine that the ability to collect evidence and the level of case handling should be strengthened, which is conducive to the construction of a rigorous evidence review system. For example, it is indeed difficult to construct a complete chain of evidence for conviction under the premise of complex and scattered evidence in smuggling cases. However, due to the difficulty and complexity of some judicial organs, they may choose to convict on a standard lower than the standard of proof beyond reasonable doubt, which is not only not conducive to improving the enthusiasm of judicial organs to pursue the closure of the evidence chain and the elimination of reasonable doubt, and then it is difficult to ensure the accuracy and fairness of judgments, but also difficult to improve the quality of judicial decisions. 3. As far as smuggling cases are concerned, their cross-border and transnational nature make cracking down on smuggling a complex international task. In the context of globalization, most countries and regions have adopted the standard of exclusion of reasonable doubt as the basic principle for the identification of smuggling cases, and the mainland should also use the exclusion of reasonable doubt in smuggling cases, which is conducive to promoting the unification of international judicial standards, promoting information sharing and international judicial cooperation, thereby improving the efficiency and effectiveness of case handling, and is also an important means of maintaining the global rule of law order. Finally, and most importantly, from the perspective of the bottom line, we should see that the decline in the standard of determination can easily lead to misjudgment and damage the lawful rights and interests of the defendant. If it is difficult to collect evidence because of the complex transaction network, large amount of capital flow, and huge quantity of goods in smuggling cases, and the one-sided and rough analysis and inference of evidence, empiricism prevails, not only will it be impossible to ensure the quality of case handling, but it will also lower the level of law enforcement by judicial organs as a whole. In summary, although through the above combing, we understand that there are indeed many difficulties in identifying complex criminal cases such as smuggling cases, and it is almost difficult to achieve the standard of completely excluding reasonable doubt. For example, the Circular Law [2002] No. 139 of the Supreme People's Court, the Supreme People's Procuratorate and the General Administration of Customs on Printing and Distributing the Opinions on Several Issues Concerning the Application of Law in the Handling of Criminal Smuggling Cases stresses that strict requirements should be imposed on the handling of smuggling cases, requiring criminal justice organs to provide sufficient and conclusive evidence when determining that the defendant's smuggling acts constitute a crime, and to reach a level of conviction on the basis of eliminating all reasonable doubts before a verdict can be made. Accordingly, the author still hopes that the judicial organs will uphold the bottom line of the law in the process of case review, after all, criminal cases are handled by "other people's lives", and in the case that the case is not completely overturned, it is obviously not advisable to increase the responsibility of the suspect by probrating, which is not only contrary to formal justice but also violates legal professional ethics.

Conclusion

In criminal proceedings, the standards for law enforcement shall be unified, the standards for determination should not swing from side to side, and the exclusion of reasonable doubt shall be applied in accordance with the provisions of law, especially for key evidence for conviction and sentencing, the standard of exclusion of reasonable doubt must be adhered to, which is the key to ensuring judicial fairness. The complexity of the case does not mean that the standard of determination cannot be lowered without authorization. At the same time, if there is reasonable doubt about the evidence on which the verdict is based, the rule of "no guilt in doubt" should be adhered to, the lawful rights and interests of the defendant should be fully protected, and formal justice should be adhered to to promote the enhancement of judicial credibility.

Reprinted from: Dacheng defender's official account, only for learning and discussion, such as invasion and deletion, thank you.