The case of Wu Xieyu's mother, which caused a sensation in the whole country, has once again aroused extensive discussion in public opinion after it was recently exposed that the second-instance trial will apply for a judicial psychiatric appraisal. Most of the public opinion tends to think that the second-instance trial should not start the judicial psychiatric appraisal procedure, and believes that this is to exonerate the murderer and the devil, but in fact, as far as China's current legal provisions and judicial status quo are concerned, it is not easy for the defense to initiate the judicial psychiatric appraisal procedure. In this article, the author will discuss the initiation of the current judicial psychiatric appraisal procedure in China and the necessity of the forensic psychiatric appraisal procedure in death penalty cases.
<h1 class = "pgc-h-center-line" > first, the initiation of china's judicial psychiatric identification procedure</h1>
1. The initiating subject of the judicial psychiatric appraisal procedure
According to articles 146 and 148 of the Criminal Procedure Law, article 248 of the Provisions on procedures for public security organs handling criminal cases, and article 218 of the Rules of Criminal Procedure of the People's Procuratorate, China's criminal justice psychiatric appraisal procedure adopts the model initiated by judicial personnel in civil law countries, that is, only the public procuratorial law organ has the right to initiate the appraisal procedure at the corresponding litigation stage, while the defense only enjoys the right to apply for initiation of appraisal or supplementary appraisal or re-appraisal, and does not have the right to decide to initiate appraisal.
Because China's legal tradition has the characteristics of the civil law system, the model of national judicial personnel initiating appraisals has been adopted in criminal proceedings, which is conducive to achieving substantive fairness in the case and improving trial efficiency, but compared with the model in which the prosecution and defense of common law countries freely initiate appraisals, we obviously also deprive the defense of the right to unilaterally initiate appraisals, which is not conducive to protecting the legitimate rights of criminal suspects and defendants, nor is it conducive to the realization of procedural justice. In particular, in cases where the death penalty may be imposed, the right of the defence to apply for commencement of an appraisal often becomes the right to be rejected, and the trial of death penalty cases does not effectively respect life and protect human rights.
2. Criteria for initiating judicial psychiatric appraisal procedures
In the case of Wu Xieyu's mother, the second instance trial will apply for a judicial psychiatric appraisal, and presumably many people will be very concerned about how the court of second instance replied to the defense's appraisal application, which involves the issue of the standard of proof for the initiation of the judicial psychiatric appraisal procedure, that is, what kind of proof standards should be met in the evidentiary materials provided by the defense to start the judicial psychiatric appraisal procedure?
At present, China's law does not make specific provisions on the criteria for initiating the forensic psychiatric appraisal procedure, but from the reasons why the court rejected the defense's application for psychiatric appraisal in the "Nie Luyong Intentional Homicide and Rape Case", the evidentiary criteria for initiating the appraisal in judicial practice have the following contents: (1) There has been a history of mental abnormalities, and the evidence may come from the reflection of relatives or people around them, or from hospital outpatient clinics and inpatient medical records; (2) it reflects that there is a family history of mental illness; (3) although there is no clear medical history, However, relatives and people around them reflect that the subject involved in the case has a strange personality, emotional instability, impulsive behavior, abnormal sleep rules, clumsy mind, naïve movements, and a history of convulsions; (4) the purpose, motivation, method, and process of the subject's behavior are contrary to common sense; (5) there are mental abnormalities in the trial of the case; (6) other special circumstances, such as a history of drug and alcohol dependence.
Judges Zhang Jingwei and Yin Chi of the Intermediate People's Court of Hengyang City, Hunan Province, as the first-instance judges in Nie Luyong's case, when making a relevant analysis of whether the Nie Luyong case initiated judicial psychiatric appraisal, they sorted out the standards of proof as follows: (1) where one of the above 1-3 items and 4-6 items is present, a judicial psychiatric appraisal shall be initiated; (2) if there is one of 1-3 circumstances, the appraisal may be initiated( (3) If there is one of the 4-6 circumstances, the appraisal may be further investigated and collected before deciding whether to start the appraisal If you do not have the above 6 situations, you can decide not to start the identification procedure.
The above proof standards have certain references, but at the legislative level, the proof standards for initiating psychiatric evaluation are still missing, which should be related to the current degree of development of psychiatry and the immaturity of psychiatric identification technology in China, which cannot be clearly stipulated on specific standards, and can only rely on the judicial organ personnel to grasp the specific circumstances of the case to judge. However, whether criminal suspects and defendants need to do psychiatric evaluation is a medical issue, and it is unreasonable to leave medical issues to judicial personnel to judge, which not only increases the difficulty of judicial personnel handling cases, but also makes it difficult to protect the rights of mentally ill persons. It is expected that with the increasing maturity of psychiatric identification technology, specific and detailed proof standards can be written into law to solve this dilemma in practical operation.
3. Initiating the psychiatric evaluation procedure does not necessarily require the consent of the defendant himself
According to Xu Xin, a defense lawyer at Wu Xieyu's second-instance trial, before the first-instance trial was pronounced, the first-instance defense lawyer repeatedly solicited Wu Xieyu's opinion on applying for a judicial psychiatric appraisal, but in the end, because Wu Xieyu himself did not agree, the judicial psychiatric appraisal procedure was not initiated. Then, there is a question in this, must the initiation of the judicial psychiatric evaluation procedure be approved by the defendant himself?
According to the first paragraph of article 197 of China's Criminal Procedure Law, "during the course of court trial, parties, defenders and agents ad litem have the right to apply to notify new witnesses to appear in court, collect new physical evidence, and apply for a new appraisal or inquest." Paragraph 3 of Article 221 of the Rules of Criminal Procedure of the People's Procuratorate stipulates that "where a criminal suspect's defender or close relatives apply for an appraisal of a criminal suspect on the grounds that the criminal suspect may be suffering from mental illness, the appraisal fees shall be borne by the applicant." Therefore, the defender should enjoy the right to apply for appraisal independently of the criminal suspect or defendant.
There is a term in psychiatry called "self-knowledge", that is, whether the patient knows that he is sick. Most mental patients, who are self-aware, do not know and are unwilling to admit that they have mental illness, but people without mental illness like to disguise themselves as mentally ill in order to alleviate their guilt. In the process of the first trial, Wu Xieyu himself should also know that the judicial psychiatric appraisal is his only hope for survival, but he has repeatedly refused to apply for an appraisal, which is not in line with the logic of ordinary people's thinking, plus Wu Xieyu's two aunts are suffering from mental illness, and it is completely reasonable to suspect that Wu Xieyu suffers from mental illness.
From the perspective of protecting the rights of criminal suspects and defendants, defenders should enjoy the right to apply for the initiation of judicial psychiatric evaluation procedures independently of the criminal suspect or defendant's will, without the need to obtain the consent of the criminal suspect or defendant himself, because it is entirely possible that a criminal suspect or defendant who truly suffers from mental illness will refuse to apply for an appraisal.
<h1 class = "pgc-h-center-line" >2. Psychiatric identification procedures should be made mandatory in death penalty cases</h1>
Article 18 of China's Criminal Law stipulates: "Where a mentally ill person causes harmful results when he is unable to recognize or control his or her own behavior, and is confirmed by legal procedures, he shall not bear criminal responsibility." Where a mentally ill person who has not completely lost the ability to recognize or control his or her own conduct commits a crime, he shall bear criminal responsibility, but the punishment may be mitigated or mitigated. "This reflects China's protection of the rights and interests of mentally ill persons, but in judicial practice, the problem of difficulty in initiating judicial psychiatric appraisal procedures has a long history, and often many suspected criminal suspects and defendants suspected of suffering from mental illness cannot receive reasonable relief, so is it necessary to compulsorily conduct judicial psychiatric evaluation for all criminal suspects and defendants in criminal cases?
Judicial psychiatric evaluation of criminal suspects and defendants in all criminal cases is not only unnecessary, but also causes a waste of a large amount of judicial resources, but in cases where the death penalty may be imposed, judicial psychiatric evaluation should be compulsorily conducted for criminal suspects and defendants. Because the death penalty case is different from other ordinary criminal cases, the death penalty is a direct deprivation of the right to life of others, but also the oldest and most severe punishment in human history, although China retains the death penalty, but also for the application of the death penalty has always maintained a cautious attitude, coupled with the real mental illness people are likely to lack "self-awareness", from the perspective of respect for life, protection of human rights, should also be the judicial psychiatric evaluation procedure as a necessary procedure for death penalty cases.
<h1 class = "pgc-h-center-line" > third, the defence should be given the right to freely initiate psychiatric evaluation proceedings at the legislative level</h1>
According to the relevant laws and regulations of our country, in the appraisal procedure of judicial mental illness, the national judicial organ monopolizes the right to initiate the appraisal procedure, but only gives the defense the right to apply for the initiation of the appraisal procedure, which in essence violates the defense procedural rights and will eventually affect the substantive justice of the case.
In view of the significant impact of the judicial psychiatric appraisal conclusion on the judgment of the case, the court of second instance is very likely to reject the appraisal application submitted by the defense under the influence of many factors such as public opinion, such as the previous Shanghai YangJia case and the Shaanxi Zhang buckle case, which were rejected by the court. At present, it is not possible to completely rule out the reasonable suspicion that Wu Xieyu suffers from mental illness, if the application for appraisal in the second instance is rejected, it will not be possible to protect Wu Xieyu's legitimate rights as a mentally ill person, which is not in line with China's judicial policy of "killing less and killing carefully" in the criminal field, nor is it in line with China's rule of law concept of strengthening the protection of human rights.
Considering the instinct of human nature to seek advantage and avoid harm and the degree of development of psychiatric identification technology in China, giving the defense the right to freely initiate judicial psychiatric appraisal procedures in all cases may lead to a complicated situation in which the power is abused, the conclusion of psychiatric appraisal is not unique, and the appraisal is repeated many times. Therefore, in order to better achieve the balance between the value of punishing crimes and the protection of human rights, the defense should be given the right to freely initiate judicial psychiatric evaluations in death penalty cases at the legislative level.