Exclusion rules for flawed witness testimony

Cross-examination should be the basic skill of the defender, or that cross-examination is the core breakthrough point for overturning the accusation. However, in the daily trial, I have seen too many cases of non-cross-examination (that is, not expressing opinions on the relevance, authenticity, and legality of the evidence), but talking about the innocence of the defendant, it is actually meaningless to defend it. So, back to the essence: cross-examination is the basis of defense.

Judging from Xiao Zhao's experience as a defender, cross-examination of evidence requires the preparation of at least three types of reference materials: first, the Criminal Procedure Law and the Interpretation of the Criminal Procedure Law, which clearly stipulate which evidence shall not be used as the basis for the conclusion; second, the practical books of cross-examination experience, which can enhance the defender's thinking angle on some key evidence when cross-examining evidence; and third, the theoretical textbook of "Criminal Evidence Jurisprudence", which can improve the level of questioning the reasoning of evidence and fully reflect professionalism.

Article 90:Where the procedures and methods for collecting witness testimony have the following flaws, and are corrected or a reasonable explanation is made, they may be employed; where it cannot be corrected or a reasonable explanation is made, it must not be used as the basis for a verdict:

(1) The record of the inquiry does not fill in the name of the interrogator, recorder, or legally-designated representative, as well as the time and place of the start and end of the inquiry;

(2) The place of inquiry does not comply with provisions;

(3) The interrogation record does not record informing witnesses of their rights, obligations, and legal responsibilities;

(4) Where the record of the interrogation reflects that the same interrogator questioned different witnesses at the same time period;

(5) Questioning minors, where their legally-designated representative or appropriate adult is not present.

unscramble:

Article 90 of the 2021 Interpretation of the Criminal Procedure Law stipulates the exclusion rule for defective witness testimony. This article adds a final item to article 77 of the 2012 Interpretation of the Criminal Procedure Law, namely, the situation of "questioning a minor, whose legally-designated representative or appropriate adult is not present", and where the testimony of the relevant witness cannot be corrected or a reasonable explanation is made, it must not be used as the basis for a verdict.

Source from Article 90 of the Judicial Interpretation of the Criminal Procedure Law (edited by Liu Jingkun)

Friday, October 29, 2021 16:29 Hui Zi Lou, Shenzhen University