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 Table of Contents  
ORIGINAL ARTICLE
Year : 2019  |  Volume : 5  |  Issue : 2  |  Page : 112-117

Probative values and their affecting factors of criminal investigation records


School of Law, Zhengzhou University of Aeronautics, Zhengzhou, China

Date of Web Publication26-Jun-2019

Correspondence Address:
Jun-Yao Yue
Zhengzhou University of Aeronautics, Zhengzhou
China
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Source of Support: None, Conflict of Interest: None


DOI: 10.4103/jfsm.jfsm_38_18

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  Abstract 


Following improvements in evidential thinking, more questions have been raised about the probative values of criminal investigation records; therefore, there is an urgent need to investigate the prominent problems with this system for keeping investigation notes and evidence. The binding 2013 Criminal Procedural Law of the People's Republic of China lists the victim's statement, defendant's confession or defence, inspection, examination, identification, and investigation notes as statutory evidence. Technically, these criminal investigation records are naturally legally admissible as evidenced in criminal justice procedures. However, the Miranda rules of the United States, which guarantee the defendant's right to silence, have not been established in mainland China. Consequently, the objectivity of those kinds of criminal investigation records can be questioned during cross-examination. Comparative and systematic research methods were used to examine the probative values and their affecting factors in criminal investigation records. The results show that it is not easy to obtain the full probative value of criminal investigation records because it involves analyses of issues such as understanding the notes, procedures, and methods in making the records, as well as the reform of related systems, such as transplanting the Miranda rules to secure the defendant's right to silence and the presence of counsel. Only in this way can we expect evidence used in criminal investigation records to be used scientifically by ensuring that evidence of criminal acts are kept free from irrational contamination and resolve the existing related problems in judicial practice.

Keywords: Affecting factors, criminal litigation, evidence, investigation records, probative value


How to cite this article:
Yue JY. Probative values and their affecting factors of criminal investigation records. J Forensic Sci Med 2019;5:112-7

How to cite this URL:
Yue JY. Probative values and their affecting factors of criminal investigation records. J Forensic Sci Med [serial online] 2019 [cited 2019 Sep 17];5:112-7. Available from: http://www.jfsmonline.com/text.asp?2019/5/2/112/261528




  Introduction Top


In criminal procedures, legally documented criminal investigation records are a crucial guarantee for the smooth performance of investigations, prosecutions, trials, and law enforcement. Unfortunately, coerced confessions, fabricated evidence, and forged criminal investigation records have been frequently reported in dozens of innocent cases in the past 20 years of Chinese judicial practice. All these cases involve convictions of innocent defendants based on false confessions admitted as evidence; therefore, the need to reexamine the legal rules regarding the keeping of criminal investigation records and evidence in China is urgent. Strict rules for scrutiny should be established to screen evidence while weighing the prosecution of criminals against the protection of their human rights in criminal procedures. Thus, illegally obtained evidence must be excluded from admission in the courts of law;[1] otherwise, the credibility of the judicial system would be damaged. In the US, confessions obtained against the defendants' will are considered inadmissible, self-incriminating evidence that violates the Fifth Amendment of the US Constitution and are thus excluded from being considered as evidence in a court of law.[2] The Chinese Criminal Procedural Law (2013) (CCPL) does not recognize the right to silence, but it established rules for excluding illegally obtained evidence for the first time and urges investigating agents to ensure that they obtain comprehensive qualifications in their criminal investigation records.


  The Concept of Criminal Investigation Records and Evidence Top


Criminal investigation and procedural records are those records that note and reflect the procedural acts and facts during the criminal investigation. The CCPL officially listed “records such as those from examination, inspection, identification, and investigation experiments” as statutory evidence. In real judicial practice in China, however, the implication of criminal investigation records means much more than that, encompassing almost all the testimonial evidence, and most importantly, the suspect's or defendant's statements or explanations are recorded by the government's investigating agents. Therefore, it is safe to say that the keeping of criminal investigation records and evidence covers the whole process of the investigatory activities. However, to legally be considered statutory evidence, the evidence must meet the two following conditions: legal procedures should be observed while keeping criminal procedural records and preserving evidence, and the content and format of criminal investigation records shall meet legal standards.


  Legal Procedures Should Be Observed While Keeping Criminal Procedural Records and Preserving Evidence Top


Articles 1 and 2 of the set of rules containing 15 articles to exclude illegally obtained evidence in criminal cases, i.e., the 2010 Exclusionary Rule of Illegally Obtained Evidence, stipulate that, “those testimonial documents from witnesses, victims and the suspects and defendants that were acquired through coerced confessions are illegally obtained evidence and shall be excluded from being used to prove the fact of the case if recognized.” Three implications could be extracted from the 2010 Exclusionary Rule: first, the making of criminal investigation records shall meet the legal time limit. Based on Articles 83 and 84 of the CCPL, those detainees shall be sent to the detention center immediately and the transfer shall not be delayed more than 24 h, and the police department should interrogate those detainees no later than 24 h. Any violations on these time checks shall cost the legitimacy and probative value of those kinds of criminal investigation records and finally exclude them as evidence. Second, human rights shall be fully respected while making criminal investigation records. However, illegal investigatory measures and public power abuses can still be seen in many investigations, which sometimes could cause the failure of the investigation. Finally, illegally obtained evidence should be excluded. In the US, involuntary confessions were plainly understood to violate the Fifth Amendment's prohibition on compelled self-incrimination and the Fourteenth Amendment's guarantee of due process.[3] The police department shall bear the burden of proving the legality of their criminal investigations, record keeping, and protection of evidence; otherwise, their criminal investigation records shall be open to challenge from the defense and can be excluded from the evidence.


  The Content and Format of Criminal Investigation Records Shall Meet Legal Standards Top


Criminal investigation records are made according to different sorts of contents; therefore, investigating agents should strictly observe the format defined by the released police department policies. Even in urgent cases, the investigatory agents should try to use a standard format and avoid unnecessary errors that may impact their value as evidence. Second, the contents of the criminal investigation records should firmly duplicate the facts of the case, with no intentional addition or omission of any false elements, and ensure that the legal record reflects the evidence. Finally, the criminal investigation records should be clear and completely reflect and respect the truth of the case. They should be recorded in clean and clear handwriting to ensure their readability in later times; otherwise, it would be not easy for later investigators to recognize evidence in the records and even cause misunderstandings.


  The Roles and Functions of Criminal Investigation Records Top


The basic roles of criminal investigation records in prosecuting crimes

Compared with the Western legal system where police testimony in courts are strictly required, the Chinese legal system does not require police officers to appear in court to testify about how they recorded controversial evidence, which makes it difficult to determine whether the questioned criminal investigation records and evidence really reflect the truth of the case. Article 187 in the newly amended CCPL mentions the testimony of a police officer: “where a member of the people's police appears before a court as a witness to give testimony of a crime witnessed when performing official duties, the preceding Paragraph shall apply.” Thus, the police officer may only testify about what he/she experienced while performing his/her duties as a witness, but not about the truthfulness of his/her criminal investigation records. Therefore, it is difficult to verify the provided criminal investigation records and evidence and equally difficult to prove any possible perjury committed while fabricating false records.[4] Nevertheless, the legal instrument of criminal investigation records is irreplaceable in Chinese criminal procedures.


  The Probative Functions of Criminal Investigation Records in Criminal Procedures Top


Based on Article 48 of the CCPL, witness testimonies, victims' statements, statements and exculpation of criminal suspects or defendants and those records of crime scene investigation, examination, identification, and investigative experiments are all considered statutory evidence. However, in practice, the victims' statements and the suspects' or defendants' statements and exculpation are compiled in the form of criminal investigation records and evidence collected by investigating agents. Identification of criminals by their victims or witnesses has been given more weightage as direct evidence: “judges or jurors tend to give high probative values to the testimony; for instance, 80% of witness testimonies are accepted by juries.”[5] However, we must acknowledge that criminal investigation records are subjective reflections of objective facts, and whether the incorporation of subjective elements will or will not amount to a degree that can damage the probative values of the criminal investigation records needs to be investigated further.

Criminal investigation records are legally recognized as statutory evidence

From their very nature, it is easy to see that criminal investigation records are subjective descriptions of statutory evidence, although their existing forms entail the transfer of verbal statements from victims, witnesses, and suspects or defendants into written documents, or in other cases, they are the direct records of crime scenes or evidence patterns discerned from the recording investigating agents' substantial experience. The process of transformation of evidence into a written record is suggested to reduce their credibility as evidence to prove the facts of a case, but when treated correctly, multimedia forms corroborate with each other and secure the objectivity of the evidence. For example, a written record of the physical evidence and patterns in a crime scene and their correlations will easily be corroborated by a video recorded simultaneously during the examination of a crime scene, which can offer crucial aids for analyzing and solving criminal cases. However, the competency of the investigating agent alone cannot guarantee that criminal investigation records can have a better probative value for a whole case's facts. The evidence's objectivity is a core factor in deciding whether it can be used to prove a case; therefore, some scholars believe that witness testimonies are much more truthful than those from the victims because their inner subjective inclinations will tremendously reduce their evidence's probative value.[6] Some scholars even consider that criminal investigation records without objectivity do not carry any legal competency, let alone their probative value.

Criminal investigation records are resources for finding new evidence

Criminal investigation records are the main objective resources for investigating agents to identify new clues in solving their cases, especially when they are cold cases with no new evidence in a long time. For instance, the Dr. Henry C. Lee Institute of Forensic Science solved many cold cases using only profiles created from criminal investigation records as a resource to reconstruct crime scenes. Many valuable clues can be obtained from the criminal investigation records kept in case files where criminal experts can compare between different records for suspects or witnesses to discern false confessions and correct the victim's inclinations, which may lead to new leads to the truth of the case. A typical case could be the case of “the murder of Ellen Sherman,” in which Dr. Henry Lee found that a witness's recorded evidence in the case file might have the potential to overturn the suspect's alibi, which he relied on to exonerate his suspect. In this case, the recorded evidence was only four words: “the room was chilly.” Dr. Lee's reasoning is that the accused turned on the air conditioner to its lowest temperature to postpone the decomposition of his wife's corpse, which gave him an alibi for claiming that his wife was alive when he left home to sail with his friends in the Buzzards Bay area of Massachusetts. This false statement had tricked the medical examiner into giving an incorrect time of death. Therefore, Dr. Lee could solve this cold case solely by researching the criminal investigation records and reexamining the correlations among the evidence. Thus, criminal investigation records and evidence often offer potential clues for solving a difficult case.

Criminal investigation records and evidence have main probative values for the constitutive elements of some criminal cases

It is not easy to acquire substantial evidence in some criminal cases, such as duty-related crimes, where investigating agents can barely find any physical evidence. Criminal investigation records and evidence can offer concrete support in solving these cases if they can be corroborated with other types of evidence. However, based on Article 53 of the CCPL, “All cases shall be judged according to the principles that emphasis shall be laid on evidence, investigation and research, while credence shall not be readily given to oral statements. A defendant cannot be found guilty and sentenced to criminal punishments if there is no evidence other than his/her own statement. Conversely, a defendant may be found guilty and sentenced to criminal punishments even without his/her own statements, as long as there is sufficient and concrete evidence.” A controversial issue is whether an accused could be found guilty if the statements of one or more co-accused persons corroborated their story. With the awareness that a co-accused has a natural inclination to inculpate his or her other co-accused defendants, we should treat this kind of circumstance carefully in practice.


  The Main Influential Factors and Their Countermeasures to the Probative Value of Criminal Investigation Records in Criminal Procedures Top


The main influential factors to the probative value of criminal investigation records

We experience many problems in the system for keeping investigation notes and evidence. Based on the mindset of presumption of guilt, some agents tend to focus more upon the suspects' and defendants' confession records while overlooking their exculpation records. For example, some police officers do not mention a single word about what the suspect said about his or her innocence in their criminal investigation records. Some records of crime scenes are far from having integrity, for example, investigating agents collected murder weapons and clothes, but overlooked the trace evidence on them, such as fingerprints and blood stains. These omissions often reduce a strong case to a weak case, and finally the accused can go free in an irreversible decision. However, even if the lost evidence does not amount to a violation of due process that requires the charges to be dismissed,[7] the defense counsel has the right to argue for the exclusion of the evidence.

A formal system for criminal investigation records should be established

China has long lacked a perfect evidence law like the US Federal Rules of Evidence. The CCPL has only 8 articles concerning the rules of evidence, which are all defined vaguely and generally. Lacking the guidance and rule of laws, the possibility of mistakes and negligence has largely been increasing in recent years. The criminal interrogation system overlooks the negative impacts brought by different investigating agents according to their different education backgrounds and sense of responsibility. In some cases, the investigating agents' criminal investigation records are far from having integrity because they lack crucial elements, such as time, venues, and factual details. Therefore, their records offer a vague picture that cannot be used in later analyses of the case. Some records lack a timeline, chain of evidence, or the key facts regarding guilty or penalty-deciding contents. Some even deviate from the original version, which undermined the real case against the suspects or defendants. More often than not, poor records lead to investigations following false leads or even worse, leading to the conviction of innocent defendants, while the real criminals are still at large.[8] Hence, the Chinese public have long needed a national law governing criminal evidence.

Criminal investigation records in case files revised from the original version

In many cases, the criminal investigation records were revised according to the details of different department policies because the original records may have formatting issues or incomplete contents. Investigating agents need to systematically reorganize the relevant materials into a case file that meets the requirements of different standards for various ends. However, this final version of criminal investigation records changes its objectivity to some degree from the original and new mistakes and negligence may be introduced into the process. This process is also subject to the scrutiny of the defense lawyers, and the reconstitution of criminal investigation records may backfire on its validity if challenged in court. For instance, a mistake in entering the time into the record would make it easy to exclude the evidence and ruin its probative value. The opportunity to motion for exclusion and simultaneously establish a reasonable doubt favors the defense. Therefore, criminal investigation records and evidence should be kept in their original state and should never be changed without a traceable chain of custody. Strict rules should be established and observed when the criminal investigation records are documented initially.

The inconsistent characteristics of some criminal investigation records

Interrogations should be documented and reflect the whole process with a precise timeline. The contents of interrogation records should include all the statements, confessions, and exculpation about the case. However, some investigating agents are not fully aware of the significance of standardized records. The most frequent problems with their criminal investigation records are a lack of details about the case and unreadable handwriting, which severely impact the consolidation of evidence in a case.[9] The lack of openness and transparency in the interrogation process to some degree helps keep the investigation confidential. However, this could be equally troublesome when the accused withdrew his or her confessions and changed their versions of events. In some cases, the defendant offered several different or even contradicting versions of events in his or her confessions and the real facts cannot be proved by any one of the versions. As a result, the case cannot be solved or even might be dismissed by the legal authority. According to Article 57 of the CCPL, “A people's procuratorate shall bear the burden of proof as to the legality of the evidence gathering means during the court investigation thereof,” and the next article also stipulates that evidence shall be excluded if court investigation has confirmed or is unable to rule out the possibility that the evidence had been obtained illegally.


  Possible Measures to Enhance the Probative Value of Criminal Investigation Records Top


Strengthening the probative value of criminal investigation records requires special governing rules to be established

Building a systematic rule to identify the probative value of criminal investigation records and specify probable exceptions has obvious significance for the perfection of China's evidence law, which pushes forward the development of criminal justice. The examining criteria for the competency of criminal investigation records should follow the following three aspects: (1) plenty of opportunities should be given to verify the truthfulness of statements, identifications, and confessions from the defendants and victims. That is, whenever a statement provides a false record that runs counter to the known facts, a mechanism for checking the authenticity of both statements should proceed to ensure the objectivity of the criminal investigation record. Lie detection technology could be involved for the sake of the facts as needed; (2) the truthfulness of those records regarding examination of a crime scene is mainly based on the ability of the investigating agents. If successfully challenged by the defense, these records should be reexamined using reconstruction techniques and investigative experiments, which helps to make sure that the strict rules for documenting criminal investigation records are fully observed, which guarantees their probative value; and (3) the records from the investigative experiments can play a crucial role in identifying the facts of a case when an individual's human rights may be at stake. These individuals should be given the benefit of the doubt by conducting another independent experiment to confirm the results of the first because the correct result of scientific experiments should be consistent no matter when and how many times they are performed.

Establishing professional training mechanisms to increase investigating agents' qualifications

Adequate professional training opportunities should be available for all investigating agents responsible for keeping criminal investigation records. Investigating agents' busy schedule could easily lead them to pay less attention to issues that arise in their record keeping. In addition, most crime scenes are not protected carefully after the initial crime scene examination. Therefore, the crime scene can rarely be fully reconstructed once it has been released from protection measures. The problems this causes can be demonstrated by any number of difficult cases with no clues to follow because of the reckless keeping of criminal investigation records. This is why the famous O. J. Simpson case cannot be solved theoretically and technically beyond a reasonable doubt. Strict rules regarding criminal investigation records should be established for the sake of solving every potential case. Investigating agents should be aware that their criminal investigation records should finally pass the scrutiny of the jury and defense lawyers and are not self-serving documents. In the US, once police officers are served with a subpoena from court, they are obliged to appear. Failure to appear in court may be understood as contempt of court by the judge and may result in dismissal of the criminal charges. Therefore, all investigating agents are urged to record the interrogation, crime scene, and witnesses completely and accurately to capture the investigation contents and processes, and thus solidify the probative value of criminal investigation records.

Videotaping all the written records to strengthen the integrity of criminal investigation records

To promote the objectivity and preciseness of interrogation records, the Chinese Supreme People's Procuratorate released a “workflow of a synchronized videotaping interrogation upon duty-related crime suspects,” which demands that interrogations be videotaped throughout. The video record of interrogations of suspects, defendants, and witnesses plays a crucial role in preserving the validity of confessions, standardizing processes, preventing torture, and protecting human rights.[10] Meanwhile, the videos of interrogations and crime scenes enable the corroboration of criminal investigation records and evidence when challenged and disputed in the courts. The newly revised CCPL takes a prudent step forward in stipulating in Article 121 that “Investigators, when interrogating a criminal suspect, may record or videotape the interrogation process, and shall do so where the criminal suspect is involved in a crime punishable by life imprisonment or capital punishment or in an otherwise major criminal case. Recording or videotaping shall run throughout the interrogation process for the purpose of completeness.” This gives different regions leeway to make changes according to their internal policies. Consequently, investigating agents can use different interrogation methods. Thus, this revised article of the CCPL unfortunately failed to achieve a universal standard throughout China.

Implementing direct and verbal principles to establish a trial-centered system

A trial-centered system requires that all the facts of the case be decided by a jury or judge in a trial court. Both parties in a criminal case are given the opportunity to sufficiently prove their cases based on their own story and supporting evidence. The jury and judge decide whether the accused is guilty or not guilty. Before that decision is made, no presumptive guilt is allowed and all suspects are treated according to their human rights based on a bail system, which has already been running smoothly for more than a hundred years. In a trial-centered judicial system, the testimony of police officers is needed for the sake of a complete cross-examination of the criminal investigation records and evidence to exclude illegally obtained evidence in a due process. When police officers fail to appear in court, those cases shall be dismissed or some certain punishment shall ensue. This is the only way to implement substantial justice from procedural justice. Therefore, the Chinese legal system should establish strict rules for verbal evidence to ensure that it better plays its role in proving a case. Meanwhile, it should also reform and perfect its testimonial system.


  Conclusions Top


According to the discussions above, the probative value of criminal investigation records and evidence should be treated seriously and rationally. The related evidential issues should be incorporated into future law-making procedures, which guarantee the standardizing of keeping and using criminal investigation records to prove the facts of court cases. Some scholars contend that interrogation records are nothing more than self-incriminating documents because they are a subjective record of defendants' oral statements. Hence, they fall into the realm of hearsay evidence with some likelihood of being tampered with or even faked. When a defendant retracts his/her confession, the court should exclude this evidence by exercise of its discretionary power or by motions from the defense unless the prosecutor could prove his/her legality in acquiring the disputed evidence. Criminal investigation records are necessary as statutory evidence in China; thus, we must research how to avoid introducing defects into the records so that they may smoothly play their role in judicial fact-finding procedures and not be simply discarded. After all, criminal investigation records made under standard criteria are considered legal evidence; therefore, we should try to improve their probative value while maintaining their evidential and legal competency as evidence of a crime.

Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.



 
  References Top

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2.
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Kamisar Y. Response and rejoinder: A rejoinder to professor Schauer's commentary. Washington Law Rev 2013;88:171.  Back to cited text no. 3
    
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Lippman M. Criminal Procedure. New York: SAGE Publications; 2015.  Back to cited text no. 5
    
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Zhao X. The evidential thought about criminal victim's statements. Evid Sci 2014;19:35.  Back to cited text no. 6
    
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Shein MG. The Government's Use of Lost Evidence. National Association of Criminal Defense Lawyers; 2014. p. 26.  Back to cited text no. 7
    
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Zhang Z. The major issues of defects and reforms in Chinese criminal interrogation. J Chin Peoples Public Secur Univ (Soc Sci Ed) 2010;17:51.  Back to cited text no. 8
    
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Chammah, Maurice. 80 Murder Confession Raises Calls to Require Police to Record Interrogations. New York Times; 2012.  Back to cited text no. 10
    




 

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Abstract
Introduction
The Concept of C...
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