|Year : 2019 | Volume
| Issue : 3 | Page : 156-163
A study on the model of fact-finding in criminal investigation
Mohan Pan1, Kaixin Zheng2
1 Department of Humanities and Law, Yanshan University, Qinhuangdao, China
2 Institute of Evidence Law and Forensic Science, China University of Political Science and Law, Beijing, China
|Date of Web Publication||18-Sep-2019|
669 Cultural Road, Huanghua City, Hebei Province
Source of Support: None, Conflict of Interest: None
Fact-finding, as the foundation of a judicial decision, has been an important consideration in China's judicial reform. This study introduces the theory of evidence-based information and falsification methods in the fact-finding procedure of criminal investigations and proposes a paradigm for fact-finding using combined pairs of approaches: individual evidence examination and global analysis, the objective basis and subjective perception of fact-finders, and methods of verification and falsification. The working procedure of the paradigm is illustrated with the objective of making a contribution to the improvement of the existing model of fact-finding in the criminal justice process.
Keywords: Criminal cases, falsification methods, subjective perception, theory of evidence-based information
|How to cite this article:|
Pan M, Zheng K. A study on the model of fact-finding in criminal investigation. J Forensic Sci Med 2019;5:156-63
| Introduction|| |
This article commences with an analysis of the existing model of fact-finding in criminal investigation in China, followed by an introduction to the evidence-based information theory and the falsification method used in criminal investigations, on the principle of scientific and systematic application, of which a new paradigm of fact-finding is proposed.
The impartiality of decisions is integral to the administration of justice. Impartiality determines factual accuracy and as fairness is at the root of all judicial processes, a judicial decision is meaningless without accurate factual judgment. Judicial decisions are made on the basis of fact-finding investigations, and thus, a reliable working paradigm of fact-finding has been an issue of consideration in China's judicial reform. The “fact-finding paradigm” refers to the pursuit of truth using fact identification methods in criminal investigations. Fact-finding cannot be approached from only one criterion but can be classified in two ways: an atomistic model that emphasizes individual evidence examination and a holistic model that stresses integration of evidence. These fact-finding methods can be seen in both judge-led and adversarial systems of justice. Two further models of fact determination are the confirmative evaluation of external evidence and the introspective model of free evaluation of evidence through interconviction.
China has made great progress in trial-centered criminal procedure reform, particularly after the publication of Opinions on Advancing the Reform of Making Criminal Procedure System Trial-Centered  by the Supreme Court in 2016. The reform makes new demands on the fact-finding procedure in criminal investigations. In China, fact confirmation in criminal investigations is going through a period of radical change and transformation. Problems related to evidence interpretation and holistic evidence manipulation are yet to be solved. However, some deep-rooted issues, and the unfair convictions resulting from them, are to be eradicated. Although the number of wrongful judicial decisions is limited, their negative effects may go beyond the cases themselves to impact on many aspects of social life.
| Problems in the Existing Model of Fact-Finding in Criminal Investigation|| |
Inaccurate determination of the primary evidence
The relevance of evidence depends on the reliability of both the source and the content of the information. The source concerns the causal relationship between the facts of the case and the evidence presented, with the facts as the cause and the relevant information as the consequence. The admissibility of evidence relies on its relevance to the judicial case, and a format that derives an ideal verdict and does not distort the establishment of factual causation. Specifically, every piece of evidence must be evaluated on the basis of “retroactive logic” to discern what is most relevant to the case. Only when the factual causation is established can the evidence be accountable.
Evidence used in criminal investigations can be derived from the facts of a case. This kind of evidence may be highly distorted in the process of excerpting, reduplicating, and reporting, so evidence examination requires scrutiny and prudence. Even though the primary evidence enjoys priority with judicial consensus, misinterpretation of the relationship between the primary evidence and derived evidence may occur in practice, because of inadequate evaluation of the information in evidence. For instance, the information in the testimonies shared the same source of the information presented in the defendant's confession, so the mutually corroborated information was, in fact, a self-proof of the defendant's confession. Such verification of evidence does not yield a guarantee of the authenticity and reliability of evidence.
Direct evidence must remain faithful to the facts of the case to be reliable. This necessitates accurate interpretation of the facts of the case, and any coercive control of information must be uncovered and removed from the judicial process. However, narrow-mindedness and erroneous forensic methods often cause issues in the investigation of corruption or bribery cases in which material evidence is difficult to obtain.
Lack of falsification methods in the process of a fact-finding investigation
It is generally acknowledged that the ideal judicial proof in a criminal case will have the structure of a triangle pattern in which the prosecution, defense, and judge are represented and the prosecution bears the burden of proof. During the trial, the prosecution and the defense follow, respectively, their own principles and rules of inference to reach their own goals. Therefore, the prosecution concentrates on verification methods to confirm a guilty verdict, while the defense uses falsification methods to return a not guilty verdict. In the process of fact-finding, if the presumption of guilt remains prominent, the guilty conclusion from the prosecution will mislead the interpreter to follow that position and jeopardize the validity of the verdict. Once the fact-finder develops an initial guilty presumption, they are no longer impartial. With a guilty presumption in mind, the fact-finder tends to pick out the evidence that is supportive of a guilty conviction, and subconsciously reject that which is not. In fact, verification methods intensify the judge's subjective beliefs and can neither be used to verify nor modify an unconfirmed conclusion. If a fact-finder works with verification methods, they probably overlook some contradictions between the evidence and ignore some potentially dubious points in the case facts or evidence, particularly in intricate criminal cases involving large amounts of evidence. Another possible situation is the discharge of evidence to easily determine the facts of the case, a practice that can be deceptive. The truth is that such evidence abandonment may ultimately incur an erroneous conclusion.
Overemphasis on corroborating evidence
According to the data from China Judgments Online, in 2016, 77,110 criminal judgments, taking 7.72% of all cases, had their key words as “corroborating” and “mutually corroborating,” while in 2017, the number rises up to 86,479, with a proportion of 8.9%. In new regulations on criminal procedure, witness testimonies are accepted as evidence; however, the need for corroboration is highlighted, as seen in Article 48 and Article 50 in the section of Rules for Courtroom Investigation. The newly issued Code of Criminal Procedure by the Supreme People's Court includes “People's Court Rules for Conducting Pretrial Conferences in Criminal Cases (Provisional),” “People's Court Rules for Handling the Exclusion of Illegally Obtained Evidence in Criminal Cases (Provisional)” and “People's Court Rules for Handling Courtroom Investigation in First-instance Criminal Trials under the Ordinary Procedures (Provisional),” which have been implemented throughout the country by the Supreme People's Court since January 1, 2018. It is evident that consistency-based corroboration, in which the unvarying information from different sources of evidence is used to confirm the facts being proved, is the most reliable method of fact-finding in criminal cases, both on a practical level and from a legislative perspective.
Observations have shown that the deductive inference involved in corroboration has played an important role as a foundation for the accuracy of fact-finding in criminal cases. However, in legal practice, too much emphasis is placed on corroboration alone and the methods employed tend to be simplified. This results in two negative consequences which may affect fact identification in criminal procedure. One is the problem of false corroboration. The pressure to provide proof to corroborate the facts being proved can lead to illegal judicial acts, such as inquisition with torture, entrapment, and even false alibis. This humanmade chain of proof cannot provide accurate evidence.
Another negative consequence of placing too much emphasis on corroboration is that single pieces of evidence can be neglected. The limitations of corroborating evidence may result in a situation where the judge, in the process of fact recognition, is paying more attention to the evidence that is easy to corroborate than to the evidence that has no corroboration and relates to minor wrongs or claims of innocence. In cases without corroborating evidence, the judge can be reluctant to identify the case facts by means of practice rather than theory and free evaluation of evidence. Therefore, complicated cases, or those with difficult to obtain evidence, often lack corroboration and face challenges on the relevance of their evidence. However, even for the alleged simple cases, even if the judge is confident in their opinion, the identification of facts remains difficult if corroborating evidence is not accurate.
| The Theory of Evidence-Based Information and Falsification Methods|| |
At present, in China, the main problems in fact identification in cases include the misrepresentation of evidence and institutional shortcomings. Therefore, to reconstruct the paradigm of fact identification, the initial step must be to rectify distortions so that the essential evidence can be identified and extracted. Falsification methods can be employed to make up for the deficiencies of the one-way verification system.
Mechanism of the information from evidence
Information as the basis of evidence
In forensic science, the event of material transfer in a crime scene is analyzed from an information science perspective, stating that two objects that make contact during criminal activity exchange material and perceptual information. Beyond Locard's material exchange principle, there is now an understanding that, in addition to the transfer of material between the perpetrators, victim, and crime scene, there is also the formation of perceived information.
A person cannot be punished for their contemplation and only when criminal intent is converted into action does material transfer begin and a crime, as defined by the law, is committed. This is called “the physical principle of criminal behavior.” According to this principle, once the criminal intent is actioned, the event of the crime, from plotting to ending, will affect or even damage the objects and space it touches, transferring information in the process. Therefore, from an information theory perspective, the process of a crime is also a process of inevitable transfer or exchange of information.
To illustrate the basic principle of information transfer, it was proposed by Shannon, the initiator of the theory, in his well-known information system model, that a message produced by a source is converted into signals and sent to a channel via a transmitter, and then, by a channel decoder, the signals are transformed back into the message which is transmitted to the destination sink. In the transmission procedure, the source of the message is the origin of the information, the channel is the medium, and the sink is the destination of the information. Information transfer in the process of a crime does not involve complicated mathematical calculations, but an unsophisticated model composed of the source, the channel, and the sink. In other words, the criminal act is the source, the contact of objects or human perception is the channel of transmission, and carriers such as objects or people who witness or experience the crime are the sink that receives the transferred information. However, information transfer in the process of a crime is not always one directional. In fact, an insubordinate act of the victim can produce the same transferring effect as the criminal behavior of the offender.
Evidence can be used to verify certain facts if it includes the information left behind when the unproven facts occurred. Western studies on the law of evidence also agree with Shannon's definition of evidence and his explanation in terms of evidence-based information. For instance, American evidence law states that evidence is any of the information relating to the facts of the case: witness testimonies, text materials, physical objects, or commodities that are perceptible to the senses. This information can prove the existence or absence of a fact.
However, this concept does not suggest that evidence is equivalent to case information. Information can be separated from physical material and without a specific medium; information of certain types will be nonexistent. In the process of information transfer, intangible information is attached to a specific storage medium, through which it can be recognized, interpreted, and utilized as proof. Criminal acts are not lasting, but the information that can prove the erstwhile facts is attached to a physical medium so that it can be reserved. Therefore, in reality, these mediums that retain the forms, structures, attributes, and messages of past incidents are the evidence. Evidence is used to prove the facts of a criminal case with the information it carries about the people and things involved, and it is a combination of informational content and material characteristics.
Influential factors in information transfer
Information transfer involves a process that is both complicated and fragile: a great deal of interfering factors exists at every stage of source, channel, and sink, and therefore, the information from the sink is not necessarily consistent with the information at the source. The main factors that affect the outcome of information transfer are:
- Separation force and transfer force: The level of difficulty with which information is separated from its source medium determines the number and size of fragments that can be obtained in the course of its transfer, and the level of difficulty with which information is transmitted to a new medium affects the possibility of transfer success. The greater the separation force and the transfer force, the greater the volume of information that can be transferred, and the greater is the likelihood of transfer success. For instance, in ordinary thefts, the offender's fingerprints, footprints, and other information are more likely to leave traces at the crime scene than their facial features.
- Receptive capacity of the sink: Information transferred in the process of a crime varies by the two forms of deposit: material and awareness. Material information refers to the information deposited in various macroscopic and microscopic solids, liquids, and gases and awareness information is the information stored in the memories of the criminals, the victims, the witnesses, and other insiders of a criminal case. In general terms, the crime scene and crime environment are passive receptive information. Both store information in various physical forms and may be less likely to be spoiled. Although the crime scene and its environment may be damaged, transformed or contaminated on purpose or by natural events, so that the authenticity is lost, the information transferred should not be actively avoided. On the contrary, awareness information may be distorted with some subjective factors, such as the provider's perceptibility, memory capacity, and presentation skills, so its authenticity can also be reduced or transformed. Moreover, awareness information may not reflect the case truthfully because of the provider's interest.
- Number of transfers: Information transfer in the course of a crime is inevitable, but certain accidental factors in the active transfer may cause the information to be distorted or even lost. Here, the term “number of transfers” indicates two possibilities: one is the possibility of a wrongful conclusion. If fragments of evidence from source A are transferred to carrier B, and then from carrier B to carrier C and a fragment of evidence from source A is found on carrier C, a wrongful conclusion can be made that there was an interaction between source A and carrier C. Another possibility is a greater chance that evidence will be distorted. The evidence from source A is transferred via a set of intermediate activities such as duplicating, reprinting, transmitting, or paraphrasing, and finally, it reaches carrier B. The more intermediate activities, the greater the chance that the evidence will be distorted.
- Irrelevant transfer: Most of the information transferred during the crime occurs in a chaotic state. The information that the investigators have to deal with includes the information from the criminal acts, but also the information contained in various acts committed by the criminal in an attempt to cover the crime, as well as other derivational information. Of course, both the original carrier and the information content have existed before the investigators' discovery. Their transfers are objectively beyond human will and the irrelevant information in those vectors may be either far greater or less than the information transmitted from the criminal acts. This may affect the conclusion as to whether or not the crime scene information is related to the case.
Fact-finding and analysis of evidence-based information
The theory of evidence-based information highlights both the essence of evidence at a microcosmic level and the entire process of confirmation of the facts of a case at a macroscopic level. Proving the facts of a case is not a process of putting the pieces together, nor is it a simple supposition of efficacy of evidence. Confirming the facts of a case requires a holistic view of all evidence for the purpose of comprehensive analysis and judgment. Evidence alone does not provide an explanation of the facts to be testified, but the evidence contained in the case information is the core of the proof. Particularly, the process of discovering, analyzing, and applying evidence-based information is essentially the process of fact identification.
As stated in the principle of evidence-based information, criminal acts are inevitably accompanied by the transfer of relevant information, which is fixed to a carrier to generate evidence. However, in the course of the transfer, information is affected by many factors and the transferred information does not necessarily coincide with the original information. Screening and review of the gathered evidence are required to select the information that is valid for confirmation of the facts. After the systematic integration of the content of the information, case fact identification is implemented via logical reasoning, rules of experience, and rules of evidence.
It must be admitted that the case facts that the arbitrator identifies in accordance with procedural law are not in the philosophical sense but in the procedural sense. Factors such as human cognitive limitation, economy of fact discovery, subjectivity in fact identification, and a balance between the pursuit of truth and other values also determine the possibility of including information that is unbiased. In general, we cannot fully restore the facts of a case, but we can try our best to fully identify the impartiality of the evidence. Passing the standards required for admissible evidence suggests that the best results have been found, and fact identification can be accomplished.
Method of falsification in the course of fact identification
An analysis of the falsification method
“Falsification,” also named as “null hypothesis,” the “falsification principle,” or the “method of conjectures and refutations,” was proposed by Karl Popper, an Austrian-British philosopher, in “The Logic of Scientific Discovery.” Falsification method claims that the scientific and nonscientific division of all knowledge and theoretical propositions do not lie in the presumption of whether they can be proved by experience or not, but in the presumption of whether they can be falsified by experience. The inductive reasoning on which the idea of verification relies is a transition from the singular existential statement to the universal statement, but for an infinite proposition, no matter how many singular existential statements are present, no logical conclusion is possible, which means it can never be “confirmed.” For instance, in the concept of verification, only on the condition that every crow in the world is collected and proved to be black can we conclude that “all crows are black,” and this is absolutely impossible in practice. Therefore, a conclusion based on the principle of deduction is problematic.
Popper maintained that positive arguments, no matter how many are quoted, produce a difficult limitation to the development of an argument: arguments derived from inductive reasoning contain “sufficient conditions.” Without the necessary conditions, positive arguments cannot possibly form a logical structure without the conditions necessary to form a conclusion. To solve this problem, he proposed the principle of falsification based on deductive reasoning. In Popper's view, a singular existential statement can verify the falsity of a universal statement, though it cannot prove the truth of a universal statement.
From the falsification perspective, Popper illustrated the progress of scientific knowledge with a four-stage formula: Given problems, tentative solutions, error elimination, and new problems. He held the view that scientific discoveries involve both conjectures and refutations. In this sense, the scientist usually makes a bold guess according to a given problematic situation. Then, he eliminates errors in accordance with the requirement of high certainty to maintain or decrease the false content of the accepted theory. In this process of conjectures and refutations, there is a high certainty of scientific discovery. In other words, constant testing, error eliminating, and falsifying can assist in discovering the scope of the application of a theory. In this gradual but precise method, the irrelevant content will decrease or be maintained. As Popper said: “Clarity and distinctness are not criteria of truth, but such things as obscurity or confusion may indicate error. Similar coherence cannot establish the truth, but incoherence and inconsistency do establish falsehood. Moreover, when they are recognized, our own errors provide the dim red lights which help us in groping our way out of the darkness of our cave [Figure 1].”
|Figure 1: Relationship between evidence and facts of the past and facts to be identified|
Click here to view
Advantage of the falsification method
The advantage of the falsification method lies in its critical analysis and efficiency.
Primarily, contrary to verification, falsification is the refutation and negation of a proposed negative hypothesis. If the hypothesis can be refuted, the primary proposition will be deemed reliable. Falsification is essentially the process of the critical testing of a given theory, and so the nature of falsification lies in its criticism. The alleged critical thinking refers to an essential scope for raising suitable questions and making reasonable conclusions.
Accordingly, falsification offers backward-thinking for constant error discovery and error elimination and the criticism it relies on is rather more constructive than a simple criticism for the sake of criticizing. This critical test aims to reach a better and more accurate theory via the gradual elimination of errors but does not aim to abandon the original theory. “For our critical examination of our theories leads us to attempts to test and to overthrow them; and these lead us further to experiments and observations of a kind which nobody would ever have dreamt of without the stimulus and guidance both of our theories and of our criticism of them.” It can be seen from Popper's statements that criticism and critical discussion are the only means of approaching truth, and falsification is a scientific method to discover truth in a more critical way.
In criminal procedure, the falsification method is favorable to the judge. In fact, the elimination of reasonable doubt itself is the realization of falsifiable thinking. During the period in which evidence is examined, both the prosecutor and the defendant required to verify their claims on the basis of their own evidence. While the prosecutor and the defendant do not voluntarily exclude the evidence that is in their own favor, the judge needs to pick out the evidence which is reliable to identify the facts of the case in legal proceedings. In using the falsification method to test the evidence, we can avoid a situation where the judge is restrained by the logic of argument from the provider. In this way, the evidence is fully examined to avoid a possible misconception of formal verification. At the stage of holistic fact identification, it is necessary to examine the versions of case facts by reviewing the chain of corroboration and excluding the contradictions and doubts that arise between versions of the same evidence and between the evidence and the facts.
Second, as can be seen from the comparison of the methods of verification and falsification, verification takes infinite time to exhaust all evidence and due to limitations of time and cost, no litigation can be prolonged for the method to be completed. In a situation where evidence or a judgment is not fully available, a conclusion obtained via the method of verification is a natural probability. On the contrary, using the method of falsification, only one or two counter-examples will falsify the primary conclusion. From the comparison, we can determine the gap of efficiency between verification and falsification. From this difference, we can conclude that the principle of falsification works better in judging the credibility of a proposition. In practice, once a claim is falsified as untrue, it does not take a lot of time or a lot of energy to find another proposition which has a high certainty [Figure 2].
Falsification for better verification
The alleged repeated “verification” or “falsification” of a scientific argument is actually a constant uncovering of the conditions of existence or nonexistence. This process broadens our horizons and both verification and falsification pave a viable path to truth.
The methods of verification and falsification do not contrast entirely. In fact, they represent a relationship between “building a valid argument” and “proving an argument invalid.” A valid argument needs to be verified logically, exhaustively, and justifiably, while refuting an argument demands only two steps: Criticizing and error-finding. If the validity of an argument is well verified, it will be difficult to refute. In practice, it is difficult to separate verification and falsification, so in their respective processes of forward-thinking and backward-thinking, verification and falsification work naturally and simultaneously in the judgment process, if the initiation circumstances are not considered. The two methods function in a reverse way: the greater the weight of the evidence, the more credibility it has and the less possibility falsification yields, the greater possibility verification produces.
In summary, case fact identification implemented using the two methods, verification and falsification, has the advantage of error discovery in judicial procedure. The idea and method of falsification are indispensable for court investigation and allows us to go beyond the limit of one-directional thinking to accomplish the task of identifying and understanding the facts of a case.
| Establishing Asystematic Paradigm of Fact-Finding|| |
A model for the process of case fact-finding
As mentioned above, the theory of evidence-based information aims to guide the fact-finder to examine the evidence fully on the basis of a correct understanding of its nature, so that case facts can be accurately identified. However, the falsification method is designed with an aim to help the fact-finder to comprehend the evidence holistically, and to locate and eliminate doubts and contradictions, so that the authenticity and validity of fact-finding conclusions can be reinforced from a critical perspective.
Based on the previous analysis, a new paradigm of fact identification is reestablished with the following five phases. First, material evidence: the material evidence presented in court should be examined so that evidence-based information with relevance, authenticity, and legality can be identified. Second, evidence-based information: a reasonable hypothesis can be derived from comprehensive and sufficient information that can prove the facts of the case. This second stage suggests that the material evidence must be tested via empirical and ethical rule before a reasonable inference can be made. Third, testifying case hypotheses: the conclusions deduced on the basis of the hypotheses theory must be examined as consistent with the generalizations based on the empirical facts and scientific theory and must be equivalent to the evidence. Fourth, the best explanation: errors in the hypotheses can be eliminated using the falsification method. The best explanation of the case facts is then produced after being tested with reference to the burden of proof and voluntary confession of the criminal suspect. Fifth, conviction of the case facts: the conviction of the case is finally generated with full confirmation.
The procedure for choosing the best explanation of the facts of the case
In the adversarial trial system, the prosecuting party claims that the defendant is guilty with the use of evidence, while the accused party is required to explain why the hypotheses proposed by the prosecuting party are not admissible or practical, or form alternative hypotheses that prove that the defendant is innocent. The fact-finder chooses the relevant evidence from all of the evidence presented to the court: either one of the parties arguments is admissible or a new credible explanation is made to secure a final conviction. This selection of the best evidence serves as the most important stage in the fact-finding process.
Primarily, it is necessary to identify the best explanation for all hypotheses relating to the facts of the case. Both the prosecution and the defense, respectively, responsible for different aspects of the litigation, put forward different factual propositions. Meanwhile, the judge needs to fully hear the prosecution and the defense, have a complete understanding of the case facts and develop a presentiment. At last, combining their experience from similar cases, the judge can make their initial decision, either admitting the argument of one party or generating a parallel hypothesis. Since the evidence-based information presented in a trial cannot fully reveal the truth of the facts of the case, the formation of a hypothesis requires a combination of facts so that the loopholes of evidence can be filled in as much as possible. The number of hypotheses is determined by the complexity of the case, but perhaps, there is neither a specific relationship nor a credible sequence between them and what exists between the number of hypotheses and the complexity of the case is only a temporary arrangement. At the same time, the hypotheses, or the propositions, are not necessarily true, but only true in the sense of truth, with a purpose to open up the argument for solving the existing problems. What is certain, however, is that these hypotheses are a list of different versions of facts that the fact-finder makes according to the information evidence.
After the hypotheses are established, a choice of evidence from various options has to be made, following the standards which are close to those employed in scientific philosophy.
This is a step involving a selection of the most probable and appropriate explanatory descriptions from the resulting hypotheses. The result of the selection should be the best explanation of the facts of the case, with the property of singularity. “If the existing evidence provides several internally consistent explanations, the credibility in any of them will be reduced. If there is only one internally coherent explanation available, the story model will be judged as an explanation of the evidence and will play a role in the conclusion of the verdict.” There is only one best explanation of the facts of a case. If there are more than two statements that can reasonably explain the facts of the case at the same level, this means that there is still an unresolved suspicion as to the facts of the case.
Methods and standards of selecting the best explanation of the case facts
In selecting the best explanation of the facts of the case, the methods of verification and falsification can help to answer the question of why the decided outcome is a problem, and the question of why it is not. Although both methods are not distinguished as being “better” or “worse,” it is important that they are used in the order of falsification first and verification second, because of the high efficiency and critical property of falsification. If information of evidence or fact hypotheses are falsified, there is no need to proceed to verification. This means that the method of falsification offers an advance guarantee for the method of verification. Through hypotheses refutation and criticism, errors can be eliminated and the evidence with high credibility can be preserved. This “trial-and-error” method, that is, the method of “testing and then error eliminating,” enables the hypotheses to undergo the most rigorous criticism to find out where it was erroneous so that further improvement can be achieved.
Standards of evidence evaluation contain two aspects: “precise, explicit, and sufficient evidence” and “beyond reasonable doubt.” The former aspect helps with the examination of evidence to ensure that the constitutive elements of crime are covered in the best explanation; if the sentencing facts are confirmed with evidence, if the confirmed evidence is valid in legal procedures, and if there is any contradiction or doubt in the interpretation of individual evidence and between the interpretations. Meanwhile, the fact-finder can verify, using the falsification method, whether another possible explanation for the facts of the case in question is available in the chosen best explanation, or whether there is a reasonable doubt which is of fundamental contradiction, or against logic, social responsibility, empirical or scientific rules, and cannot be excluded in the given best explanation. Professor Allen proposes, “How do we understand beyond a reasonable doubt? If there is no plausible story of guilt, the person is innocent and if there is a plausible story of guilt, and no plausible story of innocence, the person is guilty. If there is a plausible story of guilt and a plausible story of innocence, the person is innocent. Hence, this is the central explanation of inference to the best explanation.”
The steps described above work in interlocking logical processes, and the successive step affirms the preceding step. If the best explanation is sound, then it can obtain the final conclusion of the facts. Of course, fact-finding in a case is not a one-off, irreversible process, but a temporary one that can be withdrawn. In addition, if it is impossible to obtain a plausible version of the required facts, then the limit of fact-finding of criminal evidence can be declared, with the party who is liable for the burden of proof suffering the negative consequence.
| Conclusion|| |
The logical preparation of judicial proof begins with the facts of the case, with accurate knowledge of the facts as the fundamental case operation. As clearly stated in Decision of the Central Committee of the Communist Party of China on Some Major Issues Concerning Comprehensively Advancement of the Rule by Law (2014), “To ensure that the trial plays a decisive role in ascertaining the facts, identifying the evidence, protecting the litigious rights, and just judging.” Therefore, it is urgent that the model, the working principles and the methods of fact identification are improved.
A new fact identification model will be constructed when the theory of evidence-based information, and the process of falsification are introduced and integrated. This model will have the advantage of combining individual testifying evidence with global analysis, objective standards with subjective perception, and the verification method with the falsification method. In this sense, the new paradigm, which will be different from a plain improvement, will represent a brand-new attempt at judicial reform. Of course, we must admit that the models only play a supplementary role in the criminal investigation procedure. Therefore, both the authenticity of fact-finding and judicial justice will be guaranteed on the condition of the removal of the long-standing views on criminal investigation procedure, such as the “investigation-centered” idea and the “case-files-focused” method, so that efficiency of the identification, admission, and utilization of case facts can be highly improved.
Financial support and sponsorship
The work is supported by Social Science Foundation of Hebei Province under Grant No. HB18FX023, entitled as The Working Principle and Methods in Fact-Finding of Criminal Cases.
Conflicts of interest
There are no conflicts of interest.
| References|| |
The Supreme Court, Opinions on Advancing the Reform of Making Criminal Procedure System Trial-Centered; 2016.
Xie S. Criminal judicial proof mode: Pattern, logic and transformation. Chin J Crim Law 2013;11:54-64.
Zhang X, Ge L. Methods of Falsification, rule of thumb and psychological factors: Analysis on the working mechanism of “beyond reasonable doubt” in the system of jury as exemplified in the movie twelve angry men. Contemp Law Rev 2005;19:104-11.
Han D. Principle of scientific proof investigation. J Chin Peoples Public Secur Univ (Soc Sci Ed) 2007;2:50, 151.
The Supreme People's Court. People's Court Rules for Handling Courtroom Investigation in First-instance Criminal Trials under the Ordinary Procedures (Provisional); 2018.
Long Z. A study on corroborating evidence in criminal cases. Chin J Law 2017;2:149-67.
Liu P. On the theory of information transfer in the course of crime. J Fujian Public Saf Coll 2003;17:28-35.
Alan RJ, Kuhns RB. Evidence-Text, Problems and Cases. Translated by Baosheng Z, Jinxi W, Beijing YZ: Higher Education Press; 2006. p. 79.
He J. Evidence Law Research. Beijing: Press Renmin University; 2007. p. 302.
Liu P. On theory of information transfer in the course of crime. J Fujian Public Saf Coll 2003;17:28-35.
Popper KR, Weiss G. The logic of scientific discovery. Phys Today 1959;12:53-4.
Wu X. The asymmetry between the verifiable principle and the falsifiable principle. Guangxi Soc Sci 2004;8:28, 30.
Liu L. A study on the standard of proof for examination and prosecution purpose – From the perspective of falsification. Hebei Law Sci 2008;26:117-23.
Popper K. Conjectures and Refutations: The Growth of Scientific Knowledge. Shanghai: Shanghai Translation Publishing House; 2005. p. 4.
Popper K. Conjectures and Refutations: The Growth of Scientific Knowledge. New York, London: Publishers of Basic Books; 1962. p. 27.
Wen Y. A review on popper's view of errors. J Beijing Univ Posts Telecommun 2001;4:5-9.
Gu Z, Liu Z. A Course of Critical Thinking. Beijing: Peking University Press; 2006. p. 2.
Popper K. Conjectures and Refutations: The Growth of Scientific Knowledge. New York, London: Basic Books, Publishers; 1962. p. 215.
Dang J. Based falsification: A contrary investigation on the standard of proof in terms of legality of evidence. Law Sci Magaz 2014;35:96-110.
Allen RJ, Wang J, Du G. On the nature of judicial proof. Evid Sci 2011;19:761-7.
Hastie R. Inside the Jurors: The Psychology of Juror Decision Making. Translated by Liu W, Li H. Beijing: Bejing University Press; 2006. p. 240.
Zeng Q. A review on popper's theory of falsification. J CPC Zhengzhou Party Sch 2006;4:148.
Allen RJ, Zhang Y. Evidence and inference/probability and plausibility. Evid Sci 2011;19:113-26.
Feng L. The transformation in the model of criminal evidence inference in China: From daily thinking to argumentation of precision. China Legal Sci 2016;6:153-76.
Decision of the Central Committee of the Communist Party of China on Some Major Issues Concerning Comprehensively Advancement of the Rule by Law; 2014.
[Figure 1], [Figure 2]