Rules Concerning Questions About Examining and Judging Evidence in Death Penalty Cases (Chinese and English Text)
Rules Concerning Questions About Examining and Judging Evidence in Death Penalty Cases In order to handle death penalty cases, punish crime, and protect human rights with fairness and caution and in accordance with the law, these rules are established in accordance with the provisions of the Criminal Procedure Law of the PRC and other relevant legal provisions and in combination with legal practice. I. General Provisions Article 1 The Criminal Law and Criminal Procedure Law must be strictly implemented in handling death penalty cases in order to ensure the cases’ quality and that the facts are clear, the evidence is credible and sufficient, procedures are legal, and the law is applied correctly. Article 2 The facts used to determine guilt in a case must be based on evidence. Article 3 [Police] investigators, procurators, and judicial officers shall stringently obey legal procedure and fully and objectively collect, examine, verify, and make determinations about evidence. Article 4 Only evidence that has been examined and verified to be true through an investigation process in court involving presentation, identification, and cross-examination may be used as a basis for conviction and determining sentence. Article 5 In death penalty cases, determination of the facts of the defendant’s crime must be based on credible, abundant evidence. Credible, abundant evidence means: (1) All of the facts used to convict and determine sentence are proven by evidence; (2) Each item of evidence used in conviction must have undergone a legal process [by which it is] examined and verified to be true; (3) There is no contradiction between items of evidence or between an item of evidence and the facts of the case, unless the contradiction can be reasonably ruled out; (4) In cases involving offenses committed jointly, a defendant’s position and role [in the crime] have been fully examined; (5) The process of determining the facts of the case based on evidence comports with logic and empirical rules, and the conclusion drawn from the evidence is the only one [possible]. In handling death penalty cases, proof of each of the following facts must be based on credible, abundant evidence: (1) [Whether] the crime charged was committed; (2) [Whether] a defendant committed the criminal act and the time, place, manner, consequence, and other details of the criminal act committed by that defendant; (3) Circumstances regarding a defendant’s identity that have an influence on conviction; (4) [Whether] the defendant possesses criminal responsibility; (5) The defendant’s culpability; (6) Whether the offense was committed jointly and what the defendant’s position and role was in that joint offense; (7) Facts warranting heavier punishment for the defendant. II. Examination and Determination of Different Types of Evidence 1. Physical and Documentary Evidence Article 6 In examining physical or documentary evidence, emphasis shall be placed on the following: (1) Whether the physical evidence is the original object or the documentary evidence is the original document; whether photographs, video recordings, or replicas of physical evidence or duplicates or facsimiles of documentary evidence match the original items or documents; whether physical or documentary evidence has been identified and verified; whether photographs, video recordings, or replicas of physical evidence or duplicates or facsimiles of documentary evidence were reproduced by more than two people; whether the producer has a signed, written explanation concerning the production process and the location of the original document or item. (2) Whether the procedure and methods of collection for physical or documentary evidence are in compliance with the law and relevant regulations; whether physical or documentary evidence that was obtained through on-scene investigation, inspection, search, or confiscation have corresponding records or invoices; whether the records or invoices are signed by [police] investigators, the persons who possessed the items, and witnesses, and whether an explanation is provided if the signature of the person who possessed the items is absent; whether the distinguishing features, number, quality, and names of the items are clearly described. (3) Whether physical or documentary evidence was damaged or altered in the process of collection, storage, or authentication. (4) Whether physical or documentary evidence has any relation to the facts of a case. Whether biological evidence, traces, or items left at the scene and related to the crime, such as bloodstains, fingerprints, hair samples, or bodily fluids, that satisfy the conditions for testing have undergone DNA testing, fingerprint analysis, or other testing methods, and whether they have been determined to match relevant biological samples, biological characteristics, or items from the defendant or victim. (5) Whether all physical or documentary evidence related to the facts of a case has been collected in full. Article 7 If any bloodstains, fingerprints, footprints, handwriting samples, hair samples, bodily fluids, human organs, or other traces or items possibly related to the facts of a case are discovered through on-scene investigation, inspection, or search and either ought to have been recovered but were not or ought to have been tested but were not, with the result being that there remain doubts about the facts of the case, the people’s court shall explain the situation to the people’s procuratorate, and the people’s procuratorate may additionally collect or obtain evidence and produce a reasonable explanation or return the case to the investigating organ to conduct additional investigation or obtain relevant evidence. Article 8 Physical evidence used as a basis for conviction should be the original item. Only when the original item is inconvenient to transport or difficult to preserve, or, in accordance with the law, must be kept in storage or disposed of by the relevant department or returned may a photo or video recording be shot or a replica produced that reflects the original likeness or content. A photograph, video recording, or replica of physical evidence may serve as a basis for conviction only after having been compared with the original item and found to have no errors, subjected to authentication as true, or undergone some other method able to prove it to be a true [copy]. Any photograph, video recording, or replica that does not reflect the original likeness and distinguishing features of the original may not serve as a basis for conviction. Documentary evidence used as a basis for conviction should be the original item. Duplicates or facsimiles may only be used when there is real difficulty in obtaining the original document. Duplicates or facsimiles of documentary evidence may serve as the basis for conviction only after having been compared with the original items and found to have no errors, subjected to authentication as true, or undergone some other method able to prove it to be a true [copy]. Any documentary evidence that has been altered or shows traces of alteration that cannot be reasonably explained or any duplicate or facsimile of documentary evidence that does not reflect the original document and its content may not serve as a basis for conviction. Article 9 Any physical or documentary evidence obtained through on-site investigation, inspection, search, or confiscation that is not accompanied by a record of on-site investigation or inspection, a search record or record of requisition, or an invoice of items confiscated may not serve as a basis for conviction if its origins cannot be verified. If there are any of the following flaws in the procedures or methods used to collect physical or documentary evidence, [the evidence in question] may be used if the relevant officer rectifies [the error] or provides a reasonable explanation: (1) For physical or documentary evidence that has been collected or obtained, the record of on-site investigation or inspection, search record, record of requisition, or invoice of items confiscated is not signed by the investigator, the person who possessed the items, or witness, or the distinguishing features, number, quality, or names of the items are not clearly described; (2) For photographs, video recordings, or replicas of physical evidence or duplicates or facsimiles of documentary evidence that have been collected or obtained, there is no notation that they have been checked against the original items and found to be identical, the time of production is not noted, or the signature (chop) of the person (unit) from whom [the evidence] was collected or obtained is missing; (3) Photographs, video recordings, or replicas of physical evidence or duplicates or facsimiles of documentary evidence do not have a written explanation from the person who produced them about the production process and the location of the original document or item or that explanation has not been signed. (4) There are other flaws in the procedures or methods [used to] collect physical or documentary evidence. If there are questions about the source of or collection procedures for physical or documentary evidence and no reasonable explanation is given, that physical or documentary evidence may not serve as a basis for conviction. Article 10 Physical or documentary evidence that satisfies the conditions for identification should be identified by a party to the case or a witness, or, if necessary, submitted for authentication. 2. Witness Testimony Article 11 In examining witness testimony, emphasis shall be placed on the following: (1) Whether the testimony is [based on] the direct perception of the witness; (2) Whether at the time given the testimony of the witness might be influenced by his or her age, cognitive level, capability of recollection and expression, or physiological or psychological state; (3) Whether the witness has an interest with respect to a party in the case or the outcome of the case; (4) Whether the testimony was obtained using procedures and methods in compliance with the law and relevant regulations; whether violence, threats, inducements, deception, or other illegal methods of obtaining evidence were used; whether there were violations of regulations requiring witnesses to be questioned individually; whether the transcript was checked for accuracy by the witness and a signature (chop) or fingerprint affixed; whether in questioning a juvenile witness his or her legal representative was called to appear and whether the legal representative did appear or not; (5) Whether the witness testimony corroborates other testimony or evidence or whether there are contradictions; Article 12 Witness statements obtained through violence, threats, or other illegal means may not serve as a basis for conviction. Testimony by witnesses who are clearly under the influence of alcohol, narcotics, or psychotropic drugs such that they cannot properly express themselves may not serve as a basis for conviction. Witness testimony involving conjecture, opinion, or inference may not be used as evidence, except empirical judgments based on daily life that accord with the facts. Article 13 The following kinds of witness testimony may not serve as a basis for conviction: (1) Testimony obtained without questioning witnesses individually; (2) Written testimony that was not checked for accuracy by the witness and a signature (chop) or fingerprint affixed; (3) Questioning of a deaf-mute or a member of an ethnic minority or foreigner who does not understand the local common vernacular or written language, when a translator should have been provided but was not. Article 14 If there are any of the following flaws in the procedures or methods used to obtain witness testimony, [the testimony in question] may be used if the relevant officer rectifies [the error] or provides a reasonable explanation: (1) The [record] does not provide the name of the questioner, recorder, or legal representative or the start and stop time or place of the interview; (2) The location where the witness was interviewed does not comply with regulations; (3) The interview record does not note that the witness was told that he or she should give a truthful statement and that intentionally giving false testimony or withholding evidence of a crime is punishable under the law; (4) Interview records show that the same interviewer was interviewing a different witness at the same time. Article 15 Under the following circumstances, the people’s court should call a witness to give testimony before the court. Written testimony from a witness who has been summoned in accordance with the law but who does not testify in court may not serve as a basis for conviction if there is no way to verify it under cross examination: (1) The people’s procuratorate and the defendant and his or her defense counsel disputes the testimony of a witness and that witness testimony [will have] a major impact on conviction or sentencing; (2) Others the people’s court determines should appear in court to give testimony. When the testimony of a witness in court contradicts his or her pretrial testimony, if the witness can provide a reasonable explanation in court for recanting his or her [earlier] testimony and there is related evidence to corroborate it, [the court] should accept the testimony given in court. [The court] should listen to the opinions of the procurator appearing in court and the defendant and his or her defense counsel regarding the written testimony of a witness who does not appear in court and make a general determination in consideration of other evidence. If contradictions appear in the written testimony of a non-appearing witness and those contradictions cannot be ruled out and there is no corroborating evidence, [the testimony] may not serve as a basis for conviction. Article 16 When witness testimony concerns state secrets or individual privacy, it should be kept secret. When a witness testifies in court, the people’s court may, if necessary, take protective measures such as restricting the publication of the identity of the witness, limiting questioning, shielding the face, or altering the voice. 3. Victim Statements Article 17 The aforementioned provisions for witness testimony should be applied as relevant for the examination and determination of victim statements. 4. Defendant Declarations and Defense Statements Article 18 In examining a defendant’s declarations and defense statement, emphasis shall be placed on the following: (1) Whether the time and place of the interrogation and identity of the interrogator was, at the time of interrogation, in compliance with the law and relevant regulations; whether there were fewer than two investigators interrogating the defendant; whether defendants were interrogated individually; (2) Whether the interrogation record was produced and revised in compliance with the law and relevant regulations; whether the interrogation record noted the start and stop times and location of the interrogation; whether at the first interrogation the defendant was told of his or her procedural rights such as [the rights] to request recusal or engage a lawyer; whether the defendant checked [the interrogation record] for accuracy and affixed a signature (chop) or fingerprint; whether fewer than two interrogators signed [the interrogation record]; (3) Whether a person proficient in sign language or a translator is present for interrogations of individuals who are deaf-mute, ethnic minorities, or foreigners; whether, in an interrogation of a juvenile accomplice, his or her legal representative was called to appear and whether or not the legal representative did appear; (4) Whether a defendant’s declaration was obtained through illegal means such as coercing confession; if necessary, [the court] may request a defendant’s medical examination records from the time of entry in the detention center; (5) Whether a defendant’s declarations have been consistent or, if the statements have changed, whether reasons for the changes were given; whether all of the defendant’s declarations and defense statements have been included in the case file; and, if all of the declarations and defense statements that ought to be in the file are not, whether an explanation has been provided; (6) Whether the defendant’s defense statement comports with the circumstances of the case and common sense, or whether there are contradictions; (7) Whether the defendant’s declaration and defense statement is consistent with the declarations and defense statements of co-defendants, or whether there are contradictions. In the aforementioned situations, if the investigating organ has provided audiovisual documentation, it ought to be examined in combination [with the relevant declarations]. Article 19 If a defendant’s declaration has been obtained through use of illegal means such as coercing confession, it may not serve as a basis for conviction. Article 20 Defendant declarations may not serve as a basis for conviction under the following circumstances: (1) The interrogation transcript has not been checked for accuracy by the defendant and a signature (chop) or fingerprint affixed; (2) Interrogation of a person who is deaf-mute or does not understand the local common vernacular or written language without providing the required person proficient in sign language or a translator. Article 21 If there are any of the following flaws in the interrogation record, it may be used if the relevant officer rectifies [the error] or provides a reasonable explanation: (1) The interrogation times, interrogators’ names, or name of the legal representative are recorded in error or there are contradictions; (2) The interrogators did not sign their names; (3) The record of the first interrogation does not note that the person being interrogated was informed of his or her procedural rights. Article 22 [The court] should examine a defendant’s declaration and defense statement in consideration of all of the evidence submitted by the prosecution and defense as well as all of the defendant’s declarations and defense statements. If a defendant’s pretrial declarations are consistent but he or she retracts the declaration during the trial proceeding without providing a reasonable explanation for the retraction or if the defense statement contradicts the totality of the the evidence in the case, when the pretrial declaration is corroborated by other evidence [the court] may accept the defendant’s pretrial declaration as reliable. If a defendant has repeatedly changed his or her pretrial declaration or defense statement but admits guilt during the trial proceeding, [the court] may accept the declaration made at trial as reliable if there is other evidence that can corroborate that declaration. If a defendant has repeatedly changed his or her pretrial declaration or defense statement and does not admit guilt during the trial proceeding, without other evidence to corroborate the pretrial declaration [the court] may not accept the declaration made at trial as reliable. 5. Expert Opinions Article 23 In examining expert opinions, emphasis shall be placed on the following: (1) Whether the expert should have recused himself or herself but did not; (2) Whether the expert and his or her organization possess legal qualifications; (3) Whether the expert evaluation procedures were in compliance with the law and relevant regulations; (4) Whether the [processes for] sourcing, obtaining, storing, and transporting the specimen were in compliance with the law and relevant regulations; whether the record of how the evidence was obtained or the invoice of items seized is in order; whether the specimen is sufficient and reliable; (5) Whether the procedures, methods, and analytical process [used in] the expert evaluation satisfy the required professional inspection and evaluation procedures and techniques; (6) Whether the formal criteria for the expert evaluation have been satisfied; whether the explanation includes identification of the subject for evaluation, the party requesting the evaluation, the institution conducting the evaluation, the evaluation requirements, the evaluation process, the inspection methods, and the date of the certification report; whether the expert institution has affixed the appropriate chop and the expert conducting the certification has signed [the report] and affixed a chop; (7) Whether the expert opinion is clear; (8) Whether the expert opinion is relevant to a fact of the case needing to be proven; (9) Whether the expert opinion contradicts other evidence; whether the expert opinion contradicts the inspection record or relevant photographs; (10) Whether relevant persons were notified of the expert opinion [results] in a timely manner in accordance with the law; whether the parties to the case dispute the expert opinion. Article 24 Expert opinions may not serve as a basis for conviction under the following circumstances: (1) The expert institution lacks the legal qualifications and capacity or the matter for certification exceeds the institution’s area of expertise or capabilities; (2) The expert lacks the legal qualifications and capacity, lacks the relevant professional technical skills or job title, or violates the regulations on recusal; (3) There are errors in the evaluation procedures or methods; (4) The expert opinion has no relevance to the subject needing confirmation; (5) The subject being evaluated is not the same as the specimen or sample that was sent for inspection; (6) The source of the specimen or sample sent for inspection is unclear or was contaminated such that it does not meet the conditions for evaluation; (7) There are violations of specific evaluation standards; (8) The expert report lacks a signature or chop; (9) Other violations of relevant regulations. If there are questions about an expert opinion, the people’s court should call on the expert to give testimony in court or prepare an appropriate explanation, or it may also order additional evaluation or a new evaluation. 6. Records of On-Site Investigation and Inspection Article 25 In examining records of on-site investigation and inspection, emphasis shall be placed on the following: (1) Whether the on-site investigation or inspection was conducted in accordance with the law; whether the record was produced in compliance with the requirements of the law and relevant regulations; whether the officers conducting the on-site investigation or inspection and witnesses signed the report or affixed their chops; (2) Whether the record of on-site investigation or inspection is complete, detailed, accurate, and standard in format; whether the subject, time, place, persons on the scene, scene location, and surrounding environment of an on-site investigation or inspection are recorded accurately; whether the location and characteristics of the scene, items, individuals, and corpses, as well as the process of on-site investigation or inspection are accurately recorded; whether the written description matches physical objects or drawings, video recordings, or photos; whether the manner and methods used to fix [the location] of evidence is scientific and standard; whether the crime scene, items, or traces were damaged or fabricated and whether the crime scene was in its original state; whether distinguishing features or injuries of individuals were disguised or altered; (3) When additional on-site investigation or inspection is carried out, whether there are contradictions with [earlier] investigations and whether reasons can be provided to explain the need for additional on-site investigation or inspection; (4) Whether the record of on-site investigation or inspection corroborates or contradicts other evidence, such as the defendant’s declaration, the victim’s statement, or the expert opinion. Article 26 If a record of on-site investigation or inspection clearly does not comply with the law and relevant regulations and no reasonable explanation is provided, it may not be used as evidence. If a record of on-site investigation or inspection does not list any witnesses, if the investigating officer(s) or witnesses did not sign [the record] or affix a chop, or if the investigating officer(s) violated the regulations on recusal, [the court] should consider other evidence in the case in examining the authenticity and relevance [of the record in question]. 7. Audiovisual Materials Article 27 In examining audiovisual materials, emphasis shall be placed on the following: (1) Whether the source of the audiovisual materials is legal and whether threats, inducements, or other violations of the law and relevant regulations were used against the party in the course of production; (2) Whether the identity of the producer or the possessor and the time, place, and conditions of production are clearly stated; (3) Whether [the material] is the original or, if a reproduction, how many copies there are; if the audiovisual material obtained is a reproduction, whether an explanation is provided regarding the inability to obtain the original, the process of reproduction, and the location of the original; whether the signature or chop of the reproducer and the person in possession of the original audiovisual material [has been provided]; (4) Whether the content and production process are authentic or whether [the material] has undergone rearrangement, addition, deletion, editing or other fabrication or alteration; (5) Whether the content is relevant to the facts of the case. If there are questions about audiovisual materials, an expert evaluation should be conducted. The authenticity and relevance of audiovisual materials should be examined in consideration of other case evidence. Article 28 Audiovisual materials may not serve as a basis for conviction under the following circumstances: (1) The authenticity of the audiovisual materials cannot be established following examination or expert evaluation; (2) There is dispute about the production of the audiovisual materials or the time, place, and manner with which they were obtained and no reasonable explanation or requisite proof can be provided. 8. Other Provisions Article 29 In examining electronic evidence such as electronic mail, electronic data exchange, online chat transcripts, blogs, mobile telephone text messages, or electronic signatures or domain names, emphasis shall be placed on the following: (1) Whether electronic evidence stored on a storage medium such as a computer disk or CD has been submitted together with the printed version; (2) Whether the time, place, target, producer, production process, and equipment for the electronic evidence is clearly stated; (3) Whether production, storage, transfer, access, collection, and presentation [of the electronic evidence] were carried out legally and whether individuals obtaining, producing, possessing, and witnessing the evidence affixed their signature or chop; (4) Whether the content is authentic or whether it has undergone cutting, combination, tampering, or augmentation or other fabrication or alteration; (5) Whether the electronic evidence is relevant to the facts of the case. If there are questions about electronic evidence, an expert evaluation should be conducted. The authenticity and relevance of electronic evidence should be examined in consideration of other case evidence. Article 30 Under the following circumstances, identification [of evidence] arranged by the investigating organ shall be carefully examined and may not serve as a basis for conviction if their authenticity cannot be verified: (1) The identification was not conducted under the direction of the investigating officer(s); (2) The person doing the identification was shown the target of identification beforehand; (3) Persons doing the identification did not carry out the identification process individually; (4) Except specifically in the identification of corpses and locations, the identification target was not placed in the midst of other targets with similar distinguishing characteristics, or the number of targets provided for identification did not comply with regulations; (5) The person doing the identification was clearly given a hint or there is suspicion that he or she was instructed about what to identify. Identification results may be used as evidence under the following circumstances if the relevant officer rectifies [the error] or provides a reasonable explanation: (1) The identification was directed by fewer than two investigators; (2) The person doing the identification was not asked detailed questions about specific distinguishing characteristics of the identification target; (3) No standardized identification record was produced specifically to document the process and results of identification or the investigator(s), person doing the identification, or witness did not sign or affix a chop to the identification record; (4) The identification record is too simple, with only results and no [record of the] process; (5) The case file has only the identification record and no photos or video of the investigation target, so that there is no way to know whether the identification was authentic. Article 31 In examining documents such as the investigating organ’s record of how a case was solved, it should be noted whether the explanatory document is signed by the officer(s) in charge and the chop of the organ in charge affixed. If there are questions about how a case was solved or there are questions about the basis by which suspicion of a defendant was determined to be major, additional explanation from the investigating organ shall be requested. III. General Examination and Use of Evidence Article 32 The probative force of evidence shall be examined and judged in combination with the specifics of the case, the degree of relevance between each item of evidence and the fact to be proven, and the relationship between items of evidence. Only pieces of evidence that are intrinsically related, that together point toward a fact to be proven, and that reasonably rule out contradictions may serve as a basis for conviction. Article 33 If no direct evidence exists to prove that a criminal act was committed by the defendant, the defendant may still be convicted if the following conditions are met: (1) Indirect evidence to be used as the basis for conviction has been examined and verified to be true; (2) Indirect evidence to be used as the basis for conviction is mutually corroborating, there are no contradictions that cannot be rule out or questions that cannot be explained; (3) Indirect evidence to be used as the basis for conviction forms a complete body of proof; (4) The facts of the case established by the indirect evidence lead to only one conclusion and can rule out all reasonable doubt; (5) The reasoning with which the indirect evidence is used comports with logic and empirical judgment. Extreme caution should be used in imposing the death penalty for a conviction based on indirect evidence. Article 34 Deeply concealed physical or documentary evidence uncovered through a declaration or identification made by the defendant may [be used] to convict if it is corroborated by other evidence proving the fact of the crime and the possibility that the statement was based on collusion, coercion, or inducement can be ruled out. Article 35 Physical, documentary, and other evidence collected by the investigating organ using special investigative measures in accordance with relevant regulations may serve as a basis for conviction if the court has verified it to be true. The court shall, in accordance with the law, not reveal procedures and methods [used in] special investigative measures. Article 36 Once the defendant has been convicted, the people’s court should examine the following circumstances having an influence on sentencing, in addition to those that are specified by law: (1) The cause of the crime; (2) Whether the victim was at fault and the degree of fault and whether [the victim] was responsible for exacerbating a conflict and the degree of responsibility; (3) Whether the defendant’s immediate family members assisted in apprehending the defendant; (4) The defendant’s normal behavior and whether he or she has shown remorse; (5) Whether the victim filed an associated civil suit for compensation and whether the victim or the victim’s immediate family have shown understanding toward the defendant; (6) Other circumstances influencing sentencing. If there are circumstances that warrant lenient or reduced punishment as well as circumstances that warrant heavier punishment, [the court] shall consider the circumstances in their entirety in accordance with the law. If circumstances warranting lenient or reduced punishment cannot be ruled out, extreme care should be used in imposing the death penalty. Article 37 Evidence should be used with care in the following circumstances and accepted as reliable if other evidence can corroborate it: (1) Statements, testimony, or declarations made by victims, witnesses, or defendants who are physically or mentally handicapped, who have definite difficulty in understanding or expression with respect to the facts of the case but who have not [fully] lost their ability to understand and express themselves properly; (2) Testimony benefiting a defendant given by a witness who is a relative or having other close ties to that defendant, or testimony harmful to a defendant given by a witness having a conflict of interest with that defendant. Article 38 If the court has questions about evidence, it may call on the appointed procurator or the defendant and his or her defense counsel to produce additional evidence or provide an explanation. If it is necessary to conduct verification, [the court] may call a recess in order to investigate and verify evidence. If the court conducts an external investigation outside the courthouse, it may, if necessary, call on the appointed procurator and defense counsel to be present. If either the appointed procurator or the defense counsel or both parties are not present, the court’s record shall become part of the case file. The court may solicit opinions from the appointed procurator and defense counsel regarding evidence supplemented by the people’s procuratorate or defense counsel or obtained through the court’s external investigation and verification. If the two sides are not in agreement and one side requests that the court hold a hearing to investigate, the court shall hold a hearing. Article 39 If a defendant and his or her defense counsel claim [that the defendant] voluntarily surrendered but the relevant organ has not established this fact, [the court] shall request that the relevant organ provide documentation or request that the relevant personnel testify and judge, in consideration of other evidence, whether [the claim of] surrender is valid. If there is incomplete documentation to prove whether or how a defendant assisted in the apprehension of other co-defendants such that it is impossible to determine whether the defendant rendered meritorious service, [the court] shall request that the relevant organ provide documentation or request that the relevant personnel testify and judge, in consideration of other evidence, whether [the claim of] meritorious service is valid. If a defendant reported or exposed crimes committed by another person, [the court] should examine whether or not the veracity [of the report] has been investigated; if it has not been investigated, it shall be investigated at once. If there is incomplete documentation to prove whether the defendant is a repeat offender, [the court] shall request the relevant organ provide documentation. Article 40 Generally, [the court] shall use household registration records as a basis of proof in examining whether a defendant was at least 18 years old at the time the crime was committed. If there is a dispute over the household registration records and investigation finds there to be valid documentation of birth or testimony from an uninterested party confirming that the defendant was not at least 18 years old, [the court] should find that the defendant was not 18 years old. If there is no household registration record or documentation of birth, [the court] shall make a general judgment based on census records, testimony from an uninterested party, or other evidence; if necessary, [the court] may conduct an investigation of skeletal age and use the results as a reference in judging the defendant’s age. When contradictions between items of evidence cannot be ruled out and there is insufficient evidence to prove that a defendant was at least 18 years old at the time the alleged crime was committed, if there is truly no way to determine [the truth, the court] may not determine that he or she was at least 18 years old. Article 41 These rules take effect on July 1, 2010.
The following translation was retrieved from the Dui Hua Web site on July 1, 2010. The Chinese text was retrieved from the Supreme People's Procuratorate Web site on July 1, 2010.
Rules Concerning Questions About Examining and Judging Evidence in Death Penalty Cases
In order to handle death penalty cases, punish crime, and protect human rights with fairness and caution and in accordance with the law, these rules are established in accordance with the provisions of the Criminal Procedure Law of the PRC and other relevant legal provisions and in combination with legal practice.
I. General Provisions
Article 1 The Criminal Law and Criminal Procedure Law must be strictly implemented in handling death penalty cases in order to ensure the cases’ quality and that the facts are clear, the evidence is credible and sufficient, procedures are legal, and the law is applied correctly.
Article 2 The facts used to determine guilt in a case must be based on evidence.
Article 3 [Police] investigators, procurators, and judicial officers shall stringently obey legal procedure and fully and objectively collect, examine, verify, and make determinations about evidence.
Article 4 Only evidence that has been examined and verified to be true through an investigation process in court involving presentation, identification, and cross-examination may be used as a basis for conviction and determining sentence.
Article 5 In death penalty cases, determination of the facts of the defendant’s crime must be based on credible, abundant evidence.
Credible, abundant evidence means:
(1) All of the facts used to convict and determine sentence are proven by evidence;
(2) Each item of evidence used in conviction must have undergone a legal process [by which it is] examined and verified to be true;
(3) There is no contradiction between items of evidence or between an item of evidence and the facts of the case, unless the contradiction can be reasonably ruled out;
(4) In cases involving offenses committed jointly, a defendant’s position and role [in the crime] have been fully examined;
(5) The process of determining the facts of the case based on evidence comports with logic and empirical rules, and the conclusion drawn from the evidence is the only one [possible].
In handling death penalty cases, proof of each of the following facts must be based on credible, abundant evidence:
(1) [Whether] the crime charged was committed;
(2) [Whether] a defendant committed the criminal act and the time, place, manner, consequence, and other details of the criminal act committed by that defendant;
(3) Circumstances regarding a defendant’s identity that have an influence on conviction;
(4) [Whether] the defendant possesses criminal responsibility;
(5) The defendant’s culpability;
(6) Whether the offense was committed jointly and what the defendant’s position and role was in that joint offense;
(7) Facts warranting heavier punishment for the defendant.
II. Examination and Determination of Different Types of Evidence1. Physical and Documentary Evidence
Article 6 In examining physical or documentary evidence, emphasis shall be placed on the following:
(1) Whether the physical evidence is the original object or the documentary evidence is the original document; whether photographs, video recordings, or replicas of physical evidence or duplicates or facsimiles of documentary evidence match the original items or documents; whether physical or documentary evidence has been identified and verified; whether photographs, video recordings, or replicas of physical evidence or duplicates or facsimiles of documentary evidence were reproduced by more than two people; whether the producer has a signed, written explanation concerning the production process and the location of the original document or item.
(2) Whether the procedure and methods of collection for physical or documentary evidence are in compliance with the law and relevant regulations; whether physical or documentary evidence that was obtained through on-scene investigation, inspection, search, or confiscation have corresponding records or invoices; whether the records or invoices are signed by [police] investigators, the persons who possessed the items, and witnesses, and whether an explanation is provided if the signature of the person who possessed the items is absent; whether the distinguishing features, number, quality, and names of the items are clearly described.
(3) Whether physical or documentary evidence was damaged or altered in the process of collection, storage, or authentication.
(4) Whether physical or documentary evidence has any relation to the facts of a case. Whether biological evidence, traces, or items left at the scene and related to the crime, such as bloodstains, fingerprints, hair samples, or bodily fluids, that satisfy the conditions for testing have undergone DNA testing, fingerprint analysis, or other testing methods, and whether they have been determined to match relevant biological samples, biological characteristics, or items from the defendant or victim.
(5) Whether all physical or documentary evidence related to the facts of a case has been collected in full.
Article 7 If any bloodstains, fingerprints, footprints, handwriting samples, hair samples, bodily fluids, human organs, or other traces or items possibly related to the facts of a case are discovered through on-scene investigation, inspection, or search and either ought to have been recovered but were not or ought to have been tested but were not, with the result being that there remain doubts about the facts of the case, the people’s court shall explain the situation to the people’s procuratorate, and the people’s procuratorate may additionally collect or obtain evidence and produce a reasonable explanation or return the case to the investigating organ to conduct additional investigation or obtain relevant evidence.
Article 8 Physical evidence used as a basis for conviction should be the original item. Only when the original item is inconvenient to transport or difficult to preserve, or, in accordance with the law, must be kept in storage or disposed of by the relevant department or returned may a photo or video recording be shot or a replica produced that reflects the original likeness or content. A photograph, video recording, or replica of physical evidence may serve as a basis for conviction only after having been compared with the original item and found to have no errors, subjected to authentication as true, or undergone some other method able to prove it to be a true [copy]. Any photograph, video recording, or replica that does not reflect the original likeness and distinguishing features of the original may not serve as a basis for conviction.
Documentary evidence used as a basis for conviction should be the original item. Duplicates or facsimiles may only be used when there is real difficulty in obtaining the original document. Duplicates or facsimiles of documentary evidence may serve as the basis for conviction only after having been compared with the original items and found to have no errors, subjected to authentication as true, or undergone some other method able to prove it to be a true [copy]. Any documentary evidence that has been altered or shows traces of alteration that cannot be reasonably explained or any duplicate or facsimile of documentary evidence that does not reflect the original document and its content may not serve as a basis for conviction.
Article 9 Any physical or documentary evidence obtained through on-site investigation, inspection, search, or confiscation that is not accompanied by a record of on-site investigation or inspection, a search record or record of requisition, or an invoice of items confiscated may not serve as a basis for conviction if its origins cannot be verified.
If there are any of the following flaws in the procedures or methods used to collect physical or documentary evidence, [the evidence in question] may be used if the relevant officer rectifies [the error] or provides a reasonable explanation:
(1) For physical or documentary evidence that has been collected or obtained, the record of on-site investigation or inspection, search record, record of requisition, or invoice of items confiscated is not signed by the investigator, the person who possessed the items, or witness, or the distinguishing features, number, quality, or names of the items are not clearly described;
(2) For photographs, video recordings, or replicas of physical evidence or duplicates or facsimiles of documentary evidence that have been collected or obtained, there is no notation that they have been checked against the original items and found to be identical, the time of production is not noted, or the signature (chop) of the person (unit) from whom [the evidence] was collected or obtained is missing;
(3) Photographs, video recordings, or replicas of physical evidence or duplicates or facsimiles of documentary evidence do not have a written explanation from the person who produced them about the production process and the location of the original document or item or that explanation has not been signed.
(4) There are other flaws in the procedures or methods [used to] collect physical or documentary evidence.
If there are questions about the source of or collection procedures for physical or documentary evidence and no reasonable explanation is given, that physical or documentary evidence may not serve as a basis for conviction.
Article 10 Physical or documentary evidence that satisfies the conditions for identification should be identified by a party to the case or a witness, or, if necessary, submitted for authentication.
2. Witness Testimony
Article 11 In examining witness testimony, emphasis shall be placed on the following:
(1) Whether the testimony is [based on] the direct perception of the witness;
(2) Whether at the time given the testimony of the witness might be influenced by his or her age, cognitive level, capability of recollection and expression, or physiological or psychological state;
(3) Whether the witness has an interest with respect to a party in the case or the outcome of the case;
(4) Whether the testimony was obtained using procedures and methods in compliance with the law and relevant regulations; whether violence, threats, inducements, deception, or other illegal methods of obtaining evidence were used; whether there were violations of regulations requiring witnesses to be questioned individually; whether the transcript was checked for accuracy by the witness and a signature (chop) or fingerprint affixed; whether in questioning a juvenile witness his or her legal representative was called to appear and whether the legal representative did appear or not;
(5) Whether the witness testimony corroborates other testimony or evidence or whether there are contradictions;
Article 12 Witness statements obtained through violence, threats, or other illegal means may not serve as a basis for conviction.
Testimony by witnesses who are clearly under the influence of alcohol, narcotics, or psychotropic drugs such that they cannot properly express themselves may not serve as a basis for conviction.
Witness testimony involving conjecture, opinion, or inference may not be used as evidence, except empirical judgments based on daily life that accord with the facts.
Article 13 The following kinds of witness testimony may not serve as a basis for conviction:
(1) Testimony obtained without questioning witnesses individually;
(2) Written testimony that was not checked for accuracy by the witness and a signature (chop) or fingerprint affixed;
(3) Questioning of a deaf-mute or a member of an ethnic minority or foreigner who does not understand the local common vernacular or written language, when a translator should have been provided but was not.
Article 14 If there are any of the following flaws in the procedures or methods used to obtain witness testimony, [the testimony in question] may be used if the relevant officer rectifies [the error] or provides a reasonable explanation:
(1) The [record] does not provide the name of the questioner, recorder, or legal representative or the start and stop time or place of the interview;
(2) The location where the witness was interviewed does not comply with regulations;
(3) The interview record does not note that the witness was told that he or she should give a truthful statement and that intentionally giving false testimony or withholding evidence of a crime is punishable under the law;
(4) Interview records show that the same interviewer was interviewing a different witness at the same time.
Article 15 Under the following circumstances, the people’s court should call a witness to give testimony before the court. Written testimony from a witness who has been summoned in accordance with the law but who does not testify in court may not serve as a basis for conviction if there is no way to verify it under cross examination:
(1) The people’s procuratorate and the defendant and his or her defense counsel disputes the testimony of a witness and that witness testimony [will have] a major impact on conviction or sentencing;
(2) Others the people’s court determines should appear in court to give testimony.
When the testimony of a witness in court contradicts his or her pretrial testimony, if the witness can provide a reasonable explanation in court for recanting his or her [earlier] testimony and there is related evidence to corroborate it, [the court] should accept the testimony given in court.
[The court] should listen to the opinions of the procurator appearing in court and the defendant and his or her defense counsel regarding the written testimony of a witness who does not appear in court and make a general determination in consideration of other evidence. If contradictions appear in the written testimony of a non-appearing witness and those contradictions cannot be ruled out and there is no corroborating evidence, [the testimony] may not serve as a basis for conviction.
Article 16 When witness testimony concerns state secrets or individual privacy, it should be kept secret.
When a witness testifies in court, the people’s court may, if necessary, take protective measures such as restricting the publication of the identity of the witness, limiting questioning, shielding the face, or altering the voice.
3. Victim Statements
Article 17 The aforementioned provisions for witness testimony should be applied as relevant for the examination and determination of victim statements.
4. Defendant Declarations and Defense Statements
Article 18 In examining a defendant’s declarations and defense statement, emphasis shall be placed on the following:
(1) Whether the time and place of the interrogation and identity of the interrogator was, at the time of interrogation, in compliance with the law and relevant regulations; whether there were fewer than two investigators interrogating the defendant; whether defendants were interrogated individually;
(2) Whether the interrogation record was produced and revised in compliance with the law and relevant regulations; whether the interrogation record noted the start and stop times and location of the interrogation; whether at the first interrogation the defendant was told of his or her procedural rights such as [the rights] to request recusal or engage a lawyer; whether the defendant checked [the interrogation record] for accuracy and affixed a signature (chop) or fingerprint; whether fewer than two interrogators signed [the interrogation record];
(3) Whether a person proficient in sign language or a translator is present for interrogations of individuals who are deaf-mute, ethnic minorities, or foreigners; whether, in an interrogation of a juvenile accomplice, his or her legal representative was called to appear and whether or not the legal representative did appear;
(4) Whether a defendant’s declaration was obtained through illegal means such as coercing confession; if necessary, [the court] may request a defendant’s medical examination records from the time of entry in the detention center;
(5) Whether a defendant’s declarations have been consistent or, if the statements have changed, whether reasons for the changes were given; whether all of the defendant’s declarations and defense statements have been included in the case file; and, if all of the declarations and defense statements that ought to be in the file are not, whether an explanation has been provided;
(6) Whether the defendant’s defense statement comports with the circumstances of the case and common sense, or whether there are contradictions;
(7) Whether the defendant’s declaration and defense statement is consistent with the declarations and defense statements of co-defendants, or whether there are contradictions.
In the aforementioned situations, if the investigating organ has provided audiovisual documentation, it ought to be examined in combination [with the relevant declarations].
Article 19 If a defendant’s declaration has been obtained through use of illegal means such as coercing confession, it may not serve as a basis for conviction.
Article 20 Defendant declarations may not serve as a basis for conviction under the following circumstances:
(1) The interrogation transcript has not been checked for accuracy by the defendant and a signature (chop) or fingerprint affixed;
(2) Interrogation of a person who is deaf-mute or does not understand the local common vernacular or written language without providing the required person proficient in sign language or a translator.
Article 21 If there are any of the following flaws in the interrogation record, it may be used if the relevant officer rectifies [the error] or provides a reasonable explanation:
(1) The interrogation times, interrogators’ names, or name of the legal representative are recorded in error or there are contradictions;
(2) The interrogators did not sign their names;
(3) The record of the first interrogation does not note that the person being interrogated was informed of his or her procedural rights.
Article 22 [The court] should examine a defendant’s declaration and defense statement in consideration of all of the evidence submitted by the prosecution and defense as well as all of the defendant’s declarations and defense statements.
If a defendant’s pretrial declarations are consistent but he or she retracts the declaration during the trial proceeding without providing a reasonable explanation for the retraction or if the defense statement contradicts the totality of the the evidence in the case, when the pretrial declaration is corroborated by other evidence [the court] may accept the defendant’s pretrial declaration as reliable.
If a defendant has repeatedly changed his or her pretrial declaration or defense statement but admits guilt during the trial proceeding, [the court] may accept the declaration made at trial as reliable if there is other evidence that can corroborate that declaration. If a defendant has repeatedly changed his or her pretrial declaration or defense statement and does not admit guilt during the trial proceeding, without other evidence to corroborate the pretrial declaration [the court] may not accept the declaration made at trial as reliable.
5. Expert Opinions
Article 23 In examining expert opinions, emphasis shall be placed on the following:
(1) Whether the expert should have recused himself or herself but did not;
(2) Whether the expert and his or her organization possess legal qualifications;
(3) Whether the expert evaluation procedures were in compliance with the law and relevant regulations;
(4) Whether the [processes for] sourcing, obtaining, storing, and transporting the specimen were in compliance with the law and relevant regulations; whether the record of how the evidence was obtained or the invoice of items seized is in order; whether the specimen is sufficient and reliable;
(5) Whether the procedures, methods, and analytical process [used in] the expert evaluation satisfy the required professional inspection and evaluation procedures and techniques;
(6) Whether the formal criteria for the expert evaluation have been satisfied; whether the explanation includes identification of the subject for evaluation, the party requesting the evaluation, the institution conducting the evaluation, the evaluation requirements, the evaluation process, the inspection methods, and the date of the certification report; whether the expert institution has affixed the appropriate chop and the expert conducting the certification has signed [the report] and affixed a chop;
(7) Whether the expert opinion is clear;
(8) Whether the expert opinion is relevant to a fact of the case needing to be proven;
(9) Whether the expert opinion contradicts other evidence; whether the expert opinion contradicts the inspection record or relevant photographs;
(10) Whether relevant persons were notified of the expert opinion [results] in a timely manner in accordance with the law; whether the parties to the case dispute the expert opinion.
Article 24 Expert opinions may not serve as a basis for conviction under the following circumstances:
(1) The expert institution lacks the legal qualifications and capacity or the matter for certification exceeds the institution’s area of expertise or capabilities;
(2) The expert lacks the legal qualifications and capacity, lacks the relevant professional technical skills or job title, or violates the regulations on recusal;
(3) There are errors in the evaluation procedures or methods;
(4) The expert opinion has no relevance to the subject needing confirmation;
(5) The subject being evaluated is not the same as the specimen or sample that was sent for inspection;
(6) The source of the specimen or sample sent for inspection is unclear or was contaminated such that it does not meet the conditions for evaluation;
(7) There are violations of specific evaluation standards;
(8) The expert report lacks a signature or chop;
(9) Other violations of relevant regulations.
If there are questions about an expert opinion, the people’s court should call on the expert to give testimony in court or prepare an appropriate explanation, or it may also order additional evaluation or a new evaluation.
6. Records of On-Site Investigation and Inspection
Article 25 In examining records of on-site investigation and inspection, emphasis shall be placed on the following:
(1) Whether the on-site investigation or inspection was conducted in accordance with the law; whether the record was produced in compliance with the requirements of the law and relevant regulations; whether the officers conducting the on-site investigation or inspection and witnesses signed the report or affixed their chops;
(2) Whether the record of on-site investigation or inspection is complete, detailed, accurate, and standard in format; whether the subject, time, place, persons on the scene, scene location, and surrounding environment of an on-site investigation or inspection are recorded accurately; whether the location and characteristics of the scene, items, individuals, and corpses, as well as the process of on-site investigation or inspection are accurately recorded; whether the written description matches physical objects or drawings, video recordings, or photos; whether the manner and methods used to fix [the location] of evidence is scientific and standard; whether the crime scene, items, or traces were damaged or fabricated and whether the crime scene was in its original state; whether distinguishing features or injuries of individuals were disguised or altered;
(3) When additional on-site investigation or inspection is carried out, whether there are contradictions with [earlier] investigations and whether reasons can be provided to explain the need for additional on-site investigation or inspection;
(4) Whether the record of on-site investigation or inspection corroborates or contradicts other evidence, such as the defendant’s declaration, the victim’s statement, or the expert opinion.
Article 26 If a record of on-site investigation or inspection clearly does not comply with the law and relevant regulations and no reasonable explanation is provided, it may not be used as evidence.
If a record of on-site investigation or inspection does not list any witnesses, if the investigating officer(s) or witnesses did not sign [the record] or affix a chop, or if the investigating officer(s) violated the regulations on recusal, [the court] should consider other evidence in the case in examining the authenticity and relevance [of the record in question].
7. Audiovisual Materials
Article 27 In examining audiovisual materials, emphasis shall be placed on the following:
(1) Whether the source of the audiovisual materials is legal and whether threats, inducements, or other violations of the law and relevant regulations were used against the party in the course of production;
(2) Whether the identity of the producer or the possessor and the time, place, and conditions of production are clearly stated;
(3) Whether [the material] is the original or, if a reproduction, how many copies there are; if the audiovisual material obtained is a reproduction, whether an explanation is provided regarding the inability to obtain the original, the process of reproduction, and the location of the original; whether the signature or chop of the reproducer and the person in possession of the original audiovisual material [has been provided];
(4) Whether the content and production process are authentic or whether [the material] has undergone rearrangement, addition, deletion, editing or other fabrication or alteration;
(5) Whether the content is relevant to the facts of the case.
If there are questions about audiovisual materials, an expert evaluation should be conducted.
The authenticity and relevance of audiovisual materials should be examined in consideration of other case evidence.
Article 28 Audiovisual materials may not serve as a basis for conviction under the following circumstances:
(1) The authenticity of the audiovisual materials cannot be established following examination or expert evaluation;
(2) There is dispute about the production of the audiovisual materials or the time, place, and manner with which they were obtained and no reasonable explanation or requisite proof can be provided.
8. Other Provisions
Article 29 In examining electronic evidence such as electronic mail, electronic data exchange, online chat transcripts, blogs, mobile telephone text messages, or electronic signatures or domain names, emphasis shall be placed on the following:
(1) Whether electronic evidence stored on a storage medium such as a computer disk or CD has been submitted together with the printed version;
(2) Whether the time, place, target, producer, production process, and equipment for the electronic evidence is clearly stated;
(3) Whether production, storage, transfer, access, collection, and presentation [of the electronic evidence] were carried out legally and whether individuals obtaining, producing, possessing, and witnessing the evidence affixed their signature or chop;
(4) Whether the content is authentic or whether it has undergone cutting, combination, tampering, or augmentation or other fabrication or alteration;
(5) Whether the electronic evidence is relevant to the facts of the case.
If there are questions about electronic evidence, an expert evaluation should be conducted.
The authenticity and relevance of electronic evidence should be examined in consideration of other case evidence.
Article 30 Under the following circumstances, identification [of evidence] arranged by the investigating organ shall be carefully examined and may not serve as a basis for conviction if their authenticity cannot be verified:
(1) The identification was not conducted under the direction of the investigating officer(s);
(2) The person doing the identification was shown the target of identification beforehand;
(3) Persons doing the identification did not carry out the identification process individually;
(4) Except specifically in the identification of corpses and locations, the identification target was not placed in the midst of other targets with similar distinguishing characteristics, or the number of targets provided for identification did not comply with regulations;
(5) The person doing the identification was clearly given a hint or there is suspicion that he or she was instructed about what to identify.
Identification results may be used as evidence under the following circumstances if the relevant officer rectifies [the error] or provides a reasonable explanation:
(1) The identification was directed by fewer than two investigators;
(2) The person doing the identification was not asked detailed questions about specific distinguishing characteristics of the identification target;
(3) No standardized identification record was produced specifically to document the process and results of identification or the investigator(s), person doing the identification, or witness did not sign or affix a chop to the identification record;
(4) The identification record is too simple, with only results and no [record of the] process;
(5) The case file has only the identification record and no photos or video of the investigation target, so that there is no way to know whether the identification was authentic.
Article 31 In examining documents such as the investigating organ’s record of how a case was solved, it should be noted whether the explanatory document is signed by the officer(s) in charge and the chop of the organ in charge affixed.
If there are questions about how a case was solved or there are questions about the basis by which suspicion of a defendant was determined to be major, additional explanation from the investigating organ shall be requested.
III. General Examination and Use of Evidence
Article 32 The probative force of evidence shall be examined and judged in combination with the specifics of the case, the degree of relevance between each item of evidence and the fact to be proven, and the relationship between items of evidence.
Only pieces of evidence that are intrinsically related, that together point toward a fact to be proven, and that reasonably rule out contradictions may serve as a basis for conviction.
Article 33 If no direct evidence exists to prove that a criminal act was committed by the defendant, the defendant may still be convicted if the following conditions are met:
(1) Indirect evidence to be used as the basis for conviction has been examined and verified to be true;
(2) Indirect evidence to be used as the basis for conviction is mutually corroborating, there are no contradictions that cannot be rule out or questions that cannot be explained;
(3) Indirect evidence to be used as the basis for conviction forms a complete body of proof;
(4) The facts of the case established by the indirect evidence lead to only one conclusion and can rule out all reasonable doubt;
(5) The reasoning with which the indirect evidence is used comports with logic and empirical judgment.
Extreme caution should be used in imposing the death penalty for a conviction based on indirect evidence.
Article 34 Deeply concealed physical or documentary evidence uncovered through a declaration or identification made by the defendant may [be used] to convict if it is corroborated by other evidence proving the fact of the crime and the possibility that the statement was based on collusion, coercion, or inducement can be ruled out.
Article 35 Physical, documentary, and other evidence collected by the investigating organ using special investigative measures in accordance with relevant regulations may serve as a basis for conviction if the court has verified it to be true.
The court shall, in accordance with the law, not reveal procedures and methods [used in] special investigative measures.
Article 36 Once the defendant has been convicted, the people’s court should examine the following circumstances having an influence on sentencing, in addition to those that are specified by law:
(1) The cause of the crime;
(2) Whether the victim was at fault and the degree of fault and whether [the victim] was responsible for exacerbating a conflict and the degree of responsibility;
(3) Whether the defendant’s immediate family members assisted in apprehending the defendant;
(4) The defendant’s normal behavior and whether he or she has shown remorse;
(5) Whether the victim filed an associated civil suit for compensation and whether the victim or the victim’s immediate family have shown understanding toward the defendant;
(6) Other circumstances influencing sentencing.
If there are circumstances that warrant lenient or reduced punishment as well as circumstances that warrant heavier punishment, [the court] shall consider the circumstances in their entirety in accordance with the law.
If circumstances warranting lenient or reduced punishment cannot be ruled out, extreme care should be used in imposing the death penalty.
Article 37 Evidence should be used with care in the following circumstances and accepted as reliable if other evidence can corroborate it:
(1) Statements, testimony, or declarations made by victims, witnesses, or defendants who are physically or mentally handicapped, who have definite difficulty in understanding or expression with respect to the facts of the case but who have not [fully] lost their ability to understand and express themselves properly;
(2) Testimony benefiting a defendant given by a witness who is a relative or having other close ties to that defendant, or testimony harmful to a defendant given by a witness having a conflict of interest with that defendant.
Article 38 If the court has questions about evidence, it may call on the appointed procurator or the defendant and his or her defense counsel to produce additional evidence or provide an explanation. If it is necessary to conduct verification, [the court] may call a recess in order to investigate and verify evidence. If the court conducts an external investigation outside the courthouse, it may, if necessary, call on the appointed procurator and defense counsel to be present. If either the appointed procurator or the defense counsel or both parties are not present, the court’s record shall become part of the case file.
The court may solicit opinions from the appointed procurator and defense counsel regarding evidence supplemented by the people’s procuratorate or defense counsel or obtained through the court’s external investigation and verification. If the two sides are not in agreement and one side requests that the court hold a hearing to investigate, the court shall hold a hearing.
Article 39 If a defendant and his or her defense counsel claim [that the defendant] voluntarily surrendered but the relevant organ has not established this fact, [the court] shall request that the relevant organ provide documentation or request that the relevant personnel testify and judge, in consideration of other evidence, whether [the claim of] surrender is valid.
If there is incomplete documentation to prove whether or how a defendant assisted in the apprehension of other co-defendants such that it is impossible to determine whether the defendant rendered meritorious service, [the court] shall request that the relevant organ provide documentation or request that the relevant personnel testify and judge, in consideration of other evidence, whether [the claim of] meritorious service is valid.
If a defendant reported or exposed crimes committed by another person, [the court] should examine whether or not the veracity [of the report] has been investigated; if it has not been investigated, it shall be investigated at once.
If there is incomplete documentation to prove whether the defendant is a repeat offender, [the court] shall request the relevant organ provide documentation.
Article 40 Generally, [the court] shall use household registration records as a basis of proof in examining whether a defendant was at least 18 years old at the time the crime was committed. If there is a dispute over the household registration records and investigation finds there to be valid documentation of birth or testimony from an uninterested party confirming that the defendant was not at least 18 years old, [the court] should find that the defendant was not 18 years old. If there is no household registration record or documentation of birth, [the court] shall make a general judgment based on census records, testimony from an uninterested party, or other evidence; if necessary, [the court] may conduct an investigation of skeletal age and use the results as a reference in judging the defendant’s age.
When contradictions between items of evidence cannot be ruled out and there is insufficient evidence to prove that a defendant was at least 18 years old at the time the alleged crime was committed, if there is truly no way to determine [the truth, the court] may not determine that he or she was at least 18 years old.
Article 41 These rules take effect on July 1, 2010.
关于办理死刑案件审查判断证据若干问题的规定
为依法、公正、准确、慎重地办理死刑案件，惩罚犯罪，保障人权，根据《中华人民共和国刑事诉讼法》等有关法律规定，结合司法实际，制定本规定。
一、一般规定
第一条 办理死刑案件，必须严格执行刑法和刑事诉讼法，切实做到事实清楚，证据确实、充分，程序合法，适用法律正确，确保案件质量。
第二条 认定案件事实，必须以证据为根据。
第三条 侦查人员、检察人员、审判人员应当严格遵守法定程序，全面、客观地收集、审查、核实和认定证据。
第四条 经过当庭出示、辨认、质证等法庭调查程序查证属实的证据，才能作为定罪量刑的根据。
第五条 办理死刑案件，对被告人犯罪事实的认定，必须达到证据确实、充分。
证据确实、充分是指:
(一) 定罪量刑的事实都有证据证明;
(二)每一个定案的证据均已经法定程序查证属实;
(三)证据与证据之间、证据与案件事实之间不存在矛盾或者矛盾得以合理排除;
(四)共同犯罪案件中，被告人的地位、作用均已查清;
(五) 根据证据认定案件事实的过程符合逻辑和经验规则，由证据得出的结论为唯一结论。
办理死刑案件，对于以下事实的证明必须达到证据确实、充分:
(一)被指控的犯罪事实的发生;
(二)被告人实施了犯罪行为与被告人实施犯罪行为的时间、地点、手段、后果以及其他情节;
(三)影响被告人定罪的身份情况;(四)被告人有刑事责任能力;(五)被告人的罪过;
(六)是否共同犯罪及被告人在共同犯罪中的地位、作用;
(七)对被告人从重处罚的事实。
二、证据的分类审查与认定 1、物证、书证
第六条 对物证、书证应当着重审查以下内容:
(一)物证、书证是否为原物、原件，物证的照片、录像或者复制品及书证的副本、复制件与原物、原件是否相符;物证、书证是否经过辨认、鉴定;物证的照片、 录像或者复制品和书证的副本、复制件是否由二人以上制作，有无制作人关于制作过程及原件、原物存放于何处的文字说明及签名。
(二)物证、书证的收集程序、方式是否符合法律及有关规定;经勘验、检查、搜查提取、扣押的物证、书证，是否附有相关笔录或者清单;笔录或者清单是否有侦 查人员、物品持有人、见证人签名，没有物品持有人签名的，是否注明原因;对物品的特征、数量、质量、名称等注明是否清楚。
(三)物证、书证在收集、保管及鉴定过程中是否受到破坏或者改变。
(四) 物证、书证与案件事实有无关联。对现场遗留与犯罪有关的具备检验鉴定条件的血迹、指纹、毛发、体液等生物物证、痕迹、物品，是否通过DNA鉴定、指纹鉴定等鉴定方式与被告人或者被害人的相应生物检材、生物特征、物品等作同一认定。
(五)与案件事实有关联的物证、书证是否全面收集。
第七条 对在勘验、检查、搜查中发现与案件事实可能有关联的血迹、指纹、足迹、字迹、毛发、体液、人体组织等痕迹和物品应当提取而没有提取，应当检验而没 有检验，导致案件事实存疑的，人民法院应当向人民检察院说明情况，人民检察院依法可以补充收集、调取证据，作出合理的说明或者退回侦查机关补充侦查，调取 有关证据。
第八条 据以定案的物证应当是原物。只有在原物不便搬运、不易保存或者依法应当由有关部门保管、处理或者依法应当返还时，才可以拍摄或者制作足以反映原物 外形或者内容的照片、录像或者复制品。物证的照片、录像或者复制品，经与原物核实无误或者经鉴定证明为真实的，或者以其他方式确能证明其真实的，可以作为 定案的根据。原物的照片、录像或者复制品，不能反映原物的外形和特征的，不能作为定案的根据。
据以定案的书证应当是原件。只有在取得原件确有困难时，才可以使用副本或者复制件。书证的副本、复制件，经与原件核实无误或者经鉴定证明为真实的，或者以 其他方式确能证明其真实的，可以作为定案的根据。书证有更改或者更改迹象不能作出合理解释的，书证的副本、复制件不能反映书证原件及其内容的，不能作为定 案的根据。
第九条 经勘验、检查、搜查提取、扣押的物证、书证，未附有勘验、检查笔录，搜查笔录，提取笔录，扣押清单，不能证明物证、书证来源的，不能作为定案的根据。
物证、书证的收集程序、方式存在下列瑕疵，通过有关办案人员的补正或者作出合理解释的，可以采用:
(一)收集调取的物证、书证，在勘验、检查笔录，搜查笔录，提取笔录，扣押清单上没有侦查人员、物品持有人、见证人签名或者物品特征、数量、质量、名称等注明不详的;
(二)收集调取物证照片、录像或者复制品，书证的副本、复制件未注明与原件核对无异，无复制时间、无被收集、调取人(单位)签名(盖章)的;
(三) 物证照片、录像或者复制品，书证的副本、复制件没有制作人关于制作过程及原物、原件存放于何处的说明或者说明中无签名的;
(四) 物证、书证的收集程序、方式存在其他瑕疵的。
对物证、书证的来源及收集过程有疑问，不能作出合理解释的，该物证、书证不能作为定案的根据。
第十条 具备辨认条件的物证、书证应当交由当事人或者证人进行辨认，必要时应当进行鉴定。 2、证人证言
第十一条 对证人证言应当着重审查以下内容:(一)证言的内容是否为证人直接感知。
(二) 证人作证时的年龄、认知水平、记忆能力和表达能力，生理上和精神上的状态是否影响作证。
(三)证人与案件当事人、案件处理结果有无利害关系。(四)证言的取得程序、方式是否符合法律及有关规定:有无使用暴力、威胁、引诱、欺骗以及其他非法手 段取证的情形;有无违反询问证人应当个别进行的规定;笔录是否经证人核对确认并签名(盖章)、捺指印;询问未成年证人，是否通知了其法定代理人到场，其法 定代理人是否在场等。
(五) 证人证言之间以及与其他证据之间能否相互印证，有无矛盾。
第十二条 以暴力、威胁等非法手段取得的证人证言，不能作为定案的根据。
处于明显醉酒、麻醉品中毒或者精神药物麻醉状态，以致不能正确表达的证人所提供的证言，不能作为定案的根据。
证人的猜测性、评论性、推断性的证言，不能作为证据使用，但根据一般生活经验判断符合事实的除外。
第十三条 具有下列情形之一的证人证言，不能作为定案的根据:
(一)询问证人没有个别进行而取得的证言;
(二)没有经证人核对确认并签名(盖章)、捺指印的书面证言;
(三)询问聋哑人或者不通晓当地通用语言、文字的少数民族人员、外国人，应当提供翻译而未提供的。
第十四条 证人证言的收集程序和方式有下列瑕疵，通过有关办案人员的补正或者作出合理解释的，可以采用:
(一)没有填写询问人、记录人、法定代理人姓名或者询问的起止时间、地点的;
(二)询问证人的地点不符合规定的;
(三)询问笔录没有记录告知证人应当如实提供证言和有意作伪证或者隐匿罪证要负法律责任内容的;
(四) 询问笔录反映出在同一时间段内，同一询问人员询问不同证人的。
第十五条 具有下列情形的证人，人民法院应当通知出庭作证;经依法通知不出庭作证证人的书面证言经质证无法确认的，不能作为定案的根据:
(一)人民检察院、被告人及其辩护人对证人证言有异议，该证人证言对定罪量刑有重大影响的;
(二)人民法院认为其他应当出庭作证的。
证人在法庭上的证言与其庭前证言相互矛盾，如果证人当庭能够对其翻证作出合理解释，并有相关证据印证的，应当采信庭审证言。
对未出庭作证证人的书面证言，应当听取出庭检察人员、被告人及其辩护人的意见，并结合其他证据综合判断。未出庭作证证人的书面证言出现矛盾，不能排除矛盾且无证据印证的，不能作为定案的根据。
第十六条 证人作证，涉及国家秘密或者个人隐私的，应当保守秘密。
证人出庭作证，必要时，人民法院可以采取限制公开证人信息、限制询问、遮蔽容貌、改变声音等保护性措施。3、被害人陈述
第十七条 对被害人陈述的审查与认定适用前述关于证人证言的有关规定。
4、被告人供述和辩解
第十八条 对被告人供述和辩解应当着重审查以下内容:(一)讯问的时间、地点、讯问人的身份等是否符合法律及有关规定，讯问被告人的侦查人员是否不少于二人，讯问被告人是否个别进行等。
(二)讯问笔录的制作、修改是否符合法律及有关规定，讯问笔录是否注明讯问的起止时间和讯问地点，首次讯问时是否告知被告人申请回避、聘请律师等诉讼权利，被告人是否核对确认并签名(盖章)、捺指印，是否有不少于二人的讯问人签名等。
(三) 讯问聋哑人、少数民族人员、外国人时是否提供了通晓聋、哑手势的人员或者翻译人员，讯问未成年同案犯时，是否通知了其法定代理人到场，其法定代理人是否在场。
(四)被告人的供述有无以刑讯逼供等非法手段获取的情形，必要时可以调取被告人进出看守所的健康检查记录、笔录。
(五) 被告人的供述是否前后一致，有无反复以及出现反复的原因;被告人的所有供述和辩解是否均已收集入卷;应当入卷的供述和辩解没有入卷的，是否出具了相关说明。
(六)被告人的辩解内容是否符合案情和常理，有无矛盾。(七)被告人的供述和辩解与同案犯的供述和辩解以及其他证据能否相互印证，有无矛盾。
对于上述内容，侦查机关随案移送有录音录像资料的，应当结合相关录音录像资料进行审查。
第十九条 采用刑讯逼供等非法手段取得的被告人供述，不能作为定案的根据。
第二十条 具有下列情形之一的被告人供述，不能作为定案的根据:
(一)讯问笔录没有经被告人核对确认并签名(盖章)、捺指印的;
(二)讯问聋哑人、不通晓当地通用语言、文字的人员时，应当提供通晓聋、哑手势的人员或者翻译人员而未提供的。
第二十一条 讯问笔录有下列瑕疵，通过有关办案人员的补正或者作出合理解释的，可以采用:
(一)笔录填写的讯问时间、讯问人、记录人、法定代理人等有误或者存在矛盾的;
(二)讯问人没有签名的;
(三)首次讯问笔录没有记录告知被讯问人诉讼权利内容的。
第二十二条 对被告人供述和辩解的审查，应当结合控辩双方提供的所有证据以及被告人本人的全部供述和辩解进行。
被告人庭前供述一致，庭审中翻供，但被告人不能合理说明翻供理由或者其辩解与全案证据相矛盾，而庭前供述与其他证据能够相互印证的，可以采信被告人庭前供述。
被告人庭前供述和辩解出现反复，但庭审中供认的，且庭审中的供述与其他证据能够印证的，可以采信庭审中的供述;被告人庭前供述和辩解出现反复，庭审中不供认，且无其他证据与庭前供述印证的，不能采信庭前供述。5、鉴定意见
第二十三条 对鉴定意见应当着重审查以下内容:(一)鉴定人是否存在应当回避而未回避的情形。(二)鉴定机构和鉴定人是否具有合法的资质。(三)鉴定程序是否符合法律及有关规定。
(四)检材的来源、取得、保管、送检是否符合法律及有关规定，与相关提取笔录、扣押物品清单等记载的内容是否相符，检材是否充足、可靠。
(五)鉴定的程序、方法、分析过程是否符合本专业的检验鉴定规程和技术方法要求。
(六) 鉴定意见的形式要件是否完备，是否注明提起鉴定的事由、鉴定委托人、鉴定机构、鉴定要求、鉴定过程、检验方法、鉴定文书的日期等相关内容，是否由鉴定机构加盖鉴定专用章并由鉴定人签名盖章。
(七)鉴定意见是否明确。
(八)鉴定意见与案件待证事实有无关联。
(九)鉴定意见与其他证据之间是否有矛盾，鉴定意见与检验笔录及相关照片是否有矛盾。
(十) 鉴定意见是否依法及时告知相关人员，当事人对鉴定意见是否有异议。
第二十四条 鉴定意见具有下列情形之一的，不能作为定案的根据:
(一)鉴定机构不具备法定的资格和条件，或者鉴定事项超出本鉴定机构项目范围或者鉴定能力的;
(二) 鉴定人不具备法定的资格和条件、鉴定人不具有相关专业技术或者职称、鉴定人违反回避规定的;
(三)鉴定程序、方法有错误的;
(四)鉴定意见与证明对象没有关联的;
(五)鉴定对象与送检材料、样本不一致的;
(六) 送检材料、样本来源不明或者确实被污染且不具备鉴定条件的;
(七)违反有关鉴定特定标准的;
(八) 鉴定文书缺少签名、盖章的;(九)其他违反有关规定的情形。
对鉴定意见有疑问的，人民法院应当依法通知鉴定人出庭作证或者由其出具相关说明，也可以依法补充鉴定或者重新鉴定。
6、勘验、检查笔录
第二十五条 对勘验、检查笔录应当着重审查以下内容:(一)勘验、检查是否依法进行，笔录的制作是否符合法律及有关规定的要求，勘验、检查人员和见证人是否签名或者盖章等。
(二) 勘验、检查笔录的内容是否全面、详细、准确、规范:是否准确记录了提起勘验、检查的事由，勘验、检查的时间、地点，在场人员、现场方位、周围环境等情况; 是否准确记载了现场、物品、人身、尸体等的位置、特征等详细情况以及勘验、检查、搜查的过程;文字记载与实物或者绘图、录像、照片是否相符;固定证据的形 式、方法是否科学、规范;现场、物品、痕迹等是否被破坏或者伪造，是否是原始现场;人身特征、伤害情况、生理状况有无伪装或者变化等。
(三) 补充进行勘验、检查的，前后勘验、检查的情况是否有矛盾，是否说明了再次勘验、检查的原由。
(四)勘验、检查笔录中记载的情况与被告人供述、被害人陈述、鉴定意见等其他证据能否印证，有无矛盾。
第二十六条 勘验、检查笔录存在明显不符合法律及有关规定的情形，并且不能作出合理解释或者说明的，不能作为证据使用。
勘验、检查笔录存在勘验、检查没有见证人的，勘验、检查人员和见证人没有签名、盖章的，勘验、检查人员违反回避规定的等情形，应当结合案件其他证据，审查其真实性和关联性。
7、视听资料
第二十七条 对视听资料应当着重审查以下内容:
(一)视听资料的来源是否合法，制作过程中当事人有无受到威胁、引诱等违反法律及有关规定的情形;
(二)是否载明制作人或者持有人的身份，制作的时间、地点和条件以及制作方法;
(三)是否为原件，有无复制及复制份数;调取的视听资料是复制件的，是否附有无法调取原件的原因、制作过程和原件存放地点的说明，是否有制作人和原视听资料持有人签名或者盖章;
(四)内容和制作过程是否真实，有无经过剪辑、增加、删改、编辑等伪造、变造情形;
(五)内容与案件事实有无关联性。
对视听资料有疑问的，应当进行鉴定。
对视听资料，应当结合案件其他证据，审查其真实性和关联性。
第二十八条 具有下列情形之一的视听资料，不能作为定案的根据:
(一)视听资料经审查或者鉴定无法确定真伪的;
(二)对视听资料的制作和取得的时间、地点、方式等有异议，不能作出合理解释或者提供必要证明的。8、其他规定
第二十九条 对于电子邮件、电子数据交换、网上聊天记录、网络博客、手机短信、电子签名、域名等电子证据，应当主要审查以下内容:
(一)该电子证据存储磁盘、存储光盘等可移动存储介质是否与打印件一并提交;
(二)是否载明该电子证据形成的时间、地点、对象、制作人、制作过程及设备情况等;
(三)制作、储存、传递、获得、收集、出示等程序和环节是否合法，取证人、制作人、持有人、见证人等是否签名或者盖章;
(四)内容是否真实，有无剪裁、拼凑、篡改、添加等伪造、变造情形;
(五)该电子证据与案件事实有无关联性。对电子证据有疑问的，应当进行鉴定。
对电子证据，应当结合案件其他证据，审查其真实性和关联性。
第三十条 侦查机关组织的辨认，存在下列情形之一的，应当严格审查，不能确定其真实性的，辨认结果不能作为定案的根据:
(一)辨认不是在侦查人员主持下进行的;(二)辨认前使辨认人见到辨认对象的;
(三)辨认人的辨认活动没有个别进行的;
(四)辨认对象没有混杂在具有类似特征的其他对象中，或者供辨认的对象数量不符合规定的;尸体、场所等特定辨认对象除外。
(五)辨认中给辨认人明显暗示或者明显有指认嫌疑的。有下列情形之一的，通过有关办案人员的补正或者作出合理解释的，辨认结果可以作为证据使用:
(一)主持辨认的侦查人员少于二人的;
(二) 没有向辨认人详细询问辨认对象的具体特征的;(三)对辨认经过和结果没有制作专门的规范的辨认笔录，或者辨认笔录没有侦查人员、辨认人、见证人的签名或者盖章的;
(四)辨认记录过于简单，只有结果没有过程的;
(五)案卷中只有辨认笔录，没有被辨认对象的照片、录像等资料，无法获悉辨认的真实情况的。
第三十一条 对侦查机关出具的破案经过等材料，应当审查是否有出具该说明材料的办案人、办案机关的签字或者盖章。
对破案经过有疑问，或者对确定被告人有重大嫌疑的根据有疑问的，应当要求侦查机关补充说明。
三、证据的综合审查和运用
第三十二条 对证据的证明力，应当结合案件的具体情况，从各证据与待证事实的关联程度、各证据之间的联系等方面进行审查判断。
证据之间具有内在的联系，共同指向同一待证事实，且能合理排除矛盾的，才能作为定案的根据。
第三十三条 没有直接证据证明犯罪行为系被告人实施，但同时符合下列条件的可以认定被告人有罪:
(一)据以定案的间接证据已经查证属实;
(二) 据以定案的间接证据之间相互印证，不存在无法排除的矛盾和无法解释的疑问;
(三)据以定案的间接证据已经形成完整的证明体系;
(四)依据间接证据认定的案件事实，结论是唯一的，足以排除一切合理怀疑;
(五)运用间接证据进行的推理符合逻辑和经验判断。根据间接证据定案的，判处死刑应当特别慎重。
第三十四条 根据被告人的供述、指认提取到了隐蔽性很强的物证、书证，且与其他证明犯罪事实发生的证据互相印证，并排除串供、逼供、诱供等可能性的，可以认定有罪。
第三十五条 侦查机关依照有关规定采用特殊侦查措施所收集的物证、书证及其他证据材料，经法庭查证属实，可以作为定案的根据。
法庭依法不公开特殊侦查措施的过程及方法。
第三十六条 在对被告人作出有罪认定后，人民法院认定被告人的量刑事实，除审查法定情节外，还应审查以下影响量刑的情节:
(一)案件起因;
(二)被害人有无过错及过错程度，是否对矛盾激化负有责任及责任大小;
(三)被告人的近亲属是否协助抓获被告人;(四)被告人平时表现及有无悔罪态度;
(五) 被害人附带民事诉讼赔偿情况，被告人是否取得被害人或者被害人近亲属谅解;
(六)其他影响量刑的情节。
既有从轻、减轻处罚等情节，又有从重处罚等情节的，应当依法综合相关情节予以考虑。
不能排除被告人具有从轻、减轻处罚等量刑情节的，判处死刑应当特别慎重。
第三十七条 对于有下列情形的证据应当慎重使用，有其他证据印证的，可以采信:
(一) 生理上、精神上有缺陷的被害人、证人和被告人，在对案件事实的认知和表达上存在一定困难，但尚未丧失正确认知、正确表达能力而作的陈述、证言和供述;
(二) 与被告人有亲属关系或者其他密切关系的证人所作的对该被告人有利的证言，或者与被告人有利害冲突的证人所作的对该被告人不利的证言。
第三十八条 法庭对证据有疑问的，可以告知出庭检察人员、被告人及其辩护人补充证据或者作出说明;确有核实必要的，可以宣布休庭，对证据进行调查核实。法 庭进行庭外调查时，必要时，可以通知出庭检察人员、辩护人到场。出庭检察人员、辩护人一方或者双方不到场的，法庭记录在案。
人民检察院、辩护人补充的和法庭庭外调查核实取得的证据，法庭可以庭外征求出庭检察人员、辩护人的意见。双方意见不一致，有一方要求人民法院开庭进行调查的，人民法院应当开庭。
第三十九条 被告人及其辩护人提出有自首的事实及理由，有关机关未予认定的，应当要求有关机关提供证明材料或者要求相关人员作证，并结合其他证据判断自首是否成立。
被告人是否协助或者如何协助抓获同案犯的证明材料不全，导致无法认定被告人构成立功的，应当要求有关机关提供证明材料或者要求相关人员作证，并结合其他证据判断立功是否成立。
被告人有检举揭发他人犯罪情形的，应当审查是否已经查证属实;尚未查证的，应当及时查证。
被告人累犯的证明材料不全，应当要求有关机关提供证明材料。
第四十条 审查被告人实施犯罪时是否已满十八周岁，一般应当以户籍证明为依据;对户籍证明有异议，并有经查证属实的出生证明文件、无利害关系人的证言等证 据证明被告人不满十八周岁的，应认定被告人不满十八周岁;没有户籍证明以及出生证明文件的，应当根据人口普查登记、无利害关系人的证言等证据综合进行判 断，必要时，可以进行骨龄鉴定，并将结果作为判断被告人年龄的参考。
未排除证据之间的矛盾，无充分证据证明被告人实施被指控的犯罪时已满十八周岁且确实无法查明的，不能认定其已满十八周岁。
第四十一条 本规定自二O一O年七月一日起施行。