A Dialogue Between Law and History by Unknown

Author:Unknown
Language: eng
Format: epub
ISBN: 9789811596858
Publisher: Springer Singapore

4.4 External Constraints upon the Subjective Standard: The Independence and Legitimacy of Judicial Adjudication

To prevent the judge from abusing the standard of “beyond a reasonable doubt” and to prevent the misjudgment of facts, other than introducing some measures from the objective aspect, it is necessary to introduce external constraints. These institutional constraints contain a wide range of content, but in summary, the core is that judicial adjudication should be independent and justified.

When judging whether a case has been proved “beyond a reasonable doubt”, the judge can normally make a general judgment based on rationality, experience and conscience. However, in a case with “reasonable doubts” about the defendant’s criminal facts, whether the judge dares to render an acquittal is another question. According to the judicial practice in China, almost all criminal cases that have later been proved to be “wrongful convictions” have formed some degree of “reasonable doubt” in the trial process. These doubts are either reflected in contradictions between the evidence, which cannot corroborate each other, or that the same witnesses or defendants have made contradictory statements, or that the evidence cannot be integrated to form a chain of evidence, or that “the possibility that the defendant did not commit the criminal act, or others have committed the criminal act, cannot be excluded”. Regrettably, even the presiding judge who has a reasonable doubt about the case cannot change the conclusion of a guilty sentence, because the judge does not have true independent jurisdiction over the case, and it is impossible to make the final adjudication based on his/her inner conviction. The court’s internal administrative approval of the case, the trial committee’s discussion about the case, and various forms of judicial intervention outside the court have led the court to hand down guilty sentences in the cases, which have not been proved “beyond a reasonable doubt”. Naturally, sometimes in cases where the defendant cannot be acquitted, due to external intervention, the court will also render a guilty sentence with “flexible verdicts”.

For a judge without independent jurisdiction, it is of no practical significance to establish a standard of “solid and sufficient evidence” or “beyond a reasonable doubt”. To transition from the original judicial proof system that paid too much attention to objective standards, to the subjective standard of proof that values the inner conviction of the judge, at a minimum the independence of the judge should be guaranteed. In this respect, the independence of adjudication should be ensured to give the judge independent authority to render an acquittal when “reasonable doubt” cannot be eliminated.

In addition to maintaining independence, the legitimacy of the court’s adjudication also needs to be highly valued, especially with regard to the legitimacy of the trial proceedings. In order to avoid the judge’s abuse of inner conviction, it is necessary to fully establish the principle of direct and verbal trial, so that the judge can completely eliminate the reliance on the case files of the public prosecution and determine the facts from the evidence, cross-examination, and debates of the evidence in the court.

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