As the saying goes, seeking truth from facts, but what is meant by “facts” is undoubtedly the primary problem. Especially in the field of criminal offenses, special emphasis is placed on the facts as the basis and the law as the criterion. Only by clarifying the facts can the law be accurately applied. Most of the crimes occurred in the past. What is the truth at the scene requires a restoration process, and this process is very easy to make mistakes. Reconstructing a crime scene retrospectively is very different from knowing and clarifying “is this a bridge or a flower”.
Of course, it is very fortunate to be able to catch the current criminal, and the so-called current criminal is just that there are witnesses. Cases without witnesses are the majority. These cases need to connect many other evidences to form a complete, closed-loop evidence chain to determine what happened in the “past”. However, factors such as the sudden occurrence of the incident or the fact that the perpetrator is not of the same race as the perpetrator affect the judgment of the incident and the discrimination of the person. Even the witnesses and the victim themselves may sometimes look away.
The truth of past crimes is difficult to find out, and a serious criminal procedure is needed to reconstruct the case. This process is very similar to archaeology, and can only gradually restore a certain historical scene like a puzzle based on the evidence that is continuously excavated and salvaged. The image of the puzzle connects the solving of the case with the archaeology. The so-called one piece of evidence says one piece. The more complete the puzzle, the closer to the truth, but in fact, some of the pieces are chaotic and disorderly, while others are hard to find, which interferes with the puzzle and even leads to wrong stitching. Moreover, not every piece has the same value. Take the face puzzle as an example. No matter how many pieces of collar, hair, beard, and forehead, it is not enough to show the true face. Key parts such as eyes and nose are needed, and they are missing. The parts, such as removing the eyes, cannot be identified, but if there are only two eyes, it is also unrecognizable. It can be seen that the puzzle of the puzzle lies in how many pieces are enough to be determined, and how few pieces there will be no truth. It is indescribable.
The puzzle metaphor also has a wake-up function: if you know what the final piece will look like, it will be easier to complete. Just as the prior knowledge and judgment of an ancient tomb in the process of archaeology will affect the determination of the nature of the unearthed cultural relics, the inner conviction of the truth of the crime in criminal prosecution will affect the collection of evidence and the judgment of the power of proof, making the investigation The activity proceeded firmly in the direction of prejudgment, allowing the evidence and its links to serve the existing conclusions in the heart, ignoring the defense opinions, so as to cast a lot of grievances. Without knowing the whole picture of the puzzle in advance, after a certain stage of the puzzle, the remaining pieces may not be unique, and there are often more than one choice. That is, extracting piece A will show the face of A, and extracting piece B will show the face of B. At this time, the investigators’ personal desires, emotions, or likes and dislikes all play a big role, affecting the course of the case. Because the puzzle continues to expand, the truth seems to be only one step away, and the impulse to solve the case makes people want to stop, so he chooses based on experience or intuition. One piece.
However, jigsaw puzzles can continue trial and error, but investigative activities cannot be repeated. One choice is very likely to doom the suspect’s future destiny. Therefore, criminal litigation begins with the filing of a case for investigation and ends with a trial in court in order to allow each subsequent litigation stage to examine the previous litigation stage and minimize human factors. From investigation, prosecution to trial, and even appeals, every step should be an obstacle course, not a relay, and the latter procedure should not be reduced to an endorsement of the former procedure.
Solving a case may be more different from archaeology than similar. There is no time limit for archaeology. Once the excavation cannot be continued, you can wait; while the criminal procedure must comply with the statutory time limit, and the case cannot be left unresolved beyond the time limit. Prisoners must have a set of difficult cases for which the truth is unknown. rule. The generally accepted rule for civilized litigation is that “the suspected crime is only minor” and “the suspect is never suspected.”
Therefore, criminal justice has a basic assumption that when the facts of the crime cannot be determined and the truth cannot be clarified, it is better to declare a person who may be guilty than guilty than to find an innocent person guilty. However, it is not easy to confirm this assumption. Since it is not easy to prove, you might as well resort to reverse thinking: If a society does the opposite, and always adheres to “I would rather kill a thousand by mistake than let go of one”, then what will this society be like? It is conceivable that everyone will be in fear.
The real crime solving is very different from Agatha Christie’s mystery novels, in which the big detective portrayed has insight into almost everything. In fact, all the excitement stems from the writer who knew the ending a long time ago. She just laid the groundwork first, then used logic to connect the clues and tell us from the beginning. In reality, the truth of crime is often concealed, clues are disorderly and specious; the process of discovering the truth is like walking among long forests and grasses, there are still traces to be found at the beginning, but only a wilderness is left.
The elusiveness of the truth is also reflected in a state called “Rashomon”, that is, although there are many kinds of evidence, they point to different conclusions. “Rashomon” was originally a film directed by the Japanese film master Akira Kurosawa, based on the short story “In the Forest” by the new ideological writer Akutagawa Ryunosuke. It won the Oscar for Best Foreign Language Film in 1951, 70 Over the years, it has been a classic material for observation and study in the performing arts, philosophy departments and even law schools.
The term “Rashomon” diverges and condenses to produce a specific meaning: a past event, according to the respective expressions of different parties, presents different versions of stories that can be justified. When falling into the Rashomon state, the truth has not disappeared, but it is no longer the only one. It may be like a criminal lawsuit, where there is a choice between guilty and innocence; it may also be like two theaters showing the same film at the same time, and it may exist side by side; it may also be like Schrödinger’s cat, where the party is born and the party is dead, and the other party is dead , Does not exist.
Seeking the truth about crime is not to make a jigsaw puzzle, nor is it to play roulette in Rashomon, but to find the perpetrator and bring it to justice. However, whether a certain past case constitutes a crime is actually to bring the crime facts and legal provisions closer to each other to see whether there is sufficient agreement between the two. This depends not only on how to describe, retrospect, and reconstruct the facts, but also on how to understand the literal meaning of legal provisions, which sometimes cannot be separated from the theoretical construction of jurists.
For example, the German criminal law scientist Roxin, who has gathered the masterpieces of the objective imputation theory since the 1970s, has asked whether the use of behavior has a legally important risk to legal interests, that is, whether it has created and realized risks that are not allowed by the law. , Whether the damage result exceeds the scope of legal protection, to judge whether a certain act is a crime. Among them, it is easier to judge whether there are risks that are not allowed by the law being created and realized, and what is meant by the scope of effectiveness of regulatory protection is relatively complicated.
Simply put, if there is a major causal deviation between the behavior and the result, or if it falls within the scope of the responsibility of a third party, it cannot be included in the scope of legal sanctions. For example, there was an accident in Beijing in which a person drove a vehicle exceeding the speed limit of 60 kilometers per hour, and as a result, he took an unreliable manhole cover and hit a passerby and killed him. The case was quite controversial at the time, and the crime of causing traffic accidents was not found later, because the purpose of the law not to allow speeding was not to ensure that the manhole cover was secure.
Furthermore, only those situations and results that the perpetrator can control can be attributed to him. The precedence relationship cannot be understood mechanically as a causal relationship, let alone the perpetrator’s subjective maliciousness. For example, pouring a basin of water into a reservoir that is about to burst due to a flood, and persuading people to go for a run when there is lightning and thunder, or persuading people to take a plane, even if there is a dam breach, a lightning strike or a plane crash, it is not an act People can actually control, even if the disaster meets their will, it is not a crime.
