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| 安徽高院先试先行毒品案件证据规则 |
| 2014-9-2 |
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时间：2014-09-02 来源: 法制日报——法制网
近日，安徽省高级人民法院公布了一批毒品犯罪典型案例。其中一起贩卖、运输毒品案的被告人路某，虽然“零口供”，但被法院以贩卖毒品罪判处死缓后，没有提出上诉。
这是因为侦查机关侦查所得秘密材料经庭外核实作为证据使用，并与其它证据相互印证，让毒贩哑口无言。而所依据的，正是安徽版毒品案件证据收集审查判断规则。
这份规则是安徽高院按照省委、省委政法委有关司法改革部署起草的，与公安机关、检察机关合签印发实施，规范了毒品犯罪案件证据的收集程序、审查办法和判断标准，从源头把严证据关。
“毒品案件面临取证难、印证难、审判难等问题，而现有法律对于类罪尚未确立统一的证据规则。我们先行先试，在全国高级法院层面率先对类罪的证据规则进行规范尝试，是对刑事证据制度的创新和突破。”参与起草规则的安徽省高院刑三庭法官白春子告诉记者。
规则共分为三个部分，明确收集哪些证据，即毒品犯罪基本证据规格的收集要求；明确如何收集证据，即法定的七种证据的分类审查与认定；规定了对证据的综合认证，解决毒品犯罪主观明知认定等难点问题，如毒贩拒不认罪或是找各种借口为自己“洗白”。
按规定，审查判断被告人主观上是否明知行为对象是毒品时，应审查被告人实施毒品犯罪行为的过程、行为方式、毒品被查获时的情形和环境等证据材料，结合被告人的年龄、阅历、智力及掌握相关知识情况，综合进行分析判断。参与侦破毒品案件的侦查人员对执行职务目击的犯罪情况也可作证。
“即便是‘零口供’，审判人员还可会同检察、侦查人员庭外核实侦查机关通过技术侦查措施秘密收集的证据材料。经查证属实并确认的，在刑事诉讼中也可作为证据使用。”白春子说。
规则还细化了刑诉法对“证据确实、充分”的要求，明确违法取得不能作为定案根据的证据种类。对证人翻证、被告人翻供情况，明确重点审查内容。在向某等15人贩卖、制造毒品案中，主犯向某上诉称侦查机关非法取证。安徽高院按照规则要求，建议检察机关调取入监记录、同监室人员证言以及体检表等，最终证实向某入所身体状况良好，所述并不属实。
“证据是诉讼的灵魂。取证、举证、质证最后都以法院最终认定的证据规格、证明标准为指引。如果认定被告人的犯罪事实缺乏证据的支撑，不仅案件质量没有了保障，甚而还有可能会酿成冤假错案。”白春子说，规则的出台对公、检、法统一对证据的认识，充分发挥刑事审判引导侦诉，严把证据确实、充分证明标准，合力打击涉毒案件高发的职能作用，具有重要意义。
安徽省高院相关负责人还告诉记者，该院还将联合公检机关出台《关于毒品犯罪法律适用若干问题意见》，与证据规则相配套，在类罪里面形成体系，进一步打击毒品犯罪，保障案件质量。
转载自法制日报——法制网 |
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n returning to the kitchen to go on with her work, the exhaustion against which Marie had hitherto fought successfully, overpowered her the moment she sat down; her heavy head drooped, her eyes closed in spite of her, and she fell into a broken, uneasy slumber. Madame Duparc and her daughter, seeing the condition she was in, undertook the preparation of the day??s dinner themselves. Among the dishes which they got ready, and which they salted from the cellars on the dresser, were two different kinds of soup ?? one kind for themselves, made from fresh ??stock???? ?? the other, for Marie and the nurse, made from old ??stock.?? They were engaged over their cookery, when Monsieur Duparc arrived from the country; and Marie was awakened to take the horse he had ridden to the stables, to unsaddle the animal, and to give him his feed of corn. While she was thus engaged, Madame Duparc and her daughter remained alone in the kitchen. When she left the stable, it was time for her to lay the cloth. She was told to put plates for seven persons. Only six, however, sat down to dinner. Those six were, Madame De Beaulieu, Monsieur and Madame Duparc, the youngest of their two sons, Madame Beauguillot (sister of Madame Duparc), and Monsieur Beauguillot (her son). Mademoiselle Duparc remained in the kitchen to help Marie in serving up the dinner, and only took her place at table after the soup had been put on. Her elder brother, after summoning his father home, had not returned to the house.
After the soup had been taken away, and while Marie was waiting at table during the eating of the second course, young Duparc complained that he felt something gritty between his teeth. His mother made precisely the same remark. Nobody else, however, agreed with them, and the subject was allowed to drop. When the second course was done with, the dessert followed, consisting of a plate of cherries. With the dessert there arrived a visitor, Monsieur Fergant, a relation of Madame Duparc??s. This gentleman placed himself at table with the rest of the company.
Meanwhile, the nurse and Marie were making their dinner in the kitchen off the soup which had been specially provided for them ?? Marie having previously placed the dirty plates, and the empty soup-tureen from the dining-room, in the scullery, as usual, to be washed at the proper time. While she and her companion were still engaged over their soup, young Duparc and his mother suddenly burst into the kitchen, followed by the other persons who had partaken of dinner. ??We are all poisoned!?? cried Madame Duparc, in the greatest terror. ??Good heavens! I smell burned arsenic in the kitchen!??
Monsieur Fergant, the visitor, hearing these last words, politely stepped forward to echo them. ??Burned arsenic, beyond a doubt,?? said Monsieur Fergant. When this gentleman was subsequently questioned on the subject, it may not be amiss to mention that he was quite unable to say what burned arsenic smelled like. Neither is it altogether out of place to inquire how Madame Duparc happened to be so amazingly apt at discovering the smell of burned arsenic? The answer to the question does not seem easy to discover.
Having settled that they were all poisoned, and having even found out (thanks to those two intelligent amateur chemists, Madame Duparc and Monsieur Fergant) the very nature of the deadly drug that had been used to destroy them, the next thing the company naturally thought of was the necessity of summoning medical help. Young Monsieur Beauguillot obligingly ran off (it was apparently a very mild case of poisoning, so far as he was concerned) to the apothecary??s shop, and fetched, not the apprentice this time, but the master. The master, Monsieur Thierry, arrived in great haste, and found the dinner-eaters all complaining of nausea and pains in the stomach. He naturally asked what they had eaten. The reply was, that they had eaten nothing but soup.
This was, to say the least of it, rather an unaccountable answer. The company had had for dinner, besides soup, a second course of boiled meat, and ragout of beef, and a dessert of cherries. Why was this plain fact concealed? Why was the apothecary??s attention to be fixed exclusively on the soup? Was it because the tureen was empty, and because the alleged smell of burned arsenic might be accounted for on the theory that the remains of the soup brought from the dining-room had been thrown on the kitchen fire? But no remains of soup came down ?? it had been all consumed by the guests. And what is still more remarkable, the only person in the kitchen (excepting Marie and the nurse) who could not discover the smell of burned arsenic, was the person of all others who was professionally qualified to find it out first ?? the apothecary himself.
After examining the tureen and the plates, and stirring up the wood-ashes on the fire, and making no sort of discovery, Monsieur Thierry turned to Marie, and asked if she could account for what had happened. She simply replied that she knew nothing at all about it; and thereupon her mistress and the rest of the persons present all overwhelmed her together with a perfect torrent of questions. The poor girl, terrified by the hubbub, worn out by a sleepless night and by the hard work and agitation of the day preceding it, burst into an hysterical fit of tears, and was ordered out of the kitchen to lie down and recover herself. The only person who showed her the least pity and offered her the slightest attention, was a servant-girl like herself, who lived next door, and who stole up to the room in which she was weeping alone, with a cup of warm milk-and-water to comfort her.
Meanwhile the report had spread in the town that the old man, Monsieur De Beaulieu, and the whole Duparc family had been poisoned by their servant. Madame Duparc did her best to give the rumor the widest possible circulation. Entirely forgetting, as it would seem, that she was on her own showing a poisoned woman, she roamed excitably all over the house with an audience of agitated female friends at her heels; telling the burned-arsenic story over and over again to every fresh detachment of visitors that arrived to hear it; and finally leading the whole troop of women into the room where Marie was trying to recover herself. The poor girl was surrounded in a moment; angry faces and shrill voices met her on every side; the most insolent questions, the most extravagant accusations, assailed her; and not one word that she could say in her own defense was listened to for an instant. She had sprung up in the bed, on her knees, and was frantically entreating for permission to speak in her own defense, when a new personage appeared on the scene, and stilled the clamor by his presence. This individual was a surgeon named H??bert, a friend of Madame Duparc??s, who announced that he had arrived to give the family the benefit of his assistance, and who proposed to commence operations by searching the servant??s pockets without further delay.
The instant Marie heard him make this proposal she untied her pockets, and gave them to Surgeon H??bert with her own hands. He examined them on the spot. In one he found some copper money and a thimble. In the other (to use his own words, given in evidence) he discovered ??various fragments of bread, sprinkled over with some minute substance which was white and shining. He kept the fragments of bread, and left the room immediately without saying a word.?? By this course of proceeding he gave Marie no chance of stating at the outset whether she knew of the fragments of bread being in her pocket, or whether she was totally ignorant how they came there. Setting aside, for the present, the question, whether there was really any arsenic on the crumbs at all, it would clearly have been showing the unfortunate maid of all work no more than common justice to have allowed her the opportunity of speaking before the bread was carried away.
It was now seven o??clock in the evening. The next event was the arrival of another officious visitor. The new friend in need belonged to the legal profession ?? he was an advocate named Friley. Monsieur Friley??s legal instincts led him straightway to a conclusion which seriously advanced the progress of events. Having heard the statement of Madame Duparc and her daughter, he decided that it was his duty to lodge an information against Marie before the Procurator of the king, at Caen.
The Procurator of the king is, by this time, no stranger to the reader. He was the same Monsieur Revel who had taken such an amazingly strong interest in Marie??s fortunes, and who had strongly advised her to try her luck at Caen. Here then, surely, was a friend found at last for the forlorn maid of all work. ??We shall see how Monsieur Revel acted, after Friley??s information had been duly lodged.
The French law of the period, and, it may be added, the commonest principles of justice also, required the Procurator to perform certain plain duties as soon as the accusation against Marie had reached his ears.
He was, in the first place, bound to proceed immediately, accompanied by his official colleague, to the spot where the alleged crime of poisoning was supposed to have taken place. Arrived there, it was his business to ascertain for himself the condition of the persons attacked with illness; to hear their statements; to examine the rooms, the kitchen utensils, and the family medicine-chest, if there happened to be one in the house; to receive any statement the accused person might wish to make; to take down her answers to his questions; and, lastly, to keep anything found on the servant (the bread-crumbs, for instance, of which Surgeon H??bert had coolly taken possession), or anything found about the house which it might be necessary to produce in evidence, in a position of absolute security, under the hand and seal of justice.
These were the plain duties which Monsieur Revel, the Procurator, was officially bound to fulfill. In the case of Marie, he not only neglected to perform any one of them, but actually sanctioned a scheme for entrapping her into prison, by sending a commissary of police to the house, in plain clothes, with an order to place her in solitary confinement. To what motive could this scandalous violation of his duties and of justice be attributed? The last we saw of Monsieur Revel, he was so benevolently disposed toward Marie that he condescended to advise her about her prospects in life, and even went the length of recommending her to seek for a situation in the very town in which he lived himself. And now we find him so suddenly and bitterly hostile toward the former object of his patronage, that he actually lends the assistance of his high official position to sanction an accusation against her, into the truth or falsehood of which he had not made a single inquiry! Can it be that Monsieur Revel??s interest in Marie was, after all, not of the purest possible kind, and that the unfortunate girl proved too stubbornly virtuous to be taught what the real end was toward which the attentions of her over-benevolent adviser privately pointed? There is no evidence attaching to the case (as how should there be?) to prove this. But is there any other explanation of Monsieur Revel??s conduct which at all tends to account for the extraordinary inconsistency of it?
Having received his secret instructions, the Commissary of Police ?? a man named Bertot ?? proceeded to the house of Monsieur and Madame Duparc, disguised in plain clothes. His first proceeding was to order Marie to produce the various plates, dishes, and kitchen-utensils which had been used at the dinner of Tuesday, the seventh of August (that being the day on which the poisoning of the company was alleged to have taken place). Marie produced a saucepan, an earthen vessel, a stew-pan, and several plates piled on each other, in one of which there were the remains of some soup. These articles Bertot locked up in the kitchen cupboard, and took away the key with him. He ought to have taken the additional precaution of placing a seal on the cupboard, so as to prevent any tampering with the lock, or any treachery with a duplicate key. But this he neglected to do.
His next proceeding was to tell Marie that the Procurator Revel wished to speak to her, and to propose that she should accompany him to the presence of that gentleman forthwith. Not having the slightest suspicion of any treachery, she willingly consented, and left the house with the Commissary. A friend of the Duparcs, named Vassol, accompanied them.
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发表评论: ( 2015-4-20 17:32:40 )
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poloralphlaurenpascher 发表评论: ( 2015-4-24 11:29:16 )
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