b) Evidence to prove " time, place and other circumstances of the crime " is evidence to determine when and where the crime occurred; methods, tricks, tools and means of committing the crime;
c) Evidence to prove " Who committed the crime " is evidence that identifies a specific person as having committed the crime;
d) Evidence to prove " Fault or no fault " is evidence to determine whether the person committing the socially dangerous act is at fault or not; if there is a fault, it is a case of intentional fault (direct intentional fault or indirect intentional fault) or unintentional fault (unintentional fault due to overconfidence or unintentional fault due to carelessness) according to the provisions of Article 9 and Article 10 of the Penal Code;
d) Evidence to prove " whether or not there is criminal responsibility " is evidence to determine whether the person committing the socially dangerous act was of age to bear criminal responsibility when committing the act; whether or not he or she suffered from a mental illness or another disease that caused loss of cognitive ability or ability to control his or her behavior; and if so, when and during which stage of the proceedings did he or she suffer from that illness;
e) Evidence to prove " Purpose and motive of crime " is evidence to determine the purpose and motive of the person committing the crime, and in case the purpose and motive of crime is an aggravating factor of criminal responsibility or an element (circumstance) of the crime or an element (circumstance) determining the penalty;
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g) Evidence to prove the aggravating and mitigating circumstances of the criminal liability of the accused or defendant is evidence to determine whether the accused or defendant has any mitigating circumstances of criminal liability as prescribed in Article 46 of the Penal Code; has any aggravating circumstances of criminal liability as prescribed in Article 48 of the Penal Code or is evidence to determine the circumstances determining the penalty;
h) Evidence to prove the personal characteristics of the suspect or defendant is evidence to determine the criminal record of the suspect or defendant;
i) Evidence to prove " The nature and extent of damage caused by the crime " is evidence to assess the nature and consequences (material and immaterial) of the crime in determining the crime and deciding on the punishment;
k) Other evidence to prove one or more issues specified in Article 63 of the Criminal Procedure Code, without which there is not enough basis to resolve the case, such as: Evidence to accurately determine the age of the accused or defendant who is a minor or accurately determine the age of the victim who is a child; evidence to prove the position and role of each accused or defendant in the case of complicity or organized crime; etc.
Third , the conditions for returning the investigation file for additional investigation when there is a lack of important evidence for the case:
a) The Procuracy shall decide to return the case file for further investigation when there is a lack of important evidence for the case as guided in Clause 1 and Clause 2 of this Article if the Procuracy cannot supplement it itself;
b) The judge assigned to preside over the trial (during the trial preparation stage) and the trial panel (at the trial) shall decide to return the case file for further investigation when it is necessary to consider additional important evidence for the case as guided in Clause 1 and Clause 2 of this Article which is deemed unable to be supplemented at the trial;
c) Do not return the file if it is important evidence but if it is missing, it can still be prosecuted, tried, or cannot be collected.
For example : There are three witnesses but only two can be identified, or the scene has been altered and cannot be reviewed, or the evidence has been lost and cannot be found.
In short, the concept of evidence, the properties of evidence and the concept of important evidence are of great significance in the process of solving
resolving criminal cases, ensuring that the prosecution, investigation, indictment, and trial must be fair, well-founded, and in accordance with the law, not letting criminals and criminals escape, and avoiding wrongful conviction of innocent people. Letting criminals and criminals escape or wrongfully convicting innocent people both cause very serious consequences not only for society (letting criminals escape leads to an increase in hidden and potential crimes; or making criminals "disdainful" of the law and justice is not guaranteed because criminals are let go ), but also causing extremely serious consequences not only for the family, wife, children, relatives, reputation, honor, and dignity of the wronged person, but also causing people to lose confidence in the fairness of the law and judicial agencies (if innocent people are wrongly convicted) [134, p. 86].
2.1.2. Sources of evidence
From the perspective of criminal procedure legislation, the term " source of evidence " is not specifically recorded. Vietnamese lawmakers only indirectly regulate the source of evidence. Clause 2, Article 64 of the 2003 Criminal Procedure Code stipulates:
2. Evidence is determined by:
a) Evidence;
b) Testimonies of witnesses, victims, civil plaintiffs, civil defendants, persons with rights and obligations related to the case, arrested persons, detainees, suspects and defendants;
c) Conclusion of the assessment;
d) Minutes of investigation and trial activities and other documents and objects [10].
Accordingly, from these sources of evidence, the investigating, prosecuting and adjudicating agencies can determine the evidence and use it to find the objective truth to solve the case. Therefore, from a scientific perspective, scientists call it " source of evidence ".
As stated above, evidence in a criminal case is what is real and related to the criminal case, which the prosecuting agencies use as a basis for their decision.
The basis for determining whether or not there is a crime, the perpetrator, the level, nature of the act and other circumstances related to the proper resolution of the criminal case. Therefore, the source of evidence is the form, the place containing what is real related to the criminal case or "the place, from which the object used by the subject to prove can be found" [75, p. 49]. In other words, evidence is the content reflecting the events and phenomena of the case, and the source of evidence is the form containing the content within it. For example, the testimony of the victim, witness, civil plaintiff... is the source of evidence, and the information and circumstances contained in that testimony are the evidence. Therefore, the content cannot exist independently, but it must be contained and contained in a certain form. Therefore, it is important to disclose each type of evidence source in the current Criminal Procedure Code to resolve criminal cases objectively, accurately and legally.
* Evidence
Physical evidence is the first important source of evidence through which the prosecuting agencies and prosecutors can prove the crime or determine the direction of future investigation.
Article 74 of the Criminal Procedure Code stipulates: "Physical evidence is objects used as tools, means of committing crimes, objects bearing traces of crimes, objects that are the subject of crimes as well as money and other objects that have value in proving crimes and criminals". Thus, physical evidence is a specific object, existing in material form, containing real events related to the case, this connection can be more or less, direct or indirect, but importantly it must be within the overall relationship of the criminal case and includes the following typical examples:
- Physical evidence is the objects used as tools and means to commit crimes . These are the objects that the criminals used when committing crimes to support the process of committing crimes to contribute to completing them more quickly and conveniently. For example : using knives, guns, axes to kill people, ropes, parachute cords to hang themselves, poison to poison...
- Physical evidence is the objects that bear traces of crime . Here, physical evidence is shown by the traces that the criminal left behind during the process of committing the crime (crime scene) and these traces are called criminal traces. Criminal traces are "reflections of objects and phenomena left behind during the process of committing the crime" [75, pp. 74-75]. For example : theft of property leaves traces of breaking locks, breaking open cabinets or clothes, the criminal's weapon has the victim's blood on it...
- Physical evidence is the object of the crime that the criminal affects. For example : property (motorcycle, necklace, watch...) in crimes of property appropriation, goods in smuggling crimes...
- Physical evidence is money and other valuable objects that prove the crime and the criminal . For example : jewelry, money on the gambling table, objects that the criminal bought with property appropriated from others, clothes, shoes, hats of the criminal at the scene of the crime...
Normally, evidence is collected when a crime is discovered through the activities of the prosecuting agencies (for example: crime scene investigation, autopsy, search of residence, workplace, examination of objects...), but in many cases during the process of resolving a criminal case, evidence collection can be provided by the suspect, defendant, witness... or any agency or organization.
Material evidence is one of the important sources of evidence, it accurately records the actual events of the case, so its evidentiary value in criminal cases can be very high "and in many cases, nothing can replace them" [65, p. 210]. With the characteristic of being the only object, material evidence exists objectively, it retains images that occur in reality, so it cannot be replaced by any other object, and is not influenced by human subjective consciousness. However, in some cases, the existence of material evidence is only relative, only in a certain
level, a certain period of time. Therefore, in the process of collecting and preserving evidence, competent authorities must ensure that it is intact, not lost, damaged or mixed up. This can also be considered the third characteristic of evidence, which is that it must be collected by competent state agencies in accordance with the procedures prescribed by criminal procedure law, and at the same time, the person responsible for preserving it must strictly comply with the regulations. Any violation will be handled depending on the level. In order to properly implement the regulations on collecting, preserving and handling evidence, the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Public Security, and the Ministry of Justice issued Joint Circular No. 06/1998/TTLT/TANDTC-VKSNDTC-BCA-BTC-BTP dated October 24, 1998 guiding a number of issues on preserving and handling assets that are evidence, assets seized during the investigation, prosecution, and trial of criminal cases; The Government issued Decree No. 18/2002/ND-CP dated February 18, 2002 and Decree No. 70/2013/ND-CP dated July 2, 2013 on management of evidence warehouses.
* Statements of arrestees, detainees, suspects, defendants, witnesses, victims, civil plaintiffs, civil defendants, and persons with rights and obligations related to the case
Testimony in criminal cases can be said to be a very important source of evidence. The investigating agency uses its professional activities to obtain testimonies, and the trial panel has the role of re-evaluating those testimonies once again at the trial. On this basis, testimonies have different meanings and values depending on the participating status of the subjects such as: the testimony of the accused, the defendant shows the attitude of admitting or denying the crime, the testimony of the witness shows their understanding of the relevant details of the case... The formation of testimonies is an extremely complicated process, it is governed by many different objective and subjective factors, so it is necessary to pay close attention to each subject participating in the case in order to have appropriate collection, inspection and evaluation directions.
The statements of the arrested person, the person in custody, the accused, the defendant, the witness, the victim, the civil plaintiff, the civil defendant, and the person with rights and obligations related to the case are considered as sources of evidence. Compared to the 1988 Criminal Procedure Code, Vietnamese lawmakers have added the statements of the arrested person as a source of evidence to ensure the rights of citizens from the moment of arrest, as well as their right to present details related to their suspicion of committing a crime (Article 71).
- Witness testimony . A witness is a person who knows the details related to a criminal case and is summoned by the prosecution agency as a witness to give testimony in accordance with the provisions of the criminal procedure law. A witness's testimony is the statement of a person who has not been violated by the offender but has known the details related to the case. Because witness testimony is a common source of evidence and is "one of the oldest and most common sources of evidence" [78, p. 62], the Criminal Procedure Code has provisions on the obligation to testify and the responsibility of witnesses for that testimony. In addition, the 2003 Criminal Procedure Code also stipulates that a witness must be a person with cognitive capacity, sober, not mentally ill, must be able to give accurate testimony and be responsible for that testimony. Those defending the accused or defendant are not allowed to testify in the case.
Witnesses present what they know about the case, the identity of the arrestee, detainee, suspect, defendant, victim, their relationship with the arrestee, detainee, suspect, defendant, victim, other witnesses and answer questions. However, it should be noted that although witness testimony is very necessary, to become valuable evidence, this testimony must also be consistent with other evidence of the case and the witness must clearly answer why he or she knows those details (Clause 2, Article 67). On the other hand, in the process of collecting, evaluating and using witness testimony, investigators must have a firm grasp of the following:
Various objective and subjective factors influence their testimony and understanding or perception. For example:
+ Objective factors that can affect the testimony of witnesses include: the time it takes for them to recognize the event or phenomenon that happened too quickly or happened too long ago; the witness does not have knowledge in that field; the crime scene, the criminal has changed or erased it; bad weather conditions, the crime scene is far away...
+ Subjective factors can also affect the testimony of witnesses. "To know whether the testimony of a witness is objective or not, the investigator must be careful, step by step delving into the inner thoughts of the witness to see if they are swayed by personal motives, whether they have a kinship or personal enmity with the people in the case, whether their interests have been changed or affected by the Court's decision" [55, pp. 57-58]. Therefore, the Criminal Procedure Code stipulates that before asking about the content of the case, the investigator must determine the relationship between them and the arrested person, the detainee, the accused, the victim and other witnesses (Clause 1, Article 67).
In addition, the psychology of witnesses often has the thought of not daring to testify or to testify everything they know about the crime. The reason most people do not like to testify is because they are afraid of wasting time, being implicated or being retaliated against. In fact, there have been many cases where the families of criminals have threatened, retaliated against, and even violated the life, health, honor, and dignity of witnesses. Moreover, participating in the proceedings is only an obligation without any rights. If a witness does not appear according to the summons, he or she may be escorted. In addition, if he or she refuses or avoids testifying, he or she must bear criminal responsibility under Articles 307-308 of the Penal Code. Therefore, to overcome this problem, the 2003 Criminal Procedure Code has provided additional rights that witnesses enjoy to ensure maximum harmony between their rights and obligations. Witnesses have a number of rights such as: