何家弘《法律英语》第四版第二十一课主要内容.doc

Lesson Twenty OneCRIMINAL PROCEDUREl The key to an accusatorial process of proof is that the party making the accusation of wrongdoing bears the burden of proving that the accusation is true. l 对抗制证明程序的关键在于由对罪行提出指控的一方承担证明其指控真实性的责任。l The jurors may not assume, simply because the accuser represents the state, that his allegations are true. The prosecutor, as the accuser, must persuade the jurors, by reference only to evidence produced before them, that the allegations in the charging instrument are accurate.l 陪审团员不会只因为控诉方代表国家而相信其指控。作为控诉方，检察官必须要通过呈现证据来说服陪审员在指控文件中的指控是真实的。l This burden of persuading the jury is described legally as the “burden of proof”.l 这种说服陪审团的责任在法律上叫做证明责任。l Placement of the burden of proof on the prosecution means that the defendant need not establish his innocence; it is the prosecutor that must establish his guilt. l 由控诉方承担证明责任意味着被告人无需证明他是清白的，而是由检察官来证明被告有罪。l The defendant can simply sit back, produce no evidence whatsoever, and be assured of his acquittal if the prosecutor has not produced sufficient evidence to convince the jury that the defendant committed the crime.l 被告人只需要坐着，不需提交任何证据，并获得如下保证：如果检察官提交的证据不足以证明被告人有罪，则被告人会被宣判无罪。l The prosecutors evidence must be so convincing as to meet another basic standard of the criminal justice processthat the proof establishes guilt beyond a reasonable doubt. 检察官提交的证据必须要有说服力并且要满足刑事司法程序的另一个基本标准，即犯罪证明要超出合理的怀疑。That standard makes the states burden of proof a particularly heavy one. l 这个标准加重了国家的证明责任。l It is simply because the state is the initiating party. In an adversary system, someone must bear the burden of persuasion, and it is logical to assign that burden to the person asking the court to take action.l 这只是因为国家是诉讼法发起方。在对抗制中，必须由某人来承担证明责任，而通常都会将这个责任交给向法庭提起诉讼的一方。l 我们的制度所确立的基本价值观就是：l it is far worse to convict an innocent person than to let a guilty man go freel 使一个无辜的人入罪远远要比让一个有罪的人逍遥法外要坏的多。l it is better that ten guilty persons escape than one innocent sufferl 让10个有罪的人逃脱要比使一个无辜的人受罪好得多l A system that views the protection of the innocent as its highest goal is invariably led to place the burden of proof on the state。l 一个把保护无辜的人的清白看作是其最高目标的制度毫无疑问地会使其国家承担证明责任。l If he were forced to carry the burden of proof, all uncertainties as to proof would be resolved against him. l 如果硬要被告承担证明责任，那么证明过程中的所有不确定因素最后都会不利于他。l By placing the burden on the prosecution, the adversary system permits conviction only where the jurors are affirmatively convinced of defendants guilt by the prosecutions positive showing.l 通过由检察官承担证明责任，对抗制规定了只有在检察官主动向陪审员准确地证明被告人有罪的情况下才能宣告被告有罪。l Is quite separate from the burden of proofl 与证明责任不相同l he obligation of initially introducing evidencel 最先展示证据的义务l Thus, the prosecution has the obligation of initially presenting evidence on each element of the crime as well as persuading the jury that those elements existed.l 因此，检控方负有义务先针对每个犯罪构成要件呈示证据以及说服陪审团相信这些要件的真实性。l The theft of property at over 100 dollarsl 盗窃财物达100美元以上l The prosecution must first introduce evidence showing that the stolen item was worth more than 100 dollars.l 检控方一开始须呈示证据证明被告盗窃的物品价值达100美元以上。l The prosecution cannot sit back and claim that, since the defense has not introduced any evidence suggesting that the item is worth less than 100 dollars, it must obviously be worth more than 100 dollars.l 检控方不能袖手旁观，声称，因为辩方没能提出任何证据证明盗窃物品价值低于100美元，因此，物品价值显然高于100美元。l There are some matters that the prosecution should not have to consider in its proof unless there is some evidence that the issue exists.l 有些内容是检控方不能将其纳入其范围内的，除非有证据证明这些内容存在案件中。l For example, the prosecution should not automatically have to introduce evidence that the defendant was not insane or was not entrapped.l 例如，检控方不能主动呈示证据证明被告没有精神失常或者没有受到警察圈套。l Once the issue is raised by the defendants evidence, the burden then shifts back to the prosecution to introduce counter evidence and persuade the jury that the defense did not exist.l 一旦被告方的证据涉及到这些内容，那么责任将又回到检控方身上，由他们提出反驳证据并说服陪审团相信辩护理由不成立。l The placement of the burden of going forward is not of great significance in protecting the innocent.l 先行举证责任并不重在保护无辜者。l It is a matter governed primarily by the convenience of the parties in first offering proof.l 它主要是规制双方在最初提交证据时的便利。l Any defendant wanting to raise a particular defense can readily introduce sufficient evidence to suggest that the defense might be present in the case.l 任何想提出具体辩护意见的被告都可以方便地呈示足够的证据以证明其辩护理由确实存在案件中。l The key point is that the prosecutor then assumes the ultimate burden of persuasion; he must convince the jury that the defense did not exist.l 重点在于由检察官承担最后的说服责任，他必须使陪审团确信辩护意见不成立。l The presumption of innocence is closely rel