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 Table of Contents  
REVIEW ARTICLE
Year : 2017  |  Volume : 3  |  Issue : 3  |  Page : 144-151

Study of the system of the witness appearing in court: From the perspective of criminal proceedings


Institute of Criminal Procedure Law, Criminal Justice College, China University of Political Science and Law, Beijing, China

Date of Web Publication29-Sep-2017

Correspondence Address:
Shanshan Zhao
Criminal Justice College, China University of Political Science and Law, Beijing
China
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Source of Support: None, Conflict of Interest: None


DOI: 10.4103/jfsm.jfsm_9_17

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  Abstract 

It is of great significance for witnesses to appear in court in criminal cases so as to safeguard the right of confrontation of the defendant and achieve judicial justice. However, the witnesses in criminal cases refuse to appear in court and only give written testimony, and this has become a long-standing problem in the judicial practice of China. To solve this problem, the Criminal Procedure Law of China, amended and improved the system of the witness appearing in court in 2012. Nevertheless, if the underlying problems in the judicial system of China are not settled, the system of the witness appearing in court in criminal cases still cannot turn into practicable measures.

Keywords: Precaution, the system of the witness appearing in court in criminal cases, uncommitted


How to cite this article:
Zhao S. Study of the system of the witness appearing in court: From the perspective of criminal proceedings. J Forensic Sci Med 2017;3:144-51

How to cite this URL:
Zhao S. Study of the system of the witness appearing in court: From the perspective of criminal proceedings. J Forensic Sci Med [serial online] 2017 [cited 2022 May 16];3:144-51. Available from: https://www.jfsmonline.com/text.asp?2017/3/3/144/215816


  Introduction Top


The issue of the witness appearing in court in China came into being after the introduction of Criminal Procedure Law in 1996, which formed the criminal trial model that began to pay attention to protecting the rights of the accused through preliminary defense procedures. To be specific, Article 47 of Criminal Procedure Law (1996) provides that the witness testimony must be interrogated and cross-examined by all parties to be used as evidence for the case; according to Article 141 of Interpretation of Criminal Procedure Law (1996), the witnesses shall testify in court. In other words, in circumstances where the law provides that the witnesses shall testify in court, the people's courts are entitled and obliged to notify the witnesses to appear in court. In fact, it is a provision that compels witnesses to appear in court. However, the Criminal Procedure Law and its interpretation in 1996 do not provide further practical and procedural measures to guarantee the implementation of the system. As a result, in judicial practice, the witnesses that should appear in court is not bound by this provision and do not fulfill such obligation for such behavior of the witnesses incurs no legal liability. As it were, the system of compelling witnesses to appear in court exists in name only in the Criminal Procedure Law and its interpretation in 1996. Moreover consequently the implementation of this system encounters great difficulty in judicial practice, and the appearance rate of witnesses in court is low (according to relevant materials, the appearance rates of witnesses in criminal trials are generally below 5% and even < 1% in some places).[1],[2],[3],[4],[5]

As witnesses do not appear in court, the pretrial statements by witnesses are directly used during the court hearings extensively. Hence, the judges cannot examine and decide on the effectiveness and the probative force of the witness testimony through the witnesses' appearance in court and the legislators are let down for their anticipation for the system of the witness appearing in court to enhance counterargument in court and prevent court trial from becoming a mere formality comes to nothing (the Criminal Procedure Law Amendment in 1996 was dedicated to the reform of court trial models, i.e., to change the court trial model that is a mere formality and to establish the confrontation trial model in which the accusing party and the accused party confront and the judge rules as a neutral part. But, this aim still has not been realized, and one of the key reasons is the low appearance rate of witnesses).[6] Therefore, witnesses not appearing in court have become one of the bottlenecks that impede the “accusing and defending” criminal trial model reform – that is one of the difficulties facing the reform of “substantive trial of criminal cases” (it is pointed out by scholars after investigation and survey that “it is not exaggerated in the least to say that the biggest problem for the courts across the country in implementing Criminal Procedure Law is the issue of witness appearing in court.”).[7],[8],[9],[10]

The substantive trial of criminal cases means to conduct the determination of facts, conviction, and sentencing through court hearings. However, for a long time in China, it has been a serious problem that hearings of criminal cases were underused. The hearing process, even the whole trial, was a mere formality. This has been already realized by the academic circles and law practitioners in China. So during the amendments to the Criminal Procedure Law in 1996 and 2012, the legislators introduced a series of reform measures to resolve this issue, including reforming the records transmission system, which changed the transmission of all records before the hearings to the transmission of the copies and photos of main evidence, improving the system of compelling a witness to testify in court and so on. Nevertheless, these two amendments did not address the problem as expected. The underused hearings in criminal cases remained as usual in the practice of justice. Under such circumstances, the fourth plenary session of the 18th Central Committee of the CPC adopted the Decision of the CPC Central Committee on Several Important Issues concerning Comprehensively Promoting Rule of Law, which requires to “promote the trial-oriented reform of the litigation system and ensure that the factual evidence collected during the investigation and prosecution stands the examination of the law. Fully implement the evidence-based adjudication principle… Improve the witness and expert testifying in the court system and ensure that the hearings play a decisive role in finding the facts, admitting the evidence, protecting the right of action, and passing a fair judgment.” There are many factors that lead to the underused state of hearings in criminal cases, including those generally innate in the judicial system and judicial culture. However, the author believes that bringing the witnesses to testify in court is the most direct answer and the key to the problem of underused hearings in criminals' cases as well as the implementation of the trial-oriented litigation system reform in the present stage. Only after the witnesses can testify in court will the hearings truly make a substantive trial to uphold justice.


  The Approach to Improving the Witness Testifying in Court System Top


The amendment to the Criminal Procedure Law in 2012 focused on improving the witness system. In fact, almost one-ninth of the provisions in the amendment were related to the witness system. This shows that the legislators want to improve the evidence system applied to criminal cases to enhance the case handling quality and achieve dynamic balance between punishing crime and protecting human rights as well as to uphold justice and ensure public confidence.

First, determine the scope of circumstances where the witnesses or experts shall testify in court (Paragraph 1 and 3 of Article 187, Criminal Procedure Law 2012). No country is so judicially equipped that it can call every witness and expert to testify in court in every case. Therefore, a scope has to be defined to reasonably specifying the circumstances where the witnesses and experts should testify in court, so as to maintain the normal function of the judiciary.

Second, establish the system of compelling a witness to testify in court (Article 188, Criminal Procedure Law 2012). Any qualified witness must testify in court, and if he fails to do so, he will be liable under the law, except for those exempted from the obligation to testify in court. In China, as a result of some traditional cultural values and ideas, people are unwilling to testify in court as witness whether against or for someone they know, whether to aggravate or to mitigate the responsibility of the person involved. However when they are required under the system that compels witnesses to testify in court, people will not have those worries anymore.

Third, exempt certain witnesses from testifying in court (Paragraph 1 of Article 188, Criminal Procedure Law 2012). This provision reflects the humanism philosophy and tolerance of “mutual concealment of family members” in the traditional legal system and culture of China. In Western countries, it is common that family members have the right to refuse to testify in court and their right to do so is fully protected. The Chinese legislators made such amendments after well recognizing the importance of the moral values and kinship that are essential to tie the family together.

Fourth, establish the expert witness system (Paragraph 2 of Article 192, Criminal Procedure Law 2012). The expert witness system was established first in relation to the civil procedures and administrative proceedings in China and was then included in the Criminal Procedure Law by an amendment in 2012. It is based on the experience of trial and meets the needs of the litigation practice and the requirements of due process of law.

Fifth, establish the police officer testifying in the court system (Paragraph 2 of Article 57, Paragraph 1 and 2 of Article 187, Criminal Procedure Law 2012). In Western countries, police officers have the obligation to testify in court, but there is no such obligation in China. In the very few cases where police officers testified in court in China, these police officers either had witnessed the crimes or caught the criminals on the spot, and what's more, they testified only as common witnesses. This has severely affected the trial system reform and was not good for the check and supervision of the police power and prevention of torture. Accordingly, the legislators made the amendment to the Criminal Procedure Law to establish the system of police officer testifying in court to solve these questions.

Sixth, establish the system of the rights of witnesses (Article 62 and 63, the new Criminal Procedure Law). Witnesses have the obligation to testify in court under the law, and in the meantime, witnesses also enjoy certain rights. When their rights are protected, witnesses will feel more willingness and initiative to testify in court. A witness's rights mainly include the right to require recovery of the expenses incurred in relation to testifying in court from the national authorities (”the witness compensation”) and the right to require the national authorities to ensure the personal safety of himself/herself and his/her immediate family (”the witness protection”). By the amendment in 2012, we have established a more advanced witness protection system for testifying in court than the Criminal Procedure Law 1996.


  The Uncommitted System of the Witness Appearing in Court Top


There are three kinds of reasons why the witnesses refuse to appear in court:First, the witnesses themselves; second, the pressure from the society; and third, the case handling organs.[11] The legislators in China also fully recognized the importance of the system of the witness appearing in court and the relevant problems in judicial practice, and thus made significant changes to the system of the witness appearing in court through the amendment of the Criminal Procedure Law: On the one hand, it further safeguards the rights of the witnesses – establish the protection system of the rights of the witnesses; and on the other hand, it highlights the obligation on the part of the witnesses – improve the system of compelling the witness to appear in court.

However, the criminal procedure law amendment in 2012 only addresses the superficial causes of witnesses not appearing in court, that is, the absence of legislation on the system of the witness appearing in court as well as the witnesses' own reasons, but leaves the profound causes of witnesses not appearing in court untouched. Furthermore, there are some problems that cannot be solved through just amending the branch law of the criminal procedure law. Therefore, the system of the witness appearing in court is facing the risks of becoming an empty promise (after the Criminal Procedure Law in 2012 came into effect, the question of criminal witnesses refusing to appear in court is still not addressed effectively. For example, since the beginning of 2013, the People's Procuratorate of Quanzhou City has been promoting witnesses appearing in court as a highlight in work. And in the following year, there were 32 witnesses related to 17 criminal cases to testify in court. However, 28 witnesses appeared in court because the procuratorial organs applied, accounting for 87.4%, which was a great progress compared with that zero witness appeared in court before 2012. However, the cases in which the witnesses appeared in court accounted for 6.32% of general procedure criminal cases, highest among the grass roots courts in the province. The criminal witnesses that appeared in court accounted for 13.2% of those of the entire province).[12] According to the survey on the issue of witnesses appearing in court conducted by some scholars after the criminal procedure law amendment in 2012 had been implemented for some time, as to the question “Whether you will ask witnesses to appear in court,” all the judges answering the questionnaires chose “Usually will not request,” and all the prosecutors in public-prosecuting cases chose “In court trials, judges usually do not ask witnesses to appear in court;” and as for “The implementation of compelling witnesses to appear in court,” 64% judges answered that it was impossible to be carried out for lack of supporting mechanisms, and 35% chose the option that even if witnesses are compelled to appear in court, their appearance in court cannot be realized successfully, and only 1% of judges answered that only in a few cases can the witnesses be compelled to appear in court.[13]


  The Causes of the Uncommitted System of the Witness Appearing in Court Top


Incomplete rules of evidence

The rules of evidence are the rules to be followed in using evidence in litigation. The rules of evidence in the Anglo-American legal system countries are highly developed, and the rules of evidence in the modern litigation system mostly derive from the rules of evidence in the adversary system litigation model of the Anglo-American legal system. The amendment to the criminal procedure law in 2012 is considered to establish the Chinese rules of evidence in an early form. For example, Section 1 of Article 48 of the new Criminal Procedure Law provides the rule of relevance; Article 53 of the new Criminal Procedure Law and Article 83 and Article 109 of the Interpretation on application of Criminal Procedure Law of the People's Republic of China by Supreme People's Court (hereinafter referred to as Interpretation 2012 of Supreme People's Court) provide the rule of corroborative evidence; Article 54 to Article 58 of the new Criminal Procedure Law establish the rule of exclusion of illegal evidence; Article 69 and Article 71 of the new Criminal Procedure Law provide the best evidence rule; and Section 2 of Article 75 of the new Criminal Procedure Law provides the rule for opinion evidence. However, it is a pity that this amendment did not establish the rule for hearsay evidence, which is named as the principle of direct and verbal trial in the civil law system. Although the rule for hearsay evidence and the principle of direct and verbal trial are rooted in two different litigation models, that is, the litigation model of adversary system and the litigation model of inquisitorial system, they are similar in functions and both aim at excluding the written testimony of the witnesses and require the witnesses to appear in court and give oral testimony. Thus, to solve the problem and make witnesses appear in court, it is very important to establish the rule for hearsay evidence.

Nevertheless, the Criminal Procedure Law 2012 does not provide for the credibility of the written testimony given by witnesses that should but do not appear in court. On the contrary, Article 190 provides that “The transcript of verbal evidence of the witnesses that are not present in court shall be read in court.” It means that the rule for hearsay evidence has not been established in China, and it is legal for witnesses to either appear in court or give written testimony to fulfill their obligations of testifying. Moreover, this creates chances for witnesses not to appear in court.

The judgment model centered on files and records

In the criminal proceedings in China, “The judges in criminal court generally conduct related litigation activities based on reading the files and records transferred from the procuratorial organs; the verbal evidence including witness testimony, statement of the victim and confession of the accused are usually used during court investigation by reading the files and records; the courts generally refer to the files and records made by investigators in verdicts and used those records as the basis of judgment: Therefore, there actually exists a judgment model centered on files and records in the criminal trials in China.”[14] Moreover, the amended criminal procedure law does not change the judgment model centered on files and records and on the contrary further strengthens this model. Specifically, the highly controversial Article 172 provides that “the people's procuratorate…, institutes public prosecution to the people's court and transfers the files and records and evidence to the people's court. The criminal procedure law in 1979 already provides that the procuratorial organs shall transfer all the evidence and materials related to the case to the people's court. Moreover, this kind of transfer of “all the evidence and materials” will lead to the court's “coming to a conclusion before trial.” Meanwhile, as the judges depend excessively on the files and records to try a case, the court hearing has become a mere formality and the cases cannot be dealt with fairly. Thus, when amending the criminal procedure law in 1996, to establish the court hearing model that was based on the counterarguments, strengthen direct confrontation between the accusing party and the defendant and highlight the substantive meaning of the court hearing, the transfer of “all the evidence and materials” was changed to the transfer of only “the catalogue of evidence, the list of witnesses and the copies or photos of main evidence.” However, the practice afterward showed that the intent of the legislation was not realized. Indeed, the procuratorial organs no longer transfer all the evidence and materials before the trial, but they still do so after the trial, and the judges mainly rely on written materials as before. As a result, the attempt to establish a trail model based on counterparts failed. Nevertheless, this amendment represented an idea and a direction of reform. However, it is a pity that the amendment in 2012 abolishes the related provision in the amendment of 1996 and continues with the related part of the criminal procedure law of 1979, requiring the procuratorial organs to transfer all the evidence and materials to the people's court. It shows that the legislative body reaffirms and strengthens the judgment model centered on files and records. Under such judgment model, though the new criminal procedure law builds a relatively sound system of the witness appearing in court, witnesses still will not testify in court to effectively fulfill their obligations.

The reality of judicial practice

At present, the crime rates have been increasing significantly in both western developed countries and developing countries. Moreover in the recent years, the number of criminal cases has been increasing year by year in China with the worsening situation of public order. According to the annual work reports of the Supreme People's Court and Supreme People's Procuratorate, China is facing an unprecedented surge of criminal cases. The sharp increase of criminal cases leads to the shortage of judicial resources and creates much pressure on the judicial organs (in 2004, there were 644,284 criminal cases of first instance concluded by local courts at all levels and 767,951 criminals were convicted; in 2005, there were 683,997 criminal cases of first instance concluded by local courts at all levels and 844,717 criminals were convicted; in 2006, there were 701,379 criminal cases of first instance concluded by local courts at all levels and 889,042 criminals were convicted; in 2008, there were 768,130 criminal cases of first instance concluded by local courts at all levels and 1,007,304 criminals were convicted; in 2009, there were 767,000 criminal cases of first instance concluded by local courts at all levels and 997,000 criminals were convicted; in 2010, there were 779,641 criminal cases of first instance concluded by local courts at all levels and 1,006,420 criminals were convicted; in 2011, there were 840,000 criminal cases of first instance concluded by local courts at all levels and 1,051,000 criminals were convicted; from 2008 to 2012, there were 4,141,000 criminal cases of first instance concluded by local courts at all levels and 5,235,000 criminals were convicted, with 22.3% and 25.5% increase on an year-on-year basis, respectively. See the annual work reports of Supreme People's Court in 2005, 2006, 2007, 2009, 2010, 2011, 2012, and 2013). In accordance with the criminal procedure law of 1996, the witnesses in criminal cases must testify in court except in certain circumstances provided by law and permitted by the courts not to appear in court. Moreover, the amount of this type of criminal cases is enormous. Although the criminal procedure law amended in 2012 specifies in what cases the witnesses shall appear in court and no longer requires the witnesses to testify in court in other cases; yet the number of the cases of the former type is still very large. If witnesses appear in court, it requires abundant judicial resources as guarantee and it costs considerable manpower, material resources and financial resources to protect and compensate the witnesses testifying in court. So if all the witnesses appear in court, our judicial resources and judicial organs will face unprecedented pressure.

Inadequately trained prosecutors and judges

If the witnesses appear in court, the accusing party and the defendant need to interrogate the witnesses in court, that is to cross-examine the witnesses, which increases a high demand on the qualities of the judges: Whether they can control the hearing proficiently and guide the trial to proceed smoothly, promote the effective confrontation between the two sides, and grasp comprehensive information from the direct verbal arguments of the two sides so as to make the right judgment, all these being the important standards to evaluate the qualities and abilities of the judges. In the meantime, if the witnesses appear in court, the prosecutors can no longer provide proof by reading the transcript of the witness testimony in public prosecution cases and need to cross-examine the witnesses and confront directly against the defendant.

However, obviously, the judges and prosecutors are unable to deal with the above questions in China. For example, since 1980s, the judges in third-tier cities are mostly demobilized armymen, junior college graduates from judicial schools, and only in the recent decade, there began to be judges of college graduates of law, but the number is still very small. It leads to the following problems:First, the judges and prosecutors do not have a thorough understanding of the litigation concepts such as equality between prosecution and defense and neutrality of judgment; second, they are not familiar with the rules and skills of cross-examination; third, the reliance on written evidence and materials to provide, examine and acknowledge proof and make judgment should be changed to making the judgment just according to the direct confrontation of the two sides in court hearing. Moreover, these are big challenges to the judges and prosecutors' professional qualities and ethics.

Witnesses changing testimonies frequently

Another important reason the judicial organs are unwilling to let witnesses appear in court is that the witnesses often change testimonies when testifying in court. The witness changing testimony means that when testifying in court, the witness gives testimonies conflicting with those given to the investigation organs or public prosecution organs before trial. There are various reasons why witnesses change testimonies. For example, the witness is indifferent to testifying; the witness has received little education; the witness wants to protect relatives and friends as stakeholder; the witness is under less disruption in trials than during investigation for trials are more open and transparent; the laws punishing perjury need to be improved and are not implemented effectively; the witness's own perception, memory, and expression abilities are limited and so on. And if the witnesses change testimonies, especially the key witness changes testimony, it will bring great harm to the criminal proceedings. It will not only prolong the period of the trial of the case, waste judicial resources and create artificial obstacles to find the facts of the case but also bring enormous occupational risks to the judicial personnel handling the case.[15] Therefore, to prevent witnesses changing testimonies in court, the public prosecution organs and adjudicatory organs are also inclined to avoid witnesses' appearance in court.


  Methods for Implementing the System of Witness Appearing in Court Top


Optimize judicial resource allocation

It is no doubt the ideal way to uphold justice to let all witnesses in all cases to appear in court. However, it is impossible to be done in any country because of limited judicial resources. For example, in the US, court trials can take months and need dozens of and even over a hundred witnesses to appear in court (for example, the unsettled case – the Simpson Case in 1994 in the US – took 9 months of court trial and there were 127 witnesses to testify in court). In fact, the formal trial procedures are the process of witnesses testifying in court and cross-examining the physical and documentary evidence through questioning the witnesses, except the court debate, the lawyers reading the unanimous witness testimonies, and the judge and lawyers of the two sides discussing some legal matters in the US.[16] Moreover, one of the important reasons this can be done in the US is that plea bargaining and summary procedures undertake about 95% of cases. And in plea bargains and summary procedures, it is unnecessary for witnesses to appear in court.

Currently, China is also facing the reality of very limited judicial resources. Therefore, we must optimize the allocation of judicial resources and assign more judicial resources to disputable hard cases to ensure that the key witnesses in such cases can testify in court. The amendment to Criminal Procedure Law in 2012 improves the optimized allocation of judicial resources. For example, it extends the application scope of summary procedures significantly and provides that summary procedures can apply to the cases tried in grass roots courts in which the defendants plead guilty. However, it should be noted that the Chinese criminal procedure law and its interpretation focus on court trial and lack more specific provisions on the pretrial phase in optimizing the judicial resources. Therefore, we should actively explore better case distribution procedures and further improve the allocation of judicial resources so as to ensure key witnesses can appear in court.

Establish the rules for hearsay evidence

Some people believe that the rules for hearsay evidence have been established in the criminal procedure law of China since Article 78 of the Interpretation 2012 of Supreme People's Court provides that “The testimonies given by witnesses in court shall be admitted as verdict proof once proved to be true through cross-examination and court investigation. If the testimony in court conflicts with the pretrial testimony and the witness can give reasonable explanations and relevant evidence for verification, the testimony in court shall be admitted; and if the witness cannot provide reasonable explanations and the pretrial testimony is verified by relevant evidence, the pretrial evidence shall be admitted. If after the people's court send a notice, the witness refuses to appear in court without good causes or refuses to testify when present in court, and the testimony is unable to be confirmed true by the court, the witness's testimony shall not be admitted as verdict proof.” Can this provision be considered as the Chinese rules for hearsay evidence?

The rules for hearsay evidence are very important among the evidence rules of the Anglo-American legal system. Established for the purpose of finding facts, the rules for hearsay evidence have undergone amendments and changes though their long history of development: Now they no longer exclude all hearsay evidence and allow for some exceptions (for example, the Federal Rules of Evidence of the US provides certain exceptions, including the exception of unnecessary personal statement, the exception of being unable to give personal statements, the exception of “hearsay in hearsay,” and the exception of being used to attack and support the credibility of the person that provides statements. The reasons to set up these exceptions are that the rules for hearsay evidence should not be used rigidly, and when the risks intended to be prevented by the rules of hearsay evidence do not exist or can be ignored in specified cases, or if it is impossible to obtain other evidence in special circumstances, it is allowed to make exceptions. The Law of Criminal Justice of the UK in 2003 loosens the restrictions on whether to admit hearsay evidence in criminal proceedings and allows admission of the hearsay evidence that meets certain conditions, including using hearsay evidence when the people provide the original evidence which has good causes not to appear in court or the judges believe it is appropriate for such people not to appear in court). So, if “the written testimony of the witness that should have appear in court” “is unable to be confirmed true by the court,” can we admit such written testimony as verdict proof as an exception allowed by the rules for hearsay evidence? The core principle of the rules for hearsay evidence or the rules of direct and verbal trial is to exclude the written statements given by witnesses from the court to let witnesses be examined in open court to protect the right of confrontation of the defendants or in other words restrict the free evaluation of evidence by the court. The Chinese criminal procedure law amended in 2012 specifies in what cases the witnesses shall appear in court (Article 187 of Criminal Procedure Law 2012) and also provides the exceptions in which the witnesses can choose not to appear in court (Article 206 of Interpretation 2012 of Supreme People's Court). However even though there is the provision of Section 3 of Article 78 of Interpretation 2012 of Supreme People's Court, the problem still exists that most witnesses that should appear in court refuse to do so. Moreover, the credibility of the written testimonies given by these witnesses not appearing in court relies on the judges' discretion, which is hard to control. As the current judicial environment emphasizes punishing crimes, there are extremely limited judicial resources, corruption happens from time to time, and the judicial system cannot operate independently, the uncontrolled discretionary power is against almost every defendant. Therefore, in judicial practice, the defendants are still facing the risk of being deprived of the right of confrontation with the witnesses.

Section 3 of Article 187 of Criminal Procedure Law 2012 provides: “If the appraiser refuses to testify in court when noticed by the people's court, the expert opinion shall not be used as verdict proof.” In other words, the expert opinion given by the appraiser that should but does not appear in court is incredible and cannot be admitted as evidence. It prevents the expert opinion in written form by the appraiser that should but does not appear in court from entering court trial. The writer suggests that similar provisions should be made on the credibility of the written testimony provided by the witness that should but does not appear in court, that is, if the witness refuses to testify in court when noticed by the people's court, the written testimony given by the witness shall not be used as verdict proof. Only by doing that can we really establish the rules for hearsay evidence in the Chinese criminal procedure law and eliminate the chances for witnesses to choose not to appear in court.

Improve the qualities of prosecutors and judges

The judicial practice shows that if the law enforcers, mainly the prosecutors and judges, do not meet certain standards of qualities, the system design cannot be implemented properly to achieve the expected objectives. If the judges and prosecutors are of relatively poor qualities, they will seek other methods outside the court trial procedures to make judgments when facing complex situations, for example, relying on written evidence and materials, reporting to the officials at higher levels, the judicial committee or the procuratorial committee for decision. Besides, they do not want the witnesses to appear in court either for it will create huge pressure on handling the case. Hence, improving the qualities of judges and prosecutors is an important way to facilitate witnesses appearing in court. When their qualities are improved, they will deal with the situation with witnesses in court confidently.

Prevent witnesses from changing testimonies

To prevent witnesses from changing testimonies, first, we should improve the laws on perjury of witness. Although it has brought much negative influence for the witnesses to change testimonies in court, the new criminal procedure law does not provides how to prevent such phenomenon in the system of the witness appearing in court. Moreover, the most effective way is to include perjury of witness into the law (for example, there are provisions on perjury of witnesses in the criminal procedure laws of the US and Japan). Although Article 305 provides perjury of witness, in judicial practice, it is very difficult to accuse witnesses of perjury for changing testimonies, mainly because this name of crime emphasizes the subjective intent of crime of “intending to frame others or hide evidence of a crime” and it is extremely hard to prove someone's subjective intent of crime. That is why, it is common for witnesses to change testimonies in court in China and few witnesses have been punished by criminal liabilities. Therefore, to prevent witnesses changing testimonies in court, we need to change the component elements for perjury of witness and use the objective behavior of conflicting pretrial testimony and testimony in court as conviction proof rather than emphasizing the subjective intent. Because the witness is aware that his testimonies are inconsistent and still make conflicting statements, which demonstrates the intent to disrupt justice and already brings harm to the society. Moreover, the true intent of such witness just matters the damage degree.[15] Besides, we should improve the investigation ability of the investigators by improving the strategies and skills in investigation of evidence to avoid incorrect statements of the witnesses caused by fear, and avoid the written testimonies that do not reflect the real intention of the witness due to deficiencies of the professional level, especially the literal expression of the investigators, which may cause witnesses to change testimonies. At the same time, we should make more efforts to fix the witness evidence and keep it intact through various methods to ensure consistence of the witness testimony. For example, standardize the subjects and environment of formulating the written testimony, make audio and video recordings of the witness giving testimony and so on.[17] Last but not least, we should enhance citizens' awareness of law and respect for law through new media such as TV, newspaper, and the Internet so as to prevent witnesses from changing testimonies fundamentally.


  Conclusion Top


This paper aims to discuss the “system of the witness appearing in court” in the amended criminal procedure law, improve the system of witness testifying in court in criminal cases and promote the legislation of criminal evidence. More importantly, this paper is committed to exploring the guiding principles for the amendments of Criminal Procedure Law through comprehensively describing and demonstrating the current system of witness appearing in court as well as reflecting on the criminal judicial reform and even the overall law reform in China. After examining the “system of the witness appearing in court” built in the criminal procedure law amendment, we can find out that although it has been improved by the legislators as far as they can, and the system still is uncommitted in actual situations. Moreover the reason is that such system construction in the law revision is just a type of technical adjustment and cannot solve the problems fundamentally as long as the modern system of rule of law is not established in China.

As demonstrated in the development process of rule of law in China in the last century, our legal system has never truly and completely realized modernization, and we even never really thought about doing so. Because rather than rising above itself, China's development of rule of law is still at the stage of imitating the western systems, it leads to the situation that many legal problems are relieved temporarily but not fundamentally. Take the witness testifying in court system for an example. The relevant provisions under the Chinese law are drawn from the system of compelling witness to testify in court, the witness protection system and the witness compensation system in Western countries. However, we ignore the fact that the success of their witness testifying system comes from the combination of the judicial culture, civic awareness, citizen qualities and so on. But what happens here is that we use the law only as a tool, and only to the extent of maintaining a reasonable formality. As a consequence, although Chinese citizens use the law and participate in judicial proceedings, they do so just because they are required and in a passive manner. In short, China's development of rule of law appears to stress formality more than substance, which results in the misplacement of emphases in the reform of the rule of law.

There are two key questions to solve to realize the modernized rule of law. First, the people should have an in-depth understanding of the importance of legal independence. As the development of the rule of law in China is based on legislation and adopts the top-down approach, do the people understand and appreciate the independence of such legislation apart from its role as a tool to govern a nation? What we should bear in mind is that the criteria of the modernization of the rule of law not only include promulgating more legal documents but also, and more importantly, mean that the people truly recognize the independence of the law and further accept and rely on the law. Second, the Chinese traditions should play an important role in the process. The Chinese nation has developed its distinguished national spirits and culture through thousands of years' history. Man can never sever itself from its history and traditions. The same is true with the development of the rule of law. Accordingly, on the way to realize the rule of law, we should not abandon our legal and cultural traditions to go along with the so-called “modern law civilization.” We should not turn the modernization of the rule of law in China into the modernization by copying western laws. Instead, we should let the traditions play an active role and contribute to the modernization process of the rule of law.

Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.

 
  References Top

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