Is an oral-evidence based criminal trial possible in China?
| Date | 01 January 2017 |
| Author | Zhuhao Wang,David R. A. Caruso |
| DOI | 10.1177/1365712716674800 |
| Published date | 01 January 2017 |
| Subject Matter | Articles |
Article
Is an oral-evidence based criminal
trial possible in China?
Zhuhao Wang
China University of Political Science and Law, Beijing, China
David R. A. Caruso
The University of Adelaide, Australia
Abstract
Witness testimony is a fundamental component of any modern, adversarial judicial system.
The criminal trial is particularly reliant on the testimony and cross-examination of witnesses
to furnish to the judge and/or jury the relevant facts of the case. Chinese law and regulation,
in particular the Chinese Criminal Procedural Law of 2012, stipulates that witnesses have a
general responsibility to testify and establishes a series of supporting measures to facilitate
witnesses testifying at trial. However, the appearance rate of witnesses to orally testify at
criminal trials in China is and has long been extremely low. In keeping with common and civil
law pre-trial preparation, it is common in China for witnesses to provide written statements
at police stations or to procurators prior to trial. The difference is that these written
statements often form the principal, and sole, evidence of the prosecution case at trial
without appearance, examination or contradiction of the source witness. Chinese judges
decide guilt on the written witness statements which are made pre-trial and at varying times
prior to the trial. We briefly examine the detriments of this non-oral scrutiny of evidence.
We examine the Chinese cultural adherence to a written criminal trial, despite provisions for
an oral examination in the Chinese Criminal Procedural Law, and explain nine reasons why
witnesses do not appear at trial. Our reasons are based on empirical study conducted in ten
pilot programmes across District or Intermediate Courts in mainland China. We argue that
our review of the need for an oral-based scrutiny of procurator-led evidence in criminal trials
in China is indicative and instructive of the need for China to continue its current focus on
considering and adapting common and civil law-based methods of judicial scrutiny and
oversight into its criminal justice system.
Keywords
low attendance of witnesses, written evidence, Chinese culture, judicial reform
Corresponding author:
Zhuhao Wang, Institute of Evidence Law and Forensic Science, China University of Political Science and Law, 25 Xitucheng Rd,
Haidian, Beijing, China.
E-mail: wangzhuhao@cupl.edu.cn
The International Journalof
Evidence & Proof
2017, Vol. 21(1-2) 52–68
ªThe Author(s) 2016
Reprints and permissions:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/1365712716674800
journals.sagepub.com/home/epj
Introduction
Witness testimony and cross-examination are fundamental to modern adversarial criminal procedure.
Witness testimony in a courtroom provides the fact-finder with the opportunity to assess the witness
based on their mannerisms, posture, gestures and appearance in orde r to gauge their temperament,
motivations and truthfulness. Modern approaches to vulnerable witnesses (including children, the phy-
sically and mentally impaired, or complainants of sexual or domestic-based crimes) require a nuanced
approach to the treatment and examination of certain witnesses if the fact-finder is to have reciprocal
appreciation of the significance of the witness’s perceived conduct.
1
This nuance derives from an
interdisciplinary approach, for example, including the expertise of pathologists and psychologists
regarding the needs of witnesses if they are to be psychologically positioned to answer questions in a
manner that reveals rather than obscures their reliability and credibility. But this modern approach is
founded on the need, based on the advantage it offers to the fact-finder’s deliberations, for witnesses to
give oral evidence and be tested on it. The Wigmorean position that cross-examination, rather than jury
trial, is the great and permanent contribution to the Anglo-American system of law to improve methods
of trial procedure remains the touchstone of reforms in modern litigation systems designed to ensure
correct decision-making (Wigmore, 1940: 32, sec. 1367).
Cross-examination, from the narrow perspective of the trial, permits assessment of the accuracy and
credibility of a lay witness’s memory and observ ations. However, for nations in which it is not a
sacrosanct and protected feature of court proceedings, there is a more ready and real appreciation of
the wider role that a system informed by cros s-examination has in preventing the manipulation of
criminal trials through the introduction of written testimonies corrupted by concoction, falsehood and
alteration, which lead to fallacious arguments and improperly informed judicial decisions. Cross-
examination is not limited to an engine within a courtroom, but is a larger machine on which a populace
can rely to combat unscrutinised and incomplete adjudication so as to engender public confidence in the
wider system of law and court governance and as an ideology in general, beyond its impact on
individual cases.
This article reviews the literature within China regarding why witnesses do not appear to give oral
evidence in mainland courts, in the light of legal provision now explicitly permitting this to be done.
This review is contextualised wit hin empirical evidence garnered from pilot programmes aimed at
exploring the reasons for the non-attendance of witnesses in criminal proceedings. The programmes
were conducted in ten District or Intermediate Courts in the mainland provinces of Anhui, Guangdong,
Hubei, Inner Mongolia, Jiangsu, Sha ndong and Zhejiang, as well as the municip alities of Beijing,
Shanghai and Chongqing. On the basis of this review of internal literature to China and empirical study,
we arrive at nine reasons why witnesses do not appear to give oral evidence in contested criminal trials.
We submit that the relevant officials are, as usual, key to meaningful reform and we highlight the
political, social, cultural and legal rationales which should induce continued and further action by them
to ensure that it is the norm for contested criminal trials to be informed by oral evidence which is elicited
and tested.
The first part of this article analyses the genesis of the 2012 reforms and their purpose and the next
part outlines the continuing low attendance of witnesses in trial proceedings throughout China. Based on
these foundations, the next part develops nine reasons for why the 2012 and associated reforms have, to
date, had little success in promoting a system of oral evidence in Chinese criminal proceedings. We then
we pause to consolidate the platform for the utility of an oral system of evidence, following which we
explain the reasons and rationales as to why China should continue to place emphasis on reforms and
practicalities in those reforms to embed an oral system of evidence. Our reasoning in the final part is a
reflective complement to the reasons we discern for witnesses remaining unwilling to testify. Our thesis
1. See article by J Wheatcroft in this Special Edition. See also Caruso and Cross (2012). See further Wheatcroft et al. (2015).
Wang and Caruso 53
To continue reading
Request your trial