"The witness testifies don't think" phenomenon of "witness testifies don't think" phenomenon
As is known to all, the amendment of criminal procedural law, "witness testifies" is not a criminal trial courts throughout the country are the biggest problem facing operation, this phenomenon exists generally, serious hindering the normal operation of the new form of trial courts, not a witness, the accused and the defended their respective parties can read, when both sides on the testimony of the witness's testimony when there exist obvious differences understanding cannot verify the authenticity, with cross-examination judge also can only rely on both sides of the evidence material transfer before or after the court court trial judge, resulting in a written form now, therefore, the witness testifies phenomenon has not caused extensive concern of warm and theoretical discussion, as a legal practice, author of lawyers have a deep impre ion, and also had deep thinking, this article from the perspective of judicial practice the phenomenon of root cause analysis and countermeasures.
A witness testifies, "not" status and impact modified since 1996, the author points since the implementation of the criminal defense case, can say no nearly 70 which no evidence of the witness's testimony, however, as the main truly the witnesses to appear in court, only four parts, impression about counterparts, basically no more than the proportion, some colleague said even never attempted to witness testified in criminal cases. This phenomenon is not accidental, from the court system of the criminal case, have statistics show that since the implementation of shenzhen, then points since the witnesses to appear in court rate has been torn between 2-5%, Changchun is good procuratorate of the witnesses to appear in court only 4.3 percent of total charges, Shanghai huangpu district court only 5% of the witnesses to appear in court, visible, "witness testifies" is not very common, has become the most prominent in judicial practice of litigation.
"Have no witnesses testified" judicial system reform has become the bottleneck of reform and way, this is enough. The witness's testimony is the most commonly used in criminal lawsuit, but an evidence for the testimony of witnesses and subjective color makes its authenticity, strong and, therefore, difficult to grasp the reliability of all points of the witness's testimony given attention, strict procedures, and thus points in modern formed an important evidence principle, namely the principle of direct verbal trial (Anglo-American law "hearsay rules and principles of the excluded), the principle of common essence request the court of judgment, as the only must be spoken, direct, witnesses must appear presentations, and accept the parties, the judge asked, cross-examination only listens to witness testimony on the court as the basis and the debate. Our revised western criminal procedure law, the socialist lawsuit pattern with equal burden and cross-examination court instead of judges alone, Ohio courtroom investigation bag witness its meaning quite prominent, the only witness to appear in court, can make the court can direct examination of the witness testimony of witnesses, perception, memory capacity and skills and subjective and objective factors of witnesses, thus distinguish authenticity and witness testimony of witnesses and not to appear in court, judge and the examination of the testimony is mentioned. In addition, the witness against his face in anairport, also is the embodiment of the defendant, the witness to appear in court, the defendant can not make inquiries by court to expose false witness testimony, nature also hard evidence from the fact, to defend themselves, visible, witnesses sometimes may be not appear on the defendant right against the deprivation of democratization and international trend. Litigation From our criminal judicial practice of cross-examination, not to the witness to appear in court because (cross-examination), and only to the defendant cross-examination, plus the equal opinions, which is characteristic of China cross-examination. But real cross-examination must have "face to face" form, must have questioned the witness "nature", therefore, to realize the real meaning of the cross-examination, must ask the witnesses to appear in court, to eliminate the written testimony is widely used. "As" China's current trial procedure is the biggest characteristic of biggest drawbacks (low rate of the witnesses to appear in court, in the modern countries that could hardly see). Before the court of the written testimony could lose its authenticity for various reasons, although these testimony behind all these records written "true"; and the signature and cover fingerprints, but in practice there are many technical processing method, which changes even distorted, this testimony is known in the practical work of the facts. Therefore, whether from the procedural justice, or from the substantive justice, witness is very necessary.
Second, "witness not testify to the phenomenon of" analysis "witness testifies the" no reason, at present the most popular view, are summed up and they are as follows: it is a civil law awareness, unwilling to testify, Second is the fear of retaliation, witness testifies dare not, Three is not economic compensation, the witness testifies inconvenience, Four is lack of tube obligation, the witness will not testify. The author does not deny the correctness of the above analysis, but always think these analysis, deep enough, the author thinks that enough witness testifies, there is no negative psychology of internal witness, but also has profound social and historical origin, but more important reason lies in the defects existing points itself, in addition, the judicial personnel with the old concept behind is also leads to witness testifies phenomenon is not important reasons to spread unchecked.
(a) social historical roots
First, from the traditional social and cultural level, the witness to resist the card has a rich history. China has a long history of feudal society, the traditional culture of the doctrine of the mean, trial concession factors such as "v" mentality, anaerobic has many witnesses reluctant intervention is the inertia action thinking, Instead, ask each harmony, silence, and peaceful traditional psychological against the witness has become the great psychological barriers. Secondly, from the current social environment, the witness to resist the card is a survival strategy, China is a highly acquaintances society, although the 20th century, China has not changed, but the "foundation of social relations," never fundamentally. In this social intercourse, interpersonal relationships, and holding the extremely heavy weight undoubtedly, actually everybody is in a shallow relationships choice, people would not destroy the adventure of nets, even in the defendant may be killed ", "the aid. Therefore, in most cases, although the court will not to their personal and property caused much influence, but will give their psychological pressure, if appear brought by the individual choice not, then choose not to testify the choice will be. So, does not wish to testify for law awareness, show the conclusion superficial, will not help solve.
(2) legislative defects
(1) the first 47 points while prescribed witness testimony in the court must pass the equal confrontation, can ask, according as the conviction, but in the second article 157 a proviso "regulation:" that "the public prosecutor, defenders... witnesses who are not present in court testimony record, appraisal conclusion..." this shall be read out in court, no strings attached "attest to read" actually and established "the principle of direct verbal trial (or" hearsay rules ") to eliminate damaged in a "but", the legislation on the paradox of discretion to law enforcers provides leeway, especially for some habits of old judge judicial steal lai behavior provides a legal basis, the judges of the court cross-examination testimony that sometimes greater reliability, often also think it will not bother to the court, and the court non-existing cross-examination, unfortunately for investigation of the acceptance of investigation evidence. Originally, legislative regulation is an exception to this, the witness testifies is normal procedure should be the necessary procedures, but because no additional strict conditions, as a special provisions in the written testimony, read the witness evolved into a common practice, and as the general principles of the witness was a special practice instead.
(2) in the first 48 points while regulation: "who know the facts of the case, units and individuals have obligation to testify. But, to testify the obligation to refuse sanctions but no explicit regulations. From the legal duty, complete with any sanctions are essential elements of the legal norms set of sanctions, if there is no commandment, that wouldn't have any legal obligations. In fact, it is precisely because the obligations and sanctions points, the imbalance in dilemma, judicial court case, for some of the witnesses to appear in court must persuade education, but only if the final appearance, witnesses to refuse a judicial authority can take compulsory measures. All the world to the witnesses to appear in court, established a comparatively complete compulsory witnesses to the court of law, the specific measures including subpoena, court fined, for not bear losses, even with contempt of court fees imposed punishment. Because our country is not compulsory measures are similar to the provisions, court rejected a helpless.
(3) although article 48 points, who know the case has the obligation to testify in investigation phase, but to investigators to testify in court without witness, whether it be not perform obligations witness? Laws have been vague. The problem is that, in the judicial practice in our country, the investigation organ in fact, mandatory forensics rights will perform most of the witness to testify the investigation organ, but due to the court of the actual power compulsory witnesses almost equal to zero, the witness testifies the majority didn't not pressure, and in other countries of the modem criminal lawsuit, usually only the court has forced the witnesses, and police and power of attorney authorized only in judicial cases get the mandatory rights. Therefore, its emphasis on court system for the center, witnesses testified to fulfill obligations is our duty, court new points should be emphasized is also in criminal litigation court as the center, in conformity with this problem in the witnesses, and we also should establish the witness testified to the court must perform the obligations, and the concept of legislation, and gives a court to enforce witnesses of power.
(4) points are witnesses testified, though the obligation, but did not make clear a regulation to ensure the specific obligations witness by who. The judicial practice, the public will witness list "to" after a court, the court often thinks to witness to appear as notification, and fulfill the legal responsibility, can appear as the witness, that is the accused and the defended himself, and both sides, as long as the prosecution witness list "KaiLi", the court should be arranged the witnesses to appear in court and responsibility. Thus, while both mutual shuffle trial can still read the witness 'testimony will form, so that the witness to appear in court, who don't also irresponsible, who will not bear any legal consequences, and in the long run, receiving notice of such civil court not regard it as an empty.
(3) legal concepts
With our revised by the new points KongBianShi ways in judicial personnel should establish "trial center" concept. So-called trial center, is emphasized, the judge's neutral judge separation detection, the judge in the center, its duty is shipwrecked judgment of the accused and the defended that both sides, judge whether the "heart", the court gave only form only from all the evidence in the courts of the public and the cross-examination of the evidence material, visible, only established "trial center", the court will become truly lawsuit activity center, cross-examination, not only will witness will become the common aspiration of all parties participate in litigation. Needless to say, the judicial practice in China, "the judge" idea hasn't established. From the prosecutor to judge, obviously have to witness testifies to see whether insignificant. In the vast majority of judicial personnel, male, inspection, method of activities are three authority in order to achieve a common goal, namely accurately ascertain facts, crime, judge just investigation stage to check and find out the facts of the case, the court just detection. In the trial judge under the guidance of the concept, obvious fully trust the investigation organ volumes record, blindly believe reconnaissance, the testimony of witnesses, appraisal conclusion, and modify the presiding judge points before in court testimony of witnesses, prosecutors and read other participants can not even play even dozing again after modification in points only change roles on: witness testimony, the judge listened to read by the prosecutor didn't play CAI even doze. The psychological analysis of the parties, we can see that the judicial personnel on the one hand, the testimony of witnesses after investigation, the procuratorial organs investigation, prompting the authenticity, then it is incontestable, inform the witnesses to appear in court ZouXingShi is not necessary, on the other hand, they were afraid of the witnesses to appear in court, when issuing, gives a court survey results (actually, "pan rawish meal presumption of guilt" is still the dominant judiciary thinking), therefore, can openly said, not in witness testifies, rather than the witness to himself as the judicial personnel and not very want them to, so, want to solve the "witness testifies" no problem, I am the first judiciary brainwashed, the court judgment as the basis, the real judgment court set witness statements and accept only, its testimony to as cross-examination according to legal concepts. Finalized
Three witnesses testified, "not" system for new points of transplanted confrontation system can be benign operation, factors must be perfected witness system. From the above discussion that "witness testifies" is not caused by various incentive, therefore, the author intends to Suggestions are as follows:
(1) establish rights, obligations and responsibilities of the witnesses to appear in court and the legal system.
(1) the legislation should have prescribed testifies the obligation to witness, also want to clear the witness testifies is right, the witness testified by the economic loss caused by countries should make appropriate compensation, the personal or property interests should be the necessary security, (2) in the establishment of obligations and witnesses, still should draw lessons from western legislation and does not perform the witness testifies to the responsibility and obligation of proper coercive measures, such as performance, fine, summoned compulsorily detention, undertake not court damage; etc. (3) establish hearsay rules and regulations explicitly excluded, equal to the testimony of witnesses, controversial key witness to testify the validity, otherwise the testimony of the witness is excluded (not court and the written testimony shall stipulate clearly the exceptions, such as witnesses and strictly already died, serious illness unable to attend, equal mind, can not KaiKouZi disorderly, justice out). (4) clearly will ensure the witnesses to appear in court with the burden of responsibility. KongBianShi trial requirements of the accused and the defended his sides positively advocates respectively, bear the burden, once the witness to appear in court, no written testimony is not adopted, direct damage will be of interest, thus evidence to support his claim, the burden of party is necessary to ensure that his witness to testify in time, but it is not a court-appointed sex, bear the burden of proof of the defendant innocent, but if by their evidence against evidence, also should not support their defence of the burden, and also can be responsible for ensuring the testimony of the witness to appear in court, any party if you can't do this, shall assume the burden of not legal consequences. For the procuratorial organs, it not only should do and can do, law stipulates that the witnesses obligation, the procuratorial organs of the state represents the witnesses to appear in court for compulsory court-appointed sex, it is difficult to find, but careful analysis, the judicial practice for the witness to appear in court, the defense is mostly by the prosecution witness, just before the court because no chance for various factors or unable to contact, so often require them to testify, questions and cross-examination face. If the prosecution, inform the defense requirements in witness will greatly reduce the prosecution witnesses, but few outside, defense generally is sure convince its testifies, otherwise, the defense is only to adduce evidence of the legal consequences. Anyhow, can predict the accused and the defended, if both sides is responsible for respective executes the witnesses to appear in court, or adduce evidence of legal system and legal consequence that the judicial practice witness testifies problem will not greatly improved.
(2) before the court to reform the system of major evidence photocopy.
Currently points to major evidence before the atrium, make copies of the court trial before the case facts and evidence that produce prognostic witness in the judge's become goes through the motions, unnecessary procedures, reduce the court judge only with the prior to predict prejudices, create a equal equal demonstration and the environment debate, so as to ensure that both sides to get the chance to witness cross-examination, the author suggested, and delivered to the court in the prosecution indictment, needn't to major evidence photocopy, but must be evidence, the directory list should be reformed, evidence, the directory list add evidence of the evidence and the content (i.e., the facts of the case before the court), in order to relevance to prosecution evidence of judges and defense a general understanding, to the court for trial or defense, defense leisurely can also request for prosecution witness list what the witnesses to appear in court, thus make the application in the witness to the court, and other former clear that has both employer can witness to appear in court, not the greatly improved the efficiency of lawsuit, also make the witness system in the judicial practice good operation.
(3) change the judicial personnel law-enforcing mentalities.
To strengthen education in judicial team training, vigorously into modern v, change the traditional theory of law in the habit to investigation as the center, take the law enforcement written trial for judicial concepts, direct investigations on the court instead of blindly believe investigation record, pay attention to the court by parties to establish "heart" cross-examination, rather than through reading "heart", in treating the testimony of witnesses must be established on the court testimony shall all be true finalized cross-examination according to the concept of the evidence. Thus, the legislation is established to witness system in judicial practice, our new implemented in criminal lawsuit establishment of the judge to normal operation.

Reference data:
1, ChenYiYun editor "evidence of renmin university of China publishing house, 1991.
2, see Peter murphy, "new evidence, 2000.
3, see Peter murphy, "evidence", Chinese BBS law.ethics 2000 edition.
4 and the procuratorial daily 1999 August 12 Japanese: "witness to appear in court, where to?"
5 and WuZhongLin Ed the psychology of witness, sichuan university press, 1987.
6 and the procedural law of China ", the new law press, 1999.
7 and the litigation evidence rules of China legal research press, 2000.