The presence of witnesses in criminal cases is necessary to ascertain the facts of the case
In criminal proceedings, the testimony of witnesses and victims has a significant impact on the judge's determination of the facts of the case, and usually, they will not appear in court to explain the situation, resulting in the defendant and defense lawyer being unable to cross-examine you to find out the true situation of the facts, and the defendant is not satisfied with the verdict. In the long run, it will greatly damage the fairness and credibility of criminal justice.
Criminal cases involve the life and freedom of the accused, which should be a very rigorous and prudent judicial activity, just imagine that the testimony of a witness can affect the sentence of another person, and the length of imprisonment, and this witness does not appear in court to be interrogated by judges, defense lawyers and defendants, just a record made under the questioning of the police, can be used as evidence to kill a person, depriving the defendant of the right to pledge, which is a very terrible thing. Article 61 of the mainland's current 2018 amended Criminal Procedure Law stipulates that witness testimony must be cross-examined and verified by the prosecutor, the victim, the defendant and the defender in court before it can be used as the basis for a verdict.
In common law countries, there are rules for the exclusion of hearsay evidence, which is written witness testimony not made on the day of the trial and record of witness questioning made by the police, as well as paraphrasing to the court of facts that others perceived the witness personally. Hearsay evidence is excluded because, first, because it is not a statement made by myself in court, there is a possibility that the retelling is inaccurate or falsified. Secondly, the authenticity of the rumor evidence has not been sworn, questioned and cross-examined without going through cross-examination procedures, and its authenticity is difficult to confirm through the degree of impartiality of justice. Finally, the rumor evidence is not done in front of the referee, can not let the magistrate directly perceive his demeanor, demeanor, can not judge the authenticity of his remarks from the heart, and even has the possibility of being bribed by one party, coerced and lured, and even forced to make a statement against his heart.
However, if the witness does not come out at all, does not accept questioning, rebuttals, the prosecution and defense just argue with each other against the witness's transcript, in fact, there is no wood, only the witness appears in court under the cross-examination of the defense lawyer, whether there are contradictions, loopholes, and let the judge observe the color, distinguish the truth and falsity, in order to judge, without the above process, the credibility of the witness's testimony is almost non-existent.
Civil law countries have adopted the principle of direct speech, including the principle of directness, that is, to participate in the examination of evidence in person and listen to court arguments. The principle of rhetoric requires that parties must use words to cross-examine the argument in court. Continents are more similar to civil law systems. Regardless of the legal system, the appearance of witnesses in court is the most basic requirement.
Article 192 of the Criminal Procedure Law has established a system for witnesses to appear in court, "if the prosecution and defense have objections to the witness's testimony, and the witness's testimony has a major impact on the conviction and sentencing of the case, and the people's court finds that it is necessary for the witness to appear in court to testify, the witness shall appear in court to testify." "This provision is based on what the court deems necessary as a necessary condition for the appearance of witnesses, so that the appearance of witnesses in court must be decided by the court, whereas in reality most courts are not active in the appearance of witnesses, or are consistent in the historical inertia of the judiciary. In addition, article 195 of the Criminal Procedure Law, the testimony of witnesses who did not appear in court should be read out in court, allowing the use of witnesses who did not appear in court, and the system of witness appearance is useless, which can be described as inconsistent in the law, since some witnesses are forced to appear in court, the testimony of the corresponding witnesses who do not appear in court should be excluded from the court, not read. Confrontation is a method of collecting and judging evidence. When necessary, the facts and evidentiary materials provided by the participants in the litigation may be stated face-to-face by the relevant personnel, so that the investigators or adjudicators can judge their authenticity from them. For example, if the testimony of witnesses is examined, it can be tested, examined, and confronted if necessary; in court debate, the parties, witnesses, defenders, etc. can question each other and debate repeatedly. Through taking the hostage, various pieces of evidence can be linked, which is conducive to unified analysis. The authenticity of testimony, which was not cross-examined, was greatly reduced.
Situations where witnesses must appear in court
In the following cases, it should be required that witnesses must appear in court, otherwise it will be very likely to cause unjust, false and wrongly decided cases: (1) the judge believes that the facts of the case are complicated and difficult (for example, cases in which different witnesses disagree with each other, whether it is a legitimate defense and is disputed in fact, etc.), and the main facts of the case cannot be ascertained without notifying the witness to appear in court; (2) the defendant and his defender insist on making a not guilty plea and apply to notify the witness to appear in court; (3) the prosecution and defense have great differences on facts and evidence, (4) Cases in which the defendant submits a request for exclusion of illegal evidence and applies to notify the witness to appear in court.
The reasons for the non-appearance of witnesses in court at this stage
Witnesses are afraid to testify in court for fear of retaliation, because appearing in court may put themselves in an unfavorable situation and are reluctant to testify in court, the prosecutor has concerns about witnesses appearing in court to testify, fearing that witnesses appearing in court to testify will change previous testimony, disrupt plans to support public prosecution, and it is difficult to respond in time, which can easily lead to a passive situation of appearing in court, and even change the nature of the case, while reading out the transcript of testimony in court is more secure, which can avoid the complex situation of reproducing evidence, so it is negative to the witness to appear in court to testify, so it is negative to the witness to appear in court to testify. No applications or even the presence of key witnesses are allowed, and no positive measures are taken to ensure the presence of witnesses. The protection of witnesses at all stages of the proceedings is inadequate.
Due to the inaccuracy of the information provided by the witness's residential address and communication method, the court cannot serve the notice of appearance in court, or although the court has notified it, the witness explicitly refuses to appear in court. In difficult cases, although judges hope that key witnesses can appear in court to testify, the problem of difficult witnesses appearing in court for many reasons cannot be solved by judges, coupled with the excessive pressure of the closing indicators, the provisions on the trial limit of criminal cases and the "one-size-fits-all" trial limit management model regardless of the size of the case and the level of trial are not entirely reasonable, and it is difficult to mobilize the enthusiasm of judges to actively urge witnesses to appear in court to testify. As far as judges are concerned, cross-examination of evidence in court is a very tedious task, and it requires a strong ability to organize the cross-examination of evidence at trial and to make judgments on objections to questioning, so they prefer to collect evidence in person after the trial than to testify in court.
Establish and complete systems for witnesses to appear in court
Improving the system for the protection of witnesses, giving financial compensation to witnesses, stipulating the punishment of witnesses not appearing in court without a legitimate reason, and not appearing in court are difficult problems that courts often encounter in the current trial of criminal cases. Because the reasons for witnesses to testify in court are complex, the root causes still need to be resolved in a lengthy process. At present, the phenomenon of witnesses not appearing in court to testify and its reasons, starting from the construction of the system, the issue of witnesses testifying is legislated, and at the same time, publicity and education on the legal system are strengthened, from the field of litigation to the field outside the litigation, step by step, I believe that with the improvement of various systems and the continuous maturity of practical conditions, the problem of criminal witnesses not appearing in court to testify can be gradually and well solved, and the system of criminal procedure witnesses appearing in court to testify in accordance with the national conditions of the mainland will be established and perfected as soon as possible. Strive to let the people feel fairness and justice in every judicial case, not become a slogan, but become a reality.