Theoretically, the purpose of court trial is to discover the truth, but in fact, the function of the trial is often not to discover the truth, and even in some cases, the judge tries to avoid discovering the truth, which may still account for the vast majority, so it is accurate to say that the trial is to adjudicate the authenticity and reliability of the evidence. The presence of witnesses in court for cross-examination by the prosecution and defence is one of the best ways to discover the truth and to test the reliability of witness testimony. The cross-examination of witnesses is also the most fascinating chapter of the prosecution and defense confrontation.
The core link of the court is cross-examination, this link needs the principle of direct speech as a support, the need for witnesses to testify in court, judges cannot find the truth with the help of other people's work, only witnesses can appear in court, cross-examination can be effectively carried out, and the habitual way of reading witness testimony by excerpt is a fatal blow to efficient and high-quality trials.
However, in practice, the attendance rate of witnesses in court is low, and written testimony is often used in court instead of witnesses to appear in court, and the non-appearance of witnesses has become a norm and a difficult problem that plagues lawyers' defense. Professor Chen Ruihua wrote a special article "", which pointed out that there are two reasons for the difficulty of witnesses appearing in court to testify from the legislative point of view: First, China's Criminal Procedure Law has not established a complete system for witnesses to testify in court; second, it has not established a complete witness protection and witness compensation system.
The Mainland Criminal Procedure Law particularly emphasizes the principle of direct speech, requiring witnesses to testify in person and accept cross-examination, which can help judges to falsify their testimony, from a psychological point of view, if a person is faced with someone who will be hurt if he lies, then the psychological pressure when he lies will increase, thereby reducing the possibility of his lying.
As far as my experience in handling criminal cases is concerned, there are three main reasons for the difficulty of witnessing witnesses in court: First, the prosecution and defense do not take the initiative to apply for witnesses to appear in court, many lawyers are only willing to use their lips during the court debate stage, and the court is even more reluctant to directly summon witnesses to court in accordance with their authority; second, witnesses are confined to many reasons and are unwilling to bear the obligation to appear in court to testify; third, judges are very resistant to witnesses appearing in court to testify, believing that the testimony of witnesses before the court is sufficient, and it is not necessary to appear in court again, not to allow them, and even turn away witnesses who come to testify.
In a fraud case I was handling (), after being sent back to the first trial for retrial, the public prosecution added a key witness testimony, and both the defendant and the lawyer had major objections to the authenticity of the witness's testimony, so they applied to the court for the witness to appear in court, and the judge also attached great importance to it, and specially notified the witness in writing before the second trial, and as a result, at the moment before the trial, the witness refused to appear in court without justifiable reasons.
This witness's testimony is both beneficial to the defendant and more importantly, it is a statement contrary to the defendant's confession, and we can only express a cross-examination opinion on the written testimony before the trial, and this witness's refusal to appear in court essentially deprives us of the right to cross-examine evidence. We can only unceremoniously rely on the third paragraph of article 91 of the Interpretation of the Criminal Procedure Law as the basis for defense, that is, if the witness refuses to appear in court without a legitimate reason after being notified by the court, and the court cannot confirm the authenticity of his testimony, the witness's testimony cannot be used as the basis for a verdict.
As Chen Ruihua put it, "If a witness gives testimony against the defendant and the court accepts his testimony without testifying in court, this is tantamount to depriving the defendant and defender of the opportunity to cross-examine him in court, and correspondingly depriving the defendant of effective participation in the process of making the court's judgment, so that he is forced to bear a kind of evidence that he has not refuted and debated." At the same time, if a witness provides testimony in favor of the defendant, and the court does not summon or refuse to appear in court to testify, the defendant loses the opportunity to present his own evidence, express his own opinions, and argue his own claims, and thus loses the opportunity to participate in the process of making court judgments. ”
Some people may think that the witness's pre-trial testimony is already clear, and that the appearance of witnesses who are unfavorable to the defendant may not necessarily expose false testimony, and it is a waste of judicial resources, and it is meaningless to appear in court. A case also requires the presence of all witnesses, the assessment of the testimony of all potential witnesses before applying for witnesses, and the presence of key witnesses for cross-examination as far as possible.
In my experience, the presence or absence of key witnesses or experts in court has a great impact on the direction and outcome of the case. For example, in one case that I once handled, after a detailed examination of the case file, I found that there were major problems in the "Re-test appraisal opinion", an important piece of evidence supporting the prosecution organs to accuse dereliction of duty, and if the appraisal opinion could be overturned, the crime of dereliction of duty could be eliminated. Following this line of thinking, I decided to apply for all the expert evaluators involved in the retest to testify in court, and after communicating with the presiding judge by telephone, it was finally determined that the two experts would appear in court. During the trial, after the prosecution and defense cross-examination of the appraiser, cross-examination, the truth was revealed, the "Re-test appraisal Report" produced by the appraiser was full of loopholes, and through the perception of the atmosphere of the trial at that time, the re-test appraisal of the pile of high in the case would be overturned, which meant that the crime of dereliction of duty could not be established. After trial testing, it was very correct for me to apply for an expert evaluator to appear in court for defense. The final judgment found that the retesting appraisal opinion in this case was not established because the appraisal institution did not have judicial appraisal qualifications, and the retest lacked objectivity and accuracy, and the retest appraisal opinion was not adopted, and the crime of dereliction of duty was not established.
It is human nature to seek advantage and avoid harm, and the process of determining a behavior is also the process of selecting interests. For key witnesses in the defense, it is best to ensure that the witnesses appear in court based on their willingness to actively cooperate, otherwise, not only can not force a person who denies that he can provide the true circumstances of the case to appear in court, but even if forced to appear in court, it is difficult to achieve the defense effect of the defense. For prosecution witnesses, especially those who have made key witnesses who have made detrimental to the defendant, it is necessary to apply for their appearance in court, and the mainland's compulsory witness appearance system has been established, and it is possible to apply for compulsory appearance, but "the law is not enough on its own", and in the current judicial environment, it is extremely difficult to expect the court to force witnesses to appear in court.
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In the case of Zhang Yuezhen of Jiangsu Funing who obstructed official duties, which I had handled, I applied for several witnesses from the prosecution to appear in court after being remanded for retrial, and only one person came. In this case, the investigating organ falsified the reporting record, thus proving that the police station's official duties were not legal. In order to create the legitimacy of the Police Officers' duties on August 4, 2018, the police station forged the August 3 "Case Registration Form" and the August 3 interrogation record of the reporter Shen Moukang. The key witness we applied for, Shen Moukang, appeared in court, and in court, the defender asked Shen Moukang how many times he had called the police. Shen Moukang replied, 2 times, on August 1 and August 4 to call the police. Then the presiding judge asked the witnesses: "Shen Moukang's court will ask you another question, just now when you answered the defender's question, the two alarm dates were accurate to August 1 and August 4 respectively. How do you remember to give a reasonable explanation to the court so clearly. The witness replied: "At that time, the government told us to build the work, it ended within a certain period of time, and then on August 1 we went there to work, the construction was blocked, and then the construction was not carried out on the 1st, 2nd, and 3rd, and then the construction began on the 4th. In this way, the truth is revealed, the registration form of the case and the august 3 report record of witness Shen Moukang are forged, just imagine if Shen Moukang did not appear in court to accept cross-examination and cross-examination, it would be difficult for the court to find this fatal problem."
Applications for witnesses to appear in court must be at the first instance stage. At present, the judicial status quo of the second-instance trial procedure in the mainland is that a large number of appeal cases are not heard in court, and only counter-appeal cases, death penalty, death suspension cases, and cases with social influence are heard in court, and other cases are made by second-instance judges or collegial panels through written trial.
I have found that sometimes the appearance of witnesses in the first instance is not obviously helpful to the case, but the role of the witness's appearance in court will continue to affect the subsequent stages of litigation, such as the second instance trial, remand for retrial and so on.
The indictment also accuses Zhang Yuezhen of biting and injuring two auxiliary police officers and scratching one auxiliary police officer. At the first trial, more than three prosecution witnesses appeared in court, and the two auxiliary police officers who were bitten said that the next day after the incident, those who went to the county hospital for injections came back together with the injections, and it was determined that they had been vaccinated against rabies. However, in the second instance to supplement the evidence, the transcripts of the two witnesses also said that there was no injection (rabies vaccine), the doctor testified that there was no injection, after the defendant and the defense visited the hospital to learn that the county hospital did not have rabies vaccine at all, it is obvious that the witnesses lied, combined with the medical certificate forgery, according to the ordinary people, good people's thinking standards, it can be judged that the two witnesses lied about injuries.