As a criminal defense lawyer, reading the file is one of his basic tasks. The large number of witness testimonies in criminal files occupies an important position in the evidence. In judicial practice, the identification of almost no criminal case can be ignored by the testimony of witnesses. It is not only an important means of exposing crimes and confirming them, but also an effective means of verifying and making other evidence that has been identified and making it more accurate. However, not all witness testimony is completely true and can be used as evidence; there are also cases where they are not completely true or completely untrue or even perjury. Practice has proved that untrue and false testimony is very harmful.
What is witness testimony? The so-called witness testimony refers to the oral statement made by the witness to the judicial organs on the facts of the case that he or she knows.
In criminal proceedings, witnesses who are duty-to-testify because they know the circumstances of the case enjoy a range of procedural rights that affect the course and outcome of the proceedings.
Witness testimony is a form of evidence that proves the facts of a case through the oral expression of a witness. Oral expressions include statements made by witnesses in court about the facts of the case and those recorded in writing.
Testimony by a witness in writing usually takes two forms: a written testimony written by the witness and a written record of the interview process of the investigator questioning the witness. For the former, we generally call it written testimony; for the latter, we call it a transcript of testimony or a transcript of an interview with witnesses. We usually refer to written or transcripts of witnesses as "hearsay."
In China's Criminal Evidence Law, both witnesses' testimony in court and hearsay testimony have evidentiary capacity, are allowed to appear in court, and are accepted as the basis for a verdict. In the review and judgment of the witness's testimony, the judge's concern is not whether the witness appeared in court to testify, but whether the authenticity of the witness's testimony was corroborated by other evidence.
In order to ensure the authenticity and reliability of witness testimony, the law puts forward specific requirements for the qualifications and conditions of witnesses. In principle, everyone who knows the circumstances of the case has an obligation to testify. However, those who are physically or mentally handicapped or young, unable to distinguish between right and wrong, and unable to express themselves correctly, cannot be witnesses. Of course, witnesses with physical and mental defects who have certain difficulties in recognizing and expressing the facts of the case, but have not yet lost the ability to correctly recognize and correctly express their testimony, the court should treat them with caution when reviewing, and only when other evidence is corroborated can they be accepted as the basis for the verdict. This is mainly due to the fact that those who are physically and mentally handicapped have different degrees of reduction in their ability to perceive, remember or express the facts of the case, and are unable to provide true and credible testimony to the judicial organs. Those who are younger, on the other hand, are less cognitively and less expressively likely to give false or unclear testimonies.
At the same time, considering that the witness's statement of the facts of the case must go through a complete process of perception, memory and expression, the witness can only be a natural person, not a legal person or an unincorporated group or unit. In China's judicial practice, a lot of evidence is written materials provided by organs, groups, enterprises or public institutions. For example, some organs provided explanatory materials on the facts of the case, some enterprises or institutions provided meeting minutes, some groups issued performance materials about their members, and so on. These written materials are sometimes stamped with the official seals of these organs, groups, enterprises and institutions. However, by their very nature, they do not yet constitute witness testimony and can only be counted as documentary evidence at best. Only those unit materials that have the signature or seal of a natural person have the attributes of witness testimony.
In order to prevent witnesses from relying too much on relays or dissemination of testimony, the law requires witnesses to testify only on the facts of the case that they know only. In terms of investigation and evidence collection, investigators can only examine witnesses individually, and cannot gather several witnesses together to conduct "collective recall" or "symposium" investigation and evidence collection. In violation of the above-mentioned "individual evidence collection" rule, the transcript of testimony obtained by investigators cannot be used as the basis for a verdict. At the same time, during the course of the tribunal's proceedings, the court should strictly prohibit those who may act as witnesses from observing the tribunal or from playing other litigation roles in the case, so as to avoid witnesses from learning the facts of the case through observation. The Tribunal shall prohibit those who have already observed the hearings of the Tribunal or have held other litigatory roles in the case. It can be said that witness testimony has a certain priority over other litigation roles.
In order to avoid unreliable testimony by witnesses because of their lack of clarity, the law also prohibits witnesses who cannot express themselves correctly. In particular, witnesses who are in a state of apparent drunkenness, narcotic poisoning or psychotropic substance anesthesia may not be admissible by the tribunal as a basis for a verdict, even if witness testimony is provided.
Moreover, in principle, witnesses should testify on the facts of the case that they personally perceive, and cannot give speculative, critical or speculative testimony. These speculative, critical or speculative testimonies are "opinion evidence". The reason why "opinion evidence" generally cannot be the basis for a verdict is that the court can only examine the truth of the facts perceived by the witness personally, and cannot make a judgment on the authenticity of the witness's judgment or speculation. The court may examine whether the witness has the ability to perceive, the source of the false person's perception of the facts, the witness's memory, or the witness's ability to express himself, but cannot make an objective judgment on the subjective judgment of the witness. Of course, the "opinion evidence" is not always accepted as the basis for the verdict. Opinion evidence that is consistent with the facts based on general life experience can still be used as the basis for a verdict.
As a kind of verbal evidence, witness testimony can be divided into two types: pretrial testimony and in-court testimony from the perspective of the stage of litigation it is formed. The former is the transcript of the testimony of the witness on the facts of the case after being questioned by investigators and prosecutors; the latter is an oral statement made by the witness after appearing in court to testify and being questioned by the parties to the litigation. Oral statements made by witnesses in court are usually not challenged in terms of legality by both the prosecution and the defence, and their evidentiary capacity is rarely the object of dispute in court. What the law of criminal evidence needs to regulate is usually the transcript of pre-trial testimony made by witnesses.
The so-called testimony record, also known as the "interrogation record", generally refers to the written record made by investigators and prosecutors on the process and results of their examination of witnesses. These testimonial transcripts have varying degrees of relevance to the facts of the case because they record the statements made by witnesses on the facts of the case and contain specific information about the facts of the case. However, the questioning of witnesses, whether by investigators or prosecutors, is carried out unilaterally, and neither the accused nor his defender can participate in the process of questioning. Investigators and prosecutors often ask witnesses to present the facts of the case in accordance with their own intent or in accordance with their own approach to prosecution. This kind of secret inquiry itself may have a certain one-sidedness. Moreover, in the process of the witness's testimony to the criminal prosecution officer, due to the lack of cross-examination procedures between the prosecution and the defense, and the lack of a neutral judicial decision, it is entirely possible for the witness to make an unreliable statement.
The court has some natural limitations in examining and judging the pre-trial testimony of witnesses. This is because the Tribunal is only exposed to a record of written questioning and not to an oral statement made to the Tribunal by the witnesses themselves. Such testimony transcripts go through the process of information processing such as dissemination, retelling, and written records by investigators and prosecutors, and they are not so much written testimony made by witnesses as they are information on the facts of the case that investigators and prosecutors have learned through witnesses.
In China's Criminal Evidence Law, transcripts of testimony are "transmitted evidence" relative to oral testimony directly made by witnesses. Because the evidence has gone through intermediate links such as evidence dissemination, reproduction or retelling, the probative power of the original evidence is weakened to varying degrees, and the possibility of distortion and falsehood is prone to appear. And with the increase in dissemination and replication, the possibility of evidence distortion is increasing. However, whether it is two pieces of evidence that provide for the transcript of the inquiry made by the investigator or the prosecutor itself, as long as these exclusionary rules are not violated, they can be read out in court and can be transformed into a basis for a verdict. Even in the case of witnesses appearing in court to testify, the oral testimony of witnesses in court does not have any innate advantage in evidentiary capacity over the witnesses' pre-trial testimony transcripts. In other words, there is no distinction between the record of a witness's pre-trial testimony and the witness's testimony in court, in terms of evidentiary capacity.
As there is no legal limit on the evidentiary capacity of the testimony and the fact that the court generally does not challenge the probative power of the testimony transmitted by the prosecution, the need for witnesses to testify is no longer necessary, and the Tribunal has a generally negative attitude towards notifying witnesses to testify. In criminal trials, the vast majority of witness testimony is cross-examined by reading the transcript of the testimony in court, and the witnesses themselves do not appear in court to testify. There are issues of witnesses refusing to appear in court to testify at will, court refusal to notify witnesses to testify in court, and possibly the inability of the prosecution to cooperate in notifying witnesses to testify in court. As a result, as a common method of hearing, court investigations into witness testimony are conducted by reading out transcripts of testimony. This reading does not imply that all testimonies are read out one by one, but that a selective, summary or even combined generalization approach is adopted. As a result, the prosecution can read out the transcripts of testimony in its possession in an almost unrestrained abbreviated form, the investigation and debate of the testimony transcripts by the courts is almost merely formal, and the cross-examination of the testimony transcripts by the defendants and their defenders loses their substantive significance.
The current Code of Criminal Procedure establishes a system for witnesses to appear in court to testify, stipulates the conditions for witnesses to appear in court to testify, and establishes compulsory measures such as custodial summons and detention for witnesses who refuse to appear in court after the court has notified them to appear in court. The Tribunal may still read out the transcript of the testimony of witnesses who refuse to appear in court. The court may exclude the testimony only if the witness's testimony cannot be verified to be true.
Transcripts of witness testimony were consulted and studied by criminal judges prior to the opening of the trial. This shows that the transcripts of witness testimony submitted by the prosecution are evidentiary. In the course of the court trial, even if the witnesses refuse to appear in court to testify, the court still recognizes the evidentiary capacity of the witnesses' testimony records, allows the prosecution to read out the contents of the witnesses' testimony in court, and gives the prosecution and defense the opportunity to express their opinions and cross-examine the transcripts. This means that the Tribunal still recognizes the evidentiary capacity of witnesses who refuse to testify before the investigators. In the case of witnesses appearing in court to testify, the court still allows the prosecution to read out the transcript of the testimony in court. Even when witnesses change their testimony in court, the Tribunal remains non-contesting the ability to bear witness to the testimony, but at most conducts a comprehensive examination of its probative power. The so-called "rules for corroboration of testimony" require only that the testimony be corroborated by other evidence, and does not exclude the evidentiary capacity of the testimony transcript.
Attached: Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China
Article 87:Witness testimony shall focus on reviewing the following content:
(1) Whether the content of the testimony is directly perceived by the witness;
(2) Whether the witness's age at the time of testimony, cognitive, memory and expression abilities, and physical and mental states affect the testimony;
(3) Whether the witness has an interest in the parties to the case and the outcome of the case;
(4) Questioning witnesses whether they are conducted individually;
(5) Whether the production and revision of the interrogation record complies with laws and relevant provisions, whether the time and place of the start and end of the interrogation are indicated, whether the witnesses are informed of their rights, obligations, and legal responsibilities when the first questioning is made, and whether the witnesses check and confirm the interrogation records;
(6) When questioning minor witnesses, whether they notify their legally-designated representatives or appropriate adults provided for in the first paragraph of article 281 of the Criminal Procedure Law to be present, and whether the relevant personnel are present;
(7) Whether there are circumstances in which witnesses' testimony is collected by violence, threats, or other illegal methods;
(8) Whether there are contradictions between testimonies and between other evidences, and whether there are contradictions, and whether contradictions can be reasonably explained.
Article 88:Testimony provided by witnesses who are in a state of apparent drunkenness, poisoning, or anesthesia, and who cannot be properly perceived or correctly expressed, must not be used as evidence.
Speculative, critical, or inferred testimony of witnesses must not be used as evidence, except where it is judged to be factual on the basis of general life experience.
Article 89:Where witness testimony has any of the following circumstances, it must not be used as the basis for a verdict:
(1) The questioning of witnesses was not conducted individually;
(2) Written testimony has not been verified and confirmed by witnesses;
(3) When questioning deaf or mute persons, personnel who are familiar with deaf or dumb gestures shall be provided but are not provided;
(4) When questioning witnesses who do not understand the common local language or script, an interpreter shall be provided but not provided.
Article 90:Where the procedures and methods for collecting witness testimony have the following flaws, and are corrected or a reasonable explanation is made, they may be employed; where it cannot be corrected or a reasonable explanation is made, it must not be used as the basis for a verdict:
(1) The record of the inquiry does not fill in the name of the interrogator, recorder, or legally-designated representative, as well as the time and place of the start and end of the inquiry;
(2) The place of inquiry does not comply with provisions;
(3) The interrogation record does not record informing witnesses of their rights, obligations, and legal responsibilities;
(4) Where the record of the interrogation reflects that the same interrogator questioned different witnesses at the same time period;
(5) Questioning minors, where their legally-designated representative or appropriate adult is not present.
Article 91:Where witnesses' testimony in court is cross-examined by both the prosecution and defense and verified by the court as true, it shall be the basis for a verdict.
Where the testimony made by a witness in court contradicts his or her pretrial testimony, and the witness is able to make a reasonable explanation and is corroborated by other evidence, his or her trial testimony shall be accepted; where no reasonable explanation can be made, but his pretrial testimony is corroborated by other evidence, his pretrial testimony may be accepted.
Where upon notification by the people's court, a witness refuses to appear in court without a legitimate reason or refuses to testify after appearing in court, and the court cannot confirm the authenticity of his testimony, the witness's testimony must not be used as the basis for a verdict.