Is an oral-evidence based criminal trial possible in China?

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.