Why Chinese Witnesses do Not Testify at Trial in Criminal Proceedings Pt 1

WHY CHINESE WITNESSES DO NOT TESTIFY AT TRIAL IN CRIMINAL PROCEEDINGS ABSTRACT Having witnesses testifying at trial is a fundamental component of any modern judicatory system. In criminal litigations, generally speaking, testifying and being cross-examined at courtroom as a witness are one’s civil duty and being considered as one of the most effective ways to determine case facts. Even though Chinese laws and regulations, in particular the China Criminal Procedural Law, stipulate witnesses’ general responsibility to testify at trial and corresponding supporting measures, in reality, the appearance rate of witnesses testifying at criminal trials in China has been consistently extremely low for a long time. On the other hand, it is quite common in China that witnesses make written testimony at police stations or to procurators during pre-trial stages. Thus, often the evidence Chinese judges heavily rely upon in adjudicating criminal cases is some written-formed witness testimony made before trial. Such approach not only causes detriment to procedural due process of criminal trials, but also puts China’s ongoing judicial reform into jeopardy. In particular, whether witnesses testify at trial as norm is critical to the enduring campaign of China trial mode transforming from a typical inquisitorial system into a more adversarial system. Based on field studies conducted in ten pilot courts across the country underneath an on-going national research project led a vice chief Justice of the Supreme People’s Court of China, the author in this paper presents eight major causes for Chinese witnesses not showing up to testify before the judge in criminal trials. INTRODUCTION Having witnesses testifying in courtroom, a leading feature of the adversarial system, an effective tool for determining case facts and a demand for procedural due process, is the hallmark of modern criminal procedure. Renowned U.S. legal scholar Professor John Henry Wigmore, whose early twenty-century treatises on the law of evidence still remain unequaled, deemed cross-examination “beyond any doubt the 1 greatest legal engine ever invented for the discovery of truth”.1 And no doubt having witnesses testifying at trial is a prerequisite for conducting cross-examinations. China’s judicial system, on the other hand, due to its inquisitorial tradition, used to heavily rely on material evidence and documentary evidence in adjudication while paying much less attention on live, in-court testimony of witnesses.2 For a long period of time in the past, the overall appearance rate of Chinese witnesses testifying at trials had been constantly lower than 10% among all levels of jurisdictions across the country, with situation worse in criminal cases than civil cases.3 However, in very recent years, particularly since the Year of 2012 when both of China Civil Procedural Law and China Criminal Procedural Law were massively amended, China has pledged to change such norm, showing the world a determination to transform the country’s trial mode from a typical inquisitorial system into a more adversarial one. New laws have been established addressing witnesses’ general responsibility to testify and to be examined at trial, as well as on safety and financial safeguards for witnesses testifying at trial.4 Moreover, on October 23, 2014, three weeks after the Sixty-fifth Anniversary of the founding of the People’s Republic of China, the Fourth Plenary Session of the Eighteenth Central Committee of the Communist Party of China unprecedentedly launched a vital statecraft on rule of law – CCP Central Committee Decision concerning Some Major Questions in Comprehensively Moving Governing                                                                                                                 1 5 Wigmore, Evidence (3rd rev. ed. 1940), sec. 1367, p. 32. See Hu Yunteng (胡云腾), Zhengren Chuting Zuozheng Nan jiqi Jiejue Silu (证人出庭作证难及其 解决思路) [Difficulties in Witnesses Testifying at Trial and Corresponding Solutions], HUANQIU FALV PINGLUN (环球法律评论) [GLOBAL LAW REVIEW], no.5, 2006 (China); Chen Weidong (陈卫东), Rang Zhengren Zouxiang Fating (让证人走向法庭) [Let Witnesses Present in the Courtroom], SHANDONG JINGCHA XUEYUAN XUEBAO (山东警察学院学报) [JOURNAL OF SHANDONG POLICE COLLEGE], no.2, 2007, at 40, 40-45 (China); Chen Ruihua (陈瑞华), Lun Zhengren Zhengyan Guize (论证人证言规则) [Discussion on Witness Testimony Rules], SUZHOU DAXUE XUEBAO (苏州大学学报) [JOURNAL OF SOOCHOW UNIVERSITY], no.2, 2012 (China). 3 Chen Weidong (陈卫东), supra note 2, at 40. 4 Xingshi Susong Fa (刑事诉讼法) [China Criminal Procedure Law] (promulgated by the Nat’l People’s Cong., Mar. 14, 2012, effective Jan. 1, 2013), art. 62-63, 187-188, available at http://www.gov.cn/flfg/2012-03/17/content_2094354.htm (last visited Nov. 12, 2014). 2   2 the Country According to the Law Forward (hereinafter short for “the 18th Central Committee of CPC Decision”)5 – a blueprint for China’s judicial reform in the twentyfirst century. One of highlights in the Decision is a commitment that China will focus on reforms of legal proceedings to establish a criminal procedure centered on the trial stage, with case adjudications strictly based on facts and in accordance with laws.6 Major legal authorities in China, including Professor Guangzhong Chen from China University of Political Science and Law, interpret the 18th Central Committee of CPC Decision in a narrow sense as another round of top-down state approach to urge Chinese witnesses testifying at trial.7 Even though legislative and political pressing on witnesses testifying at trial have reached a historical peak in China, in reality the appearance rate of witnesses testifying at trial has no substantive change before and after.8 No matter from latest nationwide statistics released by the judicial authority or from field studies on pilot courts conducted by scholars across the country, feedbacks all pointed towards a cold, hard fact that the appearance rate of Chinese witnesses testifying at trials all over the country today remains extremely low, with no sign of any improvement since the 2012 legislation amendments. In the author’s opinion, such dilemma not only is a                                                                                                                 5 Zhonggongzhongyang Guanyu Quanmian Tuijin Yifazhiguo Ruogan Zhongda Wenti de Jueding (中 共中央关于全面推进依法治国若干重大问题的决定) [CCP Central Committee Decision concerning Some Major Questions in Comprehensively Moving Governing the Country According to the Law Forward] (promulgated by the Fourth Plenary Session of the Eighteenth Central Committee of the Communist Party of China, Oct. 23, 2014), available at https://chinacopyrightandmedia.wordpress.com/2014/10/28/ccp-central-committee-decisionconcerning-some-major-questions-in-comprehensively-moving-governing-the-country-according-tothe-law-forward/ (last visited Feb. 16, 2015). 6 Id. 7 Shenpan Zhongxin Yu Zhijie Yanci Yuanze Yantaohui (审判中心与直接言词原则研讨会) [Symposium on Trial Centralism and Principles on Direct and Oral Trial] (organized by Professor Guangzhong Chen from China University of Political Science and Law, Dec. 23, 2014), news report available at http://www.cicjc.com.cn/zh/node/1320 (last visited Feb. 16, 2015). 8 See Long Zongzhi (龙宗智), Xin Xingshi Susongfa Shishi Bannian Chupan (新刑事诉讼法实施：半 年初判) [Preliminary Comments on the Lately Amended China Criminal Procedure Law after Half a Year Immplementation], QINGHUA FAXUE (清华法学) [TSINGHUA LAW JOURNAL], no.5, 2013, at 136, 127-142 (China).   3 repeated reminder of the distinction between the law on the books and the law in action, but more importantly concludes the 2012 Amendments to China’s Procedural Laws as a failure in promoting witnesses testifying at trial while puts implementation of the 18th Central Committee of CPC Decision in peril. People cannot help wondering why such massive legislative and political stimulus did not work. In order to probe into material causes that stop Chinese witnesses testifying in criminal trials, the Research Office of the Supreme People’s Court of China which is under the leadership of the Vice Chief Justice Deyong Shen delegated the Institute of Evidence Law and Forensic Science at China University of Political Science and Law (hereinafter short of “CUPL Evidence Institute”) to do researches in ten pilot courts across the country.9 Since September 2013, the CUPL Evidence Institute, divided into ten research teams, conducted a four-month field studies and surveys in the ten pilot courts (hereinafter short of “the 2013 Field Studies”).10 Besides discussions and interviews with all sorts of law practitioners, attending trials and collecting data and materials directly from the pilot courts, the research teams                                                                                                                 9 This field studies conducted by the CUPL Evidence Institute (the 2013 Field Studies) is part of a National Social Science Foundation Key Project in China – Studies on People’s Courts Provisions of Evidence in Litigation (Project No.11&ZD175), led by Shen Deyong (沈德咏), Vice Chief Justice of the China Supreme People’s Court. The ten pilot courts are Shanghai No.1 Intermediate People’s Court (上海市第一中级人民法院), Changzhou Intermediate People’s Court in Jiangsu Province (江苏省常 州市中级人民法院), Baotou Kundulun District People’s Court in Inner Mongolia (内蒙古包头市昆 都仑区法院), Wuhan Intermediate People’s Court in Hubei Province (湖北省武汉市中级人民法院), Wenzhou Intermediate People’s Court in Zhejiang Province (浙江省温州市中级人民法院), Ma’anshan Intermediate People’s Court in Anhui Province (安徽省马鞍山市中级人民法院), Beijing Dongcheng District People’s Court (北京市东城区人民法院), Chongqing Fuling District People’s Court (重庆市涪陵区人民法院), Shenzhen Bao’an District People’s Court in Guangdong Province (广东省深圳市宝安区人民法院) and Weihai Huancui District People’s Court in Shandong Province (山东省威海市环翠区人民法院). 10 See Zhang Zhong (张中), Practical Basis of Evidence Legislation in China, conference paper submitted to The Foundations of the Law of Evidence and Their Implications for Developing Countries, organized by Professor Ronald Jay Allen from Northwestern University School of Law, Nov. 21, 2014, at 1, available at https://northwestern.app.box.com/s/mcr948plvv8p63n4215a/1/2619259267/22867273807/1 (last visited Feb. 16, 2015).   4 also distributed 800 questionnaires, of which 750 were returned and processed.11 From the perspective of research methodology, Phase One was to gather together all raw data of witnesses testifying in criminal trials in all ten pilot courts during one designated month, from which statistics like the actual appearance rate of witnesses testifying at criminal trials in all ten pilot courts during that month was obtained. Phase Two was to look into every criminal case adjudicated in the ten pilot courts during that designated month. By taking into account of a set of various considerations such as the accused’ confessions and guilty pleas as well as the materiality of a witness testimony and its controversial level between the litigating parties, each research team, led by a faculty member of the CUPL Evidence Institute and guided by the Research Office of the Supreme People’s Court of China, projected a should-be appearance rate of witnesses testifying at criminal trials of the assigned pilot court during the designated month. Phase Three was to conduct a parallel study between the actual witness appearance rate and the should-be witness appearance rate, and made a thorough analysis (including all sorts of experiment conducted on consideration testing) on the fundamental causes for affecting the appearance rate of Chinese witnesses testifying at criminal trials. As a faculty member of the CUPL Evidence Institute, the author participated in this national research project by the end of 2012. Primarily based upon the 2013 Field Studies, the author makes an effort in this paper to diagnose various fundamental causes for Chinese witnesses not testifying at trial in criminal proceedings. Part I briefly lays out an overall three-petal theoretical basis for having witnesses testifying at trial. Part II provides sampling statistics released by subdivisions of the Supreme People’s Court of China as well as data generated from latest field studies by the                                                                                                                 11   Id. 5 research teams of the CUPL Evidence Institute in the ten pilot courts, to show that over the past thirty years the appearance rate of witnesses testifying at criminal trials in China has been constantly low and the 2012 Amended China Criminal Procedure Law has not substantively affected the established practice of witness testimony in China. Part III, by summarizing eight fundamental problems for the extremely low witness appearance rate, looks into the major causes for preventing Chinese witnesses testifying at criminal trials. Part IV concludes that the challenge is an enormously complicated, multiple-layer, systematic issue, mixed with legal, culture, social, political and historical elements. There is no way to resolve such dilemma by changing or fixing any single variable, layer or element. I. THEORETICAL BASIS FOR HAVING WITNESSES TESTIFYING AT TRIAL The importance of having witnesses testifying at trial in both civil and criminal proceedings has been highly valued in many countries. In Common Law countries, having witness testifying in courtroom is a prerequisite for cross-examinations between the parties, a characteristic feature of the adversary system. For example, according to the Hearsay Rule of the United States Federal Rules of Evidence, if a witness does not testify at trial, his or her testimony is inadmissible by the court.12 On the other hand, in Continental Law countries, the Principle of Direct and Oral Trial has a similar effect for having witnesses testifying at trial.13 Such a universal rule has some deeply rooted theoretical basis of which below is an overview of three fundamental aspects. All three merits apply in both civil and criminal proceedings. A. A Powerful Tool For Evaluating Witness Testimony and For Determining Case Facts                                                                                                                 12 FED. R. EVID. 802. Göran Sluiter, Håkan Friman, Suzannah Linton, Sergey Vasiliev, Salvatore Zappalà (ed.), International Criminal Procedure: Principles and Rules, Oxford University Press, Mar. 21, 2013, at 1076. 13   6 As an essential type of evidence, witness testimony, generally defined as statement of a witness made to the adjudicator during the proceeding process with regard to what he or she perceived about the case fact, is a fundamental basis for factfinders to determine case facts under dispute.14 Comparing to other types of evidence, such as documentary evidence, material evidence and audio-visual material, a featured characteristic of witness testimony is its dependence on human’s subjectivity.15 On one hand, witnesses’ perception, memory or narration may make mistakes from time to time. On the other hand, there is legitimate risk that a witness may simply lie when making testimony. Thus, how to best determine when a witness stated truth and when did not is a challenge that every trial judge in every country faces. Featured characteristics of passivity and neutrality in judiciary have stopped judges going out of the courtroom to investigate and find out the true facts of cases by themselves. However, by sitting in the courtroom and just reading case files and documentary evidence, judges cannot feel witnesses’ real motivations and further can hardly make a fair determination on authenticity of any witness testimony. Thus, a better solution is to have witnesses testify at trial, letting them be questioned and examined by both litigating parties. If a witness made a contradictive testimony in the courtroom, the trial judge may immediately ask such witness to explain. If two witnesses’ live testimonies are conflicting with each other, the trial judge may instantly order them up to the stand together, questioning each other. After thousands of years of development in litigation proceedings, having witnesses testifying at trial is still the best way that human beings created to examine and evaluate witness testimony. B. An Essential Component of Judicial Proceeding Etiquette                                                                                                                 14 15   Chen Weidong (陈卫东), supra note 2, at 40. Id. 7 Judicial proceeding is an ancient, civilized activity of dispute resolution, which, comparing to other political or social events, has a deeper stress on procedure and formalization. For hundreds of thousands of years, case trials in all countries have been conducted in certain fixed, recurring rituals and procedures, which in return formed certain etiquette unique for judicial proceedings. For example, in many western countries, the design and decoration of a courtroom, settings of judges’ bench, dressings of a trial judge, the specific way a judge walking into the courtroom to open a trial, specific swearing procedure for witnesses making statements, as well as the stereotyped way for litigating parties and their counsels to communicate with the trial judge, all reflect a strict pattern of judicial proceeding etiquette, indicating from the beginning till the end a high level of civilization and sanctity in adjudication.16 One reason for such judicial proceeding etiquette is because judiciary power is sacrosanct, functioning as final words for dispute resolution. Having witnesses testifying at trial is an essential part of such judicial proceeding etiquette requirement. Speaking from a strict sense, absence of witness presenting in courtroom would make a trial incomplete in formality whereas trial judges making final judgment merely based on pieces of documentary evidence would be a violation against dignity of adjudication.17 On the other hand, when someone gets up to the witness stand at trial, surrounding by solemn courtroom settings and facing judges with full of majesty, he or she would naturally generate a feeling of respect and more likely speak the truth.18 Especially in those religious countries, when a witness holds a bible and swears to the                                                                                                                 16 See Zhao Feng (赵丰), Tan Guifan Sifa Liyi yu Shuli Sifa Quanwei (谈规范司法礼仪与树立司法权 威) [Discussions on the Relationship between Judicial Proceeding Etiquette and Judicial Authoritativeness], FAZHI YU SHEHUI (法制与社会) [LEGAL SYSTEM AND SOCIETY], no.8, 2010 (China). 17 Id. 18 Chen Weidong (陈卫东), supra note 2, at 41.   8 God in front of judges, it is the best chance for him or her to make statements in honesty. C. An Inherent Demand by the Parties to Cross-Examine Hostile Witnesses At Trial Examination of evidence is an indispensible step in judicial proceedings as well as a procedural right that belongs to both sides of the dispute parties. In order to narrow down resource gap between the procurator and the accused, the accused’s right to examine adverse evidence has gained increasing attention all over the world. For example, such right has been written into a series of international treatises of United Nations. Article 14 (3)(e) of the International Covenant on Civil and Political Rights (hereinafter short for “ICCPR”) puts the parties’ right to examine hostile witnesses as a significant element of fair trial, stipulating that “To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”.19 Thus, no matter a country belonging to the Common Law system or to the Continental Law system, as long as it executed ICCPR, the country has legal obligation to make sure such right of the dispute parties to examine hostile witnesses being realized within its jurisdiction. And the most practical way to realize such disputing parties’ right is to have witnesses testify at trial. Under cross-examinations, the ones with mistaken or fraud testimonies may easily be uncovered. By doing so, trial judges could also take a close observation on both parties’ as well as their witnesses’ testimonies, demeanor, body language, facial expression as well as other subtle manifestations, which in turn would be very helpful for trial judges to evaluate the reliability level of witness testimony and to determine case facts in a rational and reasonable way.                                                                                                                 19 I.C.C.P.R. Article 14 (3)(e), available at http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx (last visited Feb. 16, 2015).   9 II. A COLD, HARD FACT – THE EXTREMELY LOW APPEARANCE RATE OF CHINESE WITNESSES TESTIFYING AT TRIAL IN CRIMINAL CASES In judicial practice of Mainland China, the appearance rate of witnesses testifying at trial in criminal cases had been constantly low all over the country for a long time. According to sampling authoritative statistics released by the China Institute of Applied Jurisprudence at the Supreme People’s Court of China, between January and April 1997, only about 30% criminal cases adjudicated in Wuhan Intermediate People’s Court in Hubei Province had witnesses testifying at trial.20 Such numbers were even lower in most other provinces of China. For example, there were less than 25% witnesses testifying at trial in criminal cases of Fujian province during the year of 1997, and particularly in bribery cases no single witness presented in courtroom.21 More than a decade later, such a dilemma remained unsolved in Chinese judicial system, with no sign of moving into a positive direction.22 For example, according to authoritative statistics provided by the Research Office of the Supreme People’s Court of China, the appearance rate of witnesses testifying at trial in criminal cases of Huangpu District People’s Court of Shanghai Municipality was about 5% in 2007.23 Data also showed that the Third Intermediate People’s Court of Chongqing Municipality adjudicated a total of 2796 criminal cases, among which only 12 cases                                                                                                                 20 See Zuigao Renmin Fayuan Guanyu Yinfa de Tongzhi (最高人民法院关于印发《人民法院第三个五年改革纲要（2009－ 2013）》的通知) [The Notification of the Supreme People's Court about Print and Distribute ], available at http://baike.baidu.com/view/3143231.htm (last visited Feb. 16, 2015). 21 Id. 22 See Long Zongzhi (龙宗智), supra note 8, at 136. 23 Renmin Fayuan Disange Wunian Gaige Gangyao (2009-2013) (最高人民法院关于印发《人民法 院第三个五年改革纲要（2009－2013）》的通知), supra note 20. Also see Zhang Weiwei (张玮玮), Woguo Xingshi Zhengren Chuting Zuozheng Kunjing Fenxi (我国刑事证人出庭作证困境分析) [Analysis on the Dilemma of Chinese Witnesses Not Testifying at Trial in Criminal Cases], FAZHI YU SHEHUI (法制与社会) [LEGAL SYSTEM AND SOCIETY], no.6, 2007, at 521, 521-522 (China).   10 had a total of 13 witnesses testifying at trial, with an appearance rate of 0.32%.24 To get a better sense of the deadlock situation over the years, below also provides a sampling statistics table of Hebei District People’s Court of Tianjin Municipality released by the Research Office of the Supreme People’s Court of China, indicating that between 2006 and 2011 only about 1% - 2% witnesses testified in criminal proceedings of its jurisdiction.25 Year Number of criminal cases adjudicated Number of witnesses subpoenaed Number of witnesses actually testifying at trial Percentage of witnesses who were subpoenaed while actually testified at trial Percentage of criminal cases with witnesses testifying at trial in all cases adjudicated 2006 308 2007 419 2008 455 2009 447 2010 446 2011 352 29 31 27 15 9 11 6 5 9 7 5 4 20.6% 16.1% 33.3% 20% 22.2% 18.2% 1.9% 1.1% 1.2% 2% 1.6% 1.1% Such extremely low participation rate of witnesses’ testifying in courtroom has caused a series of serious negative impacts in Chinese judicial practice, including but not limited to the following: documentary evidence dominated in fact-findings;26 to some extent, the trial process was symbolic,27 the accused had no way to examine witnesses at trial, meaning losing his or her right to confrontation;28 and false or deceptive testimonies of witnesses were difficult to be exposed at trial, which in                                                                                                                 24 See Chongqing Disan Zhongji Renmin Fayuan Qunian Zhenrgen Chutinglv Jinwei 0.32% (重庆第三 中级人民法院去年证人出庭率仅为 0.32%) [The Rate of Witness Appearing in Court Was Only 0.32% in Chongqing Third Intermediate People’s Court Last Year], FAZHI RIBAO (法制日报) [LEGAL DAILY], June 14, 2011 (China). 25 Renmin Fayuan Disange Wunian Gaige Gangyao (2009-2013) (最高人民法院关于印发《人民法 院第三个五年改革纲要（2009－2013）》的通知), supra note 20. 26 Long Zongzhi (龙宗智), supra note 8, at 136. 27 Fan Chongyi (樊崇义), Xingshi Susong Shishi Wenti yu Duice Yanjiu (刑事诉讼实施问题与对策研 究) [Problems in Implementations of Criminal Procedural Law and Studies on Solutions], ZHONGGUO RENMIN GONGAN DAXUE CHUBANSHE (中国人民公安大学出版社) [CHINESE PEOPLE’S PUBLIC SECURITY UNIVERSITY PRESS], 2001 edition, Page 453 (China). 28 Chen Weidong (陈卫东), supra note 2, at 41.   11 return increased the chance of wrongful convictions.29 Focused on addressing such problems along with other legislative defects, the 2012 Amendments to China Criminal Procedural Law and follow-up judicial interpretations issued by the Supreme People’s Court of China made significant amendments over rules regarding witnesses testifying in courtroom, such as Article 187 – specifying conditions for witnesses appearing at courtroom to testify and Article 188 – laying out rules of compelling witnesses to show up in courtroom, as well as added a series of corresponding support measures, such as Article 62 – particular protections on witnesses, and Article 63 – financial reimbursement for witnesses presenting in courtroom.30 However, reality does not accord with anticipations. The appearance rate of witnesses testifying in criminal trials still has not been notably picked up since 2012 in China.31 Surveys conducted in the 2013 Field Studies show that 26.4% of the 750 questionnaire respondents (judges) reported that for criminal cases they heard in the past three years, the appearance rate of witnesses was below 5%, while 24.4% of the respondents indicated that the witness appearance rate ranged from 5% to 20%.32 Till now, it is almost certain to say that Chinese legislators’ intent embedded in the 2012 Amendments to China Criminal Procedural Law regarding promoting witnesses testifying at trial more or less has failed. III. EIGHT MAJOR CAUSES FOR THE EXTREMELY LOW APPEARANCE RATE OF WITNESSES TESTIFYING IN CHINESE COURTROOM OF CRIMINAL CASES Such extremely low appearance rate of witnesses testifying at trial in Chinese criminal proceedings happens with reasons. Primarily based on the 2013 Field Studies while influenced by a number of latest articles published on leading Chinese law                                                                                                                 29 Id. at 40. Xingshi Susong Fa (刑事诉讼法) [China Criminal Procedure Law], supra note 4. 31 See Long Zongzhi (龙宗智), supra note 8, at 136. 32 Zhang Zhong (张中), supra note 10, at 5. 30   12 journals, the author in this paper summarizes and presents below with eight problems as the major causes for Chinese witnesses not showing up to testify before the judge in criminal trials. A. Constitutional Problem – Deficient Authoritativeness of Judiciary Under China’s Overall Political Structure In United States, constitutional principles of “Separation of Power” and “Check and Balance” win the hearts of all. The three power bodies – legislative, administrative and judicial branches – are independent from each other and exercise their own authorities separately, within which the judicial branch, in a narrow sense, particularly refers to the federal and state court systems while does not include prosecutions and police stations. In contrast, the political system in China is named “Centralization with Top-down Supervisions”. 33 Furthermore, the Chinese Constitution defines the political system of China as “One Government with Two Judicial Wings – the People’s Court and the People’s Procuratorate under the leadership of the People’s Congress”.34 The National People’s Congress is both an organ of the State Power and the State Legislative Body. The Chinese Government, the People’s Court and the People’s Procuratorate exercise their own authorities under laws and regulations enacted by the National People’s Congress as well as are supervised by it. Thus, the political powers in China are not distributed separately and equally, rather belong to a system of “leadership – being led” and “supervising – being supervised”. Differences in political systems result in disparities in judicial authorities. In United States, because of the constitutional principles of “Separation of Powers” and                                                                                                                 33 Zuo Weimin (左卫民) & Ma Jinghua (马静华), Xingshi Zhengren Chutinglv: Yizhong Jiyu Shizheng Yanjiu de Lilun Chanshu (刑事证人出庭率：一种基于实证研究的理论阐述) [Appearance Rate of Witnesses Testifying at Trial in Criminal Proceedings: Theoretical Analysis Based upon Empirical Research Studies], ZHONGGUO FAXUE (中国法学) [CHINA LEGAL SCIENCE], no.6, 2005 at 171, 164176 (China). 34 Id.   13 “Check and Balance”, the judicial branch – U.S. federal and state court systems – has an equally vital political status along with its legislative branch and executive branch. Thus, to certain extent, the superior authoritativeness of U.S. court system comes from its prestigious political status and a clear empowerment by the U.S. Constitution. In contrast, in China, under the principle of “Centralization with Top-down Supervisions”, not only different State organs have strict differences in political hierarchies, but different governmental employees within the same State organ have strict differences in political titles. In daily working relationships, Chinese State organs, including courts, are very sensitive on each other’s political hierarchy, and Chinese governmental officials, including judges, pay lots of attention on each other’s administrative titles and treat each other differently in accordance with their administrative levels. Chinese officials, including judges on all levels, calculate all the time on whether they should treat other peer governmental officials with equally or higher or lower political respect. A well-known hidden political rule in China is that lower-level governmental agencies or officials should pay abundant respect and honor to any higher-level governmental agencies or officials. Under such a political structure, Chinese courts are actually under leadership of the Chinese Communist Party while supervised by the People’s Congress, and on the same political status level with numerous administrative organs, police stations and procuratorates.35 Any Chinese judge, no matter from local district court or from the Supreme People’s Court of China, is an ordinary governmental employee within a massive, hierarchical state bureaucracy system. Thus, from the perspective of China’s overall political structure, the judicial authoritativeness of Chinese courts is congenitally deficient.                                                                                                                 35   Id. 14 The relative low authoritativeness of judiciary in China has a profound negative impact on witness testifying at trial, which is highlighted in the case of governmental official witnesses.36 By taking into account of political need for honor and respect, Chinese trial judges would always hesitate when there is need to call for a governmental official witness who is in higher political hierarchy to testify at trial.37 Apparently, according to the traditional logics of Chinese politics, there is risk of irritating political leaders in such a situation. As a general practice, if any trial judge does so, general public in China may see such action as recklessness without political common sense. In criminal proceedings, such governmental official witnesses often would be police officers. In western countries, police officers frequently testify at trial as eye-witnesses. However, in China police officer-witnesses presented in courtroom in very rare cases.38 There are various reasons behind this awkward phenomenon, within which one of the most obvious reasons is the political hierarchy problem addressed here. Maybe some one would say governmental official witnesses testifying in courtroom only represent a relatively small portion of witnesses and the analysis from the perspective of political hierarchy does not have universal significance. However, it is fair to say the impact of Chinese governmental official witnesses not testifying in courtroom cannot be overlooked. Although governmental official witnesses only represent a small portion of witnesses in general, their appearance rate in courtroom does relate to an immense issue on whether laws and regulations can be implemented uniformly. Rule of law, in other words, means ruling by laws and regulations that apply to all citizens within the jurisdiction equally and fairly. Just as everyone learned                                                                                                                 36 Long Zongzhi (龙宗智), supra note 8, at 3. Id. 38 Id. 37   15 in the primary school, everyone is equal before the law. In a legal society, there is no room for any sort of superior privileges above the law. If governmental officials could easily avoid testifying at trial, they may have a chance to become bad role models for the general public to follow. B. Institutional Problem – Criminal Proceeding in China Like a “Relay Race” or “Assembly Line” Among Police Department, Procuratorate and the Court In China, the police department, the procuratorate and the court are included in the same overall governmental system, with an equal level of administrative hierarchy. Each one of the three has an independent, equal autonomy on judicial powers and responsibilities, while all together constitute the judicial system of China in a broad sense.39 The designers of China’s judicial system originally expected these three state departments working together while restricting each other’s power.40 Thus, there was no concept of “trial centrality” or “judge dominance” in China’s criminal proceedings. It is clear that no Chinese court has power to control pre-trial stages because pre-trial stages are the autonomous zones of the police department and the procuratorate.41 Either the police or the procuratorate has an independent power to “search and seizure” without any approval or warrant issued by a court. Criminal proceeding in China is like a “relay race” or “assembly line” among police department, procuratorate and the court, with a clear division of labor among these three internally. Thus, for purpose of avoiding conflicts with the police and the procuratorate, the court seldom rejects or reverses evidence prepared by the police or the procuratorate in criminal proceedings (i.e. pre-trial written testimony of witnesses). 42 Evidence prepared by the police or by the procuratorate, once submitted to the court, has certain                                                                                                                 39 Lv Erqi (陆而启), Yegong Haolong – Xingshi Zhengren Chuting de yi ge Yuyan (叶公好龙：刑事证 人出庭的一个寓言) [A Fable of Double Faces on Witness Presence in Criminal Court], ZHENGJU KEXUE (证据科学) [EVIDENCE SCIENCE], no. 1, 2008 at 40-43, 37-48 (China). 40 Id. 41 Id. 42 Id.   16 congenital authoritativeness and effectiveness in China, and trial judges may experience significant pressure if they want to challenge such written/documentary evidence.43 For a long period of time, trial process of criminal proceedings in China was like a confirmation procedure (with seldom rejections) for pre-trial documentary evidence or written testimony provided by the procuratorate while the ideal, substantive trial function of fact-findings has been constantly down-played.44 Thus, correspondingly, having witnesses testify at trial in criminal proceedings often sounded like an unnecessary action in criminal cases in China. C. Cognitional Problem – Long-time Ignorance of Accused’s Confrontation Right in China It is commonly believed by trial judges in China, just as the 2013 Field Studies indicated, that as long as facts of a case turn out being clear to judges on the bench through reviewing documentary evidence submitted by the parties, then calling for witnesses to present at trial to testify on the same matter is considered as redundant, which in the mind of most Chinese judges would only add extra but recurring adjudicating work while delay the trial process.45 It even has been written into Article 187 of the China Criminal Procedural Law that there are three conditions for witnesses testifying at trial, one of which is trial judges shall believe it is necessary for a witness to testify at trial,46 and the standard for judges to determine “necessity” here is whether or not the witness may add new facts or may help trial judges better                                                                                                                 43 Long Zongzhi (龙宗智), supra note 8 at 1-2; Lu Erqi (陆而启), supra note 39, at 40-42. Id.   45 See Lin Lin (林林), Zhengren Zuozheng yu Zhengren Zhengyan Zhidu de Leng Sikao (证人作证与 证人证言制度的冷思考) [Thoughts on Witness Testifying and the Witness Testimony Rules], XUESHU JIAOLIU (学术交流) [ACADEMIC EXHCANGE], no. 1, 2004, at 43, 42-47 (China); Gao Jie (高婕), Xin Xingsufa Shiye xia de Zhengren Chuting Zuozheng Xianzhuang ji Duice (新刑诉法视野下的证人出庭 作证现状及对策) [The Reality of Low Appearance Rate of Witnesses Testifying at Trial and Corresponding Solutions from the Perspective of the Lately Amended Criminal Procedural Law], DI JIU JIE GUOJIA GAOJI JIANCHAGUAN LUNTAN LUNWENJI (第九届国家高级检察官论坛论文集) [THE 9TH NATIONAL SENIOR PROCURATOR FORUM PROCEEDINGS], Aug. 21, 2013 (China). 46 China Criminal Procedure Law, article 187. 44   17 determining case facts.47 What is missed or ignored here is the accused’s right to confront a witness whose testimony is against the accused’s interest.48 Even though respecting and protecting citizens’ human rights has been written into China’s Constitution since the beginning, and although it is widely recognized in China that the two fundamental goals for the judiciary in criminal adjudications are cracking down on crimes and protecting human rights, the 2013 CUPL Field Studies as well as numerous academic works published on leading Chinese law journals indicate that in practice, Chinese judges are way more obsessed on fighting against crimes but seem not paying enough attention on the other equally important responsibility – to protect fundamental human rights of both parties in litigation, including the accused’s. 49 Surveys indicate that a significant number of Chinese judicial officers even did not realize that the accused has such inherent right of faceto-face confrontation and believe granting the accused a chance at trial to examine written testimony of an adversary witness but without the presence of the adversary witness in the courtroom would be good enough to protect the accused’s basic human rights.50                                                                                                                 47 Wan Yi (万毅), Xin Xingsu Fa Zhengren Chuting Zhidu de Ruogan Fajieshi Wenti (新刑诉法证人 出庭制度的若干法解释问题) [Interpretation Problems regarding Rules of the Witnesses Testifying at Trial within the Lately Amended China Criminal Procedure Law], GANSU ZHENGFA XUEYUAN XUEBAO (甘肃政法学院学报) [JOURNAL OF GANSU INSTITUTE OF POLITICAL SCIENCE AND LAW], Nov., 2013, at 2, 3, 1-6 (China). 48 Yang Xiong (杨雄), Zhengren Chuting Zuozheng Zhidu de Lifa Fazhan yu Kunjing (证人出庭作证 制度的立法发展与困境) [Legislative Developments and Dilemmas in the System of Witnesses Testifying at Trial], HENAN SHIFAN DAXUE XUEBAO (河南师范大学学报) [JOURNAL OF HENAN NORMAL UNIVERSITY], no. 5, 2012 at 95, 96, 95-99 (China); also see Gao Jie (高婕), supra note 45. 49 See Long Zongzhi (龙宗智), Woguo Xingshi Zuozheng Zhidu zhi Sanda Guaizhuang Pingxi (我国刑 事作证制度之三大怪状评析)[Analysis on the Three Major Strange Phenomenon in the System of Witness Testifying in Chinese Criminal Proceedings], RENMIN FAYUAN BAO (人民法院报) [PEOPLE’S COURT DAILY], June 1, 2001 (China). 50 Wang Zhuhao (汪诸豪) & Shen Peng (沈鹏), Renmin Fayuan Susong Zhengju Guiding Shiyongqingkuang de Diaoyan Baogao (人民法院诉讼证据规定适用情况的调研报告——与马鞍山 市两级法院法官座谈) [Field Study Report on Implementation of the People’s Courts Provisions of Evidence in Litigation] 12 (Dec. 16, 2013) (an interim research product for the 2013 Field Studies) (unpublished product on file with the CUPL Evidence Institute) (China) [hereinafter short for “CUPL Field Study Report”]; also see Long Zongzhi (龙宗智), supra note 8.   18