Why Chinese Witnesses do Not Testify at Trial in Criminal Proceedings Pt 2

D. Cultural Problem – Invisible Influence by Chinese Traditional Culture and Social Environment of “Not to Involve Oneself into a Dispute” and “Taking No side In Any Conflict” Affected by theories of the Confucianism and thousands of years’ traditional Chinese cultures, most Chinese people deeply believe in ancient Chinese proverbs of “harmony is most precious” (和为贵), “not to involve oneself into a dispute and take no side in any conflict” (明哲保身), “maximize what is good and minimize what is bad” (趋利避害) and “avoid trouble whenever possible” (多一事不如少一事).51 Such ancient customs significantly affects daily life of Chinese people as well as the modern Chinese society as a whole. When taking actions or making decisions in daily life, many Chinese do not even need to remind themselves about such ancient proverbs but their conduct simply would follow. Keeping high sensibility in relationships, paying significant attention on “face-saving” (面子), no offense to others, and harmony in work and in life are the most important guidance for conduct in daily life of most Chinese.52 As a result, within a very long period of time in the past, most people in China traditionally treated litigation or lawsuit as a really “awful thing” simply since certain features of litigation are incompatible with such ancient Chinese customs.53 For example, confliction with the opposing party is unavoidable in litigations, and lawsuit would lead to “face-losing” of someone, causing tensions 51 See Chen Weidong (陈卫东), supra note 2, at 41; Zhang Liming (章礼明), Zhengren Chuting Nan de Wenhua Leixingxue Jieshi (证人出庭“难”的文化类型学解释) [Cultural Typology Explanation on the Rare Appearance of Witness in Court], HEBEI FAXUE (河北法学) [HEBEI LAW SCIENCE], no.10, 2012, at 68, 68-74 (China); Zhang Xu (张旭) & Yi Jisong (易继松), Guanyu Zhengren Buchuting Zuozheng de Falv Sikao (关于证人不出庭作证的法律思考) [Thoughts on Witnesses Refusing to Testify at Trial], XIANDAI FAXUE (现代法学) [MODERN LAW SCIENCE], no.4, 2002, at 82, 82-85 (China). 52 Li Shouwei (李寿伟), Zhengren Chuting Zuozheng: Jiejue Laowenti de Xinfangan (证人出庭作 证：解决老问题的新方案) [Witnesses Testifying at Trial: New Approaches to Solve Old Problems], ZHONGGUO SHEHUI KEXUE BAO (中国社会科学报) [CHINA SOCIAL SCIENCE WEEKLY], April 30, 2014 (China), at 1. 53 Id. 19 between litigating parties, or making some one experiencing trouble or conflicts.54 Thus, in reality, nowadays when facing criminal litigations, many Chinese witnesses deeply influenced by such customs, hesitate or even reject to appear in courtroom. It is common to see Chinese, when being noticed by the court to show up at trial as witnesses, do not cooperate.55 In many cases, they may find some excuse to evade, or simply disappear before the hearing date without notifying the court or either side of the litigating parties.56 E. Legislative Problem – Severe Defects in Chinese Legislations Regarding Witnesses Testifying at Trial Defects in legislation are a key reason for Chinese witnesses not showing up in courtroom. As a summary, based on the 2013 Field Studies as well as the latest publications of leading legal academics in China, there are at least three major aspects of legislative defects in China regarding witness testifying at trial. First is the Problem of Severe Legislation Incompleteness that led to a systematic failure of witness testifying at trial in China.57 For example, under the China Criminal Procedural Law or any other legislation in China, there is no specific rule addressing direct and cross examinations or the accused’s right to confrontation.58 Only Article 59 of the China Criminal Procedure Law briefly mentioned witness testimony shall be examined by all parties at trial before being admitted as the basis for adjudication, but it is too general.59 Also, neither witness impeachment rule nor rehabilitation rule exist in Chinese procedural laws. Without such specific regulations, there would have 54 Id. Chen Weidong (陈卫东), supra note 2, at 41. 56 Wang Zhuhao (汪诸豪) & Shen Peng (沈鹏), Xingshi Zhengju Guize zai Sifa Shijian zhong de Shiyongxing (刑事证据规则在司法实践中的适用性——基于马鞍山市两级法院的调研) [Applicability of the Criminal Evidentiary Rules in Judicial Pratice – Based on Field Studies conducted in Ma’anshan Intermediate People’s Court in Anhui Province], RENMIN LUNTAN (人民论 坛) [PEOPLE’S TRIBUNE], no.17, 2014, at 117, 117-119 (China). 57 Chen Weidong (陈卫东), supra note 2, at 41-42. 58 Lv Erqi (陆而启), supra note 39, at 46; Zhang Weiwei (张玮玮), supra note 23, at 522. 59 China Criminal Procedural Law, article 59. 55 20 no clear guidance on how to challenge a witness testifying at trial, especially from standpoint of the opposing party, which is a direct cause for low effectiveness of witnesses presenting at trial in China.60 Furthermore, there is no hearsay rule or hearsay exception/exemption rule in China, which means there is no clear and specific regulation in China addressing out-of-court statement evidence.61 Not only does China lack substantive trial procedural rules regulating examinations over witnesses, but practical procedural rules addressing subpoena of witnesses are neither in place. 62 Chinese laws just stipulate that the judge shall subpoena witnesses to testify at trial whenever three conditions under Article 187 of the China Criminal Procedural Law are satisfied.63 However, how to initiate and conduct the process of “subpoena of witness” is a question with no clear answers. Corresponding step-by-step approaches could be found in Chinese laws and regulations. 64 In practice, as reflected in the 2013 Field Studies, a significant percentage65 of judges in the pilot courts believe that as long as court summons ordering a witness to testify at trial, then it is the procuratorate’s responsibility to make sure such witness showing up in the courtroom on time.66 However, on the other hand, almost all Chinese procuratorates believe that since summons of witness were issued by the court, it is the court’s responsibility to have the witness present at                                                                                                                 60 Yang Xiong (杨雄), supra note 48, at 96. Xu Juanjuan (许娟娟), Xingshi Zhengren Bu Chuting Zuozheng de Yuanyin Tanjiu (刑事证人不出 庭作证的原因探究) [Explorations on Why Witnesses not Testifying at Trial in Criminal Proceedings], FAZHI YU SHEHUI (法制与社会) [LEGAL SYSTEM AND SOCIETY], no. 12, 2007 at 525, 525-526 (China); Wan Yi (万毅), supra note 47. 62 Id., at 526; Zhang Weiwei (张玮玮), supra note 23 at 522. 63 China Criminal Procedure Law, article 187. 64 Wan Yi (万毅), supra note 47. 65 The CUPL Field Studies indicated that 78% trial judges from the ten pilot courts believed as long as court summons ordering a witness to testify at trial, then it is the procuratorate’s responsibility to make sure such witness showing up in the courtroom on time. 66 See Wang Zhuhao (汪诸豪) & Shen Peng (沈鹏), supra note 56, at 10; Zhang Weiwei (张玮玮), supra note 23, at 522. 61   21 trial on time.67 Such buck-passing dilemma in China was ultimately due to a lack of specified procedural regulations addressing subpoena of witnesses.68 In addition, there is no specific procedural law in China regulating admissibility or probative weight priorities between pre-trial written testimony and at-trial live testimony.69 A related but different problem here is that no specific rule in the Chinese procedural law essentially limits the use of written testimony, except for one single rule regulating appraisal opinion letters of forensic scientists under Article 187 of the China Criminal Procedure Law.70 The second major aspect of legislative defects in China regarding witness testifying at trial is the Problem of Flaws, Loopholes and Contradictions in the Current-Existing Laws. For example, Article 187 of the China Criminal Procedural Law provides that as long as one of the three conditions – 1) witness testimony in dispute, 2) with significant impact to adjudication of the case, and 3) trial judge’s belief that it is necessary for a witness to present at trial – cannot be satisfied, such witness has no responsibility to testify at trial.71 However, as addressed in Section C aforementioned, such a regulation misses the point of the accused’s right of face-toface confrontations over a hostile witness whose testimony is against the accused’s                                                                                                                 67 Id. Id. 69 Xu Juanjuan (许娟娟), supra note 61 at 525; Wang Li (王力), Xingsu Fa Xiugai Hou Zhengren Chuting Zuozhenglv Rengdi de Yuanyin (刑诉法修改后证人出庭作证率仍低的原因 ) [Reasons for Appearance Rate of Witnesses Testifying at Trial still Low after the Lately Amended Criminal Procedure Law], DAQING SHEHUI KEXUE (大庆社会科学) [DAQING SOCIAL SCIENCES], no. 4, 2013 at 119, 525-526 (China); Feng Xinghua (冯杏华), Xiugai hou Xingshi Susongfa Zhengren Chuting Zuozheng Zhidu Pingxi (修改后刑事诉讼法证人出庭作证制度评析) [Comments on the Rules of Witnesses Testifying at Trial After the Criminal Procedure Law Amended], FAZHI LUNTAN (法治论坛) [NOMOCRACY FORUM], no. 1, 2013 at 360, 356-361 (China). 70 Article 187 of the China Criminal Procedure Law stipulates that when all three conditions of Article 187 are satisfied, forensic scientists shall present at trial to testify. If, after being notified by the court, some forensic scientist refuses to show up in the courtroom, then his or her written appraisal opinion letter is inadmissible; also see Long Zongzhi (龙宗智), supra note 49, at 137; Wan Yi (万毅), supra note 47, at 5-6. 71 China Criminal Procedure Law, article 187. 68   22 interest.72 Instead, Article 187 of the China Criminal Procedural Law sets up a legal basis for a witness not testifying at trial, as long as the witness can prove his or her testimony is not material to adjudication of the case or if he or she can convince the trial judge that there is no necessity for him or her to testify at trial.73 Even if Article 187 requires a witness to testify at trial, Article 190 of the China Criminal Procedure Law, among other laws and regulations in China, stipulates that for those witnesses who do not present at trial, their pre-trial written testimonies shall be read in front of the judge at trial by the procurator (or by the defender if such witnesses are for the accused).74 So, on one hand, the law requires certain types of witnesses to testify at trial while on the other hand, the law permits pre-trial written testimonies being read at trial.75 Thus, the law has a problem of self-contradiction here. The third major aspect of legislative defects in China regarding witness testifying at trial is the Problem of Imprecisions and Ambiguities in Regulations, related to the second major aspect of legislative defects above-mentioned. For example, the China Criminal Procedural Law does have general rules on safety protection of witness testifying at trial, such as Article 61 and 62.76 However, a survey on the general public (part of the 2013 Field Studies) indicates that, by being asked “why you would not be willing to testify at trial”, 79% respondents who were randomly selected in public chose the option of “being afraid of retaliation by the opposing party in                                                                                                                 72 Yang Xiong (杨雄), supra note 48 at 95, 96; Zhang Weiwei (张玮玮), supra note 23, at 521. Wang Li (王力), supra note 69, at 118. 74 China Criminal Procedure Law, article 190; also see Provisions of the Supreme People’s Court, the Supreme People’s Procuratorates, the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice concerning the Examination and Judgment of Evidence in Death Sentence Cases and Provisions on the Exclusion of Illegal Obtained Evidence in Criminal Cases, article 1 (1). 75 Luo Qian (罗倩), zai Gongzheng yu Xiaolv Zhijian –Zhengren Chuting Zuozheng Zhidu de Kunjing he Chulu (在公正与效率之间：证人出庭作证制度的困境和出路) [Between Justice and Efficiency – Dilemmas and Solutions of Rules regarding Witnesses Testifying at Trial], ZHONGGUO SHIYOU DAXUE XUEBAO (中国石油大学学报) [JOURNAL OF CHINA UNIVERSITY OF PETROLEUM], no. 1, 2014 at 56, 55-59 (China). 76 China Criminal Procedure Law, article 61, 62. 73   23 litigation”. So, even though legislation lays out a general rule over witness protection, in reality, Chinese witnesses still have a strong feeling of insecurity when considering testifying at trial. Besides the Cultural Problem as addressed in Section D aforementioned, the missing part here, includes but not being limited to, specified stipulations on the scope of protection target(s), specific type(s) of case(s) that would trigger witness protection, a detailed roadmap on how to apply for such witness protection, a reviewing standard for such witness-protection applications, a reconsideration mechanism in case such witness protection application did not pass through the reviewing process, specific time lines before and after trial for starting such witness protections, specific, practical measures to protect witnesses, specified organizations that are assigned to conduct such witness safety protection and how they cooperate with each other on the safety-protection assignment, etc.77 Similar problem of imprecision and ambiguity exists in regulations of witness compensation. The China Criminal Procedural Law does have general rule on witness compensation, such as Article 63.78 However, the law does not specify the scope of compensation, the compensation standards, where funding comes from, as well as which governmental organization(s) is or are in charge of such witness compensation, etc.79 F. Motivational Problem – Chinese Judges Preferring Documentary/Written Evidence To At-Trial Witness Testimonies While Chinese Procurators Reluctant to Have Their Witnesses Testify At Trial                                                                                                                 77 Feng Xinghua (冯杏华), supra note 69, at 360; Luo Qian (罗倩), supra note 75, at 56; Shi Yihua (史 轶华), Xingshi Anjian Zhengren Jujue Chuting Zuozheng zhi Yuanyin yu Duice Tanxi (刑事案件证人 拒绝出庭作证之原因与对策分析) [Reasons and Solution on Witnesses Rejecting to Testify at Trial in Criminal Proceedings], FAZHI BOLAN (法制博览) [LEGALITY VISION], Nov. (middle), 2014 at 242, 242-243 (China). 78 China Criminal Procedure Law, article 63. 79 Zhao Fei (赵飞), Lun Woguo Xingshi Zhengren Chuting Zuozheng Zhidu (论我国刑事证人出庭作 证制度) [Discussion on the System of Witnesses Testifying at Trial in China], SHANDONG QINGNIAN ZHENGZHI XUEYUAN XUEBAO (山东青年政治学院学报) [JOURNAL OF SHANDONG YOUTH UNIVERSITY OF POLITICAL SCIENCE], no.5, 2012 at 98, 95-99 (China).   24 For a long period of time in the past, Chinese judges largely relied upon written documents or documentary evidence in determining case facts at criminal trials – what is widely known as “proceedings conducted in writings” or “file-transcript centrism”.80 Based upon the 2013 Field Studies, it indicated that in recent years, even though continuous legislation amendments and judicial reforms have brought more features of the adversary system into China’s criminal proceedings, judges still heavily rely upon written or documentary evidence, habitually or not. To a large extent, written evidence replaced the role of witness live testimony at trial in China’s judicial practice.81 In other words, in China, written testimony is the mainstream channel for witnesses expressing their messages to the court while testifying in courtroom is an exceptional situation.82 It is normal in China’s criminal proceedings that, even if witnesses showed up in courtroom, procurators still chose to have their witnesses read prior prepared written testimony or simply submitted the written testimony to the trial judge for review with no objection by the accused, nor would be denied by the trial judge.83 After reviewing such written testimony, trial judges in China usually would consider it is no longer necessary for the same witness at trial to testify on the same issue or the witness would be granted very short period of time to do so.84 Based upon feedbacks from the 2013 Field Studies, there is strong impression that Chinese judges and procurators generally believe written testimony is more accurate and reliable than witness live testimony at trial. As a summary, their typical rationale                                                                                                                 80 Zuo Weimin (左卫民) & Ma Jinghua (马静华), supra note 33, at 171. See Deng Shengtao (邓胜涛), Huang Jinbo (黄金波) & Wu Ruyu (吴如玉), Xingshi Anjian Zhengren Bu Chuting Zuozheng de Yuanyin yu Duice (刑事案件证人不出庭作证的原因与对策) [Reasons and Resolution on Witnesses Not Presenting in Courtroom to Testify in Criminal Proceedings], RENMIN SIFA (人民司法) [PEOPLE’S JUDICATURE], no.11, 2001 at 32, 32-34 (China). 82 Id. 83 Long Zongzhi (龙宗智), supra note 49, at 137. 84 Id. 81   25 is when the witness made such written testimony to the police at the investigation stage, their perception and memory were fresh, comprehensive and clear to the most extent, and at that moment which would be immediately after the crime occurred, the witness would encounter the least outside interferences and least self-concerns when making written testimony to the police.85 When criminal proceeding continues, on one hand, social impact on the witness would grow, especially from the side of victim and from the accused, as well as self-concerns of the witness would rise up, such as fear of reprisal or litigation burnout; on the other hand, memory of the witness on facts of the crime would naturally be getting vague with the passage of time.86 Thus, based on such recognitions, the reliability of witness live testimony at trial, in the mind of Chinese judges and procurators, is generally not as strong as written testimony made to the police or procurator before trial.87 In addition, certain adjudicating mechanisms in China’s criminal proceedings help elevate written or documentary evidence to an even higher level of importance. When talking about judicial independence in China, it means trial court shall have independent adjudicating power in each specific case.88 Here, “trial court” means trial court as a whole, rather than the individual trial judges.89 According to the China Criminal Procedural Law, a typical trial shall be adjudicated by a panel of judges.90 However, in reality, within each Chinese court, there is an adjudicatory committee composed by senior-level judges that do not sit on the bench at trials but actually have the power of final words on determination of difficult, complex or important cases of                                                                                                                 85 Also see Zuo Weimin (左卫民) & Ma Jinghua (马静华), supra note 33, at 173. Id. 87 Id. 88 Wang Li (王力), supra note 69, at 117. 89 Id. 90 China Criminal Procedure Law, article 178.   86   26 its own jurisdiction.91 According to Article 15 of Notice of the Supreme People’s Court on Issuing the Implementation Opinions on Reforming and Improving the Adjudicatory Committee System of the People’s Court, the adjudicatory committee shall discuss and determine a case according to a procedure of listening to reports from the panel of trial judges, inquiry, comment and finally vote for the result.92 Throughout such process, the only way for the adjudicatory committee to determine facts of the case is through listening to case report from the panel of trial judges or reviewing case files by its own and the adjudicatory committee would not be in contact at all with the litigating parties or any witness at any time.93 On the other hand, from the perspective of procurators, due to a robust system of documentary evidence, usually when Chinese procurators present their side of case at trial, they already have witness testimonies needed in written form at hand, and more often than not believe nothing else their witnesses may add for their argument by testifying at trial in person. 94 In addition, it is commonly believed by Chinese procurators that if having their witness testify at trial, there is risk that such witness may retract his or her previous pre-trial testimony by saying something different in the courtroom. 95 Written testimony or documentary evidence would not change content by presenting at trial, but when witnesses are testifying at trial, due to various reasons, such as anxiety, nervousness or lack of basic public speaking skill, more often than not unintentionally they may say something inconsistent with prior statements of their own. 96 And once the procurator’s witness says something                                                                                                                 91 China Criminal Procedure Law, article 180; also see Wang Li (王力), supra note 69, at 117. Id. 93 See Chen Ruihua (陈瑞华), Anjuan Yisong Zhidu de Yanbian yu Fansi (案卷移送制度的演变与反 思) [Evolvement in Case File Transfer System and Reflections], ZHENGFA LUNTAN (政法论坛) [TRIBUNE OF POLITICAL SCIENCE AND LAW], no.5, 2012 (China). 94 Zuo Weimin (左卫民) & Ma Jinghua (马静华), supra note 33, at 170. 95 Id.; also see Li Shouwei (李寿伟), supra note 52. 96 Lu Erqi (陆而启), supra note 39, at 42-43. 92   27 inconsistent with prior statements of his or her own in front of a judge at trial, the trial judge usually would order the procurator to redo a whole process of investigation, verification and/or appraisal, in order to determine which version of the witness’ statements is accurate.97 Such repeating procedure is extremely time-consuming to the procurators and there is risk that by the end of the repeated investigation, it turns out that such witness testimony is actually adverse to the procurator’s case.98 Thus, in order to avoid all troubles above-mentioned, in practice, Chinese procurators usually are very reluctant (or to say lack of incentive) to have their witnesses testify at trial.99 There is another potential issue here, which especially in the past caused a few of Chinese procurators reluctant to have their witnesses testify at trial. In a small number of Chinese criminal cases in the past, written testimonies of witnesses for the procurator side were obtained through illegal manners at pre-trial investigation stage. 100 Such witnesses, if presenting at trial, would be almost certain to say something different or even opposite from their pre-trial written testimonies. Thus, apparently procurators do not want to present such witnesses at trial. Nonetheless, in recent years, due to a persistently increasing nation-wide attention on illegal obtained evidence and through high-technical solutions such as compulsory whole process videotaping of witness inquiry at investigation stage, such illegally obtaining written testimony occurrences have significantly decreased in Chinese procurators’ practice.101                                                                                                                 97 Id. Id. 99 See Chen Weidong (陈卫东), supra note 2, at 42. 100 See Wang Jiancheng (汪建成), Zhongguo Xuyao Shenmeyang de Feifa Zhengju Paichu Guize (中国 需要什么样的非法证据排除规则) [What kind of Illegal Obtained Evidence Exclusionary Rule is needed in China], HUANQIU FALV PINGLUN (环球法律评论) [GLOBAL LAW REVIEW], no.5, 2006 (China); Chen Ruihua (陈瑞华), Feifa Zhengju Paichu Guize de Zhongguo Moshi (非法证据排除的中 国模式) [China Model on Exclusion of Illegal Obtained Evidence], ZHONGGUO FAXUE (中国法学) [CHINA LEGAL SCIENCE], no.6, 2010 (China). 101 Id. 98   28 G. Performance Problem – Ineffective Performance by Witnesses and by the Witness Examiners in Courtroom Even in the very few cases that witnesses did testify at trial, what most Chinese witnesses did in the courtroom was simply repeating or reading their written testimony made before trial which had already been reviewed by judges before trial started.102 In addition, a significant number of Chinese witnesses testifying at trial lacked basic skills of public speaking, or were not well coached by counsel before trial or even the litigating party for whom the witnesses testified for simply did not have a lawyer to defense his or her case.103 Thus, it is common to see in China that, even though witnesses did present at trial and testify, the message they conveyed was the same as or even more limited than their written testimony that had already been submitted to the court before trial. More importantly, due to absence of legislations on direct/cross examinations as well as witness impeachment in China, even if witnesses show up in the courtroom to testify, the opposing party seldom would be able to do an effective examination over the adversary witness, not even to mention impeaching witnesses for lack of credibility. H. Enforcement Problem – Dilemmas in Law Implementation and Witness Incompliance Chinese judicial system has a serious problem of enforcement that has been widely aware of in the nation for a long period of time but never being effectively solved. There are at least three aspects of such enforcement dilemma. Firstly, briefly speaking, in the past for a long period of time, it was quite common among judgment enforcement departments (a subdivision of a Chinese court) all over the country, for their law enforcement officers subjectively either simply not                                                                                                                 102 103   See Lu Erqi (陆而启), supra note 39, at 46.   Id. 29 following laws and regulations, or performing strictly according to the laws. In some extreme cases, certain judgment enforcement officers even broke the law.104 Furthermore, there is a serious “Enforcement of Law” Problem. Due to numerous legislative defects above-mentioned in Section E, confusions, misinterpretations and infeasibility, among other problems, emerge all the time throughout law implementation process in China. The four most fatal problems that impede implementing rules and regulations on witnesses testifying at trials are 1) logical imprecisions and loose wordings, 2) ambiguities in regulations, 3) room for nonfeasance, and 4) lack of operability. An example for illustrating Problem No.1) and Problem No.2) is that Article 187 and 188 of the China Criminal Procedural Law together empower the court to determine and notify witnesses to testify at trial, stipulating that if after being notified, witnesses refuse to present in courtroom, the court may enforce them showing up.105 However, the law has not specified what counts as “being notified”, nor clarified the specific method(s) of enforcement over the witnesses to have them testify in courtroom.106 Also, for instance, multiple rules in the China Criminal Procedural Law generally address the issue of witness safety protection. 107 However, the law has not specified what entity or entities is/are responsible to protect witnesses’ safety, nor defined the scope of witness protection.108 The law neither has clarified whether it is a pre-trial protection for those witnesses who plan to testify in courtroom or after-trial protection only.109 With respect to Problem No.3), for example, the Judicial Interpretation issued by the                                                                                                                 104 See Zhang Weiwei (张玮玮), supra note 23, at 522; Long Zongzhi (龙宗智), supra note 49, at 136. China Criminal Procedure Law, article 187-188. 106 Wang Zhuhao (汪诸豪) & Shen Peng (沈鹏), supra note 56, at 117. 107 China Criminal Procedure Law, article 60, 61. 108 Liang Chengwen (梁成文) & Zhang tian Yuxiao (张天羽啸), Woguo Xingshi Susongfa zhong Zhengren Chuting Zuozheng Nan de Yuanyin (我国刑事诉讼中证人出庭作证难的原因) [Analysis for the Reasons Why Witnesses in Criminal Prceedings are Not Willing to Testify at Trial], ZHENGZHI FALV (政治法律) [TRIBUNE OF SOCIAL SCIENCES IN XINJIANG], no.4, 2011, at 56, 46-56 (China) 109 Id. 105   30 Supreme People’s Court on Article 188 of the Criminal Procedural Law regulates that for those witnesses who received court notice or subpoena to testify at trial but reject doing so, the court shall first give them admonition; if they still do not show up in the courtroom, after permission from chief judge of the court, such witnesses shall be put in judicial custody.110 Such judicial interpretation seems very specific at first glance. However, in fact, there is plenty of room for nonfeasance. In particular, the conditional term “permission from chief judge of the court” means a series of internal application and approval procedures within the court, which could be complicated in procedure and time-consuming. 111 Furthermore, if after being under custody the witnesses still do not comply with the court, what else can the trial court do in order for witness compliance? At least no rule in current Chinese legislations gives trial judges guidance on this. Last but not least, regarding to Problem No.4), for example, Article 187 of the China Criminal Procedural Law stipulates that, only when all three conditions – disputes between the litigating parties, significant impact on adjudication of the case and necessity in the mind of trial judges – are satisfied, witnesses then shall present in the courtroom.112 However, as indicated in the 2013 Field Studies, in practice, such legislation gives the trial judges overwhelming discretions in determining what counts as “significant” impact on adjudication of the case and what counts as “necessity” to present in courtroom. Judges may easily find an “excuse” in accordance with such legislation for not allowing witnesses testifying at trial and thus judicial abuse may easily occur here. Last but not least, unfortunately, incompliance is quite common among Chinese witnesses. For example, as above-mentioned,                                                                                                                 110 China Criminal Procedure Law, article 188. Wang Li (王力), supra note 69, at 119, 120. 112 China Criminal Procedure Law, article 187. 111   31 after receiving court writ/subpoena/notice for serving witness duty at trial, instead of presenting in the courtroom in set time, some Chinese citizens rather chose to “disappear”, like traveling abroad to escape such testifying responsibility.113 Other witnesses may still appear in the courtroom physically but do not cooperate mentally by claiming they do not know or do not remember anything related to the case at trial but actually they do know something about facts in dispute.114 IV. CONCLUSION The 2012 Amended China Criminal Procedural Law as well as the 18th Central Committee of CPC Decision has intended China’s trial mode of criminal procedures moving towards a more adversarial system and enacted a series of rules encouraging witnesses to testify at trial. However, in practice, the appearance rate of Chinese witnesses testifying in criminal courtroom is still extremely low, which has become a bottleneck-restriction in China’s trial mode transformation and in the long run imperils the national blueprint for rule of law laid out in the 18th Central Committee of CPC Decision. Thus, re-design or changing the current-existing system of witness testifying at trial is now both of an urgent and inevitable challenging to law reformers in China. By analyzing the above eight major causes for the extremely low witness appearance rate, it is clear that such challenge is an enormously complicated, multiple-layer, systematic issue, mixed with legal, culture, social, political and historical elements. There is no way to resolve this dilemma by changing or fixing any single variable, layer or element. What needed here are massive, systematic reforms. Alternatively, if witnesses testifying in courtroom on a regular basis is too difficult to come true in China, then it may be wise for law reformers in China to shift                                                                                                                 113 114   Wang Zhuhao (汪诸豪) & Shen Peng (沈鹏), supra note 56, at 117. Id. 32 focus onto creating the second best or alternative solutions on this, for example like video-taping a witness’ testimony out of courtroom with the presence of counsel for the opposing party who could conduct real-time cross examination over such witness and later broadcasting such video file at trial before the judge, or having a witness testify at some out-of-court location designated by the trial judge with the presence of clerk for the trial judge as well as counsel for the opposing party who could conduct real-time cross examinations over such witness.   33