Cross-Examination of Witnesses in Chinese Criminal Courts: Theoretical Debates, Practical Barriers, and Potential Solutions.

• Author: Guo, Zhiyuan

Table of Contents I Introduction 326 II. Why Have Examination and Cross-Examination of Witnesses Become Critical for China? 332 III. An Overview of Studies On Cross-Examination Rules in China 337 IV. Do Cross-Examination Rules Exist in China? A Normative Analysis 340 A. Current Legislation on Questioning of Witnesses 340 1. The Order of Questioning Witnesses 343 2. The Scope of Examination and Cross- Examination: Relevance Rule 344 3. Objection Rule 345 4. Leading Question Rule 347 B. Features of China's Witness Questioning Legislation 348 V. Questioning Witnesses in Chinese Criminal Court: An Empirical Exploration 351 VI. Strengthening Cross-examination Rules in China- Some Proposals 359 VII. Conclusions 365 VIII. Appendix 368 I. INTRODUCTION

On January 26, 2021, a long-awaited judicial interpretation was released by the Supreme People's Court (SPC) of the People's Republic of China and aroused tremendous attention among the Chinese legal community. (1) This judicial interpretation concerns the implementation of the Criminal Procedure Law (CPL), (2) which was amended in October 2018. The new SPC judicial interpretation contains 655 articles and became the most voluminous judicial interpretation on criminal procedure law so far. Judicial interpretation has become a special addition to the Criminal Procedure Code of China since 1996, when the Chinese CPL was amended for the first time. (3) From then on, it has become the custom for the SPC and the Supreme People's Procuratorate (SPP) (4) to issue judicial interpretations to flesh out or supplement the CPL, making it more operational and applicable. (5) The recently released SPC judicial interpretations caused so much attention for two reasons. In the first place, it took over two years to be issued, which is unusual, as the previous judicial interpretations were enacted in the same year in which the CPL amendments were promulgated. (6) Second, the additional increase of the judicial interpretations from 548 to 655 articles appears incommensurate with the minor revision enacted in the 2018 CPL amendment. (7) As a matter of fact, the 2021 SPC interpretations incorporated many previous judicial reform outcomes and will take several papers to elaborate on them. This Article focuses only upon one of the many revisions: changes to the examination and cross-examination of witnesses in criminal trials. (8)

"Witness testimony" has a narrower meaning in China than in many common law jurisdictions. Chinese law defines witnesses as participants in criminal proceedings, other than the defendants or victims, who possesses direct knowledge of case facts and share such knowledge with the case-handling authorities. (9) In Chinese criminal procedure, witness testimony is considered separately from evidence offered by others at court, such as victim statements, defendant confessions and statements, and expert opinions. Although China defines more narrowly persons who are classified as "witnesses," there is a trend of applying the same rules to all oral (testimonial) evidence. (10)

Therefore, this Article uses the term "witness" in its broader meaning. However, as there are some special requirements for questioning defendants and victims in court because they are the parties to the proceeding, this Article only explores the questioning of nonparty witnesses, which include lay witnesses, expert witnesses, and investigation personnel. (11) "Witnesses" in this Article refers to nonparty witnesses unless pointed out otherwise.

Witness testimony in Chinese criminal trials also includes both oral testimony and written statements due to the absence of a hearsay rule. Chinese criminal courts admit both witness testimonies presented by witnesses at court and out-of-court witness statements made to police or prosecutors at pretrial stages.

This Article is based upon a literature review, a normative analysis, a comparative study, and upon empirical research. First, the literature review (12) demonstrates how this subject is now understood in the Chinese legal community and the extent to which there is consensus. Second, the normative analysis shows that China has accumulated some piecemeal legal provisions on the questioning of witnesses, and these are considered by asking whether, having regard to Anglo-American cross-examination rules, these rules need a more systematic evaluation.

Third, as the law on paper is often quite different than the law in action, it is also essential to ascertain whether examination and crossexamination of witnesses takes place in trial practice. The author was involved in two empirical survey projects on live witnesses and crossexaminations from 2014 to 2019. The first survey (2014-2015) covered Beijing, Zhejiang, Guangxi, and Heilongjiang, including in-depth interviews with around 120 prosecutors, criminal judges, and defense lawyers, a dozen symposiums or focus groups, and four hundred questionnaire surveys. (13) The second survey (2019) covered seven cities in four provinces, (14) including in-depth interviews with sixty-two prosecutors, thirty-five criminal judges, and forty-six defense lawyers, and collected nine example cases through workshop discussions. observations of trial videos, and reviews of trial records. The 2014-2015 survey identified the lack of cross-examination rules as one of the reasons why the courts hesitate to call witnesses to testify. The 2019 survey explored cross-examination practice in China. The author has published an article based on the 2014-2015 survey with the focus on live witnesses. (15) The 2019 survey has not been previously published.

This Article tries to answer the following questions: Is examination and cross-examination of witnesses in criminal courts critical for China's justice system? To what level has the study of crossexamination rules in China reached? What cross-examination rules exist in Chinese legislation? How is the questioning of witnesses conducted in practice, if at all? What practical barriers confront China in developing effective cross-examination rules? Can these barriers be overcome if China needs to improve cross-examination rules?

In Part II, the author sets the stage by arguing that resolution of these questions is essential to the effective achievement of China's trial-centered criminal procedure law reform. This reform will be first discussed as the backdrop to the discussion of cross-examination that follows. In Part III, a historical review is given of the academic debate on the questioning of witnesses in Chinese criminal courts. Part IV examines and evaluates China's current legislation. By comparing this legislation with Anglo-American cross-examination rules, the author argues that although China has not formally established crossexamination rules, there are a number of existing provisions that nevertheless regulate or guide cross-examination. In Part V, the author discusses her empirical findings about the questioning of witnesses in Chinese criminal courts. Features will be summarized, and problems identified. In Part VI, some proposals are put forward to create a set of cross-examination rules suited to the Chinese situation. Part VII concludes.

2. WHY HAVE EXAMINATION AND CROSS-EXAMINATION OF WITNESSES BECOME CRITICAL FOR CHINA?

   On October 23, 2014, the Fourth Plenary Session of the 18th Chinese Communist Party (CCP) Central Committee released its "Decision of Some Critical Issues on Fully Advancing the Rule of Law." Among others, the "trial-centered" reform was raised as the blueprint for future criminal procedure law reforms. (16) Making the trial center stage has become the theme of criminal procedure law reforms since then; almost all the reforms must serve the ultimate goal of a "trialcentered" criminal process. Although Chinese scholars hold different understandings of "trial-centered" reform, the official definition is "ensuring that evidence in litigation is produced in court, the facts of the case are ascertained in court, the prosecution and defense opinions are offered in court, and the judgment results are formed in court." (17) To implement this shift in policy offered by the Fourth Plenary Session, the SPC, the SPP, and the Ministry of Public Security issued in 2016 their "Opinions on Advancing the Reform of the Trial-Centered Criminal Procedure System" (the 2016 Opinions), and in 2017 the SPC issued its "Implementation Opinions on Comprehensively Promoting the Reform of the Trial-Centered Criminal Procedure System" (the 2017 Implementation Opinions). (18) These two documents provided more specific requirements for the "trial-centered" criminal procedure reforms. As a systematic project, this reform initiative takes the substantial trial as the core reform and gives priority to strengthening the appearance in court of witnesses, experts, and investigation personnel to testify. It also requires "[i]mproving the rules for the crossexamination of witnesses and identification or evaluation experts in court." (19) Thereby, testimony by witnesses in court becomes an important step towards a substantial trial in a "trial-centered" criminal procedure system.

   Chinese jurists began to address the problems with witness testimony in court when the CPL was amended for the first time in 1996. The 1996 CPL amendment intended to transform China's then super-inquisitorial model of criminal process into a more adversarial model, with the mode of questioning witnesses changed accordingly-that is, with witnesses being questioned by the parties rather than only by the trial judge. (20) This would have been a significant move towards a more confrontational trial, but the change was made only on paper, not in practice, because too few witnesses take the stand to begin with. As a result, most witness testimony remains presented in written form. The problem with written testimony is that it removes the opportunity for cross-examination. To remedy this situation, the 2012 CPL...