On Cross-examination And Confrontation

As the basis and center of judicial proof, Cross-examination is the follow-up step of proof, is the premise and base of judging evidence. Cross-examination has immediate bearing on finding out facts and influences the court decision. Therefore, it is necessary to define the basic principle and methods of Cross-examination. Cross-examination not only influences the court decision, but also has bearing on protecting of the defendant’s rights in litigation, on limiting the judge’s arbitrariness and increasing justness of the court decision. In a word, it is an important way to achieve judicial justice through scientific proof procedure. Our Cross-examination system and internal mechanism of litigation procedures should be improved to integrate the Cross-examination procedure to the other procedures in litigation so that the more facts can be found out and human rights and procedural justice can be realized better.This paper is divided into 7 chapters beginning with the definition of Evidence Cross-examination. The brief history of Cross-examination systems, the structure and background of adversarial Cross-examination, the theoretical basis of Cross-examination, the basic methods and procedures of Cross-examination are discussed in this paper. And this paper also refers to contents and tactics of Cross-examination for the testimonial evidence, demonstrative evidence and scientific evidence according to the characteristics and rules of different evidence. The purpose of this paper is to provide theoretical support for science of proof theory in litigation in China.The first chapter "Definition and Function of Evidence Cross-examination" starts from analyzing the semantics of "cross examination" and "evidence cross-examination". The Chinese character "質" means "interrogate" and "verify". The above meanings are consistent to "cross-examination" and "confrontation" conducted in other countries nowadays. There are various viewpoints and expressions for definition of "cross-examination" in Chinese academics, which are being discussed in this paper. "Cross-examination", which can be defined from different perspectives, is important in proof procedures. Cross-examination is the follow-up step for proof procedures and a procedure of choose and verification for the evidence submission. Cross-examination is the foundation of the next procedure of judging evidence. As a method to check and determine evidence, "cross-examination" means how to help the judge discard the false and retain the true. As one litigation system, "cross-examination" is an important step in the court investigation. As an important right, "cross-examination" means the concerned party is entitled to enquiry, challenge, rebut the evidence which may be considered to be disadvantageous.The second chapter "Historical Review of Cross-examination System" illustrates the development of cross-examination system in China and foreign countries. In foreign countries, "cross-examination" originated from Roman. Due to legal traditions, cultural backgrounds and legislators’ value choices, the cross-examination procedures are different in each country worldwide. In general, there are two types, namely inquisitorial and adversarial. Both types have advantages and disadvantages and mutual interaction, mutual enrichment is becoming a trend. In ancient China, the cross-examination system emphasized the importance of power, the cross-examination and confrontation were main forms of evidence cross-examination, and the evidence being cross-examined were testimony and real evidence. After the foundation of People’s Republic of China, the Cross-examination system was being improved, for example, the adversarial cross-examination type was adopted in the Criminal Procedure Law revised in March 1996. Look forward to the future in China, adversarial type should be adopted as the base of the Cross-examination system, function of judges in cross-examination procedure should be regulated, and the defendant’s right to cross-examination should be regarded as a foothold.The third chapter "Structure and Background of Cross-examination" illustrates the internal structural factors of Cross-examination from the subjects, objects and contents of Cross-examination. The right of proof should be viewed as perspective of Subjects. Cross-examination mainly shows a right other than a responsibility. The kernel of Objects, which should include any evidence information concerned to the case, is the evidence information. The Contents of Cross-examination should contain the conclusion of facts as main line. The proof in litigation should be built on rational conclusion of facts. The functioning of Cross-examination is closely relevant to evidence discovery, evidence submission, evidence authenticity, and other systems. The evidence discovery is premise and basis of Cross-examination which is helpful to improve the efficiency of cross-examination and influences the actual effect of cross-examination. Evidence submission is the preceding procedure of Cross-examination. The method of evidence submission influences the method and effect of Cross-examination. The deadline of evidence submission influences the scope and efficiency of Cross-examination. Evidence authenticity is the follow-up procedure of Cross-examination. The content of evidence authenticity determines content of Cross-examination and the criterion of evidence authenticity decides direction and degree of Cross-examination.The fourth chapter“Process of Cross-examination”sets forth the relation between cross-examination and proofing and discusses the basic procedures for interrogation and confrontation in court. Cross-examination is the key point of proofing and procedural basis for finding out the facts reasonably. Nowadays, oral arguing is the main method of investigation in court worldwide. Interrogation and confrontation are the main method and procedure of cross-examination in court. The traditional interrogation in court in China is not identical to cross-examination in common law system countries or interrogate by turns in Germany. We should regulate subject interrogated, clarify the order of interrogate, define the characteristic of interrogate, regulate the application of inductive interrogate, determine scientific scope of cross-interrogate, and perfect the system and measures of interrogation in court. In continental legal system countries, confrontation is a way to find out the facts, which is the legal action conducted by judges ex officio. However, in common lay system countries, confrontation is a right of the defendant. China has long history in respect of confrontation, but at present, we have to enlarge the scope of subjects of counterview, reform the starting procedure of counterview, perfect the process of counterview, and regulate the notes for counterview.The fifth chapter“Contents of Cross-examination”illustrates the contents of Cross-examination for testimonial evidence, demonstrative evidence, scientific evidence. Each kind of evidence has its own characteristic and rule of proof; therefore, it is necessary to build the contents and methods of Cross-examination which can satisfy evidence in different type. The main contents of testimonial evidence include accuracy of the testimony, the honesty of the witness, accuracy of the witness’s perception and memory, relevancy of the testimony, and etc. Cross-examination for demonstrative evidence mainly refers to reliability and relevancy of source of evidence. Wherein, reliability concerns reliability in the steps as evidence forming, choosing, keeping, showing, and others; relevancy concerns the logical connect between the reliable demonstrative evidence with the facts to be proved. Cross-examination for scientific evidence covers qualification of the experts, objective fairness of the experts, correctness of the professional knowledge, objectiveness of the original materials, science of the analysis, and etc.The sixth chapter“Methods of Cross-examination”illustrates the relation between Textual Criticism and methods of Cross-examination and analyzes the methods of Cross-examination in different evidence in detail. Combining with the evidence in specific type, this chapter also illustrates the detailed methods of Cross-examination. The main methods for cross-examining testimonial evidence are querying perception and memory, querying honesty and credibility, querying interests, querying the inconsistent statement, querying the improper outside influence. The methods of cross-examination for demonstrative evidence include the reliability of source of physical evidence, documentary evidence audio-visual materials. And the Cross-examination methods for scientific evidence contain querying the qualification of experts, querying the objectivity of evidence checked, querying the philosophy of science, and querying the objective fairness of experts.The seventh chapter "Cross Subjects Application in Cross-examination" elaborates on logic, psychology, and linguistics bases of Cross-examination. In Cross-examination procedure, the logic of evidence should be analyzed systematically in order to find out inconsistencies in the evidence. In Cross-examination procedure, we should actively get cooperation from those asked, observe and identify psychological changes of those enquired so that we can disclose and attack the false presentation effectively. Adversarial judge is based on oral communication and the whole Cross-examination procedure can’t be without the attention and application of legal words. So the words used in Cross-examination should be polite and respectful to avoid unnecessary confrontation. The words in Cross-examination should be controlling words. More closure questions will be better. Accurate and effective words, sentences and styles should be used. The strategies as indirect, repeating words could be conducted properly.