A Study On The System Of Crime Victim To Testify

In China, The victim statement has always been an independent type of statutory evidence as the accused statement, the witness testimony and the expert evidence. This shows that the victim is an independent source of evidence and criminal testifier as well as the accused, witness and expert. The identity of the victim to testify remains the victim, namely, a party, not a witness. Because there are many significant differences between the victim and the witness to testify, it should have its own institutional system and procedural norms for the victim to testify. For this reason, by means of the comparative study, case analysis historical expedition and other methods, this Ph. D. dissertation not only studies the basic principle of the victim to testify (including the concept, competence, necessity, limitations of the victim to testify, and the differences between the victim and the witness to testify), but also studies the identity, seat, content, form of evidence, procedure, special way assistance and safeguard of the victim to testify systematically with China’s criminal justice system. By answering three issues, that is to say, why the victim testifies, how the victim testifies, and how to safeguard the victim to testify, this dissertation builds a "relatively reasonable" system of the victim to testify based on "local resources", in a sense, it fills a blank of the system of the criminal testimony and criminal procedure in China.In a narrow sense, it is a kind of procedural acts with legal significance to testify. " The victim to testify" refers to the process of the victim to present the facts of his first-hand experience in the proceedings before the procedure of the judge, and accept to be questioned and asked by the parties in the proceedings according to the law. It requires to follow the statutory procedures, so it is different from the procedural act of the victim to state. As the witness of the criminal process, though victims and witnesses are all the "virtual reality", they experience or perceive the occurring process of the facts, the victim also "suffer", the three stages of the process of memory formation, namely, encoding, storage and retrieval are different from the witness, this determine that there are many differences in the way of perceiving the facts of the case, including the enthusiasm of testifying, the complexity of the contents of testifying, and the vulnerability of testifying process between the victim and witness to testify, it needs the legislation to build an independent system of the victim to testify from the witness. In terms of the competence of testifying, The victim must experience the facts of the case, and have the appropriate comprehension and expression. The accuracy of the victim to testify is susceptible to a variety of subjective and objective factors, it requires public security and judicial organs to take appropriate measures to safeguard its authenticity according to the actual case. Although the victim to testify in itself contains a series of internal and external values, it has necessity, it also may bring some negative effects to the victim, this is its limitations, we should take full account of the two aspects when designing the system of the victim to testify, and making them be balanced.From the legislative provisions and judicial practices of the extraterritorial countries (regions) point of view, there are two different identities for the victim to testify, namely, witnesses and parties. The former is a common practice in common-law countries and some civil law countries, by the United States as its representative, although there are a series of rights and safeguards for the victim to testify, which are different from the ordinary witness, however, the identity of the victim to testify is considered as a witness, for the systematic rules of the witness to testify, the statement of the victim to testify is classified into the witness testimony. The latter is a common practice in Russia, China’s Macao Special Administrative Region and many other civil law countries, although the basic rules and norms applicable to the victim to testify are the same as the witness, his identity is a party, the statement of the victim to testify is an independent type of statutory evidence. In Germany, the main identity of the victim to testify is a witness, but he may also be parties. The differences between the two identities of the victim to testify are caused mainly because of the differences from the nature of crime view and litigation mode in different countries. From China’s legislative provisions and litigation traditions point of view, the identity of the victim to testify is the same as the victim to appear in court, they both are parties, not witnesses. The identity of parties for the victim to testify is likely to have some conflict with the right to participate, but they are not fundamental, we can design the corresponding system to coordinate them. There are close relations between the identity of the victim to testify and the setting of the court seat. Whether in common law or civil law countries (regions), the setting of the court seat not only has a rich semiotic significance, but also there are many common practices. The vast majority of China’s criminal tribunal have not yet set up the special victim seat, This is a serious lag behind the parties tendency of the victim procedural status. This dissertation claims to adjust the layout of criminal courts in accordance with the litigation philosophy of German "the discussion view of the debate", and learn from the common practices of the extraterritorial countries (regions) in the setting of the court seat, add an independent victim seat, so that the seats of the accused and his counsel along with those of the victim and his legal representative are set up respectively in the left and right in front of the bench, and they are all close to the bench, at the same time, they are the right to be set up. Moreover, the seats of the victim and his legal representative as well as those of the accused and his counsel are all in tandem, so that they can communicate with each other in the course of the trial. When the victim testifies, he should be sitting in the victim seat, rather than standing on the witness stand.The content of the victim to testify is inseparable from the scope of the criminal proof object. The legislative provisions and theoretical interpretations in the countries (regions) of two schools bring the facts of the victim status especially the facts that relevant to the victim damages in the scope of the criminal proof object, as one of the main content of the victim to testify. In the American criminal trial, a victim not only can be used as a prosecution witness, but also can serve as a defense witness; In Germany, the victim is as a court witness, and his testimony can also prove the prosecution or defense litigation claims Although the content of the victim to testify in America and Germany are not totally consistent, they all include the facts that relevant to the conviction and sentence of the accused (including the facts about the crime and the facts about the victimization) which provided by the substantive law, and the facts of criminal procedure. In China, the content of the victim to testify should include four aspects, namely, the facts of the criminal process, the facts of the victim status, the facts of the statutory criminal procedure, and the facts that the victim can determine "under the general experience of life " (as an exception to the opinion evidence rule). The form of evidence for the victim to testify, that is to say, the victim statement, is the type of statutory evidence documenting the content of the victim to testify. The victim statement in the law of evidence can be classified into different types according to different criteria, each with different characteristics and probative values, China should learn from the practice of Anglo-American law system, Japan, and China’s Taiwan region, we should limit the admissibility of the victim statement from six aspects, namely, the review of the competence of the victim to testify, the restriction of the hearsay evidence rule and hearsay content, the restriction of the relevance rule, the restriction of the opinion evidence rule and the restriction of the legitimacy rule. It is a complex process to judge the weight of the victim statement and its size, we not only have to determine the degree of the relevance of the victim statement to the facts to be alleged and its size, it requires a conjoint analysis of other evidences of "overlapping of proofs" in the case to confirm its extent and size, but also we must follow the logic rule and experience rule. This dissertation argues that in principle the victim statement can not serve as the sole basis for a conviction, its weight must have other substantially independent evidences to reinforce; but in the sexual assault case and other " one to one case ", if there is no other evidence, and the victim testifies in court, his statement is true, and consistent with the facts of the case without any flaw after verification, it can be used as the basis for the decisions as well.The design of the procedure and way for the victim to testify not only should comply with the basic principle of the criminal procedure law and the law of evidence, but also should in line with the basic principle of the victimology, and maintain reasonable and appropriate balance between the protection of the victim human rights and the accused human rights. This dissertation argues that the procedure for the victim to testify in China mainly includes:(1) summon the victim to court:it should be the same as the procedure of informing the witness basically, and should have some mandatory, if the victim refuses to appear without a good reason, in principle, he should subject to certain penalties. (2) The problem of the victim to take the oath:China should learn from the practice of Germany and Russia, and take the way of the presiding judge to instruct the victim. that is to say, before testifying, the presiding judge should tell the victim clearly that he has the duty to tell the truth, and would bear legal responsibility if making false statements intentionally. we need not take the oath, solemn declaration or affirmation like the common law countries (regions). (3) The rule of the victim to testify first:victims should be treated as the first witness to testify first or have a priority statement at the trial as parties. China should repeal the system design of the prosecutor questioned the accused first and forcibly, the procedure of the victim and the accused to testify should be carried out before the investigation of evidences in court, and ensure the victim to testify first. (4) The approach leading to the victim statement:there are two main approaches, that is free presentation and cross-examination. China should take the approach of free presentation, which is both our litigation traditions and in line with the practical needs after suffering of the victim. (5) The confrontation mode of the victim statement:this dissertation argues that the implementation of cross-examination in China faces many obstacles, and it is not helpful to protect the victim human rights. The confrontation mode of the victim statement in China should be:after the victim states freely, the first questioner should be determined in accordance with the subject who apply the victim to testify, and then the other participants in the proceedings question the victim in turn. If both the prosecution and defense side apply the victim to testify, or the victim asks to testify initiatively, or the court summons the victim to testify by its powers of office, the presiding judge and other judges should question the victim first, and then the other participants in the proceedings question the victim in turn in accordance with the order of the defense side after the prosecution side. Moreover, the judge especially the presiding judge must always be retained the right to question the victim as a supplementary means. When the victim is a minor, or in the sexual abuse case or the other violent criminal cases, unless the victim consents, the accused is prohibited from questioning the victim directly, he can ask questions by his counsel or the presiding judge in order to exercise the right to be confronted with the victim. The victim can be defined as a subject of confrontation, but the arrangement of face to face confrontation for the victim and the accused can be carried out only in the "last resort" situation, and it should be consented by the victim in advance. At the same time, we should allow the victim to refer to the pre-trial documentaries or other written materials to help refresh his memory during testifying. Moreover, in cases of sexual assault crime, in principle, the problems of the victim privacy are prohibited from being questioned. In addition, this dissertation also believes that legislation should make explicit restrictions for the use of the victim pre-trial written statement, only with the prosecution or the defense lawyer proposing, and after being confronted by the other party, litigation agent, and the other participants, it is considered to have admissibility and verified, then the court can use it as the basis of a final decision. In terms of the way for the victim to testify, in order to avoid the victim subjecting to psychological harm because of the victim and the accused, his counsel and the news media "eye to eye" in the course of testifying, countries (regions) of two schools are all set up a number of special ways to allow the victim to testify through being masked, variable sound, change image, audio-visual transmission, or other appropriate isolated means as an alternative to testify. These ways include to testify by the video, telephone, screen, video tape, to testify in secret and the judge questions the victim in the pre-trial procedure. As China’s "Code of Criminal Procedure Law" and the judicial interpretations have not stipulated, it needs the legislation to identify and build.How to guarantee the authenticity of the victim statement, and avoid the false statement or statement distortion, which is not only a theoretical problem, but also a practical issue. The common practice in the extraterritorial countries (regions) is to offer some assistances and safeguards for the victim to testify in order to help the victim overcome the practical difficulties faced by his testimony, and alleviate the psychological pressure as much as possible during his testifying, eliminate his worry as well. The assistance of the victim to testify is an urgent litigation area to be developed in China, it can be divided into the assistance before testifying (including informing the victim to testify in court, explaining the court proceedings to victims, caring for the children of the victim and escorting the victim from his home to the court, etc.), the assistance during testifying (including accompanying the victim to appear in court and providing a lawyer for the victim, etc.), as well as the assistance after testifying (including explaining the referee results for the victim and negotiating with employers on behalf of the victim, etc.). The safeguard of the victim to testify includes the security protection and the economic compensation of the victim. In judicial practice, various forms of the victim intimidation endanger victims and their close relatives personal and property safety seriously, and they become a major obstacle to the victim to testify, Therefore, we should strengthen the security protection of the victim to testify effectively in order to prevent his re-victimization. The financial compensation for the victim to testify is a kind of subsidy (or compensation) of the reasonable costs incurred (or damage) for the victim because of his testifying. It is unlike the victim economic relief. As the victim has been subjected to a direct infringement by the crime, if we do not recognize the right to financial compensation of the victim to testify, his economic losses will have a duality, this is unfair for the victim. The main body of China’s economic compensation of the victim to testify should be the government, the scope of the compensation should be limited in the reasonable costs of direct expenditures, and must in accordance with actual expenditures. The false statement of the victim refers to the behavior which the victim knows that the content of his statement is against the objective facts, and inconsistent with his experience, but he still makes a statement. In judicial practice, the reasons of the victim to make a false statement are complex, it is often mixed with the statement distortion therefore, we should treat the false statement of the victim as the accused lies, and show a certain degree of tolerance. It is essential to exercise appropriate fine or judicial detention as a threat, but can not give any criminal sanction.