On The System Of Key Witness To Testify

The 1996 amended Criminal Procedure Law has established the accusing and defending trial mode which enables the equal participation of the accusing and defending parties and the impartial judges. However, the new trail mode is not satisfying in the decades of practice. The process of the trial was distorted to a corroborating process centered in dossier records of the prosecutors. This is mostly caused by the absence of the witnesses to the court. So in the circumstances of the usual absence of the witnesses in the criminal court, how to concur the problem is a extremely meaningful question in the trend of a new revolutionary movement of trial mode.This paper is written in the abovementioned circumstances. In the author's view, it is not enough to deal this problem by creating "hearsay rule" in the system or providing that "the witnesses should appear in court". We have to start from the present now judicial sources and our cultural tradition and create the system of key witnesses appearing in court. This paper is to explain the reasons why only the key witnesses have to appear in court in our country. The author thinks that we have to guarantee the key witnesses appear in the court of first instance, appropriately establish detailed rule for the key witnesses' appearance, and make the follow-up measures to protect the key witnesses.This paper approaches the issue by three steps as follows:The first part explains that the key witnesses' appearing in court is the baseline of the witness system of China. The importance of the witnesses' appearing in court is that it's benefit for clarifying the facts of the case, protecting the rights of the defendant and making the justice be done. It is the imperative requirement of the reform of our trial mode. In China, because of the abstract and contrasting legislature, the habits of the jurors to rely on the written testimony, the pressure of the efficiency of judgments, barrier of our traditional culture, lack of legal senses and the common phenomenon of non-appearing of the witnesses, it is not easy for the implementation of the mode of the prosecuting and defending mode. The majors reasons for China to resort to key witness system are: 1. Now most of the cases are not highly controversial, it not proper to require all the witnesses to appear in court; 2. It is much more acceptable for our judicial tradition relying on the written testimony. 3. It is a certain of rations in using the written testimony. 4. The judicial level of the parties of prosecuting and defending are not that high so that the high standard of cross-examination is hard to be guaranteed. 5. The Chinese traditional culture and judicial sources can just allow the key witnesses to appear in court. 6. The practice of judicial institutions provides the practical basis for the system of key witnesses. The reform in the judicial institutions didn't take the key point, which is the appearing of key witness is the bottom line of the system of witness in China.The second part argues about the detailed rules of the system of the appearing of the witnesses. The key witnesses are mainly those witnesses who can influence the main facts for the crystallization of crime and decision of the punishment in the cases, which are highly controversial in substantial facts. We can construct the rule for key witness in such aspects as the application and decision of the appearing of witness, summon, signature of paper of guarantees and inquiries. The non-appearing of the key witnesses shall constitute one situation of "violating the legal procedure and affecting the fair trial" in order to solve the problem of appearing of the witnesses in different level of courts and finally guarantee the appearing of the witnesses in the court of first instance for the quality of the judgment of the court of the first instance.The third part does research in how to guarantee the appearing of the key witnesses in both aspects of encouraging and enforcing. To protect the rights of the key witness in the circumstances of our judicial sources, we not only have to prevent the interception of the defending parties and the prosecution of the judicial institutions, but also protect the rights and interests of the key witnesses by compensation, witness counseling, informing, etc. Meanwhile, we should clarify the consequences of non-appearing of key witnesses to guarantee the appearing of the key witness to the most extent.