On The Procedural Testifying Of The Criminal Proceeding

The testifying activities in criminal proceeding should run through all process of criminal litigations. Testifying object concludes substantial matter and proceeding matter. Accordingly, testifying activities in criminal procedural can depart into substantial testifying and procedural testifying. Procedural testifying means prosecutor and defendant argue or persuade on the basis of their procedural request and argument for their claims to the neutral judge in the criminal litigations. The construction of the procedural testifying has its important values in the trends that human rights protection and procedural justice are emphasized. On the one side, procedural testifying approve achievement of procedural justice through guarantee the rights of defendant and limit public rights. On the other hand, for evidence law itself, the construction of procedural testifying system make for perfect of the theory of litigate testify. Moreover, it provides theoretical support for procedural defend, judicial review, and law trueness.In the western country where uphold procedural justice, procedural testifying can be seen in many litigation rules and systems and that run through the criminal litigations. And that in our country, for the traditional concept of thinking too much of substantial and ignoring the proceeding, in addition with undevelopment of testifying system, procedural testifying system is basically in vacancy. We can review the content about procedural testifying institution of the justice review system on pretrial custody system and exclusionary rule of illegally obtained evidence on Anglo-American law system and invalidation of acts in action on continental legal system. Those systems can show the system connotation in procedural testifying.Procedural testifying system is made up of testify subject, testify object, burden of proof, and standard of proof. The difference of testify object is the main reason that procedural testifying is independent of substantial testifying. The object of procedural testifying is departing to procedural request and procedural argument. Testifying subject is the undertaker of burden of proof. In the procedural testifying, requistioner undertakes the burden of proof in proceduralrequest, but in procedural arguments, the burden of proof is main undertaken by the prosecution. The procedural testifying run through all criminal litigations, in different stage of litigation, the defend or prosecution who undertake the burden of proof will represent in different subject. Procedural testifying should adopt hierarchy stand of proof, procedural arguments should adopt the stand of proof that beyond a reasonable doubt. The prosecution's procedural request should achieve the stand of proof that prima facie evidence; and the stand of defend's procedural request should adopt "reason to believe it's true". The process of procedural testifing should combined hearing procedure with written procedure. At the same time, procedural testifying should include perfect relief procedure.Based on the situation of our country, it would be difficult to build procedural testifying system. We can achieve it step by step. At first, we separate procedural testifying from substantial testifying in judicial proceedings and achieve the procedural testifying first in judicial proceedings. As a transition for achieving procedural testifying system, we can let the prosecutor make judgment about procedural matter first in pretrial procedure. At last, we can establish preliminary hearing procedural and make the procedural testifying achieved completely.