The Research Of Hidden Testify System

The witness does not appear in China's criminal trial has been commonplace, it has become a major challenge in China's criminal justice work. The absence of criminal witness, allowing for cross-examination with the testimony of witnesses frustrated, the parties cross-examination of the right of confrontation can not be implemented, thereby weakening the adversarial criminal trial level. Incentive for non-appearance of witnesses is multifaceted, stored in the system-level course ought to China has not yet established a sound system of witness protection. In this paper, the author analyses the application of the hidden testify system in different countries and regions, combined with our judicial status quo, indicates that the establishment of the hidden testify system has great significance on improvement of witness protection system in China, as well as the establishment of the adversarial trial means. Therefore, as preliminary study on the system of hidden testify, this article aims to improve the legislation and practices.This article includes six parts:The first part overviews some basic questions of the hidden testify system. Differ from the academic definition of "hidden testify", in author's opinion, "hidden testify" has general and restrictive sense. General sense of "hidden testify" covers the confidentiality of witnesses testify throughout the proceedings, which include the investigation stage, the prosecution stage and the trial stage. The restrictive sense of "hidden testify" refers to a special way to testify in the trial, which is aimed to protect the identity of witnesses from retaliation, or in order to protect witnesses from injury again due to testifying, to take some appropriate isolation measures such as keep secret with information of the identity of witnesses, shield appearance, change sound, connect to closed-circuit television. This article is intended primarily for the hidden testify in the trial, that is, a restrictive sense. This article compares"hidden testify"with the related concepts, analyses of the characteristics of it, and elaborates the theoretical value of hidden testify system from three different perspectives which include witnesses, defendants and their lawyers, the judge.The second part views the extraterritorial legislation and practice of hidden testify system. This passage introduces hidden testify system in the UK, the United States, Canada, Japan and other countries and regions, and corroborated with a large number of cases. Proposed that the theoretical basis for the system of hidden testify applying in the above countries and regions is to the value of the concept of the protection of victims and witnesses. The hidden testify system is applicable mainly for children witnesses and vulnerable and intimidated adult witnesses. Generally speaking, various countries take two forms in the hidden way to testify: first, taking direct physical shield in the courts, and second, taking contemporary transmission in another room of the courts.The third part discusses the feasibility and potential risk of implementing the hidden testify system in China. This article clarifies theoretical and practical feasibility of the implementation of the hidden testify system. According to respective from the judges, prosecutors and defense lawyers, defendants, witnesses, account that the hidden testify system will not have a negative impact of the right to confrontation and cross-examination of the defendant. Hidden testify system is conducive to breaking "written testimony centrism," and achieving "the trial-centrism."The fourth part studies on the construction of the hidden testify system in China. In the first of this part, the author determines the applicable standards of the system: first, the standard of witness, that is, the object of application; second, the standard of case, that is, the scope of application. In discussion of the object in the application, first introduced the different definitions of "witness" in Common Law and Civil Law, as well as in our legal, then, re-defines that the victims who testified should be included in the hidden witnesses. Combined of foreign legislation, the author proposes the system is applicable to vulnerable witnesses, including minor witnesses, may or may have been subject to intimidation of witnesses, physical or mental defects of the witnesses; the special witness in some cases, in which discussed undercover witnesses and tainted witnesses as an object for the necessity of concealment. The hidden testify system should be applicable to organized crime cases, sex crimes, cases of job-related crimes and other cases which decided by the judge. Startup programs and the shield ways should be standardized, as well as complemented by appropriate support measures, so with a view to improve the system of hidden testify.