Police Testify In Court A Number Of Issues To Study

It is normal in china that the police do not appear before the court to testify,while in the western countries, especially in the common law countries, the policeappear to testify like other witnesses. They should also take an oath, give theirtestimony and accept examination from both parties. In recent years, there havebeen several cases in which the policemen appear to testify before the court in ourjudicial practice. But when we analyze those cases, we can find that they are notthe real police-testifying cases because the police appear before the court only bythe request of the prosecutor and the purpose is to prohibit the reversal ofconfession, not to meet the defending demand of the accused. In fact, the aims ofpolice-testifying are as follows: (1) to meet the defending demand of the accusedand ensure the procedural justice; (2)to exclude the evidence collected by illegalmeans from being the foundation of the decision. This thesis aims to give someoriginal answers to several traditional questions which are involved inpolice-testifying.This paper is made up of four parts, totally 38,000 words.The first part demonstrates the theoretical foundation and the practical valueof police-testifying. Theoretically, it is required by the rule against hearsayevidence and the exclusionary rule of illegally-obtained evidence that thepoliceman should appear before the court to testify and accept thecrossing-examination from the defendant and his attorney. Police's appearance isalso deemed to secure the justification and the justice of the criminal procedure.From the realistic angle, police-testifying establishes a close relationship with thecontrolling of police power and the construction of a country ruled by law. Thispart, firstly, introduces those rules and principles above in general, and thenapplies them to the specific system of police-testifying.In the second part, the author makes a comparison of the legislation andpractice in police-testifying among different countries. Generally speaking, almostall the countries set few limitations to the competence of witness and thepoliceman is allowed to appear before the court as a witness. In the common law countries, it goes without saying that the police should appear and testify underoath when necessary, according to the requirement of the hearsay rules. In the civillaw countries, it is not so usual for the police to appear but there is still some casesin which the policemen appear before the court as witnesses.The third part analyzes the actualities of the system of police-testifying inchina and elaborates in details the obstacles which stop the police from appearingbefore the court. The author is not optimistic about the actualities. The reasonswhy the police don't appear are as follows: (1) the influence of the streamlinedlitigation structure, under which the police is over-powered and it is difficult tobring it under control; (2) the defect of the evidence act, which provides no legalauthority for the police's appearance; (3) the absence of hearsay rules; (4) theconceptual obstacles, which include the ideas of state-dominance, cultural sectorsof legal tradition and the awareness of privilege, etc. After the analysis of thosefactors above, the author brings forth some improving advice on how to establishthe system of police-testifying in china.In the forth part, the thesis tries to solve some theoretical problems involvedin police-testifying. The first one is how to define the testifying police'sidentification, over which there has been much dispute. In the author's opinion,the police appear before the court as common witness, but of course there are stillsome differences between them. The second one is about the matter called "policeimmunity", which comes from the immunity of the witness. This theoryemphasizes that the police have the obligation to tell the truth in the court, butwhat the court gets from their testimony cannot be used against them in the otherlitigations. The last one is the scope of police-testifying. In most cases, the policeappear to give testimony on the procedural facts while in a few cases they appearto testify to the substantive facts when necessary.