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Analysis On The Use Of Written Testimony In The Criminal First-instance Trial In China

Posted on:2013-09-28Degree:MasterType:Thesis
Country:ChinaCandidate:X L SunFull Text:PDF
GTID:2256330395988036Subject:Code of Criminal Procedure
Abstract/Summary:PDF Full Text Request
As one kind of the legal evidence in China,Testimony of Witness plays a vital role infinding the facts of cases and realizing the conviction and punishment of criminal suit. InChina’s criminal trial,it has been a norm that the testimony of witness at court is submitted tothe court in written form instead of the confrontation. The use of written testimony meets theneed of criminal trial practice in China at the present stage,but its harm to the justice cannotbe ignored. Therefore it attracts increasing concern on the limit of the written testimony of thetrial in theory and practice. The practice of the written testimony is actually how the judgereviews the evidence and decides whether the evidence could lead to the final conclusion on acase. To explore the application of written testimony in criminal court must be based on thecriminal trial practice at current stage.In the judicial practice,due to the reason that the practitioners have been muchinfluenced by the mainstream view of the evidence property proposed by the theorists,theevidence in criminal trial is usually reviewed from its legality, objectivity and relevance, soas to judge whether the evidence could be “the basis of conviction and sentencing”. Thereview activities carried out with the static standards are isolated studies of the evidence,which cannot further describe the dynamic process of the how the evidence plays a role in thejudicial proceeding. Moreover, the lack of specific rules of evidence and procedure setting inlegislation,together with the particularities of the written testimony,leads to the evidencereview in the court to be formalized and random,which brings a series of negativeconsequences. However,in Anglo-American evidence law theory,credibility and probativeforce are defined as the tow basic properties of evidence. In the practice of evidence review,it mainly reviews whether the evidence has credibility and probative force,and the reviews ofthe two causes are separated: Firstly filter out the evidences qualified into the courtproceedings,and then determine its probative force. This will combine the evidence reviewwith the criminal litigation process,overcoming the defects of the traditional evidence and thereview result meets the general rules of litigation more. Therefore,while taking the special status of China’s criminal trial into consideration,we should borrow the useful experience onthe written testimony review from foreign countries to build a written testimony reviewmechanism in China basing on the evidence credibility and probative force standards.In this paper,the author firstly analyses the characteristics of written testimony,and thenshows the current status of evidence review in criminal justice in China and the negativeconsequences that may be caused from several perspectives,and explores the causes andbackground of the situation. Lastly on the basis of experiences from foreign countriescombing with the current litigation system in China,several suggestions are proposed toregulate and restrict the criminal written testimony and improve the criminal writtentestimony review mechanism. The paper is divided into four parts as follows:The first part is the overview of the criminal written testimony. It defines and analysesthe written testimony. It points out that written testimony is the records of testimony andautographed testimony by the witness of the perception of the case from the witness beforethe court trial. Then the characteristics of written testimony are analyzed. The second partmainly introduces current situation of the application of written testimony in criminal justicein China, and elaborates the actual effect of written testimony on the criminal trial and itspotential hazards to justice. In this part,by analyzing the use of written testimony in judicialpractice in China,the author summarizes some prominent characteristics of the use of writtentestimony in judicial practice,and points out that written testimony will help deliver thetestimony information,provide evidence support,lower the litigation cost and improve thelitigation efficiency. Finally it is stated that excessive dependence on the written testimonymay cause judicial harm. In the third part,the causes and background of the excessive use ofwritten testimony in our criminal trail are discussed. The emphasis on punishing crime,teleological structure of the flow-through operation and the lack of effective and standardizedrules of evidence system are the intrinsic causes of the extensive use of written testimony incriminal trials. Furthermore,the inadequacy of the witness testifying system leads to a lowrate for the witnesses to testify in the court,which forces the court to adopt a writtentestimony. And the lack of scientific review standards brings unlimited use of the writtentestimony in China. Based on the current situation of the written testimony application inChina’s criminal trial,in the fourth part,some suggestions are proposed on the regulation of the use of written testimony from three aspects: theoretical research,legislative provisions andjudicial practices. It is pointed out that in theory,the evidence credibility should be studiedmore; in legislation,limit access for the written testimony to the court should be set andregulations to evaluate the probative force of written testimony should be added; and injudicial practice,the pre-trial review should be improved and separated from the judge,which will be beneficial to the judicial practice in China.
Keywords/Search Tags:written testimony, current situation, analysis, suggestion
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