The Empirical Research On The Investigators To Testify In Court

The system of investigators to testify in court is an important part of the criminal system of proof. Requiring investigators to appear in court in person to accept the court investigations and cross-examinations can resolve disputes concerning the investigative behaviors. This can not only contribute to identify the relevant facts with the purpose of achieving substantive justice, but can also contribute to punishment and containment of illegal evidence to ensure procedural justice. Therefore, most modern legal states have already established respective systems of investigators to testify in court. With reference to the same in China, due to the obstacles in both theory and practice, it develops slowly. Basis on the investigation of actual cases, in the addition to the study of foreign legislation and experience, by summarizing and analyzing the problems of the said system, this article aims at putting forward a transition program, which is not only in line with the legislative spirit of the criminal procedure, but also in accordance with the reality of judicial.The paper consists of 3 chapters with approximate 40,000 words except the introduction and conclusion.Chapter 1 is the overview for the system of investigators to testify in court. This section introduces the main situations and the litigant value in the current judicial climate from the theoretical point of view. The investigators in general appears in court can be classified into two conditions depends on the content of proof, namely, testifying for the substantive law facts and for the procedural law facts. The former condition mainly concentrates on the facts used for conviction and sentence which are known by the investigators when he was involved in the case. In this condition, investigators act as the witness for conviction or sentence separately. The latter one, on the other side, is mainly for the disputes concerning investigative procedure. Under this circumstance, the investigators burden the role of the procedural witnesses to prove the legality of investigative behaviors and the credibility of the prosecutive evidence. The legislative value of investigators to testify in court refers to its positive effect on procedural law, including: 1)It will conduce to the prevention of illegal evidence which can promote to found the normative investigation; 2)It helps to strengthen the evaluation of prosecutive evidence and probative force to support the accusation; 3) It helps guarantee the defendant’s confrontation right and enhance the 2 defense capabilities; 4)It will facilitate the establishment of the correct concept of investigation, hence to accelerate the formation of trial centrism and realize the essentialism of court trial.Chapter 2 is the empirical research on the system of investigators to testify in court. Basis on the report of the actual survey, this section summarizes the operational status of subject system, including but not limit to the purpose, effect, the extent of implementation, identity and activating condition. Currently, cases which apply the system in question mainly fall on drug-related crimes, duty crimes and economic crimes. Meantime, content of the same mostly involves the process of the arrest, the process of making investigative record and forensics process. Due to the practitioners’ negative perceptions and response, the investigators actually do not always appear and testify in court when comparing with the other jurisdictions at the current stage. Firstly, most of the investigators consider that the mentioned system have no material impact on the identification of the fact while wasting the resources. Thus they concern that the said system to be neither necessary nor practical. Moreover, practitioners severely rely on alternative and ancillary measures rather than testifying in court by themselves. For example, the "case explanation" is frequently used. As consequences, on one hand, investigators seek said method to evade from the responsibility of appearing and testifying in court, on the other hand, it wastes the time of legal process as the expected appreciation of evidence cannot be achieved. From the personal perspective on investigators, they are resistant to appear and testify in court, most of whom are afraid, unwilling and unable to act such behavior. Meantime, they are lack of the thought of responsibility due to the insufficient recognition of their obligation to interpret the evidence. Fundamentally speaking, the objective obstruction is that investigator’s identity when testifying in court is not uniform, while the testified scope is not clear. The new Law on Criminal Procedure specified only part of the witness are qualified of investigators, resulting in confusions and contradictions in practice. Meanwhile, there is no reference standard in practice due to the lack of the appropriate system to stipulate the factors including the specific situation, identity, activating condition, etc. In consequences, the subject system is difficult to practice as the arbitrariness of cases is hard to rectify due to no consummate standard can be taken for reference.Chapter 3 puts forward the legislative suggestion on the revolution of the system of investigators to testify in court. In terms of improvement of institution, three goals should be achieved. 1) Unify the standard of the witnesses’ qualification for investigators and of the nature for investigators to appear in court. The said standard should be unified, as investigators to be qualified as a witness not only conforms to both the concept of witness and its dual identity, but also helps to clear credibility of evidence for the testified contents. 2) Refine the scope of investigators to testify. On one hand, a reasonable situation mainly concerning the seriousness of the crime, possible penalties, key evidence and the major controversy should be regulated; on the other hand, the appropriate activating conditions basis the above situation, using both subjective and objective criteria to decide whether the investigators should appear in court also should be stipulated. 3) Limit applies to "case explanation" and other written documents. It is conductive to eliminate the investigators’ habit of abuse on such documents and the risks caused by them effectively by means narrowing the scope of application and the ranks of effectiveness. On the establishment of working mechanism, we must initially establish both the conventional and special working mechanisms. Conventional working mechanisms include the working mechanism of pre-trial preparation, the working mechanism of the trial cross-examination, the working mechanism of specification in court and the working mechanism of guarantee. Special working mechanisms include the exception and the exemption of investigators to testify in court and the response measures for refusing to testify.