On The “Necessity” Condition Of Witnesses’ Court Appearances

In order to solve one judicial chronic illness that the rate of witness attendance is fairly low and improve trial quality, 2012 Criminal Procedural Law provides the conditions of witness attendance. The core of these conditions is the requirement of necessity. In other words, whether this requirement is met determines the final outcome of witness attendance. Therefore, it is necessary to do more research in the “necessity” requirement. This article will firstly discuss the theoretical basis and figure out its value orientation. Then further research on this requirement in its practical perspective can help us figure the problems and the corresponding reasons. Finally, the author comes out with his suggestion basing on above researches. The research methods used in this article are hermeneutics method, empirical study and comparative study. Apart from introduction, this whole article is divided into three parts.Part I is the theoretical basis of “necessity” condition. Firstly, “necessity” is defined rationally through direct interpretation, legal instruction, comparison method. However, above interpretation methods cannot come out with an exclusive conclusion. Therefore, we should jump out of the trap of technical methods to seek the potential value orientation of “necessity” condition. Secondly, we need to analyze the dual value orientation behind “necessity” condition:the discovery of substantial truth and defendant’s right of confrontation. According to strict rules and confrontation right theory, witness attendance cannot leave the pursuit of substantial truth and the protection of basic human rights. However there is no strict rules and confrontation right theory in our country. The author thinks that the put forward of "necessity" condition can make up for the loopholes and the "necessity" condition cannot be realized without the pursuit of above dual value orientations.Part II is the current implementation situation of “necessity” condition. Through the interview of prosecutors and judges, the writer finds several problems in the subjective and objective aspects: firstly, the fact that judicial officers always focus on the substantial truth and the document trial weaken the necessity and possibility of witness attendance. Secondly, from the aspect of evidence law, the confirm pattern of proof mode, the identical proof standard in different proceeding stages and the absence of evidence rule make the “necessity” condition impracticable; thirdly, from other objective aspects, the burden of cases and the defective systems of witness protection and compensation reduce the possibility of witness attendance; fourthly, from the subjective aspect, the prosecutor is unwilling for witness attendance and judges have great discretion over witness attendance.Part III is the improving suggestion of “necessity” condition. Basing on above analysis, we need to choose the right way while improve “necessity” condition. On the one hand, the witness should appear at the court, only when the testimony would affect the judgment of case fact or witness attendance would not lead to action delay. On the other hand, in theoretical aspect, in the process of improving “necessity” condition, we should take the dual value orientation into consideration. Adhering to the principle of relative reasonable, as to the improvement of “necessity” condition, we should have two positions: one is the balance of the substantial truth pursuit and protection of confrontation right; the other is reference of foreign legislature. Specifically, we can take following measures: taking use of substantial confirmation rule to pick out those unsure or fake testimony, for which the witness should appear to testify; protecting defendant’s confrontation right—under the circumstances that defendant may be sentenced to death or life imprisonment, the witness should appear to testify. On the negative side, the author also lists out the “unnecessity” condition to make “necessity” condition more practical. In addition, some supporting measures should be improved, such as proof standard system reform, “admissible” rule improvement, the protection and compensation of witness and so on.