An Empirical Study On The Criminal Defendants' Right Of Cross-examination

As a basic human right of the criminal defendant,the establishment and Realization of the right of cross-examination has important value and significance that can not be ignored.Western countries and international human rights conventions usually stipulate it as a constitutional right and basic procedural right,which can reflect the main position of the defendant,and is the minimum procedural guarantee for the criminal defendant to obtain a fair trial.Compared with Western countries,our Constitution and Criminal Procedure Law have not clearly stipulated the right of the accused to cross-examine.At present,in the practice of criminal trial,the right of cross-examine has not been established as a basic right of the accused,and it is more a tool and means used by the court to find out the facts of the case.The empirical research on the right of cross-examination is helpful to further understand the theory of the right of cross-examination,and has important theoretical significance on how to establish and protect the right of the defendant to cross-examine and establish a perfect system of cross-examination.Based on the statistical analysis and other research data of 100 sample cases,this paper adopts empirical research methods to analyze the current situation of our country's accused's cross-examination and find out the problems,on this basis,puts forward the improvement path.In addition to the introduction,the thesis consists of three parts,totaling more than 30,000 words.The first part is an overview of the basic theory of the criminal defendant's right to cross-examine.It mainly includes three aspects: the first is to explain the connotation of the defendant's right to cross-examine.In a narrow sense,the right to cross-examine means that the defendant has the right to face-to-face contact and interrogation with witnesses who are unfavorable to him when he participates in the trial.The second is to analyze its basic content.It should be made clear that the right of cross-examination includes at least three elements: the principle of presence,the principle of face-to-face and the nature of equal confrontation.Third,to interpret the litigation value of the criminal defendant's right to cross-examine and clarify its legitimacy.Achieving the right of the accused to cross-examine is conducive to discovering the truth and promoting the investigation of the truth of the case;safeguarding the due process and guaranteeing the judicial justice of the trial;reflecting the protection of human rights and achieving good litigation results.The second part is an empirical study of the current situation of the operation of the criminal defendant's right to cross-examine.Firstly,the relevant legal provisions of the right to cross-examination are collated and commented.Secondly,considering the typicality and comprehensiveness of the sample,through the practice research and the live webcast column of Chinese courts,100 court transcripts of 31 courts in 5provinces(cities)are collected as samples.On this basis,the judicial operation status of the right to cross-examination of criminal defendants in China is analyzed.Statistical analysis is made on the sample data from the aspects of proof,objection,witness appearing in court,lawyer's defense and so on.The problems and main reasons in the appearing stage are summarized and analyzed.The main manifestations are as follows: firstly,the legislative provisions are vague,the right to cross-examine is absent at the level of constitutional fundamental law,and the provisions at the level of criminal procedure law are vague and careless,and there is no clear right to cross-examine.Secondly,there are problems in the way of proof and cross-examination.The prosecutor's one-sided proof and summary proof result in the defendant's disadvantage;the packaged and comprehensive batch proof deprives the defendant of the right of cross-examination indirectly in essence;at the stage of cross-examination,the defender raises objections,but the judge does not organize the prosecutor's response and other inappropriate litigation activities also hinder the exercise of the right.Thirdly,the lack of cross-examining objects directly deprive the defendant and unfavorable witnesses of the opportunity to face-to-face inquiry;fourthly,there are deficiencies in the defense system,and the defendant's ability to cross-examine is weak.The third part is the concrete conception of perfecting the defendant's right to cross-examine in our country.By comparing and drawing lessons from the relevant foreign regulations and systems,and aiming at the existing problems mentioned in the previous part,we should start from both legislative and judicial aspects in order to promote the comprehensive construction and protection of the criminal defendant's right to cross-examine.Firstly,we should establish the right attributes of the right to cross-examine in the constitutional dimension,clearly stipulate the system of the right to cross-examine in the criminal procedural law,and clearly stipulate the principles,subjects and guarantees the right to cross-Procedures,relief provisions and other basic content;Secondly,improve the way and rules of proof,cross-examination,maintain the neutrality of judges,improve their ability of command and guidance;Thirdly,effectively improve the rate of testimony in court,by defining the scope and standards of witnesses,restricting the discretion of judges,strengthening the obligation of witnesses to testify in court,give the defendant the right to compulsory evidence,establish compulsory summons to testify.In order to improve the phenomenon of "quality paper evidence",we should strengthen the punishment of witnesses not appearing in court and formulate practical rules to protect the rights of criminal witnesses.Fourthly,to protect the right of the accused to cross-examine,we must improve their ability to cross-examine and give the accused the right to cross-examine.Fifthly,improve the rate of lawyer's defense,improve the quality of lawyer's defense,and enhance the ability of the defense to cross-examine,so as to promote the materialization of the defense-accusation confrontation and protect the defendant's right to cross-examine.