Is an oral-evidence based criminal trial possible in China?

The constitutional reason: The deficient power of the judiciary

The first issue is: who are the witnesses that are not appearing in contested criminal trials? To answer this, a grass roots review of the political landscape of China is needed.

Most common law jurisdictions with an Anglo-American colonial history have traditions of a constitutionally ingrained separation of power. The three branches of government, legislative, and administrative/executive and judicial are necessarily independent from each other. The judicial branch includes judicial officers but does not include prosecutors, police or law enforcement, which belong to the executive.

In contrast, the political system in China has been described as ‘centralization with top-down supervision’ (Zuo and Ma, 2005: 171). The Chinese Constitution defines the central state organs in power as ‘One Government with Two Judicial Wings—the People’s Court and the People’s Procuratorate—created by, responsible to and under the supervision of the People’s Congress’. ⁹ Under this political structure, Chinese courts fall under the leadership of the Chinese Communist Party and are supervised by the People’s Congress. The People’s Court and the People’s Procuratorate exercise their own authority under laws and regulations enacted by the National People’s Congress, as well as being supervised by the Congress. The result is that the judicial arm of government in China is not independent, nor is it isolated from the influence of the Congress and the supervision of the Party.

In constitutional democracies with a common law origin, the separation of powers derives from constitutional recognition and associated isolation of the judicial branch as an arm of government. In China, pursuant to the view of ‘centralization with top-down supervision’, different state organs have different government hierarchies, with the position of the judiciary varying from state to state. Concomitant with this are the reporting obligations of government officials/employees within the state organ structure. Officials, who it will have been noted, are also employees, include judicial officers. Chinese state organs, including courts, are both aware and sensitive to the seniority and political influence of each other. Chinese governmental officials, including judges, attend to and emphasise the political status of each other’s administrative titles. One’s treatment corresponds to one’s level of authority, political seniority and esteem. A well-known unspoken political rule in China is that lower-level governmental agencies or officials are expected to revere and manifestly show a great deal of respect to their political superiors, regardless of the nature of the person’s role or their agency (Zuo and Ma: 171).

Any Chinese judge, whether they are from the local district court or from the Supreme People’s Court of China, is an ordinary governmental employee within a massive, hierarchical bureaucracy. They can and do reside on the same, or lesser, political status level as numerous administrative officials, police agencies and procuratorates. Judges may therefore be subject to expectations concerning how they treat prosecutors or police presenting evidence at trial where those individuals are of superior political seniority, which may colour their decision-making and taint the impartiality of the judicial process. This problem is highlighted in cases where potential witnesses are government officials (Long, 2013: 3). Taking into account the political expectation not to breach the norm of respect and subservience within the political structure, procuratorates would usually hesitate to call such witnesses to testify and rather be bound by any pre-arranged and supplied written statement. This subservience to influence is borne and accepted by trial judges, not through the adversarial principle of party responsibility for witnesses, but for the same reason of acceptance of statements based on political position (Long, 2013).

In criminal proceedings, the potential witnesses, being the governmental officials to which we refer, are the very police officers who investigated the subject charges. This is a significant group of witnesses who are not appearing, or being called to appear by prosecution, and whose non-appearance is not being queried by courts. In every developed criminal justice system, investigating police officers are the essential witnesses in contested criminal trials. However, in China, police officers rarely, although slightly increasingly in recent years, appear in court (Long, 2013). A prominent cause of this is the disparity in political seniority between police, procuratorate and judges in China and the lack of independence and reverence assigned to courts, unlike the status and power assigned to law enforcement agencies and officers.

The non-attendance (and the absence of compulsion or questioning arising from this non-attendance) of government officials, particularly police, constitutes a critical group of key witnesses unaffected by the 2012 Amendments because those amendments were not aimed at them. Yet their non-attendance is indicative of the fundamental structural issues within the Chinese criminal justice system. The rule of law requires that laws and regulations apply to all citizens within the jurisdiction equally and fairly. In a legal system that is operating fairly and efficiently, there is no room for privileges elevating those of superior political standing to be above the law—or more accurately, unquestioned by the law. The absence and failure of government officials to testify in criminal cases, to the extent reported and known in China, results in the public not having confidence in the power or purpose of courts to adjudicate criminal trials. This, of course, discourages lay witnesses from expending the time and personal input of involvement in the full trial process by giving evidence.

The institutional reason: Criminal proceedings are a ‘relay race’ or ‘assembly line’ between police, procuratorate and the court

The Chinese criminal justice system was for a long period of time predicated on three central state departments, police, procuratorate and court, working cohesively in criminal prosecution. There is not the Anglo-American structure of a court- or trial-centric approach to the administration of criminal justice through investigation, presentation and adjudication, with the court as final arbiter of the investigation and prosecution presentation (Long, 2013).

The 2013 Pilot Studies confirm the internal critique of criminal proceedings by researchers in China that label the proceedings as akin to a ‘relay race’ or ‘assembly line’ between the police department, procuratorate and court. The terms are used to reflect that, rather than each successive body checking and scrutinising the work of the previous on a criminal charge, the ‘labour’ in finalising a conviction is divided amongst them. The Pilot Studies demonstrated that the court seldom rejected or questioned evidence prepared by the police or the procuratorate in criminal proceedings (Long, 2013).

The emphasis placed on pre-trial witness statements compiled by the police and procuratorate, the significance of the trial’s fact-finding function, has long been diminished to being a procedural ‘rubber stamping’ in China. ¹⁰ The acceptance of officials, in the absence of their attendance, compounds the constitutional issue we raised with the institutional issue. They combine to dissuade the public and any lay witnesses that there is any point in their seeking to appear at a trial.

The cognition reason: Face-value acceptance

The 2013 Pilot Study survey data demonstrates that trial judges in China commonly hold the view that, provided facts are clear to the judge through reviewing documentary evidence submitted by the parties, the presence of witnesses in court is otiose. By ‘clear’ we mean that the judge considers the written material to be internally consistent on its face. In the minds of a significant number of judges surveyed, calling for witnesses would only add extra, unnecessary adjudication work that would delay the trial process, and this view is reflected in a previous study and inquiry into perceptions of the Chinese judiciary (see Gao, 2013; Lin, 2004: 43).

This may be seen as an extension of the constitutional and institutional reasons. It may also be regarded as a judicial apathy towards the assistance that a trier of fact is given by the presence of a witness for examination and query (Gao, 2013; Yang, 2012: 95, 96). Such a view is quite reasonable and legitimate, but the 2012 Amendments aimed to empower the judge if they scrutinised the material supplied to them and had cause to seek further information. In this sense, the constitutional and institutional reasons were sought to be addressed by permitting a judge to call for additional detail, rather than being seen to directly question or criticise material supplied to them or the official form in which it was received.

Article 187 of the China Criminal Procedural Law prescribes that there are three conditions required to be satisfied to justify witnesses testifying at trial, one of which is the trial judge being satisfied that it is necessary for the witness to testify. The test for judges to determine ‘necessity’ is whether or not the witness may add new facts or may help the trial judge better determine case facts in a way that the documentary statement cannot (Wan, 2013: 2, 3). Despite the express provision of this power, and the political sensitivity in its terms and interpretation, the mindset and culture of judges remains almost unaltered across the Pilot Study data.

The cultural reason: The influence of Chinese traditional culture

Confucianism and related teachings engender in many Chinese people an acceptance of the ancient Chinese proverbs ‘harmony is most precious’ (和为贵), ‘not to involve oneself into a dispute and take no side in any conflict’ (明哲保身), ‘maximize what is good and minimize what is bad’ (趋利避害) and ‘avoid trouble whenever possible’ (多一事不如少一事) (see Chen, 2007: 41; Zhang, 2012: 68; Zhang and Yi, 2002: 82).

There is merit in such lessons and their principles are not limited to the culture and mindset of Chinese citizens. Interim data collated following the 2012 Amendments indicates that potential lay Chinese witnesses pay significant attention to ‘face-saving’ (面子), preventing offence to others and preserving harmony in relationships in their daily conduct (Li, 2014: 1). As a result, Chinese people regard and treat litigation as a particularly undesirable experience, regardless of any wrong occasioned to them or any possible reward, simply because the adversarial procedure is incompatible with such ancient Chinese customs (Li, 2014). Despite the—effective—incentive regime built into the 2012 Amendments for protection and compensation of lay witnesses, the traditional culture and teachings of China are incompatible with the 2012 reforms. The reforms do not ameliorate these teachings and it remains common for Chinese people, even if given notice to appear at trial as a witness, not to cooperate with authorities (Chen, 2007: 41). In many cases, the subject witness will find an excuse to not appear or simply not attend at the hearing date without notifying the court or the parties (Wang and Shen, 2014: 117). The consequence is reversion to the ‘efficiency’ that stems from the first three reasons discussed and the proceedings are not adjourned, nor is the non-attending witness pursued.

The methodology reason: How do witnesses testify at trial?

The 2012 Amendments legislate to provide a power to the judiciary to have witnesses appear at trial and an ancillary structure to facilitate and incentivise attendance. However, the law is silent as to the process and rules to be applied to the treatment and examination of any witness who appears to testify (Chen, 2007: 41–42).

Neither the Chinese Criminal Procedural Law, nor any other regulation or rule in China, provides for process or evidential rules addressing in-chief/direct and cross-examination or re-examination of a witness (Zhang, 2007: 522). Article 59 of the Chinese Criminal Procedure Law briefly mentions that witness testimony shall be examined by all parties at trial before being admitted as the basis for adjudication, but there is no mandated procedure specified for doing so. ¹¹ Moreover, it has been interpreted as a review of the supplied written material, rather than an invitation or provision for the admission of oral testimony. The long reliance on written statements also means that the Chinese criminal justice system does not apply related evidential safeguards, such as the hearsay rule, from which a procedure and set of rules for witness examination necessarily derives (Wan, 2013: 47; Xu, 2007: 525).

Not only does China lack substantive trial procedures for the examination of witnesses, but there is also a dearth of rules addressing the subpoena of witnesses (Xu, 2007: 526; Zhang, 2013: 522). Article 188 provides a compulsive power to the court, however, no specific rules of ‘action’ are provided by the Supreme People’s Court or other authority for the initiation and conduct of summoning or otherwise compelling attendance in the event that the court exercises an Article 188 power.

The 2013 Pilot Studies survey data indicated that 78 per cent of trial judges considered that, were a judge to exercise the Article 188 power, it would be for the Office of the Procuratorate to ensure that the witness attended court at the requisite time (see Wang and Shen, 2014: 10; Zhang, 2014: 522). Interviews and surveys of the Procuratorates indicated that the responsibility rests with the court to achieve its own orders for witness attendance (Wang and Shen, 2014; Zhang, 2014). The law is not clear how the court does that, which bodies they could possibly compel to complete the task or the specific method(s) of enforcement that may be undertaken (Wang and Shen, 2014: 117). The institutional reason also facilitates such a discourse between where responsibility vests in a system where there is an equality of criminal justice institutions rather than a trial-centric model—a problem compounded by the silence of the 2012 Amendments and associated regulation since that time with regard to the underpinning methods required to give the witness attendance powers force (Wang and Shen, 2014).

The resource reason: Is the witness actually protected or compensated?

This is an extension of the methodology reason, in that the problem lies in the broad statement encompassed by the 2012 Amendments not having implementation underpinning or legitimacy. Chinese people remain uncertain about appearing in court proceedings largely due to concerns of security and personal welfare. In 2006, a general online survey of the public asked: ‘Why would you not be willing to testify at trial?’ Almost 3,000 people answered the survey. Seventy-nine per cent of respondents cited fear of retaliation by the party to which their evidence would be adverse as the basis for them declining to appear. ¹² Whilst Articles 61 and 62 of the Chinese Criminal Procedural Law now provide for the safety and security of witness testifying at trial, ¹³ the law again lacks specificity, meaning that witnesses cannot be informed about how they will be treated by the system nor what they can expect. This is reflected in the discordant views of courts and procuratorates as to roles and responsibilities discussed as part of the methodology reason.

The 2012 Amendments do not provide any detail or certainty concerning the criteria for eligibility for witness protection, how to apply for witness protection, how witness-protection applications would be reviewed, specific timelines on joining exiting witness protection programmes and practical measures to protect witnesses (Luo, 2014: 56; Shi, 2014: 242). No such detail has been provided by courts neither consequent to the Amendments. In the absence of regulatory or directive certainty, together with public misgivings about the machinations of the Chinese bureaucratic engine, there is a lack of properly administered witness protection programmes.

Similar shortcomings and uncertainties pervade public opinion concerning witness compensation. Despite the relevant edict in Article 63 of the Chinese Criminal Procedural Law for general compensation, ¹⁴ the law does not specify the scope of compensation, the compensation standards, where funding comes from or the responsible executive body for administering the distribution of witness compensation (Zhao, 2012: 98). The executive should be responsible for resourcing this enactment but there appears to be little will or enthusiasm and certainly little expenditure on establishing and maintaining a fund for this purpose.

The rights reason: Limited participation of the accused

Article 187 of the Chinese Criminal Procedural Law provides that as long as the testimony of the witness is not in dispute, the evidence does not present a significant influence on the adjudication of the case and the trial judge is not satisfied that it is necessary for the witness to present at trial, then the witness has no responsibility or compunction to testify at trial. ¹⁵ Article 187 permits the compulsory attendance of the witness solely based on a unilateral assessment by the trial judge as long as the first two conditions (testimony in dispute and significant influence on the adjudication, also assessed by the trial judge) are satisfied. It provides no regime for the consideration, let alone submission, of the accused as to whether the attendance of witnesses would assist in the ascertainment of facts relevant to guilt. The gravity of the reform written by Article 187 to Chinese courts should not be undervalued—it is a significant step to so empower courts by written instrument, as is evident from our discussion of the position and role of Chinese courts under the constitutional and institutional reasons. Article 187, however, confirms that even the progressive reforms China is now reducing to written word give limited attention or consideration to the position and rights of the accused in the contested trial to cross-examine and test the evidence of witnesses for the prosecution (Yang, 2012: 95, 96; Zhang, 2014: 521).

Motivational problem: Chinese judges prefer written evidence

In the past, Chinese judges have always largely relied upon documentary evidence in determining case facts at criminal trials—what is widely known as ‘proceedings conducted in writing’ or ‘file-transcript centrism’ (Zuo and Ma, 2005: 171). In recent years, even though continuous legislative amendments and judicial reforms have brought more features of the adversary adjudication system into China’s criminal proceedings, judges still heavily rely upon written or documentary evidence.

Despite Articles 60, 187 and 188, this judicial conservatism is facilitated by Article 190 of the Chinese Criminal Procedure Law. Article 190 stipulates that a witness’s pre-trial written testimony shall be read in front of the judge at trial by the procurator or by the defendant if they do not present at trial. ¹⁶ Articles of this type can co-exist in developed criminal justice systems which have a tradition of oral advocacy, however, the written tradition in China has the precise opposite effect, with the presumptive position of receiving written evidence being facilitated to perpetuate by Article 190 (Luo, 2014: 56).

We pause for a brief reflection as to whether the oral tradition should indeed be preferred to the written in the criminal contest. Written evidence plays the role in Chinese judicial practice that testimony viva voce plays in common law courts (see Deng et al., 2001: 32). It is normal in Chinese criminal proceedings that, even where witnesses do appear in court, procurators still choose to have their witnesses read previously prepared written statements. These practices are normally approved (sometimes proactively) by the trial judge (Long, 2013: 137).

There is a strong impression that Chinese judges and procurators generally consider that written testimony is more accurate and reliable than in court witness testimony. Their typical rationale is that when the witness made such written testimony to the police at the investigation stage, their perception and memory were fresh, comprehensive and clear. Furthermore, immediately after the crime, the witness would encounter the least external interference and have the least opportunity for reflection, concoction and self-preservation (also see Zuo and Ma, 2005: 173). Opportunities for interference with the witness, corruption of their testimony or memory loss increase with every moment after the events (Zuo and Ma, 2005). Thus, generally, Chinese judges strongly prefer written testimony made to the police or procurator before trial (Zuo and Ma, 2005).

That position has merit but fails to guard against systemic and otherwise difficult to disrupt practices which may pervert the system, such as police corruption and how soon after the events the testimony was written. In a small number of criminal cases in China, written testimonies of witnesses for the procurator have been found to have been obtained through illegal or improper means (see Chen, 2010; Wang, 2006). These illegal and improper means have been disclosed by the procurator, rather than ruled by any contested application on the evidence before the court. As a result, the procurator has withdrawn. Due to persistently increasing Chinese nationwide attention on illegally obtained evidence, together with improved and increased preventative measures such as compulsory videotaping of witness inquiries and interviews, the occurrence of such illegality and impropriety in the gathering of evidence has significantly decreased (Zhang, 2014). This is a positive advance for Chinese law enforcement but, as is evident, the procurator has been left to self-assess the viability of its evidence. The significance of such admissions of defective criminal investigation and recording, even in only a small number of cases, given the discussion in this section with respect to the political and institutional relationships, is significant, but it seems equally fair to reserve judgment about the extent of shortcomings in the supplied prosecution evidence were that evidence the subject of open contest and challenge rather than individual, unilateral appraisal. Therein lies the deficiency of the paper-based criminal trial; as Wigmore would agree, it is not engineered for the most robust scrutiny of reliable and credible evidence.

The performance reason: Witnesses and counsel

Take the archetypal scenario: the witness has been brought to court at the volition of the procurator or with their assistance following an Article 187 or 188 order; the court and procurator have agreed to elicit testimony from the witness rather than have the witness read out a pre-prepared written statement; the court has outlined a process for each party to examine, cross-examine and re-examine and, stretching the model beyond the 2012 Amendments, the defence has been heard on these issues, and thus the voice of the accused. All is in order, but it is everyone’s—judge, procurator, defence lawyer and witness—first time.

Advocates in Chinese courts are not trained or experienced in eliciting or testing evidence by oral examination: it is not their system and therefore it is not their training. Judges are unaccustomed to and untrained in supervising orally-led evidence. Most importantly, witnesses are entirely unprepared for the process because they have had no assistance or support from law enforcement agents or procuratorate officers with respect to preparing for the environment of the courtroom or the process and psychology of questioning. In cases where witnesses do appear, the absence of any prosecution service or capacity or interest to prepare witnesses for their appearance is stark, given the utter inability of witnesses and counsel to engage—and thus there is a reversion to the written (Wang, 2006).

Accordingly, even in the few cases where witnesses do testify at trial, witnesses not only read their pre-trial written testimony because it is culturally ingrained as efficient, they also do so because the system is ill-equipped and uninformed of how to do other than that (see Lu, 2008: 46).

Even with resources and methodology that we noted were absent earlier, the generational shift required to overcome the cultural and motivation reasons manifests most plainly in the need for base-level education in the skills and services required to implement an oral advocacy method.

The first reason for reform: A tool for evaluating testimony and determining facts

Witness testimony, generally defined as statement of a witness made to the adjudicator during judicial proceedings concerning what he or she perceived, is a fundamental basis for fact-finders to determine disputed case facts (Chen, 2007: 40). Compared to other types of evidence, such as material evidence and audio-visual material, a fundamental characteristic of witness testimony is its dependence on human subjectivity (Chen, 2007). Witness testimony carries the risks of intentional statements of untruths to mislead or deceive the trier of fact being admitted into evidence (Wang, 2015: 94–103). There is also the risk of accidentally misleading the trier of fact owing to human error, such as a witness’s failing memory, mistaken perception or poorly structured narration (Wang, 2015). This is detrimental to the integrity of the outcome of the case, as the evidence may have polluted the trier of fact’s judgement, to a degree which will be determined by the weight accorded to the evidence. Focusing on reading case files and reviewing documentary evidence does not allow the trier of fact to adequately judge and assess a witness’s credibility, manner and motivations. Triers of fact without access to witnesses cannot make a fair determination on the authenticity of witness testimony (Shen, 2015: 14).

On the basis of this assessment of Chinese criminal practice, scholars note that having witnesses testify at trial and facilitating a process that enables the parties to examine and cross-examine each witness mitigates this problem and provides a greater level of value and reliance that can be placed on witness testimony (Shen, 2015). If a witness gave contradictory testimony in the courtroom, the trial judge could immediately ask the witness to explain. If two witnesses provide testimony in court that conflicts, the conflict may be identified and queried and, perhaps, resolved. It is processes such as these that leave no doubt that in-court testimonies achieve the most reliable outcomes by enabling the trier of fact to gather both oral and observed information and to evaluate witness testimony both for content and reliability (Shen, 2015: 13).

The second reason for reform: Fair process, fair contest, fair result through oppositional scrutiny

Chinese scholarship has noted that the accused’s right to examine adverse evidence presented on their indictment is a means by which the accused may intellectually challenge the resources of the state to amass the case against him or her (Shen, 2015: 15–16).

The importance of this right in Chinese literature is drawn directly from Article 14(3)(e) of the International Covenant on Civil and Political Rights. The well-known Article provides for examination of opposing witnesses as a right belonging to a party and therefore a necessary element of fair trial. ICCPR parties, whether adhering to common law or civil law systems, have an obligation to institute a judicial and procedural system that ensures that both parties to a dispute have the right to examine witnesses. The most practical way to realise this right is to have witnesses testify at trial and be subject to cross-examination. This may expose trial judges to more thorough and impartially presented testimonies due to the influence of both parties’ counsel’s questions and scrutiny over the accounts of the opposing party’s witnesses. Cross-examination enables counsel to test and scrutinise the content of a witness’s testimony as well as to exert pressure that may reveal something of the credibility of a witness manifested through their demeanour, body language or facial expressions.

Chinese exploration of the oral advocacy systems now reflects well-established Anglo-American views supporting the oral tradition. The conceptual foundation is sound. The inertia it provides will only translate to output if the impediments we identify in this section are directly addressed.