The prosecutor is an influential party in the criminal justice system. In the adversarial system, prosecutors have the discretion not to prosecute an accused even when the evidence is sufficient or withdraw the prosecution (Suo and Yong 1997: 285). For example, in the United States, prosecutors are empowered to bargain with defence lawyers regarding a guilty plea, which generally means accepting a plea of guilty to a lesser charge in exchange for a recommendation of leniency; prosecutors are responsible for organizing and presenting evidence in court and can influence the outcome of cases by suggesting appropriate penalties to the judge and jury (Vetter and Simonsen 1976: 187). They have equal status with the defence and remain active in court – the prosecution will produce their own witnesses and evidence, cross-examine defence witnesses and evidence. This is largely reflected in the United Kingdom except that there prosecutors do not make direct sentencing recommendations (McConville and Marsh 2014).
In the light of the 1979 Criminal Procedure Law (hereinafter the “1979 CPL”), prosecutors in China could “send the prosecution case files to the court before the trial, to help and support the judge in preparing the case and charging the defendant” (Liu and Situ 2001: 140). Their duty was to simply initiate the public prosecution and transfer all the case files to the court and it was the judge who was responsible for the courtroom investigation and production of evidence. The major responsibility of prosecutors was to supervise the court hearing. After the reform in 1996, the law abolished the procuratorial discretion to make a determination on the guilt of an accused and provided the procuratorate with “the principle of prosecution convenience”. When there is no sufficient evidence or the criminal act is minor, the procuratorate was empowered to decide not to prosecute the case. Once the procuratorate decided to prosecute an accused after 1996, it was required to transfer the Bill of Prosecution, and attach a list of evidence and witnesses and photocopies or photos of major evidence. The law endowed the prosecution with extended responsibilities, so prosecutors played a very important role in the trial. During the trial, the prosecutors are responsible for reading the Bill of Prosecution, questioning the defendant, producing their witnesses and other evidence and cross-examining the defence evidence and witnesses and debating the case with the defence.
In this paper, I makes use of the research data collected through 56 personal records of courtroom observations, analysis of 235 case files and interviews with 72 judges, prosecutors and lawyers in three sites in China during 2002 and 2006 when the Criminal Procedural Law of the People’s Republic of China (hereinafter “CPL 1996”) was still effective. Given that the CPL 1996 was revised in 2012, I further collected and updated the research data in January and February 2016: I observed the trial of three cases, interviewed 3 judges and read 40 cases in Site A. 1 This paper focuses on the public prosecutors’ performance in the courtroom at the various proceeding stages, such as the courtroom investigation – production, examination and cross-examination of prosecution evidence, and courtroom debate; the paper analyzes both prosecution language and skills, and the court’s judgment. It also discusses the potential impact of the CPL 2012 on the prosecution in criminal cases.
2 Prosecutors in the courtroom investigation
In this section, I will discuss the prosecutor’s functions in three aspects: questioning of the defendant after the latter expressed views on the Bill of Prosecution, evidence production, and cross-examination of the evidence in the light of the CPL.
2.1 Questioning the defendant
After the reform of the CPL in 1996, it is the prosecutor, instead of the judge, who reads the Bill of Prosecution and asks the defendant questions relating to the case after the defendant expresses his or her opinion on the case. 2 Such a change was regarded as an important measure to strengthen the prosecution’s role in the trial apart from contributing to the neutrality of the judges. In judicial practice, the criminal justice personnel followed the new law. My research statistics in the three sites during 2002 and 2006 revealed that the prosecutor asked the defendants questions in almost all cases (100 % in Site A, 90 % in Site B and 94 % in Site C). 3 My recent courtroom observation of three cases 4 during January and February 2016 in Site A indicated the continuation of this practice.
Generally speaking, the prosecutor will ask the defendant few questions if the latter indicates agreement with the charge. For example, the defendant in CTO A-18 (offence of contractual fraud involving the sale of cars) did not challenge the prosecution’s charge. Then, the prosecutor only asked the defendant three simple questions: The location where the defendant sold the cars, how much money the defendant obtained in total and where the money was at the time of the trial. Sometimes, the prosecutor did not ask the defendant any questions if the defendant agreed with the charge and the facts were clear, but the judge may do so, as shown below in CTO B-4 (Offence of theft):
Now, it is the prosecution’s turn to put questions on the defendant.
Dear Presiding Judge, since the defendant admitted the crime and the facts are clear, the prosecution will NOT ask any questions.
Defendant, how did you enter the computer room?
I used a key.
How did you have a key?
I worked there before.
You didn’t return the key to the unit when you left there?
Why did you steal?
No reason. Once I have no money, I will steal.
Many defendants co-operated with the prosecution in the trial usually demonstrating that the latter had made sufficient evidential preparation. In such a situation, the prosecutor often reminded the defendant to answer the questions truthfully, as being “truthful” generally reduces the sentence otherwise imposed. 5 For instance, the prosecutor in CTO A-2 (Offence of murder) started the procedure of questioning the defendant in this way:
Now it is the public prosecutor’s turn to ask the defendant questions.
Defendant, you should answer my questions truthfully, do you understand?
Yes, I understand.
In By contrast, it was a general rule that the prosecutor would ask the defendant more questions if the defendant withdrew his confession or in other ways avoided key points relating to the crime. This was typical practice in Site A. In CTO A-8 (offence of robbery and theft), for instance, two defendants refused to admit the charge. Then, when it was the prosecutor’s turn, the prosecutor requested the defendant to answer the questions truthfully and to admit the crime and accept the punishment of the law. The prosecutor asked the first defendant more than 40 questions directed towards the relationship between the defendant and the victim and the circumstances surrounding the crime. When he questioned the second defendant, his cross-examination also included more than 40 questions.
Sometimes, when the prosecutor asked the defendant questions, if the defendant’s answer was too long or too detailed, the prosecutor would stop the defendant. Here is an extract from the dialogue in CTO A-12 (Offence of bribery):
How did you deal with the money?
I put it in a cabin (the prosecutor stops the defendant’s answer continuing by saying “Alright”)!
Now, I ask you, is it true that you received the XL Company’s offer of 23 thousand stocks of shares?
Is it true that you received XXX’s money of 180 thousand Yuan, which is charged in the Bill of Prosecution?
Was your statement true when we interrogated you in 2003?
Did you know what amount of money was returned to them?
I didn’t know. …. (The prosecutor stopped the defendant’s further answer by saying “Okay, you needn’t explain it.”)
Under which circumstance did you make the statement?
During the period of “two requirements”. 6
In this short dialogue, the prosecutor interrupted the defendant’s answer twice. It seemed that a “yes” or “no” answer was enough in the prosecutor’s opinion, and there was no need to explain the details or make further explanations.
2.2 Evidence production
In the adversarial system, it is the prosecution’s duty to prove the elements of a crime in order to convict a defendant. If the prosecution cannot proceed with initial presentation of evidence supporting the charge against the accused, the case will not move forward. Because of the requirement of due process and fair trial, the state has the burden of proof beyond reasonable doubt (McConville et al. 1994: 182). The evidence offered by each of the parties is challenged directly by the opposing party through impeachment, with the intention of discrediting the “facts” offered by the opponent (Rosemary Pattenden 1990: 22; Stopp 1999: 2). The jury hears and watches the witnesses, sees documents and other exhibits, observes the lawyers and the judge, and then determines the outcome of a case. Witness testimony is the primary source of evidence in most trials. The witness may use demonstrative or illustrative evidence along with verbal communication and tell part of the story for each party and thus create the basis for the jury’s decision. As a result, witnesses play a crucial part within the criminal justice in the adversarial system, since the success of prosecution depends on the witness’ cooperation from the initial stage of reporting the crime to the trial stage (Ellison 2001: 1). The judge cannot provide evidence for either party in the case, without the parties making a request. The process is in fact a cross-examination of witnesses and impeachment of the witness testimony. In addition, once the case is prosecuted, there will be a pre-trial conference for discovery of evidence, so that each party can learn about the opponent’s evidence and define their disputed evidence (Subin et al. 1993: 214).
After the amendment of the Criminal Procedure Law in 1996, one of the most important reforms is the change of trial method from the inquisitorial system to an adversarial one. Among other things, prosecutors are responsible for production of evidence. In the light of the CPL 2012 amendment, there are defined types of evidence that can be used in court: physical evidence; documentary evidence; witness statements; victim statements; confession and justification of a criminal suspect or defendant; expert opinions; transcripts of crime scene investigation, examination, identification, and investigative reenactment; and audio-visual recordings and electronic data. 7 In this section, I will discuss types of evidence presented by the prosecutors, methods of evidence production and why few [prosecution] witnesses appear at trial.
2.2.1 Types of evidence
According to the CPL 2012, which in fact continues the practice of the CPL 1996, the public prosecutor and a defender shall produce physical evidence in the trial for the parties concerned to identify, and a statement of a witness who is not in court, an expert opinion of an identification or evaluation expert who is not in court, transcripts of crime scene investigations, and other documentation serving as evidence shall be read out in court, and the judge shall hear the opinions of the public prosecutor, the parties concerned, defenders, and agents ad litem. 8 Given the designated role of punishing crimes on behalf of the state, the prosecutor is responsible for the production of evidence to prove the defendant’s guilt. According to my courtroom observations during 2002 and 2006, the prosecution relied heavily on the defendant’s statement of confession, testimonies of the witnesses, material/documentary evidence, expert conclusions, inquest, and examinations and documentary and material evidence, as we can see in the Table 1 below.
In the three criminal cases observed in Site A during January and February 2016, the prosecution still relied heavily on the materials mentioned above. Moreover, in Site B, although few victims appeared in court, most of them made a statement. By contrast, audio-visual evidence was led in only two cases in Sites A and C respectively. Apart from the evidence mentioned above, the prosecutor also presented some other material or documentary evidence. For example, the prosecutors in Site A presented the material of reporting the case in 19 cases, proof of the defendant’s household register or identity in 18 cases, documents on the process of catching the defendant in 14 cases, written records of the identification of the crime scene, lethal weapons, illicit goods in 9 cases, written records on the taking of material or documentary evidence in 6 cases, proof on the defendant’s voluntary surrender in 5 cases and material evidence in 12 cases such as the shoes, knives, official seals, wooden sticks, bricks and a shovel. The picture was similar in Sites B and C.
2.2.2 Manner of producing the evidence
There were differences in the manner of producing evidence. For example, the prosecutors in Site A presented all the evidence first, 9 before the judge asked the defendant (and the defender) if there was any challenge to the evidence. However, in Site B, the prosecutors would present the evidence one by one in sequence so as to facilitate cross-examination of each item of evidence. In Site B, the judge would ask the defence immediately if there was any challenge to the evidence. Furthermore, the material evidence itself, which often appeared in the trial in Sites A and C, was usually replaced by photos when the prosecutor presented the evidence in Site B. In Site C, the prosecutors presented the evidence in several groups. Normally, the presiding judges in Site C would cross-examine the evidence as a whole with some exceptions. 10 After the reform in 2012, there has been no substantive change regarding the method of producing the evidence in China. In my recent fieldwork, the courtroom observation of three cases and reading of 40 case files in Site A during January and February 2016 proved this point.
2.2.3 Controversy: Few [prosecution] witnesses appear in the courtroom
As shown in the previous table, the defendant’s statement, testimony of witnesses and expert conclusions were the three most important items of prosecution evidence. The expression “prosecutor reads out the testimonies of the witnesses” may surprise a scholar in the common law or other civil law systems. Although the CPL 1996 required the witness to appear at trial and there were testimonies given by witnesses in more than 80 % of cases prosecuted by the procuratorates in China (Zhang 2000), few witnesses appeared in practice, 11 a situation regarded as “a headache problem in China’s court trial” (Long and Jiahong 2001: 165). In the light of the file records accessed in my research, when the prosecutor presented the testimony of witnesses, he or she just read out the record of the witnesses’ statements: according to the case file analysis, in no case did any prosecution witness appear in court out of the 235 sample cases in the three sites. 12
The CPL (2012) made dramatic revisions concerning securing witness appearance in court. For example, the law further clarified and improved the conditions of witnesses’ appearance in court, such as the system of witness compensation, protection, forced court appearance, etc. 13 But some Chinese literature shows that few witnesses would come to the court to give testimony for various reasons. 14 According to the official statistics of the intermediate and grassroots courts in Huzhou City of Zhejiang Province, only 88 witnesses (7 upon the summons at the court initiative and 81 at the request of the defence) appeared in 37 out of the 24,491 criminal cases during January 2008 and August 2015 (1.5 %). My recent courtroom observation of the three cases involving job-related crimes further confirmed this situation – none of the witnesses came to the court in Site A, although the parties had different opinions on whether the defendant had the circumstance of voluntary surrender in a high profile case (e. g. CTO A-26 offence of embezzlement). What the lawyers questioned and debated was based on the written record of the witnesses (mostly the persons who provided the money for seeking for personal gain). 15 Likewise, very few experts attended the trial. In all cases I observed, it was the prosecutor who briefly summarized the experts’ conclusions. In no case did the prosecutor explain the absence of experts in court and in no case did the judges ask for an explanation of the absence and in no case, presumably, did the defence request this or insist upon it.
On average, the prosecution’s documents relating to the conclusion of experts’ appraisal were seldom challenged by the defence. In the event of a challenge, the judge either dismissed the challenge immediately in court or later in the judgment or just disregarded it. For instance, after the prosecutor presented the evidence in CTO A-1 (offence of intentional injury), the defender challenged the conclusion of forensic appraisal as well as the appraisers’ qualification. In addition, he argued that the defendant had not been informed of the opinion as required by law. The presiding judge interrupted the defender’s speech immediately and asked the defender to submit any written evidence to support his challenge. After the prosecutor said that he did not think the challenge was admissible, the presiding judge announced immediately that the panel would not accept the defender’s challenge because of the failure to present written evidence to contradict the prosecution’s evidence. In fact, the defence in this case had the right to challenge the expert conclusion on the basis that the police failed to inform the defendant of the expert conclusion in time. 16 It was obvious that the presiding judge was not happy to hear a challenge to the lawfulness of expert conclusion because when such a challenge is raised, the court may have to adjourn the session in order to conduct a supplementary expert conclusion, thereby causing the judges to expend more time on the case. 17
2.3 Cross-examination of the defence witnesses
After the defence presented its evidence, some of the prosecutors or other parties sought to rebut the defence challenge. 18 There were challenges to the defence evidence in 6 cases in Site A and 4 cases in Site C raised by the prosecutors and/or the defender of another co-defendant. They disagreed with the evidence on the basis of its source, validity, lawfulness and especially its relevancy,. For example, the defender in Case A-58 (offence of intentional injury) presented a blood stained shirt and trousers in order to argue that the defendant had a legitimate defence of self-defence. The prosecutor immediately objected that they could not ascertain whether the blood-stained clothes were collected before or after the occurrence of the case, nor they could prove whether the defendant wore the clothes when committing the crime.
Sometimes, potential witnesses did not know the courtroom rules and nobody informed them of the rule against making notes or sitting in the audience. For example, one witness in CTO A-16 (offence of contractual fraud) lost his qualification as witness on this basis. In this case, the defender had a witness who intended to prove that the defendant had left the area in order to participate in a project negotiation in Beijing, instead of having the intention to flee, to defraud the bank and avoid repayment of the loan. The prosecutor objected that the witness had been sitting in the audience and had made notes and, in consequence, was not qualified to appear in court. The presiding judge immediately said that he supported the prosecutor’s challenge.
3 Prosecutors at the debate stage
Courtroom debate is one of the important stages in the criminal procedure, in which the prosecution and the defence raise their opinions on the cases (such as the facts of the crime, evidence and application of the law including sentencing) based on the courtroom investigation. Such a debate can increase the transparency, fairness and persuasiveness of the criminal proceedings (Zheng 2013).
At the debate stage, all the prosecutors who attended the trial would express their opinions on the case. According to the 235 case files in the three sites, the prosecutor’s statement on most occasions included a summary of evidence, a statement on the guilt of the defendant and sometimes, their suggestion as to sentencing (see Table 2). A typical prosecution’s statement, as in Case A-79, would include the following: “The facts are clear and the evidence is sufficient in this case, which is enough to determine the defendant’s guilt. There was no law in the defendant’s mind, he conducted outrages in a brazen manner, trafficked drugs illegally and resisted arrest in public; the circumstance was serious, so his act constituted the offence of trafficking drugs. The defendant’s attitude toward his crime is extremely dishonest, please punish him severely according to law.” The findings of observing the trial of 59 cases in the three sites indicated a similar outcome.
According to the criminal procedure law, the prosecutor, the parties, the defenders and the legal agent may debate with each other. 19 However, the statement of defenders did not necessarily lead to further debate between the prosecutor and the defender, since most defenders normally would not say anything else after the prosecutor’s second round of speech. There was a further debate in some cases (35 % in Site A, 3 % in Site B and 18 % in Site C) when the prosecutor disagreed with the defender or defendant’s opinions. Generally speaking, the prosecutors would restate the evidence (44 % in Site A, 100 % in Site B and 87.5 % in Site C), the guilt of the defendant in almost all cases and their attitude toward the punishment in more than 80 % of the sample cases. So far as the content of additional debate is concerned, the most common argument was whether the defendant had voluntarily surrendered or should benefit from other meritorious performance, if the defendant’s act constituted a legitimate or excessive defence and if the defendant’s act constituted an offence. 20 Sometimes, the prosecutors would also argue that the defendant’s actions had caused great social harm. In most cases, the debate only lasted for two or three exchanges in the three sites, as shown below in CTO A-22 (offence of intentional homicide). Here is the prosecutor’s speech:
Prosecutor: Presiding judge, after the courtroom investigation, the facts of this case are clear and the evidence is sufficient, which can prove that the defendant committed the crime. Thus the charge against the defendant is established. The defendant killed his mother and his wife, which has serious social consequences. We suggest the panel impose a severe punishment on him.
When the defender argued for a lenient punishment based on the defendant’s unhealthy family environment and the tragedy resulting from the victim who, it was said, attacked the defendant first, the prosecutor replied:
It is a common contradiction between the couples that the victim humiliated the defendant. Therefore, this opinion is not tenable.
But when the defender wanted to make a further statement, the presiding judge said that she understood the key meaning of the two parties, then the debate ended and the case proceeded to the next stage of the trial.
Another important element in the prosecution’s statement during the debate stage after the 2012 CPL reform is that the prosecutor would recommend the sentence to the court. 21 But generally speaking, it will not lead to further debate in this regard according to the cases observed in Site A during January and February 2016, unless the prosecution disagrees with the defence on the charge itself.
In the adversarial system, the defendant’s guilt or innocence is settled by the jury in the courtroom. While in the inquisitorial system, the judge is the main investigator in the case, acts on the same side as the prosecution, makes a verdict and decides the sentence (Fairchild and Dammer 2001: 154-155). In China, the law requires the panel to render a judgment of guilt, innocence or exemption of criminal responsibility according to the established facts, evidence and the law. 22 However, there is no express provision to require an immediate judgment.
4.1 Few immediate announcement of the judgment
According to my courtroom observations, few judgments in ordinary procedure were made immediately after the trial (12.5 %). However, given the special circumstances that some cases were tried for the purpose of selecting new presiding judges and the panel was required (or encouraged) to make a judgment immediately in Site A, some trials served as exemplary courts or involved mass media’s involvement in Sites B and C, the rate of immediate judgment was even lower.
4.2 Predictable results: Conviction
As far as the outcome of the trial observed is concerned, all the defendants were found guilty according to the judgment announced immediately or the judgment later available. For instance, the judgment available in the 24 cases indicated that the defendants were found guilty of all charges and sentenced to the punishment ranging from 6 months fixed-term imprisonment to death penalty and life imprisonment.
There were several reasons for the absence of acquittals. First, despite the formal introduction of an adversary system in the trial, the proceedings remained the same as before – the decision on guilt is substantially decided before the trial in most cases. This is the basic pattern in China today. In China, the structure of the criminal proceeding has determined that while the police, the procuratorate and the judge should divide their responsibilities, they should carry out mutual coordination and check each other to fulfill the objectives of the criminal law, that is, to ensure the accurate and timely ascertainment of facts about crimes and punishment of criminals. 23 The judges would be under enormous pressure from the victim or victim’s family members, the police and the prosecution, leaders of local government and the party committee and public opinion if they were to to declare a defendant’s innocence due to insufficient evidence or unclear facts of crime (Ma 2002: 204). 24
4.3 Few protests to the judgment
According to the 235 sample cases, there was no protest by the prosecution. This is partly because of the close relationship and cooperation between judges and prosecutors. In my interview with the 24 prosecutors, there were only 7 prosecutors (29 %) who had ever protested the court’s judgment. On most occasions, the prosecutors would protest the judgment only where they thought the sentence was too lenient. For instance, the prosecutor in ISP A-1 (male, 42 years old, attended undergraduate courses, 10 years working experience as a prosecutor) said: “Yes. I once protested a judgment which made the judge in charge of the case unhappy, because the judgment was extremely lenient. In general, we seldom protest the judgment if it is severe, unless it is extremely severe. As you know, Chinese law is quite flexible, therefore, we will not protest a judgment if it falls within the prescribed scope of sentencing.” Another reason is that, just like the existence of the adjudication committee in court, there is a corresponding organization in the procuratorate that shall be responsible for the major decision of criminal cases, including the protest.
4.4 Prosecution’s withdrawal of the case before the judgment
In judicial practice, it is possible for the public prosecutor to withdraw the case before the announcement of the judgment by the court, when the prosecution believes that there were no clear facts, or the defendant should not be investigated for the criminal responsibility. According to Cai Xiao (2011), the rate of procuratorial withdrawal of prosecuted cases in the three procuratorates of Z Region during 2007–2009 ranged from 0.35 % to 5.23 % (Cai 2011). Apart from the considerations of procedural values and law enforcement for crime control, maintaining departmental interests or reputation, a direct reason for such practice, is the pressure of internal performance evaluation. In China, most procuratorates had internal indicators (effectively, allowable quotas) on non-prosecution, case acquittal and withdrawal rates in their evaluation work (Cai 2011: 6-22).
This practice still exists, as when I consulted files case registered in Court A during January and February 2016, one case (Offence of embezzlement) was recorded as “prosecutorial withdrawal”. 25 This was further confirmed in my interviews with judges: If they concluded that the defendant in a case was quite likely to be found innocent, they would advise the prosecutors to withdraw the case before the announcement, in order to ensure an official high rate of prosecution success 26 as well as the continuation of the good relationship between prosecutor and judge. 27
Such practice also showed that some weak cases will also be prosecuted with the hope of a guilty verdict. As we know, the prosecution requires sufficiency of evidence and the need to impose criminal responsibility in China. Article 141 of the Criminal Procedure Law states that the prosecutors shall initiate the prosecution if the facts of crime have been ascertained, the evidence is reliable and sufficient and that criminal responsibility should be investigated by law. This is similar to some foreign scholars’ finding, e. g. McConville et al (1991: 115) found that in the UK weak cases were often charged, in the hope that the defendant will plead guilty, that the evidence will strengthen or that the defendant will be convicted anyway.
As far as the reasons are concerned, the system of internal performance evaluation is a most important influential element, which was mentioned by some prosecutors and judges. The performance evaluation system on public prosecution work originally was to promote and regulate the procuratorial management work, which in essence focused on crime control factors. First of all, acquittal and case withdrawal rates have been seen as wrong decisions by the public prosecutors. Once there is a case of acquittal or withdrawal, the authority may veto the performance of prosecutors (Zhou 2016). Accordingly, the prosecutors in charge, even including the attorney general, will be responsible for such joint liability (Yu 2015; Cai 2011). This alone constitutes strong pressure to discontinue cases that have no prospect of success so that only those cases that will result in conviction proceed to court.
Overall, the CPL reforms in 1996 and 2012 aim to establish a trial mode with some adversarial element in China, in which an impartial panel, mostly three judges, sits in the middle, chairs a session and maintains the order of proceedings that the prosecution and the defence present and argue their case from two opposing perspectives. From the prosecution side, once the procuratorate decides to prosecute a suspect, it should transfer the Bill of Prosecution, and attach a list of evidence and witnesses and photocopies or photos of major evidence in the light of the CPL 1996, and all the materials to the court in the light of the CPL 2012. In the trial, the prosecution shall be responsible for reading the Bill of Prosecution, questioning the defendant, producing their witnesses and other evidence and cross-examining the defence evidence and witnesses, debating the case with the defence in the courtroom.
My research findings showed that the prosecutors performed their responsibilities in the criminal proceedings under these rules. Whatever the methods of questioning the defendant and presenting the evidence, the prosecutors tried their best to achieve the goal of conviction even with some weak cases. During the trial, they are helped by the judge in order to identify the facts and evidence even without the appearance of witnesses. But it is clear that China has not yet adopted a practice of producing witnesses at trial and making them available for examination and cross-examination. Most of the evidence is in a written form and read out by the prosecutors with the consequence that the defence lawyer and the defendant are deprived of the opportunity to cross-examine witnesses (Wiseman 1999). In all the 62 cases I observed in the three sites, in the absence of the witnesses, the prosecutors simply read out the testimony of the witnesses in court, as is allowed by law. Whilst the law provided that only on the appearance of the witness in court was cross-examination required by the parties, the testimony of the witnesses who did not appear in the court could be taken as the basis for deciding the case if the testimony was read out and proved to be true. As a result, the evidence submitted by the procurator is more likely to be adopted as determinative of the guilt of the defendant.
At the debate stage, prosecutors can fully express their views on the case, further elaborating the goal of public prosecution. But their time is short and the presentation has to be precise and concise. China’s court trial typically lasted for little more than 1 hour according to my courtroom observations of 59 cases. 28 This in fact indicated that the centre of determining a crime was not the courtroom but at the prosecutor’s office, the court’s determination assisted by the transference of case files.
The 1996 CPL implemented a system of partial transfer of cases files and review of the cases for the purpose of avoiding the first impression of being the strongest in the trial as the judges can access major evidence/materials. The CPL 2012 resumed the practice of transferring all the case files to the court before the trial. Transfer of All the Case files before the trial to the court may help improve efficiency and avoid unnecessary delay which also can meet the demand of procedural mode and traditional notion in China (Tian 2014: 76; Han 2013). But on the other hand, its defects are quite clear as it is difficult to prevent judges from forming a strong first impression on the basis of the prosecution case alone. The court places a high trust in the prosecution’s evidence so that the trial is in fact a confirmation of the investigation organ’s conclusion in most case: Conviction.
After the trial session, there were few immediate judgments, although the result of the trial is inevitable and accordingly there are few protests against the judgment. Delayed judgments give an opportunity for the prosecution’s withdrawal in those few cases where the court decides that the evidence is too weak.
As far as the prosecution is concerned, although their role has been increased, they are still helped by the trial judges to ensure conviction, and the practice of withdrawing the case before the announcement of acquittal shows the solidarity of judges and prosecutors. Moreover, due to the special status of the procuratorate as the supervisory and prosecution organ, structural and legislative constraints, there is no real balance between the prosecution and the defence. As a result, the gap between the law and the practice indicates that the reform has not reached its estimated goal completely, and “the law is far from sufficient in protecting an accused person’s right to a fair trial”. 29 At the same time, it implies that the law acknowledges positive aspects of the former inquisitorial system and the system’s policy of controlling and striking against crimes and underscores the need to introduce further reform to protect citizens’ rights.
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Other parties, such as the victim/plaintiff and an agent ad litem in an incidental civil action, and the defender may, with the permission of the presiding judge, question a defendant. In addition, the judges may also question the defendant at this stage. See Article 186 of the CPL 2012.
Sometimes, some presiding judges, for example, in CTO C-7, would suggest that the defence raised their hands if they had any disagreement and the prosecutor presented the evidence without interruption. In their view, this was a time-saving procedure.
There are no official statistics on the rate of witness appearance in court in China. It is estimated by some commentators to be between 5 and 10 % (Wang 2002: 9; Ma 2002: 220). However, these figures include many “witnesses” who simply report on the crime scene and often have no evidence relating to the defendant.
The witness problem has also attracted the concern of judges and prosecutors. For example, the prosecutor in ISP C-5 (male, 48 years old, attended three-year college, 14 years’ working experience as a prosecutor) stated that one of the problems in the trial was the unwillingness of witnesses to appear in court. In his view, the problem is greater when both the defendant and the victim know the witness, because the witness would be unhappy to offend any party in court. Furthermore, the prosecutor said that there was no compulsory means to force the witness to testify; moreover, the witnesses’ appearance involved costs of transportation and accommodation and loss of earnings. In addition, some lawyers pointed out that the prosecutor may not welcome the witness’ appearance in court (e. g., ISL A 10). Some judges referred to insufficient protection of witnesses and defective legislation. See ISJ A-3. Similarly, the judge in ISJ C-7 (male, 42 years old, section chief, presiding judge, attended undergraduate courses, 13 years’ factual working experience as a judge) said that most witnesses did not appear because of concerns for their safety.
Article 187 provides that, “Where the public prosecutor or a party concerned or the defender or agent ad litem thereof raises any objection to a witness statement which has a material effect on the conviction and sentencing of a case, the witness shall testify before court if the people’s court deems it necessary.” “Where the public prosecutor or a party concerned or the defender or agent ad litem thereof raises any objection to an expert opinion, the identification or evaluation expert shall testify before court if the people’s court deems it necessary. If the identification or evaluation expert refuses to do so after being notified by the people’s court, the expert opinion may not be used as a basis for deciding the case.” Article 188 says that, “Where, after being notified by a people’s court, a witness refuses to testify before court without justifiable reasons, the people’s court may force the witness to appear before court, unless the witness is the spouse, a parent, or a child of the defendant. A witness who refuses to appear before court or refuses to testify after appearing before court without justifiable reasons shall be admonished; and if the circumstances are serious, with the approval of the president of the people’s court, the witness may be detained for not more than 10 days. Against the detention decision, the detainee may apply to the people’s court at the next higher level for reconsideration. Execution of the detention decision shall not be suspended pending reconsideration.” Article 189 states that, “Before a witness takes the stand, a judge shall inform the witness of the requirement of truthfully providing testimony and the legal liability for perjury or concealing criminal evidence. The public prosecutor or a party concerned or the defender or agent ad litem thereof may, with the permission of the presiding judge, question a witness or an identification or evaluation expert. Deeming a question irrelevant to the case, the presiding judge shall prohibit the question.”
Most witnesses appeared in job-related cases (48.65 %), while very few occurred in murder cases. Among 88 witnesses, 59 % had some kind of relationship with the defendant. Of the 88, 26 withdrew the statements given to the investigation organs (Wu et al. 2015).
I had a chance to talk with the judge in charge of this case. According to him, since neither the defence nor the prosecution requested any witness to testify in court, there was no need for them to do so. Even if the court summoned those important witnesses, few of them would come as they may feel uncomfortable to face the defendant. In order to clarify the details on the disputed items or matters, the judges sometimes had to pay a visit to those key witnesses.
A similar survey reported that the police sometimes did not inform the suspect of the result of expert conclusion (Qi, et al. 1997).
In the CPL 2012, some Chinese scholars argued that the exclusionary rules of Illegal evidence will increase the difficulties of burden of proof on the prosecution side, especially evidence collected through torture (Su et al., 2012). But in judicial practice, the available literature shows that very few prosecution evidence in this respect are excluded by the court in criminal cases (Zuo 2015).
In addition, the following issues were debated in Site A: the sum of illicit money involved in the crime; whether the police’ broke the procedures in their enforcement; whether the defendant’s act caused the victim’s death; the degree of the defendant’s subjective evilness in the case; and whether the victim had fault in the case.
For a detailed discussion of the sentencing, see Wang 2013.
The procuratorate links the rate of prosecution success with the prosecutor’s effective work. For example, see Zhou (2016).
In England, the prosecutor may independently discontinue a “weak” case before trial but without the involvement of the judge (Sanders 2002: 157).
Hualing Fu, “The Right to a Fair Trial in China: The New Criminal Procedure Law”, in Andrew Byrnes (ed.), The Right to Fair Trial in International and Comparative Perspective, Hong Kong: Centre for Comparative and Public Law, the University of Hong Kong 1997, p. 86.
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Published Online: 2016-12-08
Published in Print: 2016-12-01