How China Justifies Empty Witness Chairs

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At a recent high-profile trial, a Hubei Province court found a woman who worked at a massage parlor guilty of intentional harm in the killing of a local government official, and then exempted her from criminal punishment.

Despite the complexity and seriousness of the case, none of the eyewitnesses to the killing attended the June 16 trial. Instead, the prosecution presented every bit of witness testimony by submitting written records to the court.

The physical presence of a courtroom witness is rare in China. According to the Supreme People's Court, only 10 percent of all witnesses testify at first instance trials in China, and less than 5 percent appear at second instance hearings.

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Article 47 of China's Criminal Procedure Law, which was last amended in 1996, supports the use of witness testimony. The article says witness testimony can be used as a basis for deciding a case after that witness has been questioned and cross-examined in court by both sides -- that is, the side of the public prosecutor and victim, as well as that of the defense attorney and defendant -- and after all witness testimonies have been verified.

But most witness testimony is currently considered at court hearings through written records, not face-to-face contact. Cross-examination and fact verification are paper procedures as well.

Some experts say this courtroom practice is a procedural defect and Achilles' heel for the nation's legal system because it can compromise trials and diminish the public credibility of decisions, even when entirely justified.

Zhang Yansheng, a Beijing lawyer who has spent 15 years working in the judicial system and 15 years as a practicing criminal lawyer, said he's seldom met a prosecution witness in court. "Key witnesses tend not to present themselves in court," he said.

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The consequences can be chaotic. Zhang once ran across a file containing the records of two testimonies by the same witness. The only difference was that the witness initially claimed to be at the scene of a crime, but later testified he wasn't there. Zhang said he never uncovered the truth because he couldn't get the witness into a courtroom for questioning about the discrepancy.

This is a predicament for judicial proceedings despite the Criminal Procedure Law's Article 37, which says a defense lawyer, with consent from witnesses or other relevant individuals, can ask the court hearing the case to order witnesses to appear and testify in court.

Lin Jian, director of public prosecution for the Beijing Xicheng District People's Procuratorate, blamed the law for low witness turnout. "The law only says a witness has the duty to testify, without clarifying if testifying in court is a duty," he said.

The Criminal Procedure Law's Article 48 says, "All those who have information about a case shall have the duty to testify." But Article 157 says, "Testimony from witnesses who are not present in court, the conclusions of expert witnesses who are not present in court, inquest records, and other documents serving as evidence shall be read in court."

Meanwhile, there are no provisions on legal liabilities for witnesses who, without legitimate reasons, refuse to testify at a trial. A general understanding of the law among judicial officials such as Lin is that a witness, when fulfilling an obligation by testifying, can choose whether or not to appear in court

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Additionally, personal safety guarantees and financial compensation for witnesses are lacking, making it difficult for them to testify in court.

"Witnesses are not only concerned that their court testimony will cause trouble for themselves, but they may have to spend a lot of time and money to attend hearings," Lin said.

Not only are witnesses often reluctant to testify, but courts and procuratorates also lack motivation to arrange live testimony. Adding witnesses to a court hearing can increase work levels for judicial staff members by extending the duration and scope of a trial, especially if witness testimonies conflict.

China's criminal courts traditionally focus on investigations rather than trials, said He Jiahong, a law professor at Renmin University Law School. As verifying facts and inspecting evidence are basically the responsibilities of public security organs and the procuratorate, the main job for judges is to scrutinize files and pass judgments. Consequently, each court hearing becomes somewhat of a formality.

Naturally, a trial's fairness can be affected by the presence or absence of witnesses. Direct, personal encounters with facial expressions and certain voice tones can reveal more at a trial than transcribed remarks. It can also contribute to the credibility of testimony. And if testimony at a hearing is challenged for accuracy or consistency, a live witness can account for his or her words on the spot.

In recent years, concerned about the fairness of criminal trials without witnesses, some local courts and procuratorates have started exploring ways to encourage witnesses to testify in court.

Some focused on covering witness costs. Since 2003, for example, the Chancheng District Court in Foshan, Guangdong Province, has compensated each witness who agrees to testify in court with 100 yuan a day. Witness costs for transportation, housing and meals are covered in line with standards for government workers on business trips.

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Starting in July, the Beijing Xicheng District Procuratorate plans to require all key witnesses to testify in court. The order defines key witnesses as those who can, in effect, help clarify key controversies. These may include, for example, a witness who gives contradictory testimony, or who can help prove a defendant's guilt or the severity of a crime in case that the defendant has refused to confess.  

These key witnesses – almost all controlled by the prosecutor – will be entitled to financial compensation, including food and housing allowances. On the other, key witnesses presented by defense lawyers would have to apply to the procuratorate for compensation.

Some say the new measure is a "precious step forward" that lets lawyers meet and question key witnesses in a safe setting, balancing the rights of prosecution and defense. Others say the Xicheng procuratorate proposal will fail unless it's supported by the local district court, which would bear most of the increased workload tied to bringing witnesses to court.