1. What are the ways to question witnesses in civil proceedings?
In the civil evidence investigation procedure, there are two basic ways to investigate witness testimony. One is cross-examination, that is, the main way to investigate witnesses in the "party-led" evidence investigation procedure is cross-examination; The other is ex officio inquiry, that is, the judge directly inquires, which is the main way to investigate witnesses in the "judge-led" evidence investigation procedure. The difference between them is confrontation and non-confrontation. Judging from the judicial practice of civil litigation in various countries in the world, cross-examination is mostly carried out in common law countries, and authority inquiry is mostly carried out in civil law countries. In the investigation of civil litigation in Japan, there is a combination of cross-examination of the parties and inquiry of the judge's authority, which is not a simple cross-examination or inquiry of authority, and can be called combined inquiry. In addition, for some special cases, there are also some special query methods, which can be called special query. The inquiry procedures of these four inquiry methods are different.
Second, how to confirm the validity of witness testimony in civil litigation?
The confirmation of the validity of witness testimony is a complex problem in the trial of a case, which requires judges not only to have high professional quality, but also to have comprehensive social knowledge, examination and judgment ability and comprehensive analysis ability. The probative power of a witness cannot be denied because it is easily influenced by objective factors, and its validity should be confirmed according to the specific case.
1. If one party provides the testimony of two or more irrelevant witnesses and the other party disagrees, but there is no evidence to refute it, the probative force shall be confirmed.
2. If the witness testimony provided by one party is inconsistent with the testimony of the other party, and there is sufficient evidence to overturn or the objection reason is correct, and the testimony is obviously untrue or unreasonable, it shall be confirmed that the testimony is invalid.
3. One party has provided irrelevant witness testimony, and there is no other evidence to prove it. The probative force should be determined according to the whole case.
4. One party has provided the testimony of two or more irrelevant witnesses, but limited by his ability to testify, it should be confirmed by other evidence. If there is no contradiction, its probative force should be confirmed.
5. If one party provides witness testimony and the other party claims to be interested in the case, but there is no corresponding evidence to refute it, it shall confirm its probative force.
6. If one party provides multiple contradictory testimonies, and the testimony overlaps, that is, the testimony is repeated, and the court cannot find out, it shall confirm that the testimony is invalid.
Cross-examination procedure
Cross-questioning generally has two understandings: broad and narrow. Narrow cross-examination only refers to cross-examination in English, which refers to the inquiry made by one party to the witness applied by the other party, and can also be called counter-inquiry. In a broad sense, cross-examination means that the parties take turns to cross-examine witnesses. It includes a series of inquiry activities, such as changing questions/main questions, cross-examination, changing questions and re-cross-examination. Generally speaking, cross-examination is a broad understanding.
In Britain and America, cross-examination is the main way to investigate witness testimony. It is praised by the famous American evidence jurist Wigmore as the most effective means to discover the truth of the case. The reason, as some scholars have said, is that cross-examination has adopted two special ways. One is to observe witness testimony from multiple angles, which is helpful for judges to observe the profoundness and comprehensiveness of testimony from the same evidence source. According to the nature of litigation, the party who needs to be summoned as a witness and how to ask him are the clearest, and how to see through the hypocrisy of witness statements is also the clearest for the other party. Second, witness testimony can be cross-examined in all directions, that is, through the setting of opposites and the use of rhetorical questions. Cross-interrogators should pay attention to the weak links and criticisms of the testimony of the opposing witness. Examiners try to explore the evidence information of their own witnesses and defend their ability to prove. Query method is in this kind of argument and confrontation, trying to grasp the truth of the case.
The object of cross-examination is the witness, which is a broad concept in Britain and America, including the parties and experts. The general procedure of cross-examination is as follows: the party applying for calling witnesses cross-examines the witness → the other party cross-examines → the party applying for calling witnesses cross-examines the witness for the second time → the other party cross-examines. The scope of main inquiry, counter inquiry, re-main inquiry and re-counter inquiry is directly related to the nature and purpose of inquiry. The nature of the main inquiry is a kind of proof, and the parties hope to obtain testimony that is beneficial to their own facts by asking witnesses, rather than accusing the witnesses, so any situation related to the facts of the case and not excluding evidence is within the scope of the main inquiry. The purpose of cross-examination is to expose the unreliability of testimony or witnesses, thus shaking the evidence basis of the other party's factual claims. Therefore, the scope of cross-examination can be analyzed from two aspects: on the one hand, cross-examination is actually limited to the scope of the main inquiry, and it is impossible to cross-examine the facts of the case without the main inquiry; On the other hand, in terms of methods, cross-examination mainly focuses on the witness's qualification or probative force, including the witness's character, felony record, emotional defects, psychological state, previous contradictory statements and so on. (2) Re-questioning means that the main questioner clarifies or explains the questions raised by the other party, so as to maintain and restore the ability to prove testimony in the process of main questioning and offset the adverse effects brought by counter-questioning. Therefore, the scope of re-questioning is limited to the scope of counter-questioning. The function of duplicate is similar to duplicate, so its scope is limited to duplicate. According to the order of main inquiry, counter inquiry, re-main inquiry and re-counter inquiry, gradually limit and narrow the inquiry scope. If it goes beyond the scope of inquiry at a certain stage, it is an improper inquiry. The other party may interrupt the inquiry and state the objection, and the court shall make a ruling on it. In order to achieve the purpose of inquiry, there are some basic rules for main inquiry, counter inquiry, re-main inquiry and counter inquiry. There are four important query rules for the main query:
(1) No censure questions. Blame inquiry refers to the questioning of the credibility of the testimony of the summoned witness by the main interrogator. The fundamental reason is that our own witnesses are generally friendly witnesses, and the main questioner should ensure the integrity of the witnesses or the reliability of their testimony. However, accusatory questioning will affect the free will of witnesses and is in danger of catering to the questioner's answer. Therefore, under normal circumstances, it is forbidden for the main inquirer to question his own witness.
(2) it is forbidden to induce questioning. A leading question is a question in which the possible answers are clearly stated, which strongly implies that the witness will answer according to the questioner's answers. For example, in the case of injury compensation, the lawyer asked the defendant, "Did you really leave that knife alone?" This is a typical leading question, which may be misleading. Another example is asking a witness, "What did you do …?" This is a seemingly neutral guiding question. (3) The reason why leading questions are forbidden in the main inquiry is because our own witnesses are generally friendly witnesses and are likely to answer according to the meaning of the main inquirer, so there is a danger of distorting the truth of the case. If there is no such danger or in order to prove efficiency, it is an exception to prohibit the main interrogator from conducting induced questioning.
(3) It is forbidden to ask irrelevant, repetitive or possibly misleading questions. Relevance means that the evidence involved in witness testimony has nothing to do with the case or the witness testimony has no probative force on the evidence facts. Asking irrelevant or repetitive questions is not only a waste of litigation time, but also not conducive to finding out the truth of the case. Problems that may cause misunderstanding mainly refer to compound problems, negative problems and unproven problems. A compound question is to ask more than two questions at a time. This kind of multiple questions easily confuses the questions, and it is difficult for witnesses to remember all the questions. For example, ask, "Tell the judge and jury where you are, and have you talked to Mr. Leshnes-what's his name?" If so, tell them the content of the conversation. "A:" All right. He said his name was Morton, and then ... I forgot what your remaining question was about. "Negative questions can also cause confusion, such as asking," In fact, you don't know if the defendant was there, do you? " A: "Yes." The judge said, "Wait a minute. Does the witness mean' yes, I know', or' yes, actually I don't know', or' yes, where is the defendant?' The question of assuming unconfirmed facts refers to asking questions based on unconfirmed facts that the other party has not yet admitted. In the United States, this is called "ulterior motives", such as asking "When will you stop taking drugs?" The defendant denied that he was taking drugs. This kind of inquiry is misleading and mandatory, so it is also prohibited by law. ④
(4) It is forbidden to solicit opinions. Opinions, also known as opinions, refer to the judgments made by the presenters based on their own expertise and experience. It is the opposite of experiencing facts. It is forbidden to ask for opinions, and witnesses are required to testify only by stating the past facts they have experienced, but not by their own judgment and speculation. Article 602 of the United States Federal Rules of Evidence stipulates: "Unless there is enough evidence to prove that the witness has personal experience in handling things, he cannot testify." This can also be called the law of opinion. The reason for its establishment is that opinions and speculations are not the experience of witnesses, so they are useless in evidence, which may easily lead to confusion in the establishment of evidence, and may also affect the judge's objective and fair determination of the facts of the case by providing biased speculations. Its application premise is to distinguish facts from opinions. Generally speaking, observation and experience are facts, and statements of speculation and judgment are opinions. But in some cases, the two are closely related and it is difficult to completely separate them. Therefore, some common sense judgments directly based on empirical facts are not excluded as opinion evidence. For example: a. the identity and similarity of the things being compared; B. A certain state. Such as the speed of vehicles, people's feelings and other psychological states; C. age and appearance; D. climate; E. the value, quantity, nature and color of the articles; Mental health or not; G. possession and ownership of goods. American Federal Evidence Rule 70 1 stipulates: "If a witness is not an expert, his testimony in the form of opinions or reasoning is limited to the following situations: (a) It is reasonably based on the feelings of the witness; (b) It is conducive to a clear understanding of the witness's testimony or the determination of disputed facts.