The order in which witnesses appear in court
(1) The plaintiff produces evidence, and the defendant and the third party cross-examine the plaintiff;
(2) The defendant produces evidence, and the plaintiff and the third party cross-examine the defendant;
(3) The third party produces the evidence, and the plaintiff and defendant cross-examine with the third party.
Where a party applies for a witness to testify in court, it shall do so ten days before the expiration of the time limit for adducing evidence and obtain the permission of the people's court.
If the people's court agrees to the application of the parties, it shall notify the witness to testify in court before the court session, and inform him of the legal consequences of truthfully testifying and perjury.
Reasonable expenses for witnesses to testify in court? The expenses shall be paid in advance by the party providing the witness and borne by the losing party.
Should the witness testify in court? Accept questions from the parties.
When the people's court organizes the parties to exchange evidence, if a witness is present to give testimony, it can be regarded as testifying in court.
A witness who testifies in court shall objectively state the facts he feels. If the witness is deaf, he can testify in other ways.
A witness shall not use speculative, inferential or critical language when testifying.
Judges and parties may question witnesses. Witnesses are not allowed to attend the trial; Other witnesses shall not be present when questioning witnesses. When the people's court deems it necessary, it may allow witnesses to confront each other.
The appraiser shall appear in court to accept questions from the parties concerned.
If the appraiser is unable to appear in court for special reasons, he may, with the permission of the people's court, answer the questions of the parties in writing.
The scope of the arguer's testimony in court
According to the criminal procedure law of our country, anyone who knows the case is a witness. However, a person who is physically and mentally defective or young, can't distinguish right from wrong and can't express correctly can't be a witness. However, criminal proceedings are conducted around whether the defendant's behavior constitutes a crime, what kind of crime it constitutes, whether it should be punished, and what kind of punishment it should be sentenced to. Therefore, blindly emphasizing that all witnesses in all cases must testify in court is not only unscientific, but also infeasible, even wasting judicial resources and affecting the efficiency and effectiveness of handling cases. According to the trial practice, it is necessary for a witness to testify in court under the following circumstances:
First, if the defendant refuses to confess or recant the basic facts of the case, the relevant witness shall testify in court. Because in this case, the evidence chain of the case is fragile, and witness testimony has a strong proof function. Whether the witness proves guilty in court or the defendant testifies, it is helpful for the judicial organs to accurately determine the facts of the case.
Second, if there are discrepancies, ambiguities or contradictions with other evidence between witnesses or between witnesses, the relevant witnesses shall testify in court. Key circumstances refer to circumstances that can affect conviction or sentencing. If the witness's proof is inaccurate or contradictory, he should be allowed to appear in court for investigation. Because in this case, it is impossible to solve the contradiction of testimony only by presenting and reading the testimony in court and cross-examining the testimony in writing. Only when witnesses appear in court to accept inquiries and confrontations from all parties in litigation can the contradictions between evidences be reasonably and effectively resolved.
Third, if there is obvious contradiction between the expert's appraisal conclusion and other evidence of the case, the expert should appear in court to explain the basis, method and process of appraisal and accept inquiries from all parties to the lawsuit. Broadly speaking, experts are also witnesses, and expert conclusions also belong to the category of verbal evidence; Judging from the evidence value, the expert conclusion plays a vital role in the finalization of the case, and even determines the life of the criminal defendant. Therefore, the appraiser has the obligation to appear in court to explain his appraisal conclusion. For example, in the case of Huang's intentional homicide, the defendant Huang always admitted that he lived with his girlfriend Liu that night and didn't break up until about 8: 30 the next morning, but he didn't admit that he killed his girlfriend. The public security organ determined that Liu's death time was about 1 that night, which proved that Huang had killed Liu. The expert appeared in court to explain the identification basis of Liu's time of death, that is, the time of death inferred from the body temperature and gastric lysate. The defense lawyer questioned this, and according to the time of autopsy (65438+ 03: 00 the next day), the characteristics of corpse spots and pupils recorded in the autopsy transcript, and according to the calculation formula in the forensic dictionary, Liu Ying died at about 9: 00 the next morning, while Huang had left the scene. Because the expert's explanation failed to reasonably answer the questions raised by the defense lawyer, the expert's conclusion was not adopted by the court, and the defendant Huang was acquitted by the court. It is conceivable that if there is no expert witness, there will be no court confrontation between defense lawyers and experts, and it will be difficult to achieve the purpose of doubt analysis.
Fourthly, if the process of bringing the defendant to justice is unclear in the investigation report, the defense will question it, and the investigators should testify in court. Because this situation usually involves whether the defendant constitutes surrender, whether surrender is established is directly related to the defendant's sentencing. Therefore, investigators are obliged to appear in court to explain the reasons for the defendant's arrest.
Perfection of the system of witness appearing in court
At present, there are many reasons for the low attendance rate of witnesses. Some judges are afraid of trouble, do not understand the importance of witnesses appearing in court to testify, and are indifferent to the application for testimony put forward by both the prosecution and the defense. But the main reason is that witnesses have ideological concerns and are afraid of taking responsibility. If you give testimony against the defendant in court, you are afraid of retaliation afterwards; If you testify in favor of the defendant in court, you are afraid that the victim and even the public prosecution agency will find trouble; If the testimony made in court is inconsistent with the testimony before the court, I am afraid I will bear the responsibility of perjury. Other witnesses, because they are celebrities, rich people or powerful people, are worried that testifying in court will affect their reputation and so on. Based on this, the author believes that under the current circumstances, the following problems should be emphatically solved in constructing the witness appearance guarantee system:
The first is to establish a system of "testifying in court without being investigated". That is, although the testimony of testifying in court is not accepted by the court, or even presumed to be false, the criminal responsibility of the witness appearing in court cannot be investigated for perjury. This is because, first of all, the witness is informed by the court to testify in court, and his testimony activity is passive, and he has to be questioned alternately by the parties of "prosecution, defense and trial", which almost excludes the possibility of his intentional perjury; Secondly, it is normal for witnesses to testify with their own perception, memory and understanding of the facts of the case, and errors in their statements before and after should be allowed; Thirdly, the witness has been under great mental pressure to testify in court, and we can't add new and greater pressure to it. In a word, the establishment of this principle is of direct significance to alleviate the mental pressure of witnesses to appear in court, encourage witnesses to testify boldly and truthfully, and change the current situation that witnesses are generally unwilling to testify in court. Of course, the establishment of this system may also give deliberate perjury an opportunity, and even lead to a very small number of perjury being despised by people, but just like the establishment of the principle of "presumption of innocence", it also reflects the civilization and progress of criminal proceedings in China.
The second is to establish a disciplinary system for refusing to testify in court. In other words, the people's court has the right to compel witnesses who must appear in court and who can appear in court but refuse to appear in court, and may impose fines and detention according to the seriousness of the case. If a crime is constituted, criminal responsibility shall be investigated according to law. According to the current criminal law, those who refuse to testify in court by violence or threat of violence are charged with corresponding crimes, such as obstruction of official duties and obstruction of justice, and those who seriously refuse to testify can be convicted and punished accordingly.
The third is to establish and improve other safeguard mechanisms. For example, the system of restricting key witnesses from leaving the country during litigation and the system of compulsory court appearance, the financial guarantee and security guarantee mechanism of witnesses' court appearance, etc.