Regarding cross-examination in criminal trials, Article 47 of China's Criminal Procedure Law stipulates: "The testimony of witnesses must be interrogated and cross-examined by the public prosecutor, the victim, the defendant and the defender in court, and the testimony of witnesses from all sides can be used as the basis for finalizing the case." In addition, in 1998, the Supreme People's Court adopted Article 58 of the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of the Criminal Procedure Law of People's Republic of China (PRC), which further stipulates: "Evidence must be verified by court investigation procedures such as court presentation, identification and cross-examination, otherwise it cannot be used as the basis for deciding a case." Broadly speaking, cross-examination refers to a litigation activity in which the subject of cross-examination is allowed by law to inquire, identify, question, explain, explain, consult and refute all kinds of evidence, including the evidence provided by the parties, so as to convince the judge of the specific probative force. Narrow-sense cross-examination mainly refers to the activities of the litigants to confront and verify the evidence presented in court during the trial. The essential feature of cross-examination is "quality", that is, questioning and questioning the evidence, and these "doubts" and "questions" have the nature of face-to-face confrontation. Although it may be necessary to identify, explain and explain the evidence in the process of cross-examination, these behaviors do not represent the essential features of cross-examination. It can be seen that although cross-examination has the nature of examining evidence, not all evidence examination belongs to cross-examination. The examination of one's own evidence does not belong to the category of cross-examination, but the questioning and questioning of evidence from a neutral perspective is the cross-examination, which embodies the essential characteristics of cross-examination.
China's Criminal Procedure Law clearly stipulates that evidence must be publicly presented in court and cross-examined, which shows that cross-examination is a necessary procedure in criminal procedure legislation. However, judging from the current practice of criminal proceedings in China, the evidence presented by the public prosecutor is generally less subject to intense questioning and cross-examination, and the public prosecutor rarely asks high-quality questions about the evidence presented by the defense in court, and the cross-examination procedure has not played its due role.
At present, there are different opinions on the concept of criminal cross-examination in China's legal circles. In earlier legal dictionaries, cross-examination was defined as "the litigation activity of pointing out problems and asking witnesses to make further statements to dispel doubts and confirm the role of evidence, which is a way to examine and verify the testimony of witnesses", or "the litigation activity of prosecutors, victims, defendants and defenders to verify and verify the difficult problems related to the testimony of witnesses by asking questions in court.
The dispute about the evidence elements of sanctions is mainly about the scope of cross-examination, that is, the scope of "questioned evidence" in the cross-examination procedure. It can be roughly divided into three viewpoints: the first one thinks that the object of cross-examination is limited to witness testimony; The second category thinks that the object of cross-examination is all evidence; The third category thinks that the object of cross-examination is verbal evidence relative to physical evidence. Recently, more and more scholars tend to think that the object of cross-examination should be all the evidence. Questioning witness testimony, victim statements, confessions and excuses of criminal suspects and defendants is only a special link in the cross-examination system. The author thinks that the object of cross-examination should be all the evidence.
Based on this, the author believes that the concept of cross-examination in criminal trial is a litigation activity in which both the accused and the defendant question and refute all the evidence presented in court under the command of the judge, so as to provide a basis for the authentication of the judge.
Second, the legal relationship of cross-examination in criminal trial
Once the legal system is established, it forms a specific legal relationship in related fields. Once the cross-examination system is established, a specific relationship of rights and obligations will be formed between the prosecution and the defense, as well as relevant witnesses and experts. This procedural relationship of rights and obligations can be called cross-examination legal relationship. Because legal relationship is the embodiment of legal system in social life, the analysis of cross-examination legal relationship helps us to understand the essence of this system more deeply.
As far as all legal relations are concerned, they are composed of three elements: subject, object and content, and cross-examination of legal relations is no exception. Therefore, the understanding of the legal relationship of cross-examination is also the understanding of its constituent elements.
(A), the subject of cross-examination of legal relations in criminal trial
The person who enjoys rights and assumes obligations in criminal cross-examination activities is the subject of legal relationship in criminal cross-examination. Its scope includes: 1, prosecutor (party). In the common law system, prosecutors are also parties. This article only discusses the civil law system. After the criminal prosecution is initiated, the procuratorial organ will exercise the litigation right against the crime on behalf of the state and bear the responsibility of proving whether the defendant is guilty or not. Therefore, prosecutors must cross-examine all kinds of evidence in order to reasonably eliminate all doubts about the defendant's innocence. A party refers to a person who has an interest in the outcome of a case. The parties stipulated in China's criminal procedure law include defendant, victim, private prosecutor, plaintiff and defendant in incidental civil action. Because the parties have the ultimate interest in the outcome of the lawsuit, they should have the right to cross-examine the evidence in the lawsuit. 2. Defenders and agents ad litem. In criminal proceedings, the defender has the responsibility to prove that the defendant is innocent, the crime is light or all should be mitigated or exempted from punishment according to facts and laws. Therefore, cross-examination is an important means for defenders to safeguard the rights of defendants. An agent ad litem entrusted by a party to participate in litigation shall also have the right to conduct cross-examination in order to safeguard the interests of the client within the scope of entrustment. In addition, because cross-examination is a kind of litigation activity that cooperates with legal profession and litigation skills, lawyers, as defenders and litigation agents, actually play a greater role than the parties in cross-examination activities. 3. Accept cross-examination. When witnesses are used as evidence methods, witnesses, victims, criminal suspects and defendants who provide testimony are the people who accept cross-examination. If the appraisal conclusion and the record of the inquest are used as evidence, the appraiser and the inquirer are the people who accept the cross-examination; Where materials are used as evidence, the investigators who are responsible for collecting the evidence of the materials and the owners, custodians and holders of the materials may be the people who accept cross-examination; If documentary evidence or audio-visual materials are used as evidence, the investigators who collected the evidence, the producers of the documentary evidence and audio-visual materials themselves and other people related to the evidence shall accept cross-examination.
Whether minors can be the subject of cross-examination is not clearly stipulated by law. However, since minors can testify within their own knowledge, they should be obliged to accept questions within their scope of testimony. If the minor is the defendant, because the law also gives him the right to defend himself, he should have the right to ask witnesses and relevant personnel about the evidence.
As the subject of cross-examination legal relationship, the above-mentioned personnel should not be controversial in theory, and the controversy mainly lies in whether the judge can be the subject of cross-examination. Therefore, it is necessary to analyze the nature of cross-examination and the responsibility of judges. In essence, cross-examination reveals the probative force of evidence through questioning, debate and other confrontational ways, and its ultimate goal is to persuade judges to adopt a certain evidence as the basis for judgment. The judge's duty is to "prove" the result of cross-examination. The judge's duty is to "prove" the result of cross-examination. During the trial, the judge will ask some questions about the evidence, but this can only be an extension of the right of "authentication", and its scope is limited to the contents that the prosecution and the defense failed to express clearly or the judge failed to hear clearly. In other words, the judge is not the subject of cross-examination, but he should have supervision and command power over cross-examination activities to ensure the orderly and efficient trial activities.
(2) The object of cross-examination in criminal trial.
That is, cross-examination is the object of litigation. For the whole criminal procedure, whether the defendant constitutes a crime is the theme of this case. But for the specific litigation activity of cross-examination, its litigation object is specific, that is, the probative force of a certain evidence in litigation. Under normal circumstances, all clauses that can be used as evidence materials must be cross-examined to determine their probative force and serve as the basis for judgment. There are exceptions, such as common sense, obvious facts, simple reasoning based on known facts, etc., which can be adopted by the referee without cross-examination. In addition, according to the evidence science in China, evidence must be authentic, relevant and legitimate at the same time to be used as the basis for judgment. Therefore, the probative force of evidence should be determined by its authenticity, relevance and legitimacy. Therefore, the object of cross-examination of legal relationship is to prove the authenticity, relevance and legitimacy of evidence.
(3) the content of cross-examination of legal relationship in criminal trial.
It is the right and obligation relationship between the prosecution and the defense and the interrogated. This relationship of rights and obligations is a corresponding relationship. When one party exercises the right of cross-examination, it is also the process for the other party to fulfill the obligation of cross-examination. The relationship between the prosecution and the defense and the witness is the relationship between asking questions and being asked. Under normal circumstances, the interviewee has the obligation to answer questions from both the prosecution and the defense, and has the right to refuse to answer questions involving personal privacy. Secondly, both the prosecution and the defense have the right to cross-examine each other and the obligation to answer each other's questions.
Basic rules of cross-examination in criminal trial
Drawing lessons from the relevant foreign legislation and combining the actual situation of criminal justice in China, the author believes that the following basic rules should be established in the cross-examination procedure of criminal trial in China.
(a), all the rules of cross-examination
This is one of the most important basic rules, and it is also the fundamental guarantee to realize the right of cross-examination between the prosecution and the defense. The main contents are as follows: 1. All evidence materials must be identified, interrogated, explained and explained by the prosecution (including the public prosecutor, the victim or the victim's legal representative and close relatives, etc.). ) and the defense made by the defendant (including the defendant and his defender) before the trial can be used as the final basis; Second, every piece of evidence should give both the prosecution and the defense ample opportunities to debate and refute.
(2) Strict procedural rules
This is the basic rule to ensure the smooth progress of cross-examination activities. Its contents include: the trial cross-examination procedure must implement the principle of "who gives evidence, who asks questions and who answers", the cross-examination subject must obey the judge's command in every cross-examination behavior, the inquiry must be approved by the judge, and the inquiry must be carried out in strict accordance with the prescribed inquiry order. If one party violates the rules, asks without authorization, or interrupts the normal inquiry of the other party, the judge shall stop it, so as to maintain the smooth progress of court procedures and cross-examination.
(3), evidence center rules
This is the basic rule to ensure the efficiency and effectiveness of cross-examination, which mainly means that cross-examination must focus on the authenticity, relevance and legitimacy of some specific evidence presented in court. In the process of cross-examination, other factual issues or the application of law shall not be debated at will. Cross-examination must be about things, not people, and all acts of personal attack, malicious insult to others' personality and invasion of others' privacy in the name of cross-examination are strictly prohibited.
(4) Voluntary nature certificate rules.
Generally speaking, whether the prosecution and the defense cross-examine each other and what evidence they cross-examine are considered as the rights of the cross-examination subject. The judge who presides over and directs the cross-examination procedure should not interfere with the freedom of both the prosecution and the defense to exercise this right, so as to ensure that the criminal cross-examination is conducted in an orderly manner according to the wishes of both the prosecution and the defense. Of course, it is necessary to clarify the consequences of not cross-examination and insufficient cross-examination in legislation at the same time, so as to promote the cross-examination subject to actively and effectively exercise the right of cross-examination In order to prevent the deliberate delay of litigation, the judge may also ask the evidence of both the prosecution and the defense when necessary, but it must stand in a fair position and must be strictly limited.
(5) prohibitive rules
According to the characteristics of cross-examination procedure, it is necessary to design some specific prohibitive rules to ensure the smooth progress of cross-examination activities and achieve the purpose of cross-examination efficiently. Such rules should mainly include prohibiting induced interrogation, prohibiting cross-examination of witnesses and limiting repeated interrogation.
Fourthly, the cross-examination mode in criminal trial.
It is generally believed that the criminal cross-examination procedure mode is subordinate to the criminal procedure mode. At present, there are mainly three modes of criminal proceedings in the world: judge-led, prosecution-led and compatible cross-examination mode.
(A), the judge's subjective cross-examination mode
The mode of subjective cross-examination of judges is mainly applicable to countries of civil law system. On the basis of criticizing and inheriting and reforming the inquisitorial litigation form, it is a mixed litigation form to absorb the British debating litigation form. Its main feature is to attach importance to the role of judges in cross-examination, but not to the positive role of parties in cross-examination. In this mode, the judge has great power and can take the initiative to ask the defendant and the prosecutor. Take the initiative to investigate and collect all kinds of evidence according to the authority. The advantage of this model is that in the whole trial process, the judge is the center, and the inquiry and investigation are carried out under the control of the judge, so the efficiency of handling cases is naturally higher. However, the disadvantages of this model are mainly that the trial judge overstepped his authority, weakening the prosecution function of the prosecutor, and being influenced by the prosecution materials of the procuratorate, it is difficult to listen to the defense opinions objectively and fairly, which leads to the imbalance between the prosecution and the defense, which is extremely unfavorable for finding out the truth of the case and making a fair judgment.
(B), the prosecution-oriented cross-examination model
The main cross-examination modes of prosecution and defense are mainly applicable to Britain, the United States and Chinese-speaking countries. On the basis of inheriting and reforming the indictment litigation, the debate litigation mode has been formed. Its main features are: attaching importance to the initiative and enthusiasm of defendants, defenders, prosecutors and litigation agents in litigation, strengthening the balance of power between prosecution and defense, giving both parties equal litigation status to present evidence to support their claims, and judges are only responsible for presiding over court debates and are in the position of passive arbitrators, generally not directly taking the initiative to investigate and collect evidence. The advantage of this model is to avoid the judge taking the initiative to make a pre-judgment before the trial. This model emphasizes the observance of legal procedures and the protection of the rights of defendants, which is more in line with the original intention of establishing cross-examination procedures. Its shortcomings are: 1, the punishment for crimes is not strong enough, and it is difficult to combine compliance with legal procedures with seeking objective truth and effectiveness. 2. This cross-examination mode will easily lead to excessive litigation delay and even reduce litigation efficiency.
(C), compatible with cross-examination mode
The compatible cross-examination model is mainly used in Italy, Japan and other countries after World War II. It is an organic integration of the judge-led cross-examination mode and the prosecution-defense-led cross-examination mode, which makes up for the fact that the judge-led cross-examination mode overemphasizes the initiative of the judge, ignores and limits the initiative of the defendant and the defender in court cross-examination, and is not conducive to the display of the defense function and the judge's understanding from both positive and negative aspects. At the same time, it also makes up for the fact that the trial of the case under the subjective cross-examination mode of the prosecution and the defense relies too much on the investigation and debate of both parties. Therefore, the outcome of case handling is likely to depend on the experience and debating skills of both the prosecution and the defense. Seeking objective truth becomes empty talk, and this cross-examination mode easily leads to the malpractice of litigation delay, thus forming its own characteristics: the prosecution and the defense conduct cross-examination under the command of the judge, and the judge is not passive in the process of cross-examination in court. After the public prosecutor, agent ad litem, defendant and their defenders make inquiries, the judge may make supplementary inquiries about the relevant parts of the case after the inquiries of both the prosecution and the defense are completed. The advantage of compatible cross-examination mode is that it absorbs the advantages of the first two cross-examination modes, taking into account fairness and efficiency, and can be used for reference.
The implementation of cross-examination system in China's criminal trial
(1) ignores the rights of the defense, which leads to the unequal status of the prosecution and the defense in the trial cross-examination.
From the material point of view, it has been formed and fixed in the investigation stage, but it is impossible to regard these evidences as criminal suspects in the investigation, review and prosecution stage. Although Article 96 of China's Criminal Procedure Law stipulates that criminal suspects can hire lawyers to provide them with legal advice, complaints and accusations, and let lawyers intervene in advance to help criminal suspects. It is difficult for the defense to prove whether the procedure of collecting some evidence by the judicial organs before cross-examination is legal and true. Even cross-examination, it is difficult to achieve the purpose of measuring the truth of the case. Article 93 of China's Criminal Procedure Law stipulates: "A criminal suspect shall truthfully answer the questions of investigators", emphasizing that the criminal suspect has no right to remain silent and should cooperate with the investigation organ to find out the true situation of the case. Because this situation is carried out in a very secret way, the outside world can't know at all. In practice, it is regarded as a "shortcut" for investigation organs to obtain confessions of criminal suspects by extorting confessions by torture. If the defendant said in court cross-examination that it was formed by extorting a confession by torture, how to confirm it? In this way, what is the significance of cross-examination? On the contrary, because the suspect is physically restricted, the possibility of finding evidence is very small. Even his defender (at present, China's criminal procedure law has not given a clear title to a lawyer), because the law does not give him enough power, there are few channels for obtaining evidence. According to the provisions of China's criminal procedure law, lawyers have no right to investigate and collect evidence in the investigation stage. Although the law gives lawyers this right at the stage of examination and prosecution, it is conditional. Article 37 of the Criminal Procedure Law stipulates that "a defense lawyer may, with the consent of witnesses or other relevant units and individuals, collect materials related to this case" and "with the permission of the people's procuratorate or the people's court, a defense lawyer may collect materials related to this case from witnesses provided by the defendant or his close relatives or the victim". This conditional defense power is in sharp contrast with the result that the defendant's defense relies on the state coercive force as the backing. Only by mastering the amount of evidence materials, the defense is already at an absolute disadvantage, and it is easy to form a one-sided situation in cross-examination, which will make cross-examination, an extremely important link in the trial procedure, often become a mere formality, which is not conducive to finding out the truth of the case, cracking down on crimes and protecting innocent people from being investigated.
(2) The influence of evidence display system on cross-examination in criminal trial.
According to China's judicial practice, in criminal cases, the scope, method and time of evidence display have a direct impact on the role of cross-examination in criminal courts. Article 36 of China's Criminal Procedure Law stipulates that "in the stage of examination and prosecution, defense lawyers can only' consult, extract and copy the litigation documents and technical appraisal materials in this case'." However, the evidence of the facts of the case is still prohibited, which will not play a beneficial role for the defense to understand the facts and evidence of the case and prepare the defense, so it is of little significance. According to Article 36 of the Criminal Procedure Law, defense lawyers "can consult, extract and copy the criminal facts in this case from the date when the people's court accepts the case ..." However, the "criminal facts" stipulated here can only be "evidence list, witness list, copies of main evidence and photos" as stipulated in Article 150 of the Criminal Procedure Law. The prosecution only handed this public material to the court during the examination and prosecution, so the defense lawyer got little through the court and could not fully understand the evidence of the prosecution, which affected the realization of the confiscation of the right of defense and eventually led to the loss of practical significance of cross-examination.
(C), the role of judges in cross-examination activities in criminal trials
In judicial practice, there are still too many judges who directly inquire about evidence in court, and court investigation is often based on the judge's authority. Even in the pre-trial investigation and marking, the judge prejudged the substantive issues, so that the cross-examination between the prosecution and the defense actually became a manifestation of confirming their prejudgment. Moreover, driven by this preset "inner conviction", judges often ignore the cross-examination activities of both prosecution and defense, and even interfere with cross-examination.
The judge's position in the trial cross-examination procedure should be mainly the commander and order maintainer of the cross-examination procedure, and only under special circumstances can he become the direct cross-examination subject. In order to limit the arbitrariness of legal proceedings, the law must clearly stipulate exceptions. Specifically, the role of judges in cross-examination should be reflected in the following aspects: First, judges have the right to guide cross-examination. When one or both parties are involved in minor issues of the case or deviate from the facts of the case, the judge will guide them so that the inquiry will closely focus on the facts and circumstances that are decisive and influential to the ruling. Secondly, legal procedures should ensure that both the prosecution and the defense have equal opportunities to ask questions and questions. Third, the prohibition right stipulated in the prohibition rules of court cross-examination should be exercised by judges.
Another outstanding problem in China's litigation system is that the final handling of the case must be decided by the presiding judge, members of the judicial Committee and the dean who does not appear in court. Because the judge appearing in court may not have the final decision on the handling of the case, this will directly affect the enthusiasm of both the prosecution and the defense.
(d) The low attendance rate of witnesses leads to the low quality of cross-examination.
China's "Criminal Procedure Law" has greatly reformed the trial mode, and established a trial mode of "combining prosecution with defense", requiring witnesses to appear in court in principle, accept cross-examination and be questioned by judges if necessary. So that the court can directly examine the qualification, perception, memory and expression of witnesses, reasonably judge the influence of subjective and objective factors on witness testimony and distinguish the authenticity of witnesses. However, judging from the judicial practice in China, there are few witnesses appearing in court to testify in criminal cases. The appearance of this situation has actually deepened the judge's written or oral examination of the records of the prosecution file: because witnesses do not testify in court in most cases, the judge's investigation of verbal evidence such as witness testimony is limited to extracting and reading the records recorded in the prosecution file. This kind of trial makes cross-examination a "theory on paper" and a mere formality. There are several reasons why witnesses do not appear in court: 1. The legal provisions are unclear and contradictory. Article 48 of China's Criminal Procedure Law stipulates: "Anyone who knows the circumstances of a case has the obligation to testify." There is no clear stipulation whether the "testimony" in the clause is to testify in court or not to only provide witness testimony to judicial personnel. At the same time, Article 157 of the Criminal Procedure Law stipulates that witnesses are not allowed to testify in court, and the testimony of witnesses who have not appeared in court should be read out in court, and then the judge will listen to the opinions of the parties of the public prosecutor, defender and agent ad litem, even if it is over. As can be seen from the above, a witness can perform the obligation to testify in court, orally state what he knows in court, or not to testify in court, and the judicial personnel can make a record of his testimony and read it out in court. In this selective situation, it is easy to cause adult witnesses not to testify in court. 2. The obligation of the witness is out of touch with the incumbent. China's criminal procedure law stipulates that it is the duty of citizens to testify. However, it does not stipulate what legal responsibilities the witness will bear, what punishment he will be punished, or what measures he can take to refuse to testify. So witnesses don't have to testify in court and have no worries. 3. Because there are no specific protection measures, full-time staff and effective protection mechanism, the protection of witnesses only stays within the scope of ex post protection, personal protection and declaration protection, ignoring the protection of witnesses in advance and property protection. Therefore, when the law can't provide consistent and effective legal protection for the public, the best countermeasure for individuals is to be wise and protect themselves from right and wrong. 4. At present, some judges, influenced by their own qualities, don't fully realize the importance of witnesses appearing in court, so they take a negative response when executing witnesses to testify in court, thinking that witness testimony has appeared in the file, and whether or not to appear in court will not hinder the overall situation, so cross-examination is often just a formality.
In addition, the proportion of appraisers, inspectors and investigators appearing in court for cross-examination is even lower.
Here, the author believes that although it is not necessary to strictly require all relevant personnel to appear in court for cross-examination in every case, it is still necessary to emphasize that in some major and difficult cases, all relevant personnel should appear in court for cross-examination to ensure the fairness of the judgment.