The admissibility of pre-trial testimonial transcripts: a discussion of practice in China and in the International Criminal Tribunals

• Author: WANG Zhuhao, HUANG Yanni
• Pages: 67-85

FRONTIERS OF LAW IN CHINA

VOL. 13 MARCH 2018 NO. 1

DOI 10.3868/s050-007-018-0006-1

FOCUS

COMPARATIVE PERSPECTIVES ON EVIDENCE LAW : EAST AND WEST

THE ADMISSIBILITY OF PRE-TRIAL TESTIMONIAL TRANSCRIPTS: A

DISCUSSION OF PRACTICE IN CHINA AND IN THE INTERNATIONAL CRIMINAL

TRIBUNALS

WANG Zhuhao∗, HUANG Yanni∗∗

Abstract In Chinese criminal procedure, the issues of illegally obtained evidence and

witnesses not appearing in courtroom are under fire, which is partly rooted in the fact

that the Chinese courts do not limit the admissibility of pre-trial testimonial transcripts in

judicial practice, zealously pursue the “truth of fact” while disregard defendant’s right to

confront. Focusing on the admissibility of pre-trial testimonial transcripts, the article will

first analyze the current legislations and judicial practice in China, then from a

comparative perspective introduce the corresponding written testimony rules of the

International Criminal Tribunal (Court) which distinguishes the admissibility of different

categories of written testimony, with an aim of both protecting the criminal defendant’s

right of confrontation and pursuing truth in fact-finding. The practice in International

Criminal Tribunal (Court) provides a good starting point for China to rethink its own

practice and learn from.

Keywords pre-trial testimonial transcripts, admissibility, the International Criminal

Tribunal (Court), confrontation right

INTRODUCTION ...................................................................................................................... 68

I. THE LEGISLATION AND JUDICIAL PRACTICE ON THE ADMISSIBILITY OF PRE-TRIAL

TESTIMONIAL TRANSCRIPTS IN CHINA..................................................................... 69

A. Summary of Legislation in China: “The Pursuit of Truth” Trumps All ..............69

* (󰤿󲣍󲤿) S.J.D. candidate, Northwestern University Pritzker School of Law, Illinois, United States;

Associate Professor of Law, Institute of Evidence Law and Forensic Science, China University of Political

Science and Law, Beijing 100088, China. Contact: wangzhuhao@cupl.edu.cn

** (󳮙󰺪) Master student in Evidence Law, Institute of Evidence Law and Forensic Science, China

University of Political Science and Law, Beijing 100088, China. Contact: hyenny@126.com

This article was a research result of the Year 2016 Project of Humanities and Social Sciences of China

University of Political Science and Law (Young Scholar’s Project “Use of Cross-examination at Trials”) (󰐁󰉜

󱧐󰈔󰦪 2016 󰓶󱭼󰉜󱘓󱚦󱓩󱝋󳕎󱏃—— 󳐧󳕎󱏃󲢷󳋃󰦪󱍙󲲥󱇽 󳌋󰢊󱓩󱝋

󰑱).

68 FRONTIERS OF LAW IN CHINA [Vol. 13:67

B. In Practice—Judges’ Preference for Admitting a Pre-Trial Testimonial

Transcript.............................................................................................................71

1. Chinese Judges’ “Pre-Trial Testimonial Transcript” Favor..............................72

2. A “Dossier Internal-Transfer Mechanism” with Chinese Characteristics........ 73

C. Fallacy in the Pursuit of Truth Based on Pre-Trial Testimonial Transcript........ 74

II. THE WRITTEN TESTIMONY RULES OF THE INTERNATIONAL CRIMINAL

TRIBUNALS....................................................................................................................... 75

A. General Introduction of the International Criminal Tribunals ........................... 76

B. A Comparison of Corresponding Rules of the ICTY and the ICC ....................... 77

1. ICTY: Witness Statements in Lieu of Oral Testimony..................................... 77

2. ICC: Previously Recorded Testimony.............................................................. 80

C. Analysis of Values Basis and Rationality of the Rules of International Criminal

Tribunals............................................................................................................. 82

III. THE IMPLICATIONS TO CHINA AND A TENTATIVE LEGISLATIVE PROPOSAL ..................... 84

A. The Feasibility of Rules Reference...................................................................... 84

B. A Proposal of Divided Approaches to the Admissibility of Different Categories of

Testimonial Transcript in China ......................................................................... 85

CONCLUSION .................................................................................................................. 85

INTRODUCTION

Generally speaking, there are two ways which a witness’s testimony may be presented

in a court: one is to testify at trial directly to the court; the other is through tender of a

written statement made prior to trial. The latter includes testimonies written by the

witnesses themselves, and written records made by investigating officials who have

questioned the witness, which is called a testimonial transcript. Testimonial transcript

records are not only the testimonies of the witness, but also the time and place of the

questioning, and includes signature(s) of the investigator(s), the recorder and the witness.

In China, a testimonial transcript is widely used in practice of witness’s substitution

testifying directly to the court. The use of testimonial transcripts in China is not only

connected with the hot-issue of testimonial evidence obtained illegally, but also links to

the problems that exist in getting witnesses to appear in court and to the consequent

failure to guarantee the defendant’s right of confrontation. This paper focuses more on the

latter two topics.

With respect to the difficulties of Chinese witnesses showing up in courtroom, there

are already numerous research papers analyzing the reasons from various perspectives,

such as non-independence of the Chinese judiciary branch, a cooperative and

interdependent relationship between and among the public security organs, the

procuratorates and People’s Courts as well as strong influence of the “non-adversarial”