Procuratorial Daily Highlights the Problem of Witness Absence at Chinese Trials
In an article originally published in December 2004, the Procuratorial Daily examines the chronic absence of witnesses at Chinese trials and an experiment underway in Shenzhen to address the problem. According to the article, the percentage of witnesses who appear in court for criminal, civil, and administrative cases combined is less than 10 percent, with even lower percentages for criminal trials. In Beijing and Shanghai, two of China’s most advanced legal locales, the percentage of witnesses appearing at criminal trials is reportedly only five percent. The authors also cite the shocking example of Nanning, Guangxi province, where the rates of witness attendance at criminal trials were 0.33 percent, 0.7 percent, and 1.27 percent for the years 2000, 2001, and 2002, respectively. Outside observers of China’s legal system have long complained that the failure of witnesses to appear is a serious impediment to trial fairness and undermines the nominal right of cross-examination provided to criminal defendants under article 47 of the PRC Criminal Procedure Law.
The author of the Procuratorial Daily article concludes that there are several reasons for the low rate of witness attendance, including lack of clarity in the legal standards for witness testimony, the problem of "social acquaintances" between witnesses and parties, and the influence of "traditional procedural culture," but that a key factor is the lack of a witness protection system. To address this problem, a district procuratorate in Shenzhen has reportedly issued new guidelines to protect the personal safety, finances, and privacy of witnesses. While praising the new regulations, the authors candidly note that they do not address the issues of whether it is appropriate for prosecutors to be protecting witnesses, who will protect defense witnesses, and how to resolve the conflicts between the protection of prosecution witnesses on the one hand and, on the other, the rights of defense lawyers to collect evidence and the right of defendants to confront witnesses. A recent case involving prosecutorial intimidation of defense witnesses highlights the need to address such problems (see related story here).