Chinese Data: Fewer Than One Percent of Witnesses Appear in Court

May 24, 2005

Fewer than one percent of Chinese witnesses who give depositions before trial subsequently appear in court to testify, according to survey data cited by the Chinese journal Democracy and Law (Issue No. 4, 2005). The article notes that the failure of witnesses to appear at trial is one of the major problems facing the legal system, and that the problem is becoming more serious. It is a particular concern in criminal trials, in which the court may have only a written deposition to review. In such situations, defendants lose the benefit of their nominal right of cross-examination (click here for a related story).

Fewer than one percent of Chinese witnesses who give depositions before trial subsequently appear in court to testify, according to survey data cited by the Chinese journal Democracy and Law (Issue No. 4, 2005). The article notes that the failure of witnesses to appear at trial is one of the major problems facing the legal system, and that the problem is becoming more serious. It is a particular concern in criminal trials, in which the court may have only a written deposition to review. In such situations, defendants lose the benefit of their nominal right of cross-examination (click here for a related story).

According to the article, reasons for the low rate of witness attendance include fear of disrupting local relationships; fear that parties in civil suits, criminal defendants (if witnesses testify for the prosecution) or law enforcement personnel (if they testify for the defense) will seek retribution for adverse testimony; the lack of relevant legal rules to sanction witnesses who fail to appear; and the lack of systems to protect witnesses from external intimidation. The article discusses in detail how police and prosecutors often intimidate, threaten, detain, and in some cases may even torture, witnesses for the defense or witnesses who change their testimony at trial to the detriment of law enforcement.

The authors review a number of suggestions that Chinese scholars have made to address the problem. These include legal sanction for failure to appear; specific legal rules on when witnesses may be excused from appearing (such as when the opposing lawyer has no objections, or an attorney-client or spousal privilege is involved); hearsay rules that would exclude depositions from being used as evidence if witnesses do not appear; and new provisions to protect witnesses from threats and intimidation.