Having done a bit of criminal defense work over the last few years,  I’m familiar with the changes Scalia and the Court have wrought on confrontation clause jurisprudence since Crawford v. Washington.  Without getting into questions like “what’s a testimonial statement”  or a “firmly rooted hearsay exception,” suffice it to say that witnesses against a criminal defendant must testify in court (and be subject to cross-examination) more frequently than in the past.  China is also moving in this direction, but reform efforts seem to be starting from quite a different baseline.

A bit of background: The National People’s Congress is currently in session in Beijing.  It meets every year in early March, and this year, drafts of amendments to Chinese criminal procedure law have been circulated.  I’m not familiar with the actual legislative process over there, however, things have reached the point where Wang Zhaoguo, Vice-chairman of the Congress standing committee, summarized the proposed amendments in either a public speech or written report.  Caixin has provided the text here.  I’ve translated* the portion of the Vice Chair’s explanation concerning witnesses and excluding illegal evidence.  Are they ready for Wong Sun and fruit of the poisonous tree? Read on.

*Translation By Train promises good, but not flawless translation – please feel free to send me suggestions and corrections!

(2) The evidentiary system

The evidentiary system is basic to criminal procedure and plays a key role in ensuring case quality, correctly adjudicating guilt and imposing an appropriate punishment.  The chief elements of the draft amendments are improving the system for excluding illegal evidence and strengthening the system for protecting witnesses while requiring them to appear in court.

First, improving the system for excluding illegal evidence:  Existing Criminal procedural law already contains strong prohibitions on the use of torture and other illegal methods to gather evidence.  To better systematically check the use of torture and other illegal methods for gathering evidence, uphold the fair administration of justice, and protect the legitimate rights of parties to criminal cases, it is necessary to establish clear rules in law to exclude illegal evidence.  In accordance with this principle, the draft amendments add rules that prohibit forcing any person to incriminate him or herself.

At the same time, the amendments clearly establish specific standards for excluding illegally gathered evidence.  Confessions extracted from suspects or defendants using torture or similar methods, as well as witness testimony and victim declarations obtained through violence or threats, should be excluded. Since unlawfully obtained physical or documentary evidence has the potential to seriously pervert the course of justice, there should be a correction** or reasonable explanation provided.  In the absence of correction or reasonable explanation, the evidence should also be excluded.  The amendments also impose a duty on the People’s Court, People’s Procuratorate and Public Safety offices to exclude illegal evidence and establish an investigative procedure for excluding evidence during a case.

**Not sure what “correction” means here.

Finally, to systemically prevent the occurrence of torture, the draft amendments provide that a suspect must be taken to a detention center promptly after detention and arrest.  Detention centers will be required to implement an interrogation system that includes the use of video and sound recording.

(2) Clearly defining when witness must attend court and strengthen witness protection:  A witness’s live testimony in court plays an important role in verifying evidence, establishing the facts of the case and reaching a correct judgment.  The draft amendments provide that, if the prosecutor, party, defense counsel or other legal representative objects to a witness’ statement and the evidence will have a significant impact on the defendant’s judgment or sentence, and the People’s Court agrees that it is necessary, the witness must appear in court to testify.  Further, if the witness fails to appear without proper reason, the Court may compel his or her presence and, in serious cases, may punish the witness with up to 10 days detention.

The draft amendments also propose additional measures for strengthening protections for witnesses, experts and victims.  In prosecutions for endangering national security, terrorism, organized crime or cases involving drugs, appearing in court entails risks to the personal safety of victims, witnesses and their close family. For these cases, the People’s Court, People’s Procuratorate and Public Security Division must take measures to ensure their security.  In the event a victim, witness or expert believes her testimony places her at risk, she can also request protection.

I readily admit that I don’t know how often a witness is required to confront the target of his/her accusations under current Chinese law, but the implication of this speech/document seems to be that it is a rare occurrence.

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