October 11, 2011    868 browse

Jia Huiping

A study of contemporary criminal trial, questioning the meaning and value of the program

Until now, because of Chinese traditional and defects in the criminal justice system -- the trial center has not yet replaced investigation centralism, criminal trial court to the investigation organ for evidence of written trial, the witness does not appear, to interrogate the defendant asked after the influence of factors such as the pattern of inquiring witness, litigation participants especially active the China criminal defense lawyer should play in the trial of criminal cases in the positive role of particular questions simply can not be played so that a series of rights including the right of cross examination of the defendant, including the right to defend the right of cross examination to the lack of effective legal protection, the protection of human rights and the serious shortage of Chinese litigation democracy problems in the criminal court trial exposed.

Until now, the trial of criminal cases of judicial personnel is included many social public as "as a mere formality", criminal trial can not be independent, in criminal cases have not yet before the hearing had been relevant personnel including law committee leaders decided that participants in criminal proceedings especially criminal defense lawyers in the trial of criminal cases in the right the question and the defendant's defense right come to nothing, but also lead to unjust cases continue to occur, such as the major case of Zhao Zuohai, She Xianglin and so on a series of sobering.

So far, participants in criminal proceedings especially criminal defense lawyer in the thought did not establish the court the question has been the world for hundreds of years to be regarded as the most effective device to discover the truth of judicial idea so that the participants in the proceedings especially criminal defense lawyers have no or very little conscious cultivation direct questioning and cross examination skills and techniques in court, that we cannot actively and effectively start and use this program to find court asked the truth of case and the trial procedure justice in criminal cases in the implementation and to improve litigation efficiency.

So far, we have not established such as Anglo American direct questioning and cross examination of a series of scientific and rational courtroom inquiry system -- on the defendant asked directly by the defenders again by the public prosecutor cross examination in criminal litigation system, for what induced asked, and under what circumstances can be induced. All is blank, only a rough completely contrary to western countries under the rule of the courtroom inquiry system -- on the defendant by prosecutors questioned by the agent ad litem to ask questions, followed by the defenders were asked in the proceedings, whether direct questions or cross examination is completely banned inductive questioning, criminal trial court such questions system and we are actively building a fair and efficient and authoritative socialist judiciary system Chinese can has characteristics of the full protection of human rights is not adapted to the extreme.

On the occasion of "the people's Republic of China Criminal Procedure Law" revision, the author tries to from the most common intentional injury cases in the criminal trial has all the main questions right -- the public prosecutor, the victim's litigation agent, counsel for the defendant and witnesses the prosecution questioning empirical questions, the victim's lawsuit procedure the agent asked procedure and criminal defense lawyer asked the program associated with this question in persimmon court and sue to security, defense and related legal issues on the number of coincidence and criminal defense industry colleagues to discuss, which is related to research and empirical research based on the launch angle. The author believes that this paper tries to have Chinese characteristics from the construction of the criminal courtroom inquiry system for promoting significance extraordinary, Chinese criminal procedure the progress of the rule of law, to promote the progress of the protection of human rights in criminal proceedings has play a decisive role China significance.

Two, in the criminal trial subject to various questions law questions and problems

By the provisions of the "Criminal Procedure Law" China article 155th, Article 156, "the Supreme People's Court on the implementation of" the people's Republic of China Criminal Procedure Law "interpretation of several issues > 133rd, article 140th, the provisions of article 143rd, July 1, 2010 implementation of the" Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security, National Security Department of the Ministry of justice, "the judge to review evidence concerning the death penalty cases the provisions of a number of issues" and "on the handling of exclusion of illegal evidence in criminal cases the provisions of a number of issues" > law and relevant judicial interpretations can be seen, in the criminal trial, the victim and his agents ad litem to be the presiding judge, prosecutor interrogation of the defendant supplementary question; plaintiff of the supplementary civil action and the legal agent or litigation agent of the presiding judge to allow, can the incidental civil action of the fact to question the defendant; the judge permitted, the defense of the accused person and his legal representatives or agents ad litem may in the prosecution of a certain specific questions to ask the defendant after. Both sides of the presiding judge to allow, can the victim, plaintiffs of the supplementary civil action. The public prosecutor, the parties (including the defendant) and the defenders and agents ad litem, with the permission of the presiding judge, may question the witnesses, authenticators. The judges may ask the witness. Questions to witnesses, should first to summon the party, ask questions after the presiding judge, the other to, also can ask questions. To question the appraisers, should first issued a subpoena to a party, ask questions after the presiding judge, the other to, also can ask questions. Interrogation personnel or other people present, witness the prosecutor court drew notice shall ask court statement and accept the defendants, prosecutors and judges.

From the above provisions can be seen, in a criminal court has subjective questions right have the public prosecutor, the victim and his agents ad litem, the defendant and his counsel, criminal incidental civil action. Object to receive the public prosecutor, the victim's litigation agent, lawyer ask a defendant, the criminal supplementary civil action litigants, witnesses, appraisers, interrogators and questioned the presence of witness in Criminal Court, among these being asked object you should arouse our attention is the defendants and witnesses, they now we are in the criminal trial the main object is to ask questions.

According to the provisions of the criminal procedure law of our country, the defendant in the criminal trial in court questioning has a dual identity program, not only can be used as the object is to ask, and it can be as the main questions, the defendant cross examination and the Anglo American law system. The direct examination and cross asked litigation rights in sharp contrast.

The defendant in the China criminal procedure in judicial practice of the questions right is often the public authority deprivation in Criminal Court, not only because of the defendant does not have legal knowledge and skills of questioning, because until now, too many bad effects. "Still exist in our country's system of criminal procedure, the defendant regarded as the trial in court, the defendant without guilty verdicts pronounced guilty before the idea of rule of law has not been established, to respect and protect the defendant of litigation rights of the concept of the rule of law has not yet formed consciously in the legal occupation in the person's mind, but has a universal value conceptions of justice, the principle of the rule of law as the law in front everyone equal (now lawyers and prosecutors can not realize the legal rights court internal defense of both equality, not to speak of the defendant and the prosecutor in a criminal court in equal!) The defendant, a deep self incrimination principle, the principle of presumption of innocence, without doubt from the principle of sin, guilt to adapt the principle in the judicial occupation most no from belief can be established, the judicial occupation body present did not establish the judicial activities should be in obedience to the law for the ideal, faith and the pursuit of unique, which led to the defendant in Criminal Court of our country not only as are questioning the object exists, but as the core character of interrogation in criminal trials exist, it should be paid much attention to by us and we must begin to actively change the non normal phenomenon, this phenomenon shows that our country at present the criminal procedure law of human rights protection degree low, and modern rule of law requires far from.

The judicial practice of modern criminal procedure, the author in this paper focuses on the study of the public prosecutor asked the defendant, witness the process, legal representatives of victims and witnesses in questioning the defendant in the process, the defenders to ask the defendant and witness generated in the process of program of the legal issues, especially legal problems related to defense lawyers in the questioning the defendant and witnesses in the process, therefore the author in this paper for empirical research on court asking only in one operation and put forward their own views.

The current criminal procedure law in our country, the public prosecutor, the victim's litigation representative, the defendant and the lawyer to endow the criminal legal questions right, it is also a criminal trial smoothly, guarantee law found evidence of the facts of a case.

From the criminal trial process -- the court investigation, court debate, the final statement by the accused in criminal proceedings is visible, the certificate and quality certificate when the court as the core, take counsel, the prosecutor and the defendant of the commission or court appointed lawyers for defendants and witnesses for questioning and the defendant not to be ignored on the witness questioning criminal with state specific scientific that prosecutors and judges questions, the core is the trial of criminal cases in the procedure.

We can see the relevant evidence, conviction and sentencing of the criminal trial procedure to ask behavior of all accused the defendant of a crime are exposed to the court, so that all participants in the proceedings are opportunities and rights of all evidence examination. That is to say, only through the courtroom inquiry procedures verified evidence to the final as evidence, is the only way to make the criminal trial of more open, fair and transparent, the sun. We can see through the courtroom inquiry program can have the possibility to further clarify the evidence of criminal court, promote the establishment of the court as the core of the litigation system, especially we have established the new criminal evidence referee principle under the background of, all of which are the necessary measures, the establishment of modern criminal trial system, but the core of the core problem, I think or changing the judicial occupation body judicial philosophy.

Very simple question rule stipulated in the criminal procedure law of our country, by the Supreme Court on several problems of current <"criminal> 146th provisions interpretation of visible, questioning the witnesses shall comply with the following rules: one, ask the content should be with the facts of the case; two, not to the induction of questions; three, not to intimidate the witness; four, shall not damage the dignity of witness. The provisions of the preceding paragraph shall also apply to the defendant, the victim, plaintiffs of the supplementary civil action and the defendant, identification of the interrogation, or asking questions. For both parties think the other question content is irrelevant to the case or improper questions and objections, the presiding judge shall identify the situation to support or reject.

The above is the question rule stipulated in the criminal procedure law of our country, compared with the system directly ask the countries of Anglo American law system in force and cross examination, apparently lost in the rough, it is necessary to further clarify the specific scientific rules.

We are not yet in the law of criminal procedure to establish direct examination and cross examination of the rules -- namely direct questions should be asked what problems, cross examination should be asked what problems, reasons why such provisions; we have not yet established induced asked legal concept -- containing answers or problems that should answer; judicial practice both sides on the execution of induced asked the court to ask of the objection procedure chaos, different understanding, controversial; the judge to ask the right of intervention implementation of more chaos, the basic no rules at all; on both sides the objection procedure as well as the result is no clear provisions of the law, should be determined as determine the content is irrelevant to the case and improper way of questioning the testimony as evidence shall be no legal provisions; what is the content has nothing to do with the case and what to ask the way to properly and not a universally applicable standards; we did not establish the opinion evidence rule, hearsay evidence rule, deserves our close concern especially the hearsay evidence rule is a witness does not appear in court and not normal phenomenon Phase.

The basic concept of cross examination in three, in the Anglo American legal system

First, what is the direct examination and cross examination.

On the basis of "Black Law Dictionary" interpretation, cross examination of the Anglo American law system

Also known as the cross examination and the countries of Anglo American law system, is an important system of criminal procedure. In the Anglo American criminal procedure, including the defendant, the victim, a witness, expert witness, witness. The cross examination refers to a set of standard follow should parties questioned the witness. As long as there is a witness to appear in court, the parties may cross examine witnesses. Because the parties are not skilled with the courtroom inquiry skills, cross examination by the General Prosecutor and defense lawyers. The cross examination first by applying the witness for parties of the witnesses were asked, known as "the Lord asked", "ask" or "straight out". "Straight," so that "a party may from the witnesses testimony to his show, through the testimony of a witness to gain maximum advantage. The straight out the problems in defining a range which will ask questions, because demand is limited and straight, display items, so straight, will narrow, so that the other is not easy to get on the evidence from their own witnesses."

By the other parties of the witnesses were asked, referred to as the "anti inquiry", "cross examination" or "demand", "demand is to design a witness's credibility attacks, which allow lawyers to expose the testimony of witnesses. In some cases, may even show a completely unreliable witnesses, cross range to be determined by the straight out, because of the need to be explored in question in the matter has been proposed in straight, process, through which confront witnesses rights is the key content to create reasonable doubt needs of criminal defendant." The first question witnesses parties or lawyers can also witness asked again, "then the LORD called to ask"; then the main inquiry, implement anti ask Party or lawyer can implement "then ask".

In common law countries in Criminal Court, both parties make cross examination is to attempt to witness' change, modify or withdraw the testimony of witnesses, the evidence of dishonesty, and to ask the favor of evidence from the card in the population.

Second, what is the inducing inquiry.

Induced asked also called induced questioning, refers to ask people put forward instructive, prompting function to ask the witness. Mainly used in anti ask. Induced asked to by asking people to induction, the testimony of the witness has asked people want to read. For example, "did you not see the accused on XX street corner right hand towards the bricks on the head?" This question is induced asked, in order to witness the defendant handheld bricks deliberately hurt the fact the victim to give affirmative reply. A leading question refers to the implied or on the facts of the dispute to be fictional 'induced' witness the desired answer.

Four, the empirical study of intentional injury case in court questioning procedure

(a) the case profiles

In August 4, 2011, the defendant Cao Xiaodong, Li Bing point on suspicion of intentional injury

The victim was Gao Xingping of the Taiyuan city Berlin District People's Procuratorate prosecution to the Taiyuan city Berlin District People's court. The indictment charges "after ascertaining, in late September 2, 2010 10 when make, defendant Cao Xiaodong and the victim Gao Xingping Cun Bei Jie Kuang Yuan Lu crossroads in the new, because competition for booth dispute, fight. Defendant Cao Xiaodong, Li Bingbo take on the victim Gao Xingping beaten with iron stool, cuff and kick hit means. After the forensic identification, injury victim Gao Xingping body of minor injuries." Before the hearing, the prosecutor to court evidence a catalogue, a list of witnesses, victims of a public security organ, statements of the defendant Cao Xiaodong, Li Bingbo's "interrogation" a victim Gao Xingping injury, forensic conclusions, a scene from the murder weapon, a fingerprint identification materials Liu Wangping, Zheng Hui's written testimony of witness and file data. The victim Gao Xingping also mentions criminal supplementary civil action. I accept the assignment and the law firm Gao Xingping appointed as the legal representatives of victims to attend the court.

As a delegate of the defendant's lawyer in the trial of criminal cases of witness how questions should be the central issue in this paper is the main direction of research, gradually perfect is our future criminal litigation law system, but as the legal representatives of victims in the criminal court trial to the defendants and witnesses questions also must cause us pay attention to the problem.

Because of our traditional criminal litigation system limitations, "written trial that will inevitably lead to the investigation center" is still as the main mode of China's criminal procedure operation, witnesses to testify in court likely less and less, the lawyer whether as agents ad litem or defense status in Criminal Court, ask program at criminal courts will undoubtedly become questions mainly for the defendant to cause serious defects, especially the skills and techniques of defense counsel in criminal courtroom questioning.

This paper will prosecute the defendant Cao Xiaodong, Li Bingbo and Liu Wangping, Zheng Hui asked the witness, as the defendant Cao Xiaodong's lawyer Cao Xiaodong, the defendant Li Bingbo, questioning witnesses, Liu Wangping Zheng Hui, as the legal representatives of victims of the defendant, Li Bingbo and Cao Xiao Dong ask witness Liu Wangping, Zheng Hui as a perspective according to the study on Criminal Court in civil proceedings should be how to ask questions and to discover the current procedure in the criminal proceedings in criminal court.

The first part of the public prosecutor, defendant Cao Xiaodong, Li Bingbo's court interrogation

First, the public prosecutor accused Cao Xiaodong questions

Prosecutor: defendant Cao Xiaodong, just the prosecutor read the indictment do you understand?

Cao Xiaodong: listen to understand.

Prosecutor: the indictment read before the trial?

Cao Xiaodong: Yes.

Prosecutor: what do you think of the indictment?

Cao Xiaodong: I don't have a latte stool intentionally hurt the victim, he injured himself fell formation.

Prosecutor: I asked you a few questions, hope you answer truthfully, you should pay attention to your attitude toward admission of guilt?

Cao Xiaodong.

Prosecutor: your conflict with the place in where?

Cao Xiaodong: in the South Campus Taiyuan University of Technology east entrance road.

Prosecutor: you sell barbecue, on the road south to Taiyuan University of Technology?

Cao Xiaodong not bad.

Prosecutor: the victim Gao Xingping buy Clay oven rolls, on the way north on the road?

Cao Xiaodong not bad.

Prosecutor: your site in the dispute with the Gao Xingping booth, right?

Cao Xiaodong not bad.

Prosecutor: at the time of a few?

Cao Xiaodong: ten pm or so.

Prosecutor: is Li Bingbo your employees?

Cao Xiaodong: Yes, we have family ties.

Prosecutor: what you are because of the dispute?

Cao Xiaodong: the victim is Clay oven rolls on the road north to sell, he robbed me of my business, I next to his stall also placed a barbecue, because of looting booths and rubbish had a quarrel.

Prosecutor: the day, you go to the booth in front of, right?

Cao Xiaodong.

Prosecutor: where are you from the past?

Cao Xiaodong: I sell barbecue in the road south, across the road from the south of my past.

Prosecutor: what did you do in the past?

Cao Xiaodong: I'm past pointing to his nose, tell him, let him out of my booth at a distance.

Prosecutor: who are you to talk?

Cao Xiaodong: I was the first to speak to him, he won't listen to me, and we began to quarrel, I began to scold him, the victim also began to scold me.

Prosecutor: what did you say?

Cao Xiaodong: I mean, you grab my booth, you leave my booth far point, he would not listen.

Prosecutor: he called you what?

Cao Xiaodong: he called me a very harsh words, I also called him -- you then mix well, you can believe me destroy you.

Prosecutor: when you go to the booth, what hand?

Cao Xiaodong: I didn't take anything, empty the past.

Prosecutor: you used to play the victim?

Cao Xiaodong: No, just want to reason, let him out of my barbecue at a distance.

Prosecutor: who struck first?

Cao Xiaodong: I'm the first finger pointing to his nose, the play with my hands, I shoot the victim's hand, grabbed his neck with my right hand, pushed back for him, he took with him to roll the stalls and I, I took down, he picked up the bench to hit me, I have been take down.

Prosecutor: you took the roll bar, used a rolling rod hit the victim yet?

Cao Xiaodong No.

Prosecutor: you put off the roll bar throwing what place?

Cao Xiaodong: I took the post into the ground.

Prosecutor: you off the bench, you use the iron stool hit the victim?

Cao Xiaodong: No, I took after throw on the ground, not take iron stool hit him.

Prosecutor: Li Bingbo what time is it?

Cao Xiaodong: when I was a victim of a shouting match, Li Bingbo from across the street.

Prosecutor: Li Bingbo comes, you played?

Cao Xiaodong: don't fight each other, we are taken to roll bar.

Prosecutor: Li Bingbo hit the victim to?

Cao Xiaodong: I saw Li Bingbo also pushed by hand the victim.

Prosecutor: the victim fell to no?

Cao Xiaodong: down.

Prosecutor: the victim how ground?

Cao Xiaodong: I nudged him, he fell to the ground.

Prosecutor: the victim fell on the ground, you move the victims body foot kicking up?

Cao Xiaodong No.

Prosecutor: who else was there?

Cao Xiaodong: at that time many onlookers, there are a lot of people, I can't remember.

Prosecutor: when you argue about, there are security field?

Cao Xiaodong: there are two Polytechnic University security, because they often buy my barbecue to eat, so I know them, but I can't remember what they are at the scene when the.

Prosecutor: defendant Cao Xiaodong, you want a good, you must seek truth from facts to the court confession of your criminal facts, do not evade the crucial point, if you refuse to take account of, the court will consider your confession attitude?

Cao Xiaodong: I think so, I confessed in court today are the facts.

Prosecutor: defendant Cao Xiaodong, you in the investigation organs do "interrogation" is true?

Cao Xiaodong: to me today the court statement shall prevail.

Prosecutor: the defendant, the prosecutor repeatedly to remind you, you must pay attention to your own attitude in court today, this relationship to your plea attitude is good, it will affect the sentencing court to you.

Cao Xiaodong: silent.

Prosecutor: what are you intentionally hurt the victim yet?

Cao Xiaodong No.

Prosecutor: defendant Cao Xiaodong, now I read to the court that you make the investigation organ "interrogation". Read a little (content is the defendant Cao Xiaodong with an iron bench beat the record)

Prosecutor: is this your confession?

Cao Xiaodong: I did not say, is the public security personnel record, I didn't read the record at the time, the investigators asked me to sign, they won't let me see, is my signature.

Prosecutor: investigator on torture to extract confessions to you?

No.

Prosecutor: Investigators threat, inducement to you?

Cao Xiaodong No.

Prosecutor: since you didn't call, the injury is how to form?

Cao Xiaodong: I don't know, I can't explain, I did not beat the victim.

Prosecutor: the presiding judge, the public prosecutor interrogation temporarily to.

Second, the public prosecutor accused Li Bingbo interrogation

Prosecutor: defendant Li Bingbo, just the prosecutor read the indictment do you understand?

Li Bingbo: listen to understand.

Prosecutor: the indictment read before the trial?

Li Bingbo: Yes.

Prosecutor: what do you think of the indictment?

Li Bingbo: I confess, but I don't have a latte stool intentionally hurt the victim, his injury, I don't know what form.

Prosecutor: I as a prosecutor interrogate you in court, hope you can truthfully confession confession in court, you will become the most crucial plot your court pleaded guilty attitude, you understand?

Li Bingbo: listen to understand.

Prosecutor: what is the relationship between you and Cao Xiaodong?

Li Bingbo: I'm Cao Xiaodong employees, I give him a barbecue stalls to work, and Cao Xiaodong and I or relatives.

Prosecutor: your victim Gao Xingping is Clay oven rolls on the stand?

Li Bingbo I am off now.

Prosecutor: you go to the Clay oven rolls out stem what go to?

Li Bingbo: I worked in the Cao Xiaodong barbecue stall that night, heard across the road there is a quarrel, I saw Cao Xiaodong and the victim together, and I passed out of Lycra purpose.

Prosecutor: who did you see who's calling?

Li Bingbo: I saw the victim Gao Xingping carrying iron stool playing Cao Xiaodong.

Prosecutor: your past stem what?

Li Bingbo: after I pass, will draw from the high star will iron stool took me by the hand, the victim was shoved to the ground.

Prosecutor: your iron with a stool to not hit the victim?

Li Bingbo: No, I took the iron stool after iron stool into the scene, no iron stool hit the victim.

Prosecutor: the defendant Cao Xiaodong did not use iron stool hit the victim?

Li Bingbo: I saw in the street Cao Xiaodong and the victim took iron bench.

Prosecutor: your past hand what things?

Li Bingbo: I went past.

Prosecutor: you kicked over the waist?

Li Bingbo: not played, I put down after the victim has not hit the victim.

Prosecutor: defendant Cao Xiaodong playing the victim's waist to?

Li Bingbo: did not see.

Prosecutor: you said you used Lycra, how do you support?

Li Bingbo: I used to take iron stool.

Prosecutor: Iron stools are you off?

Li Bingbo: I took.

Prosecutor: the public prosecutor asked temporarily ended.

Third, the public prosecutor in the trial process to the defendant Cao Xiaodong, Li Bingbo interrogation thinking

First, the public prosecutor to the accused person to ask when, the public prosecutor to the defendant to show the defendant in the legitimacy of the investigation by the public security organ to do the "interrogation".

By our country's criminal law and judicial practice, the public prosecutor to interrogate the defendant when, if the statement the defendant court statement and in the investigation, prosecution of inconsistent and enough to affect the conviction and sentencing, Chen can read the transcripts of the defendant, and pertinently interrogation of a defendant people, or some other evidence to prove that the indictment accused of crime. It appeared in the case of trial process described in this paper in the defendant Cao Xiaodong to interrogation as stated in the prosecutor's content and the conviction of the statement of the defendant investigation stage of inconsistent and to influence the court decision, therefore, the public prosecutor to read the check phase statement at investigation.

The author thinks, in court, the prosecutor in the questions to the accused person, if the defendant in court statement and the statement is not consistent in the stage of investigation should not be to produce and read the statements in the investigation stage.

The establishment of the public prosecutor in the criminal trial of the interrogation system essentially means that is established by the court as the center of the fact system, it means that we can't to defendants in the investigation stage presentation as the interrogation of a defendant in court on the basis of.

To the defendant by prosecutors in the program is to ask questions the court procedures that defendants in the investigation stage of the statement is true of the problem, whether by the defendant's acts constitute a crime. In a sense, in the questioning process, defendants in the investigation stage statement is to be evidence, how can we use to be the evidence to deny the same court statement of the accused? It is not a tautology?

Second, by China criminal procedure law the forty-second regulation, a criminal suspect, the defendant confession from belongs to the evidence, the ancients not speaking, the defendant's confession was "the king of evidence"? From a macro perspective, the suspect, the defendant is an organic component of the proof system, so it can be so, the public prosecutor interrogation process is also the court review, evidence collection, one of the ways to the defendant in court.

The public prosecutor interrogation direct questions such as Anglo American countries compared with the cross examination system to the defendant, similar. The prosecutor of the defendant interrogation is similar to the cross examination, and the Anglo American law system directly about the sequence and cross examination in the opposite. Show that the direct examination and cross examination in countries of Anglo American law system, the court on the defendant the right to silence, generally do not need to testify and asked questions, the defendant as a defense witness appearing in court to testify the role should be the last and receive direct examination and cross examination. In criminal proceedings the burden of proof by the prosecution, the prosecution should be before the defendant to testify in court and receive direct questioning and cross examination to the court for prosecution witnesses to testify in court, if the evidence is not sufficient to determine the defendant guilty of it, the case will be dismissed. The proof is completed, the defense has the right to apply for the prosecution witnesses cross examination; defense to put forward their own witnesses and the accused to testify in court and accept the direct examination and cross examination of the defendant, to ask to ask directly by the defense, the prosecution questioned the defendant's cross examination.

The trial of criminal cases in the China, the prosecutor accused the cross examination in criminal procedural law is banned by inducing inquiry, counsel for the defendant induced questioning is strictly prohibited. From a legal perspective, uphold the principle of "zero" principle of conviction and sentencing of the defendant is the minimum requirement, on the evidence of the country under the rule of law ", the public prosecutor shall submit to the court the defendant's acts constitute a crime evidence, rather than on the court not to cite any evidence of guilt of the accused before asking, if we established the public prosecutor to ask for the defendant, we should allow the prosecutor accused induction type questions.

In this case, the prosecutor of the accused to ask when to take more induction type questions, such as "you sell barbecue on the road south of the Taiyuan University of Technology, right", "the victim Gao Xingping sell Clay oven rolls on the road road north, right", "you hold the field in the booth and Gao Xingping the victim's contention, right", "Li Bingbo is your employee, right?" , "the day, you go to the booth in front of, right?" In my opinion, the public prosecutor prosecutes crime state representative to the defendant, the prosecutor in the investigated the defendant of criminal responsibility should be charged before all the defendant's acts constitute a crime evidence is presented after the defendant to ask, can think so, this is in the criminal litigation system level to maximize the effective protection of the legitimate rights of the defendant.

The author suggests that, in order to thoroughly implement the principle of presumption of innocence and accused the self incrimination principles, in order to protect the legitimate rights of the defendant, in order to build a socialist country ruled with Chinese characteristics, we should China criminal procedure law about the question sequence to the defendant to reform, the public prosecutor asked the defendant after the man on the proof of.

The second part, the legal representative of the defendant Cao Xiaodong, Li Bingbo

Ask questions

First, the agent ad litem to ask the defendant Cao Xiaodong

First, ask questions, litigation agent to the court that the defendant Cao Xiaodong opened the barbecue is operating without license

Attorney: I was a victim of an agent ad litem, now to your questions, I hope you can give a statement to seek truth from facts, if you make a false statement, the court will consider your attitude toward admission of guilt, you understand?

Cao Xiaodong: listen to understand.

Attorney: the public prosecutor to ask you when you speak, you are the victim in the decoration and barbecue when dispute, right?

Cao Xiaodong.

An agent ad litem: have you been to the industrial and commercial bureau for business registration procedures?

Cao Xiaodong No.

Attorney: you go to the health and epidemic prevention station handled the formalities?

Cao Xiaodong No.

An agent ad litem: have you been to the urban management department for the land use procedures?

Cao Xiaodong No.

An agent ad litem: that is to say, you can display stalls did not go through any documents, right?

Cao Xiaodong not bad.

Second ask questions to the court that the defendant intentionally hurt the victim Cao Xiaodong Gao Xingping case facts.

Attorney: the public prosecutor just to ask you, you say, between you and the Gaoping decoration booth across the road, right?

Cao Xiaodong not bad.

Attorney: how wide the road?

Cao Xiaodong: there are ten meters wide.

Attorney: the indictment shows, you fighting occurred at ten p.m. Xu, right?

Cao Xiaodong not bad.

An agent ad litem: a street scene?

Cao Xiaodong yes.

An agent ad litem: on the road that can see across the road the situation clearly?

Cao Xiaodong: not very clear to see.

An agent ad litem: just the public prosecutor to ask you, you say, you sell the goods -- barbecue and the victim of goods sold -- Clay oven rolls are not the same, is this thing

Cao Xiaodong.

An agent ad litem: that is to say, the sale of the goods and you sell goods competition does not exist, right?

Cao Xiaodong not bad.

Attorney: I noticed, you speak in your answer questioned by prosecutors, fights, you place and the victim is on the opposite side of the street, is also the victim's booth, is the truth?

Cao Xiaodong: is the truth.

Attorney: you sell your barbecue, the Gaoping sell their "Wu Dalang Clay oven rolls", to do what you to the victim's booth?

Cao Xiaodong: I'm on the other side of the road is also provided with a barbecue stalls, and the adjacent Clay oven rolls out, I have to Xingping give me out, but he didn't give me teng.

Attorney: you and the victim know how long?

Cao Xiaodong: more than a month.

An agent ad litem: before you had no dispute, right?

Cao Xiaodong not bad.

Attorney: I just listen for prosecutors to ask you, you say, you don't use the stick, hitting the stool, is?

Cao Xiaodong. I pointed to Gao Xingping's nose in the past, let him give me Teng booth, he didn't give me Teng, we quarrel. He picked up the roll bar to hit me, not I, I will give off. He picked up the iron stool to hit me, did not hit me, I have to note down. Roll bar I will take down and iron stools are thrown on the ground.

Attorney: you latte stool hit the victim did not, you need to tell, there was security at the scene, not you want to evade the crucial point can be.

Cao Xiaodong: I'm not latte stool hit the victim.

Attorney: do you plead guilty?

Cao Xiaodong: I didn't hit the victim.

Attorney: the high star arise on the injury is not you lay?

Cao Xiaodong no, not at all.

Attorney: so, high star arise on the injury who lay?

Cao Xiaodong: he fell to the ground formation.

Attorney: how Gao Xingping fell victim?

Cao Xiaodong: I pulled his.

Attorney: you and the victim's body contact or not?

Cao Xiaodong: I only pushed him to the ground.

An agent ad litem: according to the forensic identification book the public prosecutor in the pretrial court provides the display, the victim who suffer from of the wound is being hit with sticks of the form, you need to consider your attitude toward admission of guilt?

Cao Xiaodong: I really did not take sticks hit the victim.

Agent: do you want to tell the court confession to lighten your sin, frank, do you hear?

Cao Xiaodong: listen clearly.

Attorney: you make the public security organs in the previous statement is true?

Cao Xiaodong: there is some truth, not a fact.

Attorney: you see the record to have no?

Cao Xiaodong: the public security personnel did not let me see, just let me sign.

An agent ad litem: police torture to extract confessions to you?

Cao Xiaodong No.

An agent ad litem: security threats, luring you confessed the facts of the case through?

Cao Xiaodong No.

Attorney: you are a man, with full capacity for civil conduct to know, for you sign the material you are to bear legal responsibility, you know?

Cao Xiaodong: understand.

Attorney: I read you on September 3, 2010 at one thirty in the morning in the investigation organ of the confession of (omitted) -- Note: the defendant Cao Xiaodong beat the victim after Gao Xingping, do you understand?

Cao Xiaodong: listen, I did not speak, the public security organs to record, I did not say.

Attorney: I hope you can think about your attitude toward admission of guilt, the law of criminal procedure of our country, without your confession, there are other conviction evidence can still assume that your act constitutes a crime, even if you don't speak, there is another defendant Li Bingbo, he can speak, you hear no?

Cao Xiaodong: listen clearly.

An agent ad litem: with a rolling pin site, are you?

Cao Xiaodong: not me, is selling Clay oven rolls of a rolling pin.

Attorney: you at the scene with a rolling pin?

Cao Xiaodong: I won, but I didn't get to roll with the victim.

An agent ad litem: there is an iron bench spot, you take over?

Cao Xiaodong: I won, but I didn't get to roll with the victim.

Attorney: I noticed that the public prosecutor show to the court submitted in court before the testimony of witnesses, the public security organ at the site. The testimony of witnesses that you once latte stool beat the victim Gao Xingping, can you tell me what?

Cao Xiaodong: silent.

Agent: an agent ad litem questions temporarily ended.

Second, the agent ad litem to ask the defendant Li Bingbo

Attorney: I was a victim of an agent ad litem, today you on the dignity of the court, you must state the facts, not to make false allegations, which will affect the determination of pleaded guilty attitude toward you, you understand?

Li Bingbo: listen to understand.

Attorney: you in the public prosecutor to ask you, you say you can clearly see the victim Gao Xingping latte stool hit Cao Xiaodong, right?

Li Bingbo.

Attorney: how far are you Cao Xiaodong and Gao Xingping fighting distance?

Li Bingbo: about 10 meters.

Attorney: you speak, Gao Xingping latte stool hit Cao Xiaodong, you see the high Xingping handheld stool leg at Cao Xiaodong with the stool surface, or even to high star stool stool legs hit with Cao Xiaodong?

Li Bingbo: I see is a high star tied to the stool legs hit Cao Xiaodong with the stool surface.

Attorney: you see it clearly?

Li Bingbo: Yes, I see pretty well.

An agent ad litem: Cao Xiaodong is standing in the victim Gao Xingping left or right?

Li Bingbo: (to Chi Yi), right.

Attorney: the victim Gao Xingping use left hand or right hand stool legs hit Cao Xiaodong?

Li Bingbo: right hand.

An agent ad litem: Gao Xingping is with iron stool hit in what part of the body of Cao Xiaodong

Li Bingbo: right.

An agent ad litem: when you see the two of them fight, Cao Xiaodong and Gao Xingping stand face to face together?

Li Bingbo.

Agent: would you answer, if Gao Xingping is the right hand holding the iron stool hit Cao Xiaodong's left side of the body, two of them are stand face to face together, high Xingping shall hold iron stool hit Cao Xiaodong in the left side of the body only, is it?

Li Bingbo: silence.

Agent: would you answer, you see Cao Xiaodong and Gao Xingping two people behavior clearly on the opposite side of the street is?

Li Bingbo: silence.

An agent ad litem: respected judge, please allow me to read out in court the defendant Li Bingbo did in the public security organs of the "interrogation", read "interrogation" (omitted).

Attorney: what did you do in the past?

Li Bingbo: I'll take the victims of past the iron iron stool, stool thrown to the ground, after the hand to the victim Gao Xingping down to the ground.

Attorney: you took the iron stool or Cao Xiaodong took iron stool?

Li Bingbo: I took the iron stool.

An agent ad litem: it is a weapon inspection report prosecutor before the court to the court submitted, wounded victim iron stool without your fingerprint, you can make a reasonable explanation to the court?

Li Bingbo: silence.

An agent ad litem: my question is temporarily.

Third, ask the thinking of legal representatives of victims to the defendant Cao Xiaodong, Li Bingbo

First, the empirical questions above the court, we can see a problem, our lawyers as agents ad litem to ask thinking in court is very simple, relatively straightforward, no litigation agent through the question and answer procedure really want to hide in asking questions of the defendant, from another point of view speaking, cultivation and training of our lawyers lack the skills and techniques in court questioning in the program.

Second, the court should allow the victim's agent ad litem to inducing inquiry way to put questions to the defendant, the defendant in court to prevent the pleaded not guilty of destroying the psychological line of defense.

Because of the characteristics of criminal cases exist of the complexity and diversity, there are serious conflict victims in criminal cases often position and the public prosecutor, commissioned by the victims and their families the lawyers as legal representatives of victims, their interests will and public prosecutor positions and interests to a certain extent, there is some conflict. We often see the victim and his agent ad litem, often in the criminal trial process for the prosecution to evade the fact.

In my opinion, the court shall allow the lawyers in the trial of criminal cases as the legal representatives of victims of the defendant were induced to ask questions. Because the defendant for the victims, witnesses to the enemy, the victim by the defendant suspected criminal offenses, rather than by state offenses, therefore, the defendant legal interests and the victim's legal interest exist conflicts directly at all, the defendants have the public prosecutor interrogation, the defendant made to the public the answer can be directly used as an agent ad litem basic question, and as the legal representatives of victims of the accused for inducing questions similar to cross examination.

Third, I think, about the public prosecutor in the pretrial court submitted by the defendant in the investigation organ made confession, the investigation organ for the site and left the scene of the crime tools inspecting records and inspection reports, forensic departments on the victim's injury makes the appraisal conclusion as evidence, in court investigation stage, as the legal representatives of victims in the defendant's questioning program also is not to ask questions and read out in court and show.

Because this a series of evidence must be approved by the court as the defendant can verify confrontation use evidence, that is to say, this a series of evidence at this time were not to be evidence, the proof ability has not yet been determined, how can as weapons?

From this we can see a often appear in the criminal trial of the self incrimination principles conflict with the defendant's very absurd, whether the public prosecutor, defender or agent ad litem directly read unverified evidence as a means to question the defendant and witness in the criminal trial procedure in question so, to force the defendants and witnesses truthful statement of the facts of the case. This is a mistake we must immediately change.

The only way to change this absurd practice is to change the existing court ask order procedure. Enjoy silence right in criminal court to the defendant, has the option to refuse to answer any questions the public prosecutor, the defender, agent ad litem proposed. The public prosecutor show evidence to the court, the evidence verification after the defendant was asked by the prosecution and defense, not only can the court has to verify the evidence for the means of questioning and cross examination to the defendant, but also can be induced to ask questions to ask, because the induced asked danger to the litigation security has drop to below zero.

The third part, the defenders of the defendant Cao Xiaodong, Li Bingbo ask.

First, the defendant Cao Xiaodong commissioned by the counsel for the defendant Cao Xiaodong questions

Defenders: I you employ defender, Defender duty is to the court

Can be provided so that you get the court lighter, mitigated or exempted from criminal punishment materials and opinions, you understand?

Cao Xiaodong: understand.

Defenders: now I ask you questions, OK?

Cao Xiaodong sure.

Defenders: according to the provisions of the law, if you can be guilty of words, you can get

The off court, do you plead guilty?

Cao Xiaodong: guilty.

Defenders: I notice, the prosecutor in the time to ask you, did not ask to

Your family, you can tell the court what?

Cao Xiaodong: Yes, when I was six, my father had already died, I

By my mother brought up, my mother is a farmer, I graduated from primary school to read out. Now my mother is seriously ill be completely bedridden, in order to give mother a doctor I have borrowed about one hundred thousand yuan foreign debt.

Defenders: when the public prosecutor to ask you, you say, you have two stalls,

A road in the south, a road in the north, which the barbecue and the victim Gao Xingping Clay oven rolls out adjacent?

Cao Xiaodong: is a high star Hirata Ooro Clay oven rolls out adjacent stalls and street on the north side of the victim.

Defenders: affect his business for you?

Cao Xiaodong: Gao Xingping is the victim Clay oven rolls out not just sell you burn

Cake, also sell boiled on every day, he sold boiled on garbage and waste soup beside my barbecue, affect the customer. I told him several times, but he won't listen, he said, this is a public place, you have no card, I can't take your place, what do you want me to move? Then I asked him to leave my barbecue stalls away, but he did not agree.

Defenders: I notice, the time is more than ten points, the night is?

Cao Xiaodong.

Defenders: you generally go pack up and go home?

Cao Xiaodong: ten points, this time the barbecue stall is basically no gu

Guest.

Defenders: I noticed that the public prosecutor to ask you, you say, you to the high

Star flat Clay oven rolls out once won the roll bar and iron stool, is?

Cao Xiaodong. I went after the past, to quarrel with the victim. Later

The victim picked up to roll with me, roll bar is I won. The victim picked up the iron stool to hit me, I took the first, is to take some things hit me.

Defenders: you had a criminal punishment?

Cao Xiaodong No.

Defenders: you won the award before what?

Cao Xiaodong: I had worked as a security, to assist the public security organs cracked with large theft

Burglary.

Defenders: are you willing to compensate for the medical expenses and losses?

Cao Xiaodong: willing to compensation.

Defenders: regret your crime on you?

Cao Xiaodong: I'm sorry, I really am sorry to the victim, I really shouldn't do

To do such a thing, I am willing to accept the punishment of the law.

Defenders: my question is temporarily come to an end.

Question second, the defendant Cao Xiaodong entrust defenders read the defendant Li Bingbo

Defenders: I is the defendant Cao Xiaodong's lawyer, this is to ask a few questions, you can tell the court to answer?

Li Bingbo sure.

Defenders: I noticed that the prosecution and the victim's lawsuit agent to question you have asked your identity, you and Cao Xiaodong are the relative relationship, right?

Li Bingbo yes.

Defenders: since you are relatives, I hope you don't give oneself over to blind emotions, to seek truth from facts stated, not of shielding, nor a false confession, or you will lose the court lighter punishment on you, do you understand?

Li Bingbo: understand.

Defenders: what are you contacted the roll bar and iron stool?

Li Bingbo: no contact roll bar and iron stool, I was on the road to the south of the barbecue, really do not know the road opposite the situation, that I can see it was all a lie.

Defenders: you contact no and victim's body?

Li Bingbo: contact, my past, I did not take to roll bar and iron stool, I saw the high Xingping has been pushed to the ground at the time, I used to play a victim's waist.

Defenders: would you like to pay compensation to the victim's economic loss?

Li Bingbo: like.

Defenders: you have a criminal record?

Li Bingbo: No, I had in the army as a soldier, also made the three power, I really regret, hope to get the victim Gao Xingping understanding.

Defenders: my question has ended.

Third, the defenders were questioning on the defendant

First, we empirically can see, the defendant lawsuit status in China contemporary criminal trial that belongs to the core trial, as long as there is a chance, all the participants in the proceedings are to question the defendant. All the participants in the proceedings in question before have the defendant found guilty, asking the purpose is to obtain the defendant himself think guilty nod, and sometimes even the defendant employ defenders are no exception, the questioning and thinking orientation and the principle of presumption of innocence and the defendant against self incrimination contrary to the spirit of rule of law seriously.

Second, until now, we have not yet had a professional formal lawyer training institutions according to the criminal defense lawyer for the defendant's questioning skills and skills for professional training plan of high strength, defense attorneys often face unable to the defendant and witnesses the embarrassment of effective questioning.

Needless to say, the defense business is the most basic one's special skill for every a criminal defense attorney, but for criminal defense basic business this lawyer, the lawyer basic one's special skill, and ask program who went to the real thinking and recognize the current criminal procedure system not science has brought serious cause we can't the realization of procedural justice and substantive justice can not realize the negative effect? Who is there to really think we should set up a scientific and rational questioning procedure and to ensure the legitimate rights of criminal trial and the principle of procedural justice and protect the accused in the crime is a crunch time historical task? In the number of up to 200000 lawyers, who will be the criminal defense business has really achieved perfection?

The fourth part, the public prosecutor and defender of the witnesses Liu Wangping, Zheng Hui ask

The first,The public prosecutor to witness Liu Wangping questions

Prosecutor: the judge just to you read the obligation of witness, do you understand?

Witness Liu Wangping: listen to understand.

Prosecutor: your occupation?

Liu Wangping: I'm responsible for the safety of Taiyuan University of Technology gate security personnel.

Prosecutor: what is the relationship between you and Cao Xiaodong, and in this case the defendant Li Bingbo?

Liu Wangping: there is no relationship between the witness. They both fight before bought barbecue

After eating, they know a bake sale, one is to buy the Clay oven rolls.

Prosecutor: what is your relationship with the murder victim Gao Xingping?

Witness Liu Wangping: no relationship, in their fight before it

Knowledge.

Prosecutor: September 8, 2010 at 10 pm, you at the scene?

Witness Liu Wangping: I was at the scene, I is the management of the school gate guards, they

The fight place not far from the gate of our school.

Prosecutor: your site in what is time?

Liu Wangping: when I was witness room guard the gate of the school's duty, hear

The gate of the school students speak, bake sale and sell Clay oven rolls of the fight, I quickly ran out, ran to see people selling Clay oven rolls in the stalls, selling Clay oven rolls and sell barbecue is together, there was another man also in the scene with the foot kicking sell Clay oven rolls, third people are not familiar with, I saw him in to help sell barbecue to sell Clay oven rolls, three people together.

Prosecutor: you see the bake sale with what sell Clay oven rolls?

The witness Liu Wangping: I saw selling barbecue with an iron bench to sell Clay oven rolls head

Ministry, waist cookin, another foot Clay oven rolls toward selling people kick, then sell Clay oven rolls had been knocked to the ground.

Prosecutor: who put them apart?

Liu Wangping: is my witness and a security guard in our school called Zheng Hui pulled them

Opened, and when we arrived, sell Clay oven rolls have been knocked to the ground, head and face is blood. I arranged for Zheng Hui to call 110 to report the case.

Prosecutor: what you are telling the truth?

Liu Wangping: witness is true, and I said at the Public Security Bureau of the agreement. I am willing to bear

Bear all the legal responsibility.

Second,The public prosecutor to witness Zheng Hui questions

Prosecutor: the judge just for you tell the duty, do you understand?

Zheng Hui: I understand.

Prosecutor: your occupation?

Witness Zheng Hui: I Taiyuan University of Technology gate security personnel, Liu Wangping

My team leader.

Prosecutor: what is the relationship between you and Cao Xiaodong, and in this case the defendant Li Bingbo?

Zheng Hui: there is no relationship between the witness. Just before I met in their fight

Buy sell barbecue barbecue to eat, also bought to sell Clay oven rolls of Clay oven rolls is eaten.

Prosecutor: what is your relationship with the murder victim Gao Xingping?

Witness Zheng Hui: no relationship, only know in their fight before.

Prosecutor: September 8, 2010 at 10 pm, you at the scene?

Witness Zheng Hui: I was at the scene, Liu Wangping and I are two management school

The door security, they fight place is ten meters far away from our school gate.

Prosecutor: your site in what is time?

Witness Zheng Hui: I and Liu Wangping are at the school gate guard room value

Class, heard the school gate students speak, bake sale and sell Clay oven rolls of the fight, because they are fighting in the US at the gate of the school, we are responsible for the management of. Liu Wangping call me in the past, Liu Wangping and I went to the scene, ran to see, in the sale of Clay oven rolls are stalls, selling Clay oven rolls and sell barbecue is together, there was another man also in the scene, third people not familiar with, to see him in to help sell barbecue to sell Clay oven rolls., three people together.

Prosecutor: you see the bake sale with what sell Clay oven rolls?

Zheng Hui: I see the bake sale with a sizzling stool sell Clay oven rolls toward the person

The head, waist cookin, another foot Clay oven rolls toward selling people kick, wait for me

When we arrived at the front, sell Clay oven rolls have been knocked to the ground.

Prosecutor: who put them apart?

Witness Zheng Hui: after we arrived, third people also use feet to sell Clay oven rolls body

On the kick, I and Liu Wangping the man selling barbecue and kick started, at that time, selling Clay oven rolls have been knocked to the ground, head and face is blood. Liu Wangping asked me to call 110 to report the case.

Prosecutor: what you are telling the truth?

Zheng Hui: witness is true, and I said at the Public Security Bureau of the agreement. I am willing to bear

Bear all the legal responsibility.

Prosecutor: respected judge, I ask temporarily ended

Third, the defenders of the witness Liu Wangping questions

Defenders: I am Cao Xiaodong of the accused to counsel, now ask you a few

A problem, you can truthfully statement to the court?

Liu Wangping: you can witness.

Defenders: just the public prosecutor to question you when, you speak, you and Zheng Hui are running

In the past, right?

Liu Wangping: Yes.

Defenders: just tell you, you are in the side to run to see selling barbecue Cao Xiao

East, Li Bingbo beat Gao Xingping to sell Clay oven rolls, is?

Liu Wangping: Yes.

Defenders: there are a lot of people at the scene of fighting at that time?

Witness Liu Wangping: Yes, there are a lot of people together around to see, no one interfere.

Defenders: since there are a lot of people around to see, you at the school gate to run, and

In the night, even if there is a street lamp, light and line of sight is not good, you can see who is playing who?

The witness Liu Wangping: I see two people play a person, to the front to see

Are selling barbecue people clutching iron stools stood aside, sell Clay oven rolls one another by kicking the body lying on the ground.

Defenders: so just prosecutors asked you, you have a statement to the court-

-- you see clearly the bake sale person with iron stool at the selling Clay oven rolls head, waist for assault, another person also help sell barbecue kicking sell Clay oven rolls of the waist, Is it right? Facts?

Liu Wangping: I did not witness clearly see the bake sale person with iron stool playing

Sell Clay oven rolls, I used to bake sale has sold Clay oven rolls were knocked to the ground. I asked the crowd, they are selling barbecue with iron stool at the selling Clay oven rolls of the human head, the body lay to the scene, I did see one is selling Clay oven rolls by kicking him.

Defenders: are you open them?

Witness: I see selling Clay oven rolls Liu Wangping who was lying on the ground at that time, the head and face are

Is blood, I quickly stopped the still to sell Clay oven rolls person kicking people, let people sit up Clay oven rolls to sell, sell Clay oven rolls were made not to sit up, then I let Zheng Hui call 110, next to the masses has phoned 120 emergency telephone, three minutes later, the 110 arrived at the scene bake sale, and another man ran away.

Defenders: would you like to bear the legal responsibility of your testimony?

The witness of Liu Wangping: I am willing to bear all the legal responsibility.

Defenders: respected judge, I ask temporarily ended.

Fourth,Defenders of the witness Zheng Hui questions

Defenders: I am Cao Xiaodong of the accused to counsel, now to ask you a few questions, you can truthfully statement to the court?

Zheng Hui: you can witness.

Defenders: just the public prosecutor to question you when, you speak, you and Liu Wangping are running

In the past, right?

Zheng Hui: Yes.

Defenders: just tell you, you are in the side to run to see selling barbecue Cao Xiao

East, Li Bingbo beat Gao Xingping to sell Clay oven rolls, is?

Zheng Hui: Yes.

Defenders: there are a lot of people at the scene of fighting at that time?

Witness Zheng Hui: Yes, there are a lot of people together around to see, no one interfere.

Defenders: since there are a lot of people around to see, you at the school gate to run, and

In the night, even if there is a street lamp, light and line of sight is not good, you can see who is playing who?

The witness Zheng Hui: I see two people call a person to see, and is sold

Barbecue still holding iron stools stood aside, another kick lying on the ground was sold Clay oven rolls.

Defenders: so just prosecutors asked you, you have a statement to the court-

-- you see clearly the bake sale person with iron stool at the selling Clay oven rolls head, waist for assault, another person also help sell barbecue people who sell Clay oven rolls, Is it right? Facts?

The witness Zheng Hui: I really didn't see the bake sale person with iron stool how to fight

Sell Clay oven rolls person, I was selling barbecue already sold Clay oven rolls were knocked to the ground. I asked the crowd, they speak with iron stool sell Clay oven rolls toward the people selling barbecue head, who beat, I to the scene and saw a man was selling Clay oven rolls kicking people.

Defenders: since you didn't see who will be the victim of hit the ground, how can you

It is sure to answer the public prosecutor, said to be selling barbecue with iron stool the victim will be knocked down to the ground?

Witness Zheng Hui: I feel should be selling barbecue with iron stool will sell Clay oven rolls

Down to the ground.

Defenders: are you open them?

Witness: I see selling Clay oven rolls Zheng Hui who was lying on the ground at that time, the head and face are

Blood, Liu Wangping and I quickly stop the still to sell Clay oven rolls person kicking people, let people sit up Clay oven rolls to sell, sell Clay oven rolls people sit up or not, Liu Wangping let me call 110, next to the masses has to call 120, three minutes later, 110 arrived on the scene bake sale, and another man ran away.

Defenders: would you like to bear the legal responsibility of your testimony?

The witness of Zheng Hui: I am willing to bear all the legal responsibility.

Fifth, on the public prosecutor and defender of the witnesses for questioning

The witness in this case, Liu Wangping, Zheng Hui belongs to the prosecution witnesses, prosecutors are

Ask nature was asked directly, the public prosecutor shall not ask the use of inducing inquiry.

From the empirical research above can be seen, a witness in the case, Zheng Huijun Liu Wangping

Belongs to the prosecutor accused the defendant's conduct constitutes a crime prosecution witness, the prosecution witness, should first ask the questions should be based on the open problems mainly by the prosecutor, to construct the defendant criminal facts as its ultimate aim, objective statements of prosecution witnesses the witnessed the facts of the case as the core.

By the empirical research above you can see a little bit, the application by the public prosecutor's witness for the prosecution

By the first direct questions, followed by cross examination by the defence against ask namely; the application by the defense's defense witness the first direct, followed by the prosecution to ask is the inquiry system of cross examination does have its objective rationality. Lay has factual basis case directly about the cross examination before, since it has been constructed a basic fact, then, as the cross examination should attack unreasonable allow generated by direct inquiry, often take induced questions that must be taken measures, otherwise there is no way to find out about the direct problem of false truth may exist.

By the empirical research above can be seen, the criminal procedure law of our country criminal

Questions in court trial (direct examination and cross examination) are not allowed to take law of development induced by questioning a serious breach of the provisions of the objective things, as we have in the construction Chinese characteristics of the judicial system in the process should be thoroughly reform and establishment of the courtroom inquiry system conforms to the trend of the times.

To establish a set of scientific and perfect and direct examination of cross examination system will mean

We will truly realize the "Criminal Procedure Law" Twelfth article "the people's Republic of China without the approval of the people's court to sentence, no person shall be found guilty" of the spirit, but also through the substantive justice, only one correct way to realize the justice of procedure.

Secondly, by empirical research above further indicated that, in the criminal trial, the prosecution

Litigation participants were asked to the defendant shall be placed in direct examination and cross examination of witnesses, and should not be placed directly before examination and cross examination of the prosecution and the defense witness.

In the criminal court trial, by direct examination and cross examination of witnesses, defendants

Whether the act constitutes a crime, has to be completely bared there and then, testimony in the defendant's supply is not is very important, in some cases to "zero" conviction are possible.

The obtained after direct examination and cross examination of witnesses in court evidence

Has been basically in line with the "Criminal Procedure Law of the people's Republic of China" forty-sixth standards "-- of all cases are to be sentenced to the weight of evidence, investigation and study, not credulous. Only the defendant's confession, but no other evidence, not the defendant is guilty, without the confession of the accused, the evidence is sufficient and reliable, can be found the defendant guilty."

The author thinks, through empirical study, we can draw the following conclusion -- witness the unconditional

To appear in court and was the first to inquire a witness and then to the defendant asked, only this institution can avoid the judicial practice of torture to extract confessions and inducement, threat of evidence and the unjust problems, only in this way can we establish a trial centered instruction of modern judicial mechanism, only in this way, in order to realize the security of presumption of innocence. And doubt, innocent, the defendant shall not establish criminal principle of self crimination.

To sum up, the author believes that, we only have to establish a set of scientific and reasonable Criminal Tribunal

The criminal litigation to trial court questioning procedure to solve a series of problems of our criminal procedure development, such as the public authority by the article 306th of the criminal law of lawyer occupation retaliation and frame, such as torture to extract confessions and inducement, threat of evidence, such as a large number of false wrong case and so on, so that the judicial system is beneficial to change the current in most existing judicial occupation of mind is not normal judicial philosophy in a certain extent.

We know, the criminal procedure law should be one of the public law, public law should not only to protect the human rights as the first priority, the existing criminal procedure system has too many rules and modern judicial idea conflict, we need to establish Chinese characteristics with the fair and efficient judicial authority system gradually clear those hinder effect on our rule of law progress is out of date and is not conducive to the protection of human rights and democratic legal system!

(author: Jia Huiping, Shanxi and the director of the law firm lawyer. Taiyuan City, Shanxi Province fourth Jiancaoping District CPPCC members. Renmin University of China Law Institute of the first, second participants of the workshop for criminal defense. )