THE ADMISSIBILITY OF PRE-TRIAL TESTIMONIAL TRANSCRIPTS: A DISCUSSION OF PRACTICE IN CHINA AND IN THE INTERNATIONAL CRIMINAL TRIBUNALS

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.