冲突与平衡:未成年被害人作证保护与被告人对质权行使

Conflict and Balance: Protection of Testimony of the Juvenile Victim and the Exercise of the Right to Confrontation by the Defendant

性侵案件未成年被害人作证保护与被告人对质权行使之间的冲突关系与平衡方式是一个不断演进的过程。未成年被害人出庭作证的实践效果及其检验结果符合认知功能理论下未成年人与成年人信息处理能力与方式的差异,从而将作证保护的特殊程序探索推上司法实践的舞台。美国平衡冲突的经验表明,对质权让位于作证保护的过程也是不断强化被害人保护的过程,但二者之间的冲突关系实际上在一轮又一轮的争论与博弈中始终保持着某种微妙的平衡。在不断产生冲突与不断形成新的平衡过程中,作证保护与对质权的关系也渐趋明晰,并形成新的标准以应对实践发展。我国对质权虚置的司法常态,造成这一冲突被长期掩盖。排斥对质权的介入而倾斜作证保护,反而会减损作证保护的实际效果。在刑事审判要兼顾国法与人情的现实下,对质程序前置与侦查询问程序重构可能是平衡冲突的一种有益探索。

The empirical test for the juvenile victims of sexual assault to testify in court shows that testifying in court not only has a significant and sustained negative impact on the juvenile victims themselves, but also is not conducive to ensuring the accuracy of their statements, and may have a negative impact on the fact-finding and judgment results of the case. The result of testimony is not satisfactory if a juvenile victim is not familiar with the trial procedure and under great pressure when testifying in court. Based on this, many countries have stipulated special ways for juvenile victims to testify. Whether these special procedural settings violate the right of the defendant to confront the juvenile victim in court has led to considerable debate in the judicial practice of the United States, which has always attached importance to procedural justice under the adversarial litigation mode. In the process of solving the conflict, the United States has gradually formed the experience and idea of balancing the two conflicting interests by continuously virtualizing and prepositioning testimony. A main line that runs through this mode is to not only realize the confrontation between the prosecution and the defense, but also take into consideration the vulnerable and sensitive physical and mental characteristics of the juvenile victim. The legal culture in China have created the reality in which equal importance is attached to natural justice, state law and human relations and a judicial normality in which the right of confrontation exists only in name. The “one-stop” mode of handling sexual assault cases explored in the current practice, which tilts toward the protection of testimony, fails to effectively guarantee the defendant’s right of confrontation and may also reduce the actual effect of the protection of testimony. As a result, the conflict between the protection of testimony and the right of confrontation is transformed into the internal conflict between the expected and the actual effects of the protection of testimony. China may explore the solution of this internal conflict by placing cross examination procedure at the investigation and inquiry stage, integrating it into the current one-stop inquiry procedure, while at the same time limiting the face-to-face confrontation between the juvenile and the defense to a certain extent based on the requirements of witness protection. In the specific operation, procuratorial organs should intervene in the investigation procedure in advance, guide the investigation and evidence collection, participate in the investigation and inquiry together with the defense lawyer, and supplement it with synchronous audio and video recording to fix the statements of juveniles, which is of great significance to reducing the number and improving the quality of inquiries. At the same time, the application of investigation and inquiry procedures in such special cases should be reconstructed in an all-round way, so as to continuously promote the practical exploration of witness protection in the aspects of place, method and personnel of inquiry, and balance it with the right of confrontation.