弥补证人缺席对质证权影响的欧洲经验及启示

European practice of catering for the impact of absent witness on the defendant’s right to cross-examination and its inspiration

欧洲弥补证人缺席对被追诉人质证权造成不利影响的机制有三类:一是对缺席证人而言,公安司法机关知道或应当知道关键证人可能不出庭时,即可在询问该证人时录音录像,或询问时允许辩方在场并提出质疑,或为辩方提供书面质疑等间接质疑方式;二是对关联证人而言,公安司法机关可通知证明缺席证人庭前证言的传闻证人、专家证人、共同被害人等出庭作证,并接受辩方对质询问;三是对陪审员而言,公安司法机关可在陪审员参与审理的案件中,就庭前证言采纳的基本规范、庭前证言审查方式的局限性等问题为陪审员提供指引。这三类机制分别从不同视角弥补了证人缺席对被追诉人质证权造成的不利影响,确保审判程序的整体公正性。因此,为弥补证人缺席对被追诉人质证权造成的不利影响,我国可完善询问证人录音录像规定,确立询问证人时辩方在场机制、间接质疑机制及关联证人出庭作证机制,并完善法官指引机制。

In Europe, there are three ways to cater for the negative impact on the defendant’s right to crossexamination caused by absent witness. First, in regard with the treatment of the absent witness, when the public security organs know or should have known that the key witness may not appear in court, they can make audio and video recordings when questioning the witness, or allow the defense to be present and raise questions, or provide the defense with indirect questioning methods such as writing down examining questions;Second, in regard with witnesses related to the absent witness, the public security organs can invite hearsay witnesses, expert witnesses, co-victims, etc., who can testify to the absent witnesses’ testimony, and render them subject to cross-examination. Third, in regard with jurors, the public security organs can provide jurors with instructions on basic norms for admitting out of court witness statements and limitations of examining the out of court witness statements. The three mechanisms, which, from different perspectives, respectively cater for the negative impact on the defendant’s right to cross-examination caused by absent witness, ensure the overall trial fairness. Therefore, to cater for the negative impact on the defendant’s right to cross-examination caused by absent witness,we can(1) improve the video recording regulations in questioning witnesses,(2) establish the mechanism of questioning the witness with the defense’s presence, the mechanism of indirect questioning, and the mechanism of calling the related witnesses to testify in court, and(3) improve the mechanism of judges’ guidance.