Trial-Centered Justice in China
The Role of Evidence Rules

From 2019-2021, the U.S.-Asia Law Institute conducted a project to support the reform of China’s evidence rules as used in criminal trials.  The project was partially inspired by an official reform initiative, first announced at a plenum of the Communist Party Central Committee in 2014, to “make the trial the center of the case” (以审判为中心).  

The name of the initiative tacitly acknowledges that criminal cases in China have typically been decided by processes conducted outside of court: namely, the assembly of a case dossier that provides the basis for the verdict. Police create the dossier, and prosecutors may amend or supplement it. Evidence from witnesses is presented in the form of written statements that are not generally subjected to cross-examination by the defense.

While it is still unclear what “making the trial the center of the case” may ultimately mean, reform pilots carried out in Chinese courts have tried to bring witnesses into court to testify in person.  This seemingly simple move has proven challenging for many reasons.  One is that China’s evidence rules do not require live witnesses or cross-examination, nor do they address the complications that may follow from live testimony – such as what to do if a witness’ in-court testimony conflicts with his or her pre-trial statement.  Courts have been making increased use of “expert evaluators” (鉴定人) as witnesses at criminal trials, and Chinese criminal justice experts have expressed concern that the evidence rules do not sufficiently address the role of such witnesses.  Chinese experts also have called for more specific rules about the use of digital evidence, which is playing an increasingly important role at trials in China as in other parts of the world. In short, the 2014 Central Committee plenum decision and later developments highlight a need and present an opportunity to reform China’s  evidence rules for criminal trials.

The U.S.-Asia Law Institute has collaborated for many years with Chinese lawyers and law scholars to conduct comparative law research and hold workshops on hot topics in criminal justice. For this project, we surveyed our Chinese partners about what areas of evidence law they consider most important to “make the trial the center of the case.” Based on their input, we designed a series of workshops to introduce U.S. law and practice in those key areas.  COVID-19 forced us to conduct the workshops remotely, but this in turn enabled us to record the proceedings and share excerpts with a wider audience. Five recorded excerpts can be found at Evidence Law in the US. They address: the basic concepts of evidence law in the United States with the Federal Rules of Evidence as a model, the importance of live witnesses, cross-examination, expert evidence, and digital evidence.

Chinese Evidence Law Research

As part of our project, we translated into English two important new articles written by leading Chinese criminal justice experts about the use of evidence in Chinese criminal cases.