China Criminal Defense Manual - Questioning the Witness

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Chinese law allows the criminal defender to:

• Seek the court’s permission to have an expert witness conduct an evaluation (CPL Article 128)

• Be notified by the investigation organ at the conclusion of an expert evaluation (CPL Article 148)

• Ask the court to have a new evaluation, evaluation or supplementary evaluation conducted (CPL Articles 147, 148)

• Cross-examine expert witnesses at trial (CPL Article 194)

• Ask the court to have a new expert evaluation conducted during the trial(CPL Article 197)

Although expert witnesses have commonly been used in civil cases in China, they are now being used more frequently in criminal cases. The following information offers suggestions for the criminal defense lawyer on when to retain an expert, what types of cases usually require expert assistance, and how to challenge expert evaluations that are suspect.

When should you consider retaining an expert witness?

The criminal defender should secure the assistance of experts where it is necessary in order to:

1. Prepare a defense;

2. Understand the prosecution's evidence;

3. Rebut the prosecution's evidence;

4. Investigate the client's ability to commit the alleged offense and his/her mental state at the time of the offense.

What kinds of issues require expert assistance?

According to CPL Article 146, “when certain special problems relating to a case need to be solved in order to clarify the circumstances of the case, experts shall be assigned or invited to give their evaluations.” Although Article 119 does not define “certain special problems,” expert assistance usually can explain complex issues that the average person would have trouble understanding.

Possible issues for expert evaluations include, but are not limited to: forensic evaluation, medical evaluation of bodily injuries, medical evaluation of mental illness, monetary evaluation of objects, antique appraisals, evaluation of rare plants and animals and products made from them, evaluation of banned objects and hazardous objects, and evaluation of electrical data. With permission from the People’s Court, judicial evaluation agencies can conduct examinations on evidence materials such as investigation reports, medical records, and accounting records, etc.

Therefore, it is a good idea to seek expert assistance in cases where the cause of the victim’s death or injuries is uncertain or disputed, where the defendant’s mental health is in issue, and also in cases involving questions about the value of items stolen, the authenticity of documents or records, the chemical composition of drugs or other substances, the cause of a suspicious fire, accident or other event, the source of blood, semen, other bodily fluids, hair, fibers or fingerprints, as well as any case where an expert witness can help the court to understand the issues presented.

Should you retain a testifying expert witness or a consulting expert witness?

Before making this decision, it is important to understand the difference between these two types of witnesses. Testifying experts are expert witnesses who will actually appear in court and testify for the defense or whose evaluation results the defense plans to present to the court. The criminal defender must seek and obtain the court’s permission to be able to present the witness or any of his findings to the court. The defense lawyer can simultaneously ask the court for permission to retain the witness and for a continuance of the trial to allow the expert sufficient time to conduct his evaluation.

A consulting expert, on the other hand, is an expert witness who assists the criminal defender in understanding the case’s complex issues or details but who does not testify in court. The criminal defender does not need the court’s permission to confer with a consulting expert witness. How then can a consulting expert assist the criminal defender?

   1. By helping to develop the defense theory for the case and to create a narrative that integrates the pieces of the story in a persuasive way.
    2. By assisting the criminal defender in excluding unnecessary information that may derail the defense theory or result in the presentation of an overly complex case to the court (the expert assists in making the presentation of expert testimony to the court informative and persuasive but not overly complicated).
   3. By helping the criminal defender to develop a streamlined argument and preventing the defense from presenting too many expert witnesses or too much complex expert testimony.
   4. By assisting the criminal defender in selecting a competent expert witness or witnesses who will testify well and be able to tell the defendant’s story in a manner that is persuasive but not overly complex.
   5. By assisting the criminal defender in developing good working relationships with other experts in the same or related fields.
   6. By helping the criminal defender critically assess and develop arguments illustrating the weaknesses and logical inconsistencies in the evaluations conducted by the prosecution’s expert witnesses.

For legal aid attorneys, the best places to find experts (whether they are testifying or consulting expert witnesses) are academic settings, i.e., from among the faculty of research and training universities.

What factors should you consider when choosing an expert witness?

There are many criteria to consider, but the fundamental principle is that as a scientist, the expert witness should focus on the process and sequence of events in the case, rather than the results. The defense lawyer should consider the following issues when deciding whether someone has the professional qualifications and experience to be retained as an expert witness:

• Does the witness have sufficient education and experience in the specialized area to be considered an expert?

• What is the witness’s professional reputation? How well-respected is he by other experts in the same field?

• What kind of expert witnesses does your case need? What are the different fields that need to be addressed?

• Is the witness still receiving education?

• How much time does the witness normally spend on his profession? Besides his work in his area of expertise, does he hold any other job?

• Has the witness previously provided expert testimony for the defendant, victim or others? Is this testimony consistent or inconsistent with the issues in your case?

The defense lawyer is not a scientist and therefore cannot be expected to have the specialized expertise of the expert witness. Nevertheless, the lawyer should adhere to objective standards and to the requirement that the expert witness’s conclusions must be scientific, objective, and persuasive.

Do you need the court’s permission to retain an expert witness?

As previously mentioned, you need to obtain the court’s permission to retain a testifying expert (an expert who you want to testify at trial or whose evaluation results you want to introduce during the trial). If, however, you just want to understand the issues in your case, you can confer with a consulting expert without having to seek and obtain court approval.

Can the court order an evaluation to be conducted?

Yes. CPL Article 128 authorizes the court to order an evaluation “when certain special problems relating to a case need to be solved in order to clarify the circumstances of the case.” Additionally, CPL Article 196 allows the court to conduct an expert evaluation “when carrying out investigation to verify evidence;” this article applies in situations when the collegial panel adjourns a court hearing because it has doubts about the evidence.

The newly passed changes of decisions about evaluation:

According to the Decision of the Standing Committee of the National People’s Congress on the Administration of Judicial Authentication (2015), “Judicial evaluation is conducted in a lawsuit by the expert witness employing scientific technology or special knowledge to evaluate, judge and provide evaluation conclusions on the special problems relating to the lawsuit.” The Decision has further stipulations on administrative organs, personnel conditions (expert qualifications), and procedure for registration management procedure. The lawyer should ensure that the retained expert is qualified according to Decision. Note in particular:

• Only four types of items are thus far allowed to be evaluated: medical evaluations, material evidence, audiovisual materials, and other matters determined by the judicial administrative department of the State Council, in consultation with the Supreme People’s Court or Supreme People’s Procuratorate, as being matters for which the authenticators and authentication institutions should be subject to register management.

• The investigative organs/departments (whose purpose is to conduct investigation work) are forbidden to be socially entrusted with judicial evaluation work. The People’s Court and Judicial Administrative Departments cannot set up judicial evaluation organs.

• The judicial evaluation organs/departments are not subject to each other, nor should they be geographically confined when entrusted with judicial evaluation work. The expert witness should practice within a judicial evaluation organ.

• In a legal proceeding, the items up for evaluation should be given to an expert witness from the list of recognized expert witnesses (i.e. the expert witness register) to evaluate.

• The expert witness should withdraw according to the stipulations of the CPL. If the litigant raises objections to the conclusion of the expert’s evaluation, then under notice of the People’s Court according to law, the expert witness may be asked to testify in court.

Can you challenge the results of a court-ordered evaluation or an evaluation authorized by the prosecution?

Yes. Several options are available to a criminal defender seeking to challenge the results of a court-ordered or prosecution evaluation:

1. Rejection of evaluation request: The commissioning party should be held responsible for any faulty evaluation conclusions as a result of the presentation of false or incomplete evaluation materials. Additionally, CPL Article 147 provides that “if an expert intentionally makes a false verification, he shall assume legal responsibility.”

2. Repeat evaluation: CPL Articles 148 and 197 allows a criminal suspect or defendant to request that a new evaluation be conducted. Materials presented for repeat evaluation must be the same as those used in the first evaluation. When different materials are evaluated, this should not be regarded as a repeat evaluation. All repeat evaluations can be conducted by the original evaluation agency, except for evaluations described above in the first category (the agency chosen was inappropriate) in which case it should be conducted by other agencies.

3. Supplementary evaluation: CPL Article 148 authorizes supplementary evaluations. These evaluations should be conducted when new materials for evaluation have been found or when something was improperly excluded from the original evaluated items.


Expert witnesses can provide valuable assistance to criminal defenders by helping them to understand complex scientific, valuation, authenticity and other highly specialized issues and by assisting them in putting this complex information into a format that is both persuasive and easy to understand. Additionally, experts can help criminal defenders critically assess the weaknesses in the prosecution’s evidence and create a defense theory that will successfully refute it. Expert witnesses should be regarded as vital members of the defense team in any case where their knowledge, education and experience can be utilized to explain why the prosecution’s version of events is incorrect.


Legal Background

Chinese law allows the criminal defender to:

  1. Conduct an independent investigation to verify the evidence collected by the public security organ and prosecution (CPL Article 41)
  2. Object to the written testimony of the prosecution’s witnesses, including the testimony of the police and expert evaluators (CPL Article 192)
  3. Cross-examine the prosecution’s witnesses (CPL Article 61, 194)
  4. Present physical evidence, witness testimony, investigation records, and other documentary evidence that counter the prosecution’s witnesses and evidence (CPL Article 195)
  5. Apply for new witnesses, new physical evidence, new evaluations, and new expert opinions that counter the prosecution’s witnesses andevidence (CPL Article 197)
  6. Comment on the prosecution’s evidence (CPL Article 198)

This form will assist you to evaluate and prepare your defense against the statements of the prosecutor's witnesses.

Name of Witness:


  • List the reasons why this witness helps the prosecutor prove the crime charged.
  • List the reasons this witness's testimony will hurt the defense of your client.
  • List the reasons (if any) this witness will help the defense of your client.
  • List the ways (if any) in which this witness's testimony is inconsistent with their previous statement, statements of other witnesses, the victim, defendant and co-defendants, and the evidence presented.
  • List the ways (if any) that this witness's testimony may be utilized to advance the defense attorney's theory of the case.

Pages in the case file where this witness appears:

  • Supporting Evidence
  • List the evidence to be used when asking this witness questions.

In case the prosecution witness changes their previous statements, the defense lawyer can use the following prompts:

You can ask the witness: "You previously said ...," and the witness will in all likelihood say "yes," or argue with his or her previous statement. If the witness says "no," or contradicts his or her previous statement, you can:

  • Refer to trial documents or other evidence:
  • Call an already prepared defense witness to the stand to refute the prosecution witness' claim:

Sample Questions

Is this witness helping your case? If so, remember to:

  • Repeat the aspects of the witness' testimony that are helpful to your case during your questioning.

Example: "I want to make sure I heard your testimony correctly. Did you say that [helpful statement]?"

  • First ask the witness easy, supportive questions in order to make them comfortable, then you can ask more difficult or aggressive questions. Examples (of easier, introductory questions):
    • How many years have you been doing this? (if the witness is an expert witness, teacher, policeman, etc.)
    • How well do you know the person?
    • Are you the type of person who notices details?
    • How good is your eyesight?
    • How good was the lighting?
  • Is this witness against, or hurting, your case? If so, try to demonstrate inconsistencies and problems in their testimony. Examples:
    • Is it true that you are friends with the victim?
    • You didn't write down any of your observations at the time of the event?
    • You did not speak with the police until many weeks after the alleged crime?
  • Your concluding question should be your strongest one, and one that:
  1. You safely know the answer to, and
  2. Whose answer supports your case.

Example: Isn't it true that my client called the police, and waited for them at the scene?


Legal Background

Chinese law allows the criminal defender to:

  1. Conduct an independent investigation to verify the evidence collected by the public security organ and prosecution (CPL Article 41)
  2. Present physical evidence, witness testimony, investigation records, and other documentary evidence that supports your case (CPL Article 195)
  3. Apply for new witnesses, new physical evidence, new evaluations, and new expert opinions that support your case (CPL Article 197)
  4. Comment on the evidence (CPL Article 198)

The following form serves as a guide to help you evaluate and prepare for the testimony of witnesses that may help your case.

File:Defense Witness Evaluation Form


1. The theory of most prosecution questions promotes the following false logic:

a. Story has changed from the original account or is different from the police's account,
b. The defendant is lying, and so therefore,
c. He must have committed the crime.

2. Prepare your client for the prosecutor's tone. 3. Your client should answer the prosecutor as he or she answered you, with the same voice inflection, the same eye contact, and a body language that indicates they are telling the truth. 4. Approach expert questions that produce damaging evidence carefully. These questions must be answered directly by the defendant, with no attempt to either evade or explain. The defendant's body language must not convey any effort to evade touchy questions.

  • Evasion makes the client look untruthful.
  • Explanations can become opportunities for a prosecutor to start tearing holes in the defendant's account.
  • Therefore, let the client know that you can return to these issues during re-questioning and clean up some damage. During re-questioning, be sure to ask questions that will advance your theory of the case.

5. If the defendant does not know the answer, he or she should not be afraid to say "I don't know." This may be especially important if a prosecutor tries to make your client admit to a certain number, or quantity:

  • A prosecutor will try to show that your client incorrect about something, anything at all: A frequent trick is to ask how long the red light lasted, how many meters it was across the room, or how many beers were consumed, etc.
  • Even if the defendant first says that he or she does not know, the prosecutor may badger them to assent to an estimate, or a range.


  • Start with simple background questions to put them at ease. Examples:

What is your: Name Place of Birth Work history

  • Ask a few "foundation" questions about the witness; they can be general but should be consistent with the main testimony. Examples:
    • If the main testimony is about a character trait or habit of the someone connected to the case, ask how long they've known the person.
    • If the testimony is mainly about neighborhood layout or traffic, ask how long they've lived there, or how good the lighting is.
    • If the testimony is an expert opinion, ask how many and what types of materials the expert reviewed before coming to a conclusion. How much time did he spend on the review? Who did he interview?
  • Ask the "main" questions clearly and understandably.

GO SLOW. BE CLEAR. Witnesses get nervous up on the witness stand. There is a significant chance that your question will be confusing, even if you have discussed it ahead of time. There is a very real risk of getting an answer you do not want.

  • Phrase the main questions you ask each witness in a way that will advance the defense theory of the case.
  • If there is evidence that hurts your defendant, bring it out before the prosecutor's questioning. Examples:
    • Tell us why you did not talk with the police before coming here.
    • Tell us why you're saying this today, but said something different earlier.
    • Tell the judge, please, why you didn't go to the police and explain this alibi the day your husband was arrested.



CPL Articles 47 and 156 give criminal defenders the right to conduct direct and cross-examination of witnesses in criminal cases. CPL Articles 156, 157 and 160 give criminal defense attorneys the right to use evidence to impeach the prosecution's witnesses. The following information will assist criminal defenders in developing effective strategies for questioning witnesses.

Questions to Consider

Regardless of whether the criminal defender is preparing for direct or cross-examination, he should prepare his inquiry by answering the following questions:

  1. What is the overall theory of the case?
  2. How does this witness fit into the overall theory of the case?
  3. How can you fit this witness's story into the story that has already been told and the story that will be told after this witness testifies?
  4. How will the witness's testimony help you to develop your client's story? To counter the prosecutor's story?
  5. What evidence do you need to introduce or rely on during direct examination? During cross-examination?
  6. What evidence will the prosecutor rely on during direct examination? During cross-examination? What questions can you ask or what evidence can you use to counter the prosecutor's evidence?

Purpose of Direct and Cross Examination

Although the criminal defender should ask the six questions listed above when preparing for either direct or cross-examination, he should be aware that direct and-cross examination have very different purposes and techniques.

Direct examination requires the witness to tell a story. The goal of direct examination is for the criminal defender to elicit the witness's story in the witness's own words in a manner that will advance the overall theory of the case.

Cross-examination, on the other hand, is a selective, targeted attack on the prosecutor's theory of the case. It is not simply rehashing the testimony that was developed during the direct examination of the witness. The criminal defender seeks to develop points that will show that the witness's testimony is inconsistent with other testimony or evidence; that the witness is biased against the defendant; that the witness has a motive to testify against the defendant; that the witness (if he is a co-defendant) had the opportunity to commit the crime; that the witness lacks knowledge of the facts and the evidence in the case; and that the witness was unable to see, hear, perceive, and observe the major events in the case.

Types of Questions to Ask during Direct and Cross-Examination

Open-ended questions: Since the purpose of direct examination is to have the witness tell a story in narrative form, the criminal defender should ask questions beginning with words that are intended to elicit information from the witness, such as who, what, where, when, why, how, describe, explain. Asking these types of questions requires a witness to do more than simply answer yes or no. Examples:

  • When you arrived at the bar, what did you see?
  • Can you tell us how the fight began?
  • Who did you see at the bar? What were they doing? What happened next?

Closed-ended questions: Closed-ended questions require the witness to answer yes, no or as briefly as possible; therefore, the criminal defender should avoid asking these types of questions on direct examination and should ask closed-ended questions during cross-examination. Examples:

  • Was the bar crowded the night that the fight occurred?
  • Who threw the first punch? The victim or the defendant?
  • Were you still there when the fight ended?

Words Never to Use during Cross-Examination

Criminal defenders should NEVER ask who, what, where, when, why, how, describe and explain during cross-examination. These are words requiring explanation that you do not want to elicit during cross-examination. The goal of cross-examination is to target the prosecutor's case and to advance the defendant's theory of the case without giving the witness an opportunity to explain their answers. You want the witness to agree with your version of events, not to develop their own.

What if the judge does not allow you to cross-examine the witness?

If the judge does not allow you to cross-examine the witness, you can refer to the CPL's provisions for cross-examinations. Politely remind the court that Article 71 in Interpretation on the Application of the Criminal Procedure Law of the PRC by the Supreme People’s Court specifically states that only through the defense lawyer's cross-examination can any evidence be considered as a basis for deciding a case, and not otherwise.

How to Prepare Your Client and Other Witnesses

  1. Communicate your theory of the case to the client or other witness. Explain how their testimony advances the theory of the case and refutes the prosecutor's version of events.
  2. Prepare your client and other witnesses for both direct and cross-examination.
  3. Prepare your questions for both direct and cross-examination. Remember to begin with broader, more general questions at first and more specific, detailed questions as the examination proceeds. Be sure to save your strongest/best points for the end of your examination. Do not ask a question for which you do not know the answer.
  4. Role-play with your client or other witness. Prepare them for the prosecutor's tone, questions the prosecutor will ask, and evidence the prosecutor will use.
  5. Advise your client or other witness to listen carefully to the question that is being asked, regardless of whether you or the prosecutor is doing the questioning. Make sure the client or other witness understands that they need to concentrate on answering the question that is actually asked and that they should not provide information that they have not been asked to give.
  6. If the client or other witness truthfully does not know the answer to a question, he should say "I don't know" instead of guessing or speculating.
  7. Reassure the client or other witness that they will have the opportunity to clarify any matters that need clarification during direct re-examination.


Developing effective direct and cross-examination skills takes persistence, patience and most of all, practice, practice, practice! By developing a comprehensive theory of the case and structuring your direct and cross-examination questions in a manner that advances your theory, you will be able to persuasively argue your client's case to the court.

See China Criminal Defense Manual