China Criminal Defense Manual - Questioning the Witness

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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 37)
  2. Cross-examine the prosecution's witnesses (CPL Article 47, 156)
  3. Use evidence to impeach the prosecution's witnesses (CPL Article 157, 159, 160)

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 37)
  2. Cross-examine the prosecution's witnesses (CPL Article 47, 156)
  3. Use evidence to impeach the prosecution's witnesses (CPL Article 157, 159, 160)

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:
    1. Story has changed from the original account or is different from the police's account,
    2. The defendant is lying, and so therefore,
    3. 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.
  1. 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 58 in Explanations on some Issues in Administering Criminal Procedure Law of the People's Republic of China 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