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3 Primary Causes for Identified Wrongful Convictions in China’s Practice

3 Primary Causes for Identified Wrongful Convictions in China’s Practice

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3  The Similar Causes of Wrongful Convictions



3.3.1 Police Misconduct

Chinese law creates a justice system based on mutual restraint among the police,

the procuratorates and courts, which are responsible for investigation, prosecution and trial respectively. In fact, there are no adequate restraints among the three

bodies in most circumstances, but the bodies closely cooperate with each other to

combat crimes, as shown in the above-mentioned cases. Thus, police misconduct

during investigation at the beginning of the process directly influences the subsequent prosecution or trial, leading to more wrongful convictions in practice.

3.3.1.1 False Confession of Guilt Under Torture

As illustrated from the above cases, all of the accused were forced to confess guilt

as a result of police torture during investigations. Also, it was the false confessions

they made that directly led to their wrongful convictions as evidence of guilt at

trial. Such false and coerced confessions, ‘often produced by custodial confinement

and torture’,39 have generally been recognized as a major cause of wrongful convictions in China’s criminal justice practice. Police officers often played a critical

role in virtually framing the accused by extracting oral confessions or witnesses’

testimonies by using oppressive tactics like torture.40 Since the prosecution and

judges trusted such evidence based on confessions obtained under torture and

ignored defence evidence of innocence, in truth ‘the confession [was] the king of

evidence’.41 In reality, convictions in China largely depend on oral confessions,

albeit many of them are false or coerced.42 Such reliance on a confession obviously

deviates from the aim of reducing the risk of torture and wrongful convictions.

Torture and other illegal means are often used by investigators to extract oral

confessions and other evidence in order to solve cases as quickly as possible.43 For

example, In Case Five Youths, all of the accused suffered from police “beating”, of

which WANG Jianping was also tortured, by many means mainly including “water

spray, electric batons”, “hundreds of slaps, being punished to kneel down and not

to sleep” during coerced interrogations.44 In Case YU Yingsheng, the police con39Mike McConville et al., Criminal Justice in China: An Empirical Inquiry, Edward Elgar: A

Family Business in International Publishing, 2011, p. 339.

40See Ibid., pp. 339–341.

41Ibid., p. 350.

42See Dui Hua Foundation, “Politico-Legal Committee Issues Rules to Prevent Injustice”,

Dui Hua Human Rights Journal (22 October 2013), available at: http://www.duihuahrjournal.

org/2013/10/politico-legal-committee-issues-rules.html.

43Ibid.

44Liu Chang and Liao Ying, “Replaying the Murder Case of Five Youths from Xiaoshan of

Zhejiang: ‘The Real Murderer’ Reappearance Testing the Criminal Procedure Law” [zhengjiang

xiaoshan wu qingnian sharen an fupan zhenxiong zaixian kaoxian xingsufa], Southern Weekend

[nanfang zhoumo] (24 January 2013), available at: http://www.infzm.com/content/85694.



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tinuously interrogated him without allowing him to rest for many days and

nights.45 In Case CHEN Keyun, he was tortured by the police with “severe beatings”.46 Also, in Case LI Huailiang, the local “police beat him with a chain to confess”, so as to obtain evidence of guilt.47

In practice, most innocents in the above cases could not withstand too much

physical or mental pain in extreme fatigue, drowsiness or fear. They finally had to

confess to the responsible policemen in order to prevent their continued torture,

after such coerced interrogations that at least involved severe beatings and sleep

deprivation. Consequently, they were wrongly prosecuted and further convicted by

the authorities based on false oral confessions. For instance, in Case SHE Xianglin,

the former Jingzhou People’s Procuratorate wrongly prosecuted him for murder in

August, 1994 and the Jingzhou District IPC made the first-instance judgement, concluding that SHE Xianglin killed his wife and committed murder in October 1994.

False and coerced confessions hence tended to be the largest cause of wrongful convictions in China, given that most cases involve oral confessions (79 % pre-1996,

67 % post-1996)48 and that there is widespread use of torture to extract them.49

Another compelling issue that frustrates the use of interrogations to achieve

criminal justice is the imposition on local police forces of high target rates of conviction for homicides. As reported in the media, ‘homicide cases must be solved’,

so achieving a certain rate of identifying who is responsible for homicides is as

important to the police as a high rate of GDP growth is for local officials.50 In

2005, the Chinese detection rate for homicides was reported by the Ministry of

Public Security to be 89.6 %, much higher than that of the UK., France, Canada

and USA, whereas from the website of a provincial government, ‘the detection

rate’ of homicide in Kaifeng City ‘brought through 97.3 %’, taking the lead of

Henan Province in ranking of 2009.51 While achieving a resolution to every homi45See Wang Cheng, “The Counsel First Exposed Doubted Evidence on Tortured Confessionss in

Anhui Injustices of Murdering the Wife” [anhui shaqi yuanan lvshi shoupao zhengju yidian chen

cheng xingxun bigong], Oriental Morning Post [dongfang chenbao] (10 December 2013), available at: http://news.sina.com.cn/c/2013-12-10/084428932247.shtml.

46Top China Calls for Reform to End Confession through Torture, Asia One News (Nov 21,

2013), available at: http://news.asiaone.com/news/asia/top-china-court-calls-end-confessionthrough-torture#sthash.nVFCPqcr.dpuf.

47Innocent man freed after 12 years in prison, ECNS (27 April 2013) available at: http://www.

ecns.cn/2013/04-27/61106.shtml.

48See Mike McConville et al., Criminal Justice in China: An Empirical Inquiry, Edward Elgar: A

Family Business in International Publishing, 2011, p. 6.

49See Concluding Observations of the Committee against Torture: China, UN Doc. CAT/C/CHN/

CO/4, 12 December 2008, para. 11, available at: http://www2.ohchr.org/english/bodies/cat/docs/

CAT.C.CHN.CO.4.pdf.

50See What’s wrong with taking homicide cases being solved as a must, Dahe Net [dahe

wang], 15 May 2010, available at: http://www.ha.xinhuanet.com/add/wyzt/2010-05/15/content_19793640.htm.

51Yang Tao, A Freak from Homicide Required to be Detected and Low-cost Fraud, Justice Net, 9

May 2010, available at: http://view.news.qq.com/a/20100511/000004.htm.



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cide is a noble intention, the imposition of a target rate may also become a catalyst

for wrongful convictions, given unchecked judicial powers in most cases.

In practice, police officials may even falsely declare a mentally disabled individual responsible for a murder in order to meet a quota for resolving homicide

cases.52 A recent case involving many doubts has been criticized by the media

because police are suspected of having arrested a mental patient to resolve a case

in which they had no real leads.53 It happened in Kaifeng City of Henan Province,

where police officials did so in order to achieve high rates of detection.54 In May

2010, the Henan Province Public Security Bureau sent inspectors and criminal

investigation forces, who rushed to Weishi County to review the ‘4 • 16’ case of a

mental patient suspected of murder. In later years, national or local detection rates

for murder cases were frequently reported to be over 90 %55 and even close to

100 % across China. With the intention of achieving a resolution to every homicide, the high rate has been widely used for evaluation of police work, albeit as a

catalyst for wrongful convictions in China.

Meanwhile, wrongful convictions tend to further contribute to the high ‘detection rate’ of local investigators, e.g., 98.02 % for the year of 2006 in the Shangxiu

City, where Case ZHAO Zuohai occurred. Often, police investigators assiduously

seek a high detection rate, even at the cost of justice or human rights.56 More

noticeable information came from an article published on the Henan provincial

government website, titled the ‘Discipline and Strategy that Kaifeng City Police

Assaulting Fortified Positions of Tackling Homicide Cases in the winter of 2009’.

As reported by the official media, ‘the detention rate of such cases is 97.3 % with

72 solved cases among the total number of 74 occurred in the city’, where ‘the

winter tackling has been launched as a key problem’ since November 2009 ‘to

maximize detecting cases unresolved in 2010’.57



52See Xinhua, Police officers fired for using lunatic as scapegoat, People’s Daily Online (18 May

2010), available at: http://english.peopledaily.com.cn/90001/90782/90872/6988604.html.

53New Beijing News, May 5, 2010.

54See Xinhua, Police Officers Fired for Using Lunatic as Scapegoat, PD (May 18, 2010), available at: http://english.peopledaily.com.cn/90001/90782/90872/6988604.html; also See Zhao

Zhilei, Last Year the Rate of Detecting Homicide in Our City Took the Lead, DAHE (Mar.6

2007), available at: http://view.news.qq.com/a/20100511/000005.htm.

55See Yang Tao, A Freak from Homicide required to be Detected and Low-cost Fraud, JUSTICE

(May 9, 2010), available at: http://view.news.qq.com/a/20100511/000004.htm.

56See Zhao Zhilei, Last Year the Rate of Detecting Homicide in Our City Took the Lead, Dahe

Net, 6 March 2007, available at: http://view.news.qq.com/a/20100511/000005.htm.

57See Yang Tao, A mental Patient falsely Accused of murder: a Monster caused by a required

detention of murder cases and make-believe at a low cost, Justice Net (May 9, 2010), available

at: http://view.news.qq.com/a/20100511/000004.htm.



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3.3.1.2 Presumption of Guilt and Confirmation Bias

Further increasing the likelihood of wrongful convictions in China, the local

police often persist in their belief that the accused must be guilty even after the

accused withdrew his or her confessions at trial or petitioned for a retrial based on

evidence of innocence. As demonstrated above, the police often refused to collect

important or reliable exculpatory evidence, but instead depended on their inferences based on a presumption of guilt to justify obtaining oral confessions by torture. They never paid attention to evidence favorable to the suspects, but tended to

conceal and improperly preserve it. This approach largely contributed to wrongful

convictions in practice.

In the above cases, local police were found to have a presumption of guilt and a

confirmation bias in which they prematurely tended to selectively prefer settling

on a person as a criminal suspect ‘guilty party’ who they must convict with ‘lenient punishment’ at the very least.58 The police did not ‘adequately explore other

hypotheses’, but considered ‘ambiguous and even contradictory evidence as consistent with the accused’s guilt’.59 For example, in Case Uncle and Nephew

ZHANG, the police did not check video recordings made by security cameras, as

requested by the suspects, to show that they drove the truck to leave the crime

scene before the rape’s occurrence. Another example is Case SHE Xianglin, who

was presumed to be guilty by police investigators mainly because they identified

the dead body found in a pond of the township as his missing wife, he confessed

when they used torture to collect evidence and all murder cases must be solved. In

order to seek more convictions and promote their achievements, the biased police

often ignore alternate explanations on confessions and use them as evidence for

conviction.

The common threads joining the above eight misjudged cases were that the suspects involved were presumed guilty by the police and that the police investigating

these cases suffered from confirmation biases. These flaws led the police to illegally extort evidence through torture, which was later used during trials and

appeals. Wrongful convictions, in light of the presumption of guilt and the presence of confirmation bias, have shown some of the very obvious shortcomings of

the Chinese rules of evidence in law and practice. A lack of other evidence and a

forced confession, a situation common to many Chinese criminal trials, often

changes mutual restraints of the police, the prosecution and courts into an ‘assembly-line’ excluding any checks,60 with the police at one end, the prosecution next

and judges last, in which criminal injustice is the final product. This “conveyor



58Mike McConville et al., Criminal Justice in China: An Empirical Inquiry, Edward Elgar: A

Family Business in International Publishing, 2011, p. 358.

59Kent Roach, Wrongful Convictions in Canada, (2011) University of Cincinnati Law Review.

60As popular sayings encapsulated, this arrangement means that ‘the police cook the rice, the

prosecutor delivers the rice and the court eats it’, or ‘the prosecutor reads the paper, the defence

lawyer reads the paper, and the judge has already made up his mind’.



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belt” is ultimately powered by pressure from the local Political-Legal Committee

(PLC) to reach a verdict of guilt, even where the accused is innocent and the penalty is death. Where the accused can show doubt, authorities are much more likely

to seek a death sentence with a reprieve rather than an acquittal, in order to maintain a very high, indeed, almost a full conviction rate.61



3.3.2 Prosecutorial Misconduct

In practice, any forms of Chinese prosecutorial misconduct, either wrongly prosecuting criminals or improperly supervising police activities and court work, may

further lead to wrongful convictions. Chinese prosecutors, as public servants, are

supposed to mainly prosecute criminals and supervise the legality of police activities and court work, as per Article 129 of the 1982 Constitution. Much of their

work is equivalent to public prosecution in many other countries.

As indicated from studies of the above wrongful conviction cases, all of the

prosecutors involved did prosecute innocent suspects on the basis of their false

and coerced confessions under police torture. They failed to check police work

to exclude illegally obtained evidence in all of the above cases. For example, in

Case SHE Xianglin, the People’s Prosecutorate of Jingzhou City wrongly prosecuted him based on tortured confessions only and not facts or hard evidence.

Prosecutors neither checked or restricted the police used to obtain coerced confessions to prevent wrongful convictions, nor supervised the legality of court work to

remedy wrongful convictions in time. Such misconducts allowed false confessions

illegally obtained by police investigators to be used as evidence of guilt at trial and

in appeal, thus causing wrongful convictions. The relevant courts concluded that

SHE Xianglin killed his wife and committed the crime of intentional homicide. If

tortured confessions were excluded in the cases, wrongful convictions like that of

SHE Xianglin could have been prevented.

Moreover, prosecutors’ ignorance of evidence of innocence is another major

factor contributing to wrongful convictions62 in the above typical cases. For

instance, SHE Xianglin and his family had continued appealing to the authorities,

including prosecutors at diverse levels, but each time their efforts came to nothing,

given the prosecutors’ presumption of guilt rather than innocence. In December

1994, his mother heard the whereabouts of his wife at the Yaoling village where

local villagers and the village committee issued a proof letter of her survival, but

no law enforcement authorities or prosecutors admitted it as evidence. It was not

until April 2005, when the wrongly convicted SHE Xianglin was judicially



61See



Homicide must be detected, the insane being scapegoats? South Net (6 May 2010), available at: http://view.news.qq.com/a/20100511/000014.htm.

62See HE Jiahong and HE Ran, Empirical Studies of Wrongful Convictions in Mainland China,

80 U. Cin. L. Rev. (2012), available at:http://scholarship.law.uc.edu/uclr/vol80/iss4/11.



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exonerated, that prosecutors in Jingshan County finally organized a team to conduct comprehensive investigations into the process of approving whether to arrest

and prosecute SHE Xianglin. According to the investigative result, those prosecutors responsible for handling the wrongful conviction case were held accountable

for the innocent SHE Xianglin’s conviction.

If they neither took illegally obtained evidence of guilt for granted, nor ignored

reliable evidence of innocence, the innocent might not have been wrongly prosecuted or convicted in practice. It happened in the past, and also in the present as

well. But it is worthy of note that sometimes prosecutors might be forced to prosecute the innocent against law. For instance, in Case ZHAO Zuohai, despite the

lack of a clear identification of the dead body, the local People’s Procuratorate

approved the arrest of innocent ZHAO Zuohai in 1999 only and did not prosecute

him at all at that time, thus leaving him in extended detention until 2002 when his

case was submitted to the local PLC for cleaning up overtime custody.63 In fact, it

was ‘after the meeting of collective research on this case’ that the PLC ‘concluded

that the case had already possessed the conditions for prosecution’. Under the

pressure, prosecutors had to prosecute him against justice.

The above prosecutorial misconduct resulted from the coordination of local

PLCs. They are bodies that oversee the work of the police, prosecutors and courts

in each Chinese province, municipality, county or autonomous region. Also, the

oversight of PLCs is intended to be at a higher level than direct interference in

individual cases. But in practice, they did directly intervene in trial work and judicial decisions as showed in Case ZHAO Zuohai, Case SHE Xianglin, Case LI

Huailiang and Case CHEN Keyun, which limits judicial independence and further

increases the number of wrongful convictions. Between the police’s investigation

and courts’ trial, prosecutors have the power to decide whether to confirm or reject

the police’s allegations in prosecution, but often pay more attention to cooperation

with the police than to ‘mutual restraint’ in handling cases.

There is a remarkable feature of the above wrongful convictions, namely, ‘verdict first, trial afterwards’ (Xian Ding Hou Shen).64 In difficult cases, local PLCs

often organize the three bodies, namely, the police, prosecutors and courts, to

jointly handle cases so as to decide how to resolve controversial issues by means

of holding meetings, with ‘leaders from the three’ in attendance. Since the joint

handling of such cases tends to emphasize ‘coordinated operation’ and ‘uniform

command’, the prosecutors have had to prosecute potential innocents following

police investigation. It is a lack of prosecutorial restraint that largely led to the

above wrongful convictions in practice.



63See



Shi Yu, Driven Miscarriages of Justice, May 19, 2010, Southern City Newspaper, available

at: http://gcontent.oeeee.com/1/e3/1e328ebc91246864/Blog/a84/0dd815.html.

64Mike McConville et al., Criminal Justice in China: An Empirical Inquiry, Edward Elgar: A

Family Business in International Publishing, 2011, p. 6.



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Under the flawed mode of the Chinese justice system, furthermore, the three

bodies tend to cooperate with one another on the same line65 for combating

crimes. In this sense, investigation naturally becomes the central link of criminal

proceedings and the substantive method of identifying case facts. Consequently,

the role of prosecution in the discovery of facts is likely to be weakened and prosecutors cannot act as a check on the police, including by questioning their confirmation bias.



3.3.3 Ineffective Defence

Another factor leading to the above wrongful convictions has in some cases been

the ineffective assistance of unqualified or incompetent lawyers who defend the

accused. In fact, representation by incompetent or underprepared counsels cannot

prevent, but contributes to, such convictions.

As criticized by the official media, defence lawyers were neither adequately

trained to defend those facing the death penalty in complex trials or difficult cases,

nor sufficiently prepared before trial to conduct independent investigations into

the uncertainty of the evidence. Even if some false or coerced evidence could be

found, they were often unable to adequately refute the flawed evidence of guilt

against the innocent accused. Together with the propensity of judges to be prejudiced against the accused in these cases, it is essential for those potentially facing

severe punishments to have a qualified defense lawyer to provide them with effective legal aid in criminal proceedings.

Sometimes, even with a competent lawyer, it is still difficult for an accused to

raise the issue of a coerced confession, because doing so might be against his

attorney’s self-interest in practice. It is worthy of note that Article 306 of China’s

Criminal Law (CL)66 provides for both criminal liability and a prison term of up to



65See Yang Tao,



“What Progress Criminal Procedure Law Has Made From SHE Xianglin to ZHAO

Zuohai?”, Oriental Net (11 May 2010), available at: http://view.news.qq.com/a/20100511/000002.

htm.

66See Criminal Law of the People’s Republic of China, Adopted by the Second Session of the

Fifth National People’s Congress on July 1, 1979 and amended by the Fifth Session of the Eighth

National People’s Congress on March 14, 1997, available at: http://www.fmprc.gov.cn/ce/cgvienna/eng/dbtyw/jdwt/crimelaw/t209043.htm.

In the above Criminal Law, Article 306 states that “[D]uring the course of criminal procedure,

any defender, law agent destroys, falsifies evidence, assist parties concerned in destroying, falsifying evidence, threatening, luring witnesses to contravene facts, change their testimony or make

false testimony is to be sentenced to not more than three years of fixed-term imprisonment or

criminal detention; when the circumstances are severe, to not less than three years and not more

than seven years of fixed-term imprisonment.

If witnesses, testimonies, or other evidences provided, shown, used by a defender, law

agent are not true but are not falsified purposely, they do not fall into the category of falsifying

evidences.”



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seven years for defence lawyers who entice their clients to change their testimony

against facts or to give false testimony. While its overarching purpose, to ensure

that lawyers do not encourage their clients to lie, is laudable, Article 306 has been

frequently abused by police officials and prosecutors to intimidate defense counsel

from questioning the validity of any confession, even those obviously obtained by

torture.67 Regrettably, the above abuse increases counsel’s professional risk and

even remains an incentive for them to advise their clients not to recant confessions

at trials, because of a fear that they may face criminal prosecutions in defending

justice. This abuse makes it difficult for criminal suspects to adequately use legal

assistance to defend themselves, as is required by international standards.

For example, in the above cases, both defence lawyers and the accused encountered difficulties in accessing favorable evidence of factual innocence, at any stage

of the criminal process, even when such evidence was not actively withheld by

judicial bodies. By Chinese legislation, lawyers are unable to be present at the initial police interrogation during investigation and thus have no chance to collect

direct evidence of the use of illegal ways to extort a confession. The legal duty to

tell the truth68 combined with inadequate methods for the exclusion of unlawful

evidence, e.g. evidence obtained through torture, tends to leave much room for

compelling a suspect to testify against himself or confess guilt. Given this ease

with which police officials can extract false confessions, Chinese prosecutors have

come to rely such confessions when making their cases, even when they know that

such confessions have been actually extracted through torture.

In most circumstances, it seems to be difficult for the accused to successfully

exercise the right of appeal in the proper period following the sentence. Together

with the obstacles defence lawyers face in meeting with their clients, it is often

very hard for an accused facing detention while awaiting the death penalty to

obtain any assistance in exercising their right of appeal. The limits on meetings

between defense lawyers and the accused appear to obstruct the lawyers in helping

those facing the death penalty with a suspension of execution to effectively exercise this right.

Additionally, the use of extrajudicial punishment against those who appeal the

sentence of others largely increases the difficulty of assisting those facing severe

penalties. For example, SHE Xianglin had to give up his appeal after learning

that his mother died of despair due to the ill-treatment she suffered after being

arrested for continuously petitioning and asserting his factual innocence. Even if



67After



a high-profile case representing an organized crime syndicate in Chongqing, criminal

defense attorney LI Zhuang was charged with violating Article 306 of the CL by advising his

client to recant his confession on the basis that it was obtained through torture. LI Zhuang was

eventually found guilty and sentenced to one year and six months in prison in 2010.

68Article 48 of the 1996 CPL states that ‘[E]very person who has information about a case shall

have the duty to testify’ and that ‘[p]ersons with physical or mental defects, minors who cannot

distinguish right from wrong or persons who cannot properly express themselves shall be disqualified as witnesses.’



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it should be very easy for the innocent to reverse guilty verdicts on the basis of

unclear facts or insufficient evidence, the possibility that they or their family may

be tortured should they try to exercise their right of appeal may cause them to lose

courage and accept the wrongful conviction. Facing the death penalty, for instance,

the innocent ZHAO Zuohai finally decided to withdraw his appeal against his conviction or sentence to the second-instance HPC, and not petition to other authorities for a legal remedy to his wrongful conviction, because he preferred to serve a

harsh sentence and wait until release before appealing, rather than be tortured in

custody.

Moreover, such wrongful conviction cases have revealed the limits of an adversarial system distorted by inadequate defense representation.69 They often lead to

‘unwarranted concessions and guilty pleas’, as the system ‘places the accused at

the mercy of his or her lawyer’.70 In this sense, state officials like prosecutors

should act properly to initiate review processes or trial supervision in order to discover the truth by challenging the process of forming evidence and the reliability

of convictions, even if the accused has given up his or her appeal. Both counsel’s

adequate defence representation and a proactive state’s reliable truth-seeking are

thus needed in the process of error-correction, particularly in jurisdictions with the

adversarial system, like China.



3.3.4 Forensic Misconduct

Forensic misconduct in China appears to be another important cause of the abovementioned wrongful convictions, as it is in many developed countries.71 In

response to the danger of such convictions, the collection and production of forensic evidence should be strictly regulated to reduce or avoid mistakes, especially

where DNA evidence is neither available nor reliable.

But in fact, investigators, prosecutors and judges have assumed that the kind of

evidence offered by the state was infallible in China, despite the defence’s assertion of factual innocence and arguments against confessions at trial. As demonstrated in the above cases, there was no necessary DNA testing used during initial

trials in the recent cases, whereas the five new ones mainly included the abuse of

expert evidence and false expert testimony, either in submissions by the police or

in examination by any of other justice institutions. Finally, DNA evidence was



69Kent



Roach, Wrongful Convictions: Adversarial and Inquisitorial Themes, N.C. J. INT’L L. &

COM. REG. 2010, 402.

70See Daniel Givelber, The Adversary System and Historical Accuracy: Can We Do Better?, in

WRONGLY CONVICTED: PERSPECTIVES ON FAILED JUSTICE 253, 255–58 (SAUNDRA

WESTERVELT & JOHN HUMPHRYS eds., 2001).

71See generally Bibi Sangha, Kent Roach and Robert Moles, Forensic Investigations and

Miscarriages of Justice (2010) Chaps. 8 and 9.



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67



eventually admitted during retrial to exclude evidence of guilt in all cases, and

retrials were held when body feature evidence had been overthrown by the alleged

victims’ reappearance or their identification through DNA testing.

In Case SHE Xianglin, for instance, it was necessary for investigators to use

DNA testing to identify whether the dead body was in fact that of SHE Xianglin’s,

given the many doubts in this murder case. They should not have concluded that

the deceased was his wife, ZHANG Zaiyu, solely on the basis of body features like

height, as was done by the police in this case. Indeed, such reasoning is against any

of the CPLs. As ZHANG Zaiyu’s brother remembered, a legal medical expert said

that the body had been dead for about 80 days, given the degree of decomposition.

Such a time of death was consistent with the length of time for which the wife had

been missing.72 Then, ZHANG Zaiyu’s family proposed the use of DNA testing to

further confirm the identity of the corpse, but the local police asked them to pay

RMB 20,000 for her DNA testing because the police could not otherwise afford to

do so.73 No testing was actually performed until 2005.

Furthermore, according to an out-of-court statement by SHE Xianglin’s

brother, his family never saw the dead body. They asked the policemen how to find

out whether the dead body belonged to ZHANG Zaiyu. The responsible policemen

replied “on behalf of” the governmental authority that ‘it is not you to have the

final say, the government is certainly not wrong’.74 Hence, the dead body was

identified mainly on the basis of probable similarities in height and on the time

between the estimated time of death of the body and the disappearance of ZHANG

Zaiyu, rather than on more reliable scientific or eyewitness evidence obtained by

lawful means, e.g. the DNA testing that was later used for the judicial exoneration

of SHE Xianglin. This is obviously far from the requirements of legal standards on

criminal evidence enshrined in the 1996 CPL or 2012 CPL.



3.3.5 False Witness Testimony

In four of the eight cases, the accused were wrongly convicted based on false

testimonies reported by inmates or other witnesses. In Case Uncle and Nephew



72See



“Review: What do we expect from ‘She Xianglin Murder Case’” [pinglun; she xianglin shaqi an rang women qidai shenme], available at: http://news.enorth.com.cn/system/2010/05/13/004683261.shtml; see also “‘Murder’ Case Likely to be Retried in this Week,

Abuse of Power to Remand back for Retrial Being A Primary Reason”, China Net [zhongguo wang]

(4 April 2005), available at: http://www.southcn.com/news/community/fzzh/200504040476.htm.

73See “Why Wrongful Convictions Are Difficult To Be Found” [wei shenme yuan’an pingfan

nan], Southern City Newspaper, (12 March 2012), available at: http://nf.nfdaily.cn/epaper/nfds/

content/20120324/ArticelA02006FM.htm.

74See “‘Murder’ Case Likely to be Retried in this Week, Abuse of Power to Remand back for

Retrial Being A Primary Reason”, China Net [zhongguo wang] (4 April 2005), available at:

http://www.southcn.com/news/community/fzzh/200504040476.htm.



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ZHANG, the police used false testimony from ZHANG Gaoping’s inmate, YUAN

Lianfang. This false and coerced testimony, made under police officers’ orders

in 2004, directly led to the conviction of both innocent defendants of rape. But,

in 2008, the alleged witness who testified against them was found to have been

involved in another case in which a wrongful conviction resulted from his false

testimonies. As revealed, the false witness was induced to lie in exchange for a

promise from the police to reduce his sentence. Until false testimonies related to

both ZHANGs’ guilt were excluded, their wrongful convictions could not be overturned at a retrial based on compelling evidence of innocence.

Similarly, in Case LI Huailiang, the accused’s inmates provided false testimonies against him, which were used to wrongfully convict him of murdering

a young girl after raping her. The false evidence was later discovered and was

excluded from LI Huailiang’s retrial in 2013. By contrast, the wrongful convictions in Case Five Youths first resulted from a false police report. Even though

the informant, who claimed to be an eyewitness, never appeared at court and no

recording of her testimony during interrogation was ever created by law, five

innocent persons were still wrongly convicted in 1997 based on her false report,

together with their own false confessions given under police torture. It was not

until the true criminals were found sixteen years later that the false testimony was

finally excluded and the wrongful convictions were corrected after a retrial in

2013.



3.3.6 Trial Misconduct

Trial judges, who decide whether to admit or to exclude evidence offered by the

prosecution, should have played a significant and crucial role in excluding unreliable evidence from the criminal process. Unfortunately, the judges failed to do so.

Both the accused and defence counsel provided reasonable arguments as to why

they were innocent, but these arguments were frequently disregarded by courts at

trial. As indicated by the above cases, they also consistently maintained that they

had been subjected to police torture, but the judges disregarded their claims about

it and used the false confessions extorted by it to reach their conclusions.75

For instance, in Case LI Huailiang, the accused and his counsel proclaimed his

innocence at trial and argued for the exclusion of coerced confessions through torture, whereas the BPC still convicted him of murder, even though only flimsy or

insufficient evidence of his guilt was provided. Worse, local PLCs put great pressure on the relevant courts, which led the appeal court to sign a letter of guarantee

with the victim’s family to ensure that death sentences would be imposed on the

accused if possible. This letter was signed in order to prevent the victim’s family



75See “Belated Justice”, CHINA DAILY (22 November 2013), available at: http://usa.chinadaily.

com.cn/china/2013-11/22/content_17125546.htm.



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3 Primary Causes for Identified Wrongful Convictions in China’s Practice

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