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4 The Similarity of Causes for Wrongful Convictions in China and in the West

4 The Similarity of Causes for Wrongful Convictions in China and in the West

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3.4  The Similarity of Causes for Wrongful Convictions in China and in the West



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used even in cases where the innocent may be wrongly convicted or the accused

could face the death penalty, as revealed by the above wrongful convictions that

occurred from the 1980s to the 2000s.

Even though it is contrary to China’s most basic laws and to human rights in

general, torture or similar treatment remains popular in China because it is an

‘effective’ way to obtain confessions and to resolve cases in a speedy way. For

instance, the trials of WEN Qiang revealed continued torture used to obtain confession, though laws implemented in June 2010 exclude tortured confessions from

use in trial. The investigative organs often enhance the effectiveness of physical

evidence or witness testimony by attaining such a confession to establish or frame

a chain of evidence. In criminal cases where physical evidence is lacking, coerced

confession seems to ‘provide the police with the best source of information that

could lead to physical proof’.89 Police officers have generally considered torture

as the most efficient method to get an oral confession, which may include any

information they need, like the necessary details or location of physical evidence.

Given the pressure on public security agencies to control crime, some local

governments urge ‘investigatory entities to resolve the case in a short period and

create quotas for the resolution of cases that the police must meet’, which further

reinforces the police’s widespread use of torture.90 All of the above-mentioned

Chinese wrongful convictions indicated the relationship between torture and false

confessions or witness testimony, use of which directly caused such convictions.

Particularly during the anti-mafia campaigns,91 torture or coerced techniques often

became more enticing to local law-enforcement authorities than ever in certain

local areas. Unfortunately, such practices greatly increased a number of such convictions in capital cases related to the campaigns.

3.4.1.2 The West

As in China, there is tunnel vision in the West, as a single-minded focus on certain

traces that may “unreasonably color the evaluation of information received and

one’s conduct in response to the information”.92 When evidence of guilt is filtered

by investigators in a biased approach, the police investigation team fails to critically assess the evidence and ignores evidence of innocence. Together with



89Wu Xiaofeng, An Analysis of Wrongful Convictions in China, 36 Okla. City U.L. Rev. 451

(2011).

90See Yue Ma, The Powers of the Police and the Rights of Suspects Under the Amended Criminal

Procedure Law of China, 26 POLICING: INT’L J. POLICE STRATEGIES & MGMT. 490, 491

(2003).

91See Torture and Betrayal in Bo’s Chongqing, CHINA DIGITAL TIMES (12 December 2012),

available at: http://chinadigitaltimes.net/2012/12/torture-and-betrayal-in-bos-chongqing/.

92Sarah Harland-Logan, Guy Paul Morin, AIDWYC, available at: http://www.aidwyc.org/cases/

historical/guy-paul-morin/.



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3  The Similar Causes of Wrongful Convictions



institutional pressure to solve cases or any corruption of noble causes, the use of

dubious investigation practices further reinforces tunnel vision and leads to flawed

conclusions.

For example, police investigation in the US seems largely designed to confirm

that police suspects are criminals. Interrogations in the US are governed by judicially enforced constitutional limits93 instead of the detailed legislative codes that

prohibit torture in China. Nevertheless, there is limited potential for the defence to

discover or expose unreliable evidence produced by questionable police tactics.

Also, it is very difficult for them to prove that a confession is involuntary and

should be excluded in any stage of the criminal process. In the US, ‘there is no

specific requirement that police questioning be recorded’94 to prove that they were

conducted appropriately, like there is in China.

Even though the unreliability of identification evidence has been acknowledged

in wrongful death sentences, ‘the safeguards to prevent erroneous identifications

are both vague and extremely limited’ in the US.95 Constitutional rules only

require that identification procedures not be so ‘suggestive’ or ‘conducive’ to

‘irreparable mistaken identification’ as to go against the due process clause of the

Fifth Amendment to the US Constitution under the ‘totality of the circumstances’.96 Wrongful convictions in capital cases can be attributed to such criminal-justice system errors as misidentifications and false confessions. According to

the Death Penalty Information Center in the US, ‘the error rates in cases of capital

punishment are alarmingly high’,97 e.g., some states are estimated to have 7 %

error rates in death penalty convictions where the convicted were discovered to be

innocent of any capital crimes.98 Coerced confessions are not rare in the US or in

other Western countries.

During coerced interrogations, most of innocent suspects have to confess to

crimes that never happened or that they never committed, in the practice of the

Western systems of criminal justice. As duly noted by Justice Binnie, then a

Justice of the Supreme Court of Canada (SCC), those in detention or arrest might



93Lissa



Griffin, The Correction of Wrongful Convictions: A Comparative Perspective, American

University International Law Review 16, no. 5 (2001): 1241–1308.

94Lissa Griffin, The Correction of Wrongful Convictions: A Comparative Perspective, American

University International Law Review 16, no. 5 (2001): 1250; See State v. Scales, 518 N.W.2d

587, 589, Stephan v. State, 711 P.2d 1156, 1158.

95Lissa Griffin, The Correction of Wrongful Convictions: A Comparative Perspective, American

University International Law Review 16, no. 5 (2001): 1251.

96Stovall v. Denno, 388 U.S. 293, 302 (1967).

97Vincy Fon and Hans-Bernd Schaefer, State Liability for Wrongful Conviction: Incentive

Effects on Crime Levels, Journal of Institutional and Theoretical Economics, Vol. 163, No. 2,

June 2007; See James S. Liebman, Jeffrey Fagan, and Valerie West (2000), A Broken System:

Error Rates in Capital Cases, 1973–1995, available at: http://www2.law.columbia.edu/instructionalservices/liebman/index.html.

98See Death Penalty Information Center, at available at: http://www.initiative-gegen-dietodesstrafe.de.



3.4  The Similarity of Causes for Wrongful Convictions in China and in the West



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even be even ‘innocent of what is being alleged against them’,99 but their resistance can be worn down by police torture. Frequently, such interrogations end with

false and coerced confessions.100 For example, in the UK case of the Birmingham

Six, six men were convicted of carrying out pub bombings in 1974, four of whom

confessed to the crime during arrest after police intimidation and torture, e.g., the

use of dogs or mock executions.101 Their wrongful convictions were judicially rectified in 1991 following the discovery of police misconduct, like fabrication and

suppression of evidence.

Moreover, a lot of torture or misconduct cases resulted from US police misconduct, particularly from 1968 onward. In that year, the Chicago Police Department

initiated a “police riot” in implementing the Walker Report, thus promoting the

use of torture or misconduct when collecting testimony from suspects.102 In the

1990s, an incident of police misconduct involved 70 officers from the Los Angeles

Police Department. In 2008, several misconduct cases revealed police officers’

contradictory testimony,103 given under the pressure to prove their investigative

productivity.104 In 2011, the police officers wrongfully discharged their weapons

and covered it up with the help of another investigating officer.105

In Canada, more police misconduct cases were discovered over the past decade.

For example, in 2007, Robert Dziekan´ski was found to have tasered several times

during his arrest, leading to his death.106 In 2009, the Ontario Court of Appeal

overturned Romeo Phillion’s 1972 conviction after finding that a police report on

his clear alibi failed to be turned over to his defence lawyer at the first trial.107

Similarly, police torture or other forms of misconduct that led to wrongful convictions has been revealed by the media in many of other Western systems. There is

no exception to the West, e.g., US, UK, Australia, New Zealand, based on their

experience of such convictions in justice practice. It is no wonder that police misconduct has been a common factor contributing to wrongful convictions.



99R.



v. Sinclair.

R. v. Oickle, 2000 SCC 38.

101See Birmingham Six, available at: https://en.wikipedia.org/wiki/Birmingham_Six.

102See “Offices of Ukraine’s richest man attacked (1:08)”. Reuters.

103See Thompson, A.C.; Tom Jennings; Gordon Russell; Brendan McCarthy; Laura Maggi. “Law

& Disorder”. ProPublica, Frontline, The Times-Picayune. ProPublica. (4 September 2011).

104See Hauser C. When Evidence From Surveillance Cameras Leads to Charges Against Officers.

New York Times.

105See Thompson, A.C. (17 March 2011). “Feds Find ‘Systemic Violations of Civil Rights’ by

New Orleans Police Department”. ProPublica.org. (4 September 2011).

106See Fong, Petti (12 December 2008). “No charges in Taser death, B.C. Crown says”. The

Toronto Star. 13 December 2008; also See Petrovic, Curt (18 June 2010). “RCMP wrong to use

Taser on Dziekanski: report”. CBC News. August 2011.

107See Moldaver, J.A. (March 2009). “Her Majesty the Queen Respondent and Romeo Joseph

Phillion” (PDF). Court of Appeal for Ontario.

100179,



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3  The Similar Causes of Wrongful Convictions



3.4.2 Prosecutorial Misconduct

3.4.2.1 China

Chinese prosecutors’ main duties are to prosecute criminals and to supervise the

legality of police activities and court work under the current Constitution of the

PRC. The Criminal Procedure Law of the PRC (CPL), revised in 1996, also created the triangular system of three authorities, with the People’s procuratorate in

between the police and the judiciary of China.

Unfortunately, the police, the judiciary and the procuratorate often fail to exercise ‘mutual restraint’ over each other. Often, they actually form an ‘assemblyline’ model108 of close cooperation among police, the PP and courts, i.e. the police

provide evidence, and the prosecutor just unquestioningly provides it to the judge

who unquestioningly accepts it, leading to a conviction.109 This model deviates

from the legal requirements of proper prosecutorial conduct or effective judicial

supervision, which are essential to correct misconduct on the part of the other state

actors. The lack of effective supervision potentially leads to errors of justice in

practice.

For instance, in Case ZHAO Zuohai,110 given the lack of a clear identification

on the dead body, the local PP should not have approved of the arrest or prosecution of innocent ZHAO Zuohai, even though they were under pressure from the

local PLC111 to do so. It was ‘after the meeting of collective research on this case’

that the local PLC ‘concluded that the case had already possessed the conditions

for prosecution’, which weakened the ability of the prosecution and the trial judge



108Hualing Fu, Institutionalizing criminal Process in China, in Guanghua Yu (ed.), The

Development of the Chinese Legal System: Change and Challenges, Routledge, 2011.

109See Homicide Must Be Detected, The Insane Being Scapegoats? SOUTH (May 6, 2010),

available at: http://view.news.qq.com/a/20100511/000014.htm.

110SHE Xianglin was wrongly convicted of murdering his wife in 1994, and sentenced to death.

On appeal his sentence was later commuted to fifteen years. He was released from prison on

April 13, 2005 after a retrial based on the new evidence that his wife had turned up alive. Mrs.

SHE had run away from her marriage, and had married another man. SHE Xianglin was wrongly

imprisoned for eleven years. Mr. SHE and several family members were awarded compensation of $55,500 (450,000 Yuan) for wrongs committed against Mr. SHE and those family members by authorities (Several family authorities were jailed for advocating SHE’s innocence). See

Wrongly Convicted Database Record, She Xianglin (Zaiyu), available at: http://forejustice.org/

db/Xianglin--Zaiyu---She.html.

111See Central Politics and Law Commission of the Communist Party of China, available at:

http://en.wikipedia.org/wiki/Central_Politics_and_Law_Commission_of_the_Communist_Party_

of_China

Local PLCs are very powerful organizations responsible for political and legal affairs. Under

the leadership of the CPC Central Committee, all of local Party committees establish respective

PLCs to oversee legal enforcement authorities, including the police force.



3.4  The Similarity of Causes for Wrongful Convictions in China and in the West



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to accurately discover the facts.112 Obviously, prosecutors do not act as a check on

the police. A lack of prosecutorial restraint and effective supervision contributes to

such convictions.

Some of Chinese wrongful convictions were judicially discovered and corrected after the wrongfully convicted person had suffered through many years of

imprisonment, e.g., those in Case ZHAO Zuohai, in Case SHE Xianglin,113 and in

the above-mentioned new wrongful conviction cases as well. In 2013, the 2007

conviction of CHANG Qingfeng was overturned by the appeal court in Beijing.114

In 2014, the 2001 conviction of YANG Botao was rectified by prosecutors’ withdrawal of prosecution, following which NIAN Bin and XU Hui were exonerated

through acquittals in local courts, respectively after eight and sixteen years’

imprisonment.115 Unfortunately, some convictions cannot be discovered until after

the execution of the innocents, as occurred in the cases of NIE Shubin116 and

TENG Xingshan.117

3.4.2.2 The West

Like their Chinese counterparts, prosecutors in the West also have discretion over

who should be charged and over what offence with which to charge them. For

example, US prosecutors have the dual roles of being a ‘minister of justice’ who

represents the government to seek justice but also act as an adversary to the



112See Six Push Hands of the Misjudged Case of ZHAO Zuohai [Zhao Zuohai An De Liuda

Tuishou], Tengxun Review [Tengxun Pinglun] (11 May 2011), available at: http://view.news.

qq.com/zt/2010/zzh/index.htm.

113See The Media Summaries Major Wrongful Convictions that Were Rectified after the

Eighteenth Representative Conference of the Chinese Communist Party [meiti pandian shiba da

hou jiuzheng de zhongda yuanjia cuoan], (4 December 2014) available at: http://www.rmzxb.

com.cn/yw/fd/2014/12/04/414470_10.shtml.

114See SUN Xuyang, In Henan Province Case YANG Botao Was Not Proceeded with Sentences

to Be Remanded Back for Retrial Three Times [henan yang botao wu xiawen sanci bei panxing jun fahui chongshen], Southern City News [nanfang doushi bao] (11 February 2015),

available at: http://news.sohu.com/20150211/n408913022.shtml; also see A Graduate Had

Been Imprisoned for Ten Years: Being Forced to Fill Urine and Pinching His Lower Body for

Extorting Coerced Confessions [daxue sheng hanyuan ruyu shinian: bei qiangguan shiniao nie

xiati bigong], Southern City News [nanfang doushi bao] (26 February 2014), available at: http://

news.sina.com.cn/s/2014-02-26/120329568799.shtml?bsh_bid=355190714279008221.

115See Ten Major Chinese Wrongful Convictions in Recent Years [jinnian lai zhongguo shida

xingshi cuoan], available at: http://www.jsxb365.com/index.php/article/read/aid/353.

116See Nie Shubin—wrongly executed, Amnesty International (23 March 2008), available at:

http://www.amnesty.org.au/china/comments/11243/.

117See Woman allegedly ‘murdered’ reappears after ‘killer’ executed, Asia News/Agencies (17

June 2005), available at: http://www.asianews.it/news-en/Woman-allegedly-murdered-reappearsafter-killer-executed-3527.html.



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defendant.118 Although they have ethical duties to seek justice, there are dangers

when they act in an adversarial manner and respond to popular pressures to obtain

and sustain convictions.119

In federal cases, specifically, the Fifth Amendment to the US Constitution

requires felony charges be brought by a grand jury indictment, which is of little

actual meaning in death penalty cases, because the jury meets in secret and is usually entirely under the control of the prosecution. The grand jury procedure has

often been portrayed as ‘the combination of over-zealousness and unchecked discretion on one side, and routinized non-adversarialness on the other results in an

uneven playing field for most defendants, guilty or innocent’.120 Given the

extreme form of adversarialism inherent in Western culture, like US culture, certain partisan biases remain in the adversarial system in which the prosecutor

‘monopolizes the investigation of crime and dominates a criminal justice system

heavily influenced by his broad discretion in decision-making’.121

Although the Due Process Clause, as it is judicially interpreted in case law, is

the only limitation on US prosecutors’ broad discretion, reliance on the professional standards of prosecutors cannot limit their discretion. For example, there is

no legislative code to limit the abuse of the grand jury system in the US.122 Worse,

even when prosecutorial misconduct is established, US courts rarely grant relief

for their errors of justice, ‘absent a finding that the misconduct was outcome-determinative: in the absence of prejudice, that is, the conviction is undisturbed’.123

Similar to Chinese prosecutors, those in the West, if under pressure to win

cases, often made flawed conclusions during examinations for prosecution. In

order to play their quasi-judicial role, prosecutors in the West need to ask police

investigators hard questions to scrupulously evaluate the admissibility of evidence



118Comment



[1] to Model Rule 3.8 states that the prosecutor is not simply “an advocate” but also

a “minister of justice” who has “specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence; also see Berger v.

United States, 295 U.S. 78, 88 (1935).

119See Maurice Possley, Exonerated by DNA, Guilty In Official’s Eyes, Chicago Tribune, May

28, 2007; also see Keith Findley, Proceedings of the Conference on New Perspectives on Brady

and Other Disclosure Obligations: Whet Really Works: Report of the Working Groups on Best

Practices, 1 Cardozo L. Rev. 1961, 1974–1975 (2010).

120Lissa Griffin, The Correction of Wrongful Convictions: A Comparative Perspective, American

University International Law Review 16, no. 5 (2001): 1266; see Mark Baker, D.A.: Prosecutors

in Their Own Words 46 (Simon and Schuster 1999).

121Lissa Griffin, The Correction of Wrongful Convictions: A Comparative Perspective, American

University International Law Review 16, no. 5 (2001): 1266; See Yale Kamisar, Wayner. La Fave,

and Jerold H. Israel, Modern Criminal Procedure 1230 (8th ed. 1994).

122See e.g., Article 23 of the Prosecution of Offenses Act (1985); Articles 5(1) and 6(1) of the

Code for Crown Prosecutors (1994).

123Lissa Griffin, The Correction of Wrongful Convictions: A Comparative Perspective, American

University International Law Review 16, no. 5 (2001): 1267; see e.g., United States v. Olano, 507

U.S. 725, 734–35 (1993) and Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993).



3.4  The Similarity of Causes for Wrongful Convictions in China and in the West



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in order to better preventing wrongful prosecutions and subsequent erroneous convictions. But in practice, such prosecutors are easily susceptible to some systemic

factors, e.g., public pressure or anger, their dependence on questionable evidence,

maligning suspects as minorities, or close association with the police for a desired

common goal.

Such prosecutorial misconduct that led to wrongful convictions was widespread

in the US. In 1993, for instance, the 6th US Circuit Court of Appeals ruled that

John Demjanjuk was a victim of prosecutors withholding evidence at a 1986 trial,

similar to prosecutor Ken Anderson’s case.124 In the results-oriented process, fairness was damned.125



3.4.3 Ineffective Defence Representation

Theoretically, China and the West that share the same features of an adversarial

criminal system, which should institutionally depend ‘on the clash of two relatively equal opponents to yield a reliable result’, but ‘suffer from endemic, inadequate performance’ by the defense party.126 Particularly, a lack of proper defense

representation may increase the risk of wrongful convictions.

3.4.3.1 China

The problem of defence quality is especially acute when counsel is appointed by

court. Even in death penalty cases, law students or incompetent lawyers used to

be appointed as defence counsel in capital cases, especially in rural areas. Given

the very limited number of qualified lawyers available in China, e.g., there are no

lawyers in some counties of Western China, there is still much room left for courts

to appoint incompetent counsel to defend those facing the death penalty. As in any

country, representation by inexperienced defence counsel often leads to errors of

justice, including wrongful convictions. Even with a competent or qualified lawyer, it is still very difficult for those facing the death penalty to raise the issue of

coerced confessions because doing so would expose their defence attorneys to professional risk under Article 306 of China’s Criminal Law.

Article 306 specifies both criminal liability and an imprisonment term of up to

seven years for those enticing the accused to change their testimony contrary to



124See



Colloff, Pamela. “Jail Time May Be the Least of Ken Anderson’s Problems”. Texas

Monthly; see also Lindell, Chuck. “Judge finds that Anderson hid evidence in Morton murder

trial”. Austin Statesman. Cox Media Group.

125See available at: http://www.post-gazette.com/win/day1_1a.asp.

126Lissa Griffin, The Correction of Wrongful Convictions: A Comparative Perspective, American

University International Law Review 16, no. 5 (2001): 1259.



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established facts or to make a false claim. In practice, Article 306 has been frequently abused by law-enforcement authorities to intimidate defense counsel

from challenging coerced confessions in capital cases. This makes it difficult for

those facing the death penalty to have access to adequate or effective defence

representation. Recent cases of wrongful convictions reveal that an overdependence on defence representation is a limit of the adversarial system. In order to prevent wrongful convictions, China should urgently ensure that all court-appointed

defence lawyers are qualified and competent and should remove all laws that prevent lawyers from providing the best possible defence for their clients.

3.4.3.2 The West

As in China, ‘defense representation is characterized by the ‘routinization’ of

criminal cases in the West. For example, under American law, public defenders

seek concessions and guilty pleas from the people they represent, in order to expedite the vast majority (roughly 90 %)127 of criminal cases, including murder

cases,128 and decrease their workloads as well. In fact, a false confession or factual

inaccuracy in the guilty plea process may lead to more wrongful convictions, even

if wrongful death sentences or executions are avoided. In both China and the West,

wrongful convictions are caused when defence lawyers fail to adequately investigate the evidence in their cases, and when defence lawyers presume the guilt of

their own clients and fail to adequately interview and counsel their clients.

Many indigent accused in the West, including those facing the death penalty,

suffer from miscarriages of justice due to inadequate defence representation.

Specifically, some defense counsel rarely interview clients and even first meet

them ‘in the courtroom or in the pens outside’, without adequately discussing their

defence before trial.129 These practices deny ‘defense counsel the opportunity of

delving into the defendant’s background or his prior record, hinder the defense’s

development of a coherent theory of the case, and give the defendant virtually no

role in the plea bargaining process.’130 Moreover, defence counsels’ presumption

of their clients’ guilt often leads to ‘little scrutiny of the prosecution’s case’ or



127See Albert W Alschuler (1979), Plea bargaining and its history, Colum L. Rev. V. 79 (1),

01/1979, pp. 1–43.

128See David Greenwald, Wrongful Convictions and Plea Bargain: Why Innocent People

Sometimes Plead Guilty to Crimes They Did Not Commit, (30 May 2012), available at:

http://davisvanguard.org/index.php?option=com_content&id=5404:wrongful-convictionsand-plea-bargain-why-innocent-people-sometimes-plead-guilty-to-crimes-they-did-notcommit&Itemid=100.

129See Michael McConville and Chester Mirsky, Criminal Defense of the Poor in New York City,

15 N.Y.U. REV. L. & SOC. CHANGE 758, 779 (1986–87).

130Lissa Griffin, The Correction of Wrongful Convictions: A Comparative Perspective, American

University International Law Review 16, no. 5 (2001): 1263.



3.4  The Similarity of Causes for Wrongful Convictions in China and in the West



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‘almost no independent investigation’, with the actual guilt or innocence of the

accused a mere afterthought in practice.131

Hence, given the above common factors which contribute to wrongful convictions, it is essential for courts in the West or in China to only appoint lawyers who

are qualified and of the highest caliber to defend those possibly facing the death

penalty. The consequences of failing to do so can be monstrous and irreversible in

the criminal justice practices of the West or China.



3.4.4 Improper Use of Evidence

Improper use of evidence is another major factor that leads to wrongful convictions in both China and the West, even given the processes to prohibit such abuses

and exclude illegally obtained evidence in capital cases. While the procedures for

excluding evidence differ in each jurisdiction, they are generally ineffective at preventing wrongful convictions based on unreliable evidence.

3.4.4.1 China

In China, there has not yet been a case where illegally obtained evidence has been

successfully excluded under the current 2012 CPL or the Rules Concerning

Questions about Exclusion of Illegally Obtained Evidence in Handling Criminal

Cases (2010 Exclusionary Rules). Misuse of evidence is actually widespread in

China’s justice practice, the most egregious of which is the use of false confessions obtained through torture or other illegal means. Although further reforms on

evidence rules have emerged, such as the taping or video recording of interrogations132 and the occasional presence of lawyers during interrogation,133 the actual

effect of these reforms seems to be minimal ‘as the police have found ways around

the measures’.134



131Michael McConville and Chester Mirsky, Criminal Defense of the Poor in New York City,

15 N.Y.U. REV. L. & SOC. CHANGE 762 (1986–87).

132See “China improves laws to ban exacting of evidence through torture: white paper”, Xinhua

English (October 9, 2012), available at: http://english.sina.com/china/2012/1008/514196.html.

133Article 36 of the 2012 CPL states that ‘[D]efence lawyers can provide legal aid for criminal

suspects during investigation; represent petitions, complaints; apply for changing compulsory

measures; to inquiry investigation organs about suspected crimes and the situation relevant to the

case, as well as putting forward opinions.’

134See Randall Peerenboom, Out of the Pan and into the Fire: Well-intentioned but Misguided

Recommendations to Eliminate All Forms of Administrative Detention in China, 98 Nw. U. L.

REv. 991, 1094–96 (2004).



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For example, police often edit out any evidence of abuse from the recordings of

the interrogations and use their discretion to exclude defence lawyers during interrogation. Furthermore, not only do police officers often ‘use very sophisticated

forms of torture’ in extorting confessions from the accused,135 both the public and

authorities have generally accepted such soft torture as mere ‘violence and menace’ that does not pose the ‘possibility of seriously violating justice’.136 Such “soft

torture” is considered an acceptable way to obtain material or documentary evidence.137 This acceptance is an indication of the lingering presumption of guilt

that is deeply entrenched in Chinese legal culture. This presumption often leads to

the inclusion of illegally obtained evidence in China’s justice practice.

Moreover, the burden of proof in China’s capital cases is actually far from the

‘beyond a reasonable doubt’ standard used in the Western justice systems. Biased

judges are often willing to accept questionable evidence as proof of guilt.138 The

use of evidence that is questionable on the basis that it was obtained illegally

removes the protection that the high standard of criminal proof affords.

Consequently, there is ‘too much room for wrongful convictions’ in capital cases.139

3.4.4.2 The West

Even in the West, improper use of evidence greatly increases the risk of wrongful

convictions. For example, the American exclusionary rule is increasingly riddled

with exceptions, based on the good faith of the police. Although the Miranda rule,

set down in a 1966 Supreme Court decision, excludes as illegal evidence the use of

oral confessions from suspects unaware of their right to silence,140 the exception

of ‘public safety’ elastically allows the use of statements made without advice,141

and recent cases further erode Miranda to show the downside of its shrinking

135Wu Xiaofeng, An Analysis of Wrongful Convictions in China, 36 Okla. City U.L. Rev. 485

(2011); see Margaret K. Lewis, Controlling Abuse to Maintain Control: The Exclusionary Rule

in China, 43 N.Y.U. J. INT’L L. & POL. 665,674 (2011).

136Article 43 of the 2012 CPL; Article 14 of the 2010 Exclusionary Rules.

137See Article 54 of the 2012 CPL states that ‘criminal suspects’ or defendants’ confession collected by torture and other illegal methods and witnesses’ testimony and victims’ statements

under violence, threat and other illegal methods should be excluded. Material evidence and documentary evidence collected in conflict with statutory procedures, which may seriously affect the

justice, should be corrected or explained in a reasonable way. Otherwise, such evidence should

be excluded…’.

138See Jennifer Smith and Michael Gompers, Realizing Justice: The Development of Fair Trial

Rights in China, 2 CHINESE L. & POL’Y REv. 302 (2007); also see Henry R. Zheng, The

Evolving Role of Lawyers and Legal Practice in China, 36 AM. J. COMP. L. 473,473–74 (1988).

139Wu Xiaofeng, An Analysis of Wrongful Convictions in China, 36 Okla. City U.L. Rev. 465

(2011).

140Miranda v. Arizona.

141See Stigall, Dan E., Counterterrorism and the Comparative Law of Investigative Detention.

Amherst, NY: Cambria, 2009.



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scope.142 Since the ‘Miranda rights’ enshrined in US law emphasize that ‘suspects

have the right to remain silent’, improper use of evidence by the local police that

was collected contrary to the Miranda rule has been one of factors contributing to

wrongful convictions in capital cases.

But, unlike China, the US prosecution’s suppression of exculpatory evidence,

rather than police torture, tends to be the ‘dominant and recurring factor’ leading

to wrongful death sentences.143 This difference results from the fact that US

‘courts have placed the duty of disclosure on prosecutors’ and that the US ‘police

have no duty to secure, list, or retain exculpatory evidence’.144 In fact, there is little incentive for the US prosecution to disclose exculpatory evidence without a

‘general obligation to disclose the evidence it intends to use to establish guilt’.145

The Due Process Clause of the US Constitution only mandates that prosecutors

disclose ‘material’ exculpatory evidence. ‘Materiality’ is ‘defined solely by whether

there is a reasonable probability that the nondisclosure affected the result’.146 Under

the US’ ‘materiality’ standard, it is no wonder that ‘the nondisclosure of substantial

impeachment evidence, exculpatory but inadmissible evidence, and evidence that in

hindsight might be deemed cumulative [evidence of innocence], provides no

relief’.147 Hence, the greater the amount of undisclosed exculpatory evidence, the

greater the likelihood of a wrongful conviction in American justice practice.

Mistaken eyewitness identification is a leading cause of wrongful convictions in

the West. A study by the US-based Innocence Project of 333 post-conviction DNA

exonerations found that a staggering over 70 % of those cases involving wrongful

convictions involved eyewitness misidentification testimony.148 Even with safeguards in the system, as in Canada, the inherent frailties of eyewitness identification

are accepted to be a real and substantial cause of such convictions. In the US, one

142See Berghuis v. Thompkins, 560 U.S. (2010); Davis v. US, 131 S. Ct. 2419 (2011); Herring v.

US, 555 U.S. 135 (2009); Hudson v. Michigan, 547 U.S. 586 (2006).

143Lissa Griffin, The Correction of Wrongful Convictions: A Comparative Perspective, American

University International Law Review 16, no. 5 (2001): 1263; See also JAMES LIEBMAN,

JEFFREY FAGAN & VALERIE WEST, A BROKEN SYSTEM; ERROR RATES IN CAPITAL

CASES, 1973–1995, (2000), at 265; Ken Armstrong and Maurice Possley, Trial and Error: How

Prosecutors Sacrifice Justice to Win, CHI. TRIB., Jan. 10, 1999, at C1, p. 9.

144See Criminal Procedure and Investigations Act, Code of Practice, 1996, paras. 3.1, 4.1, 5.1;

Stanley Z. Fisher, Just the Facts, Ma’am: Lying and the Omission of Exculpatory Evidence in

Police Reports, 28 NEW ENG. L. REv. 1, 52, 53 (1993).

145Lissa Griffin, The Correction of Wrongful Convictions: A Comparative Perspective, American

University International Law Review 16, no. 5 (2001): 1255.

146Lissa Griffin, The Correction of Wrongful Convictions: A Comparative Perspective, American

University International Law Review 16, no. 5 (2001):1255; See Bagley, 473 U.S. at 682; Ky-les,

514 U.S. at 434.

147Chapman v. California, 386 U.S. 18, 24 (1967); Kotteakos v. United States, 328 U.S. 750,

764–65 (1946), United States v. Olano, 507 U.S. 725, 734-35(1993); Brecht v. Abrahamson, 507

U.S. 619, 637–38 (1993).

148See DNA Exonerations Nationwide, Innocence Project, available at: http://www.innocenceproject.org/free-innocent/improve-the-law/fact-sheets/dna-exonerations-nationwide (October 26, 2015).



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4 The Similarity of Causes for Wrongful Convictions in China and in the West

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