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2 The Beginning of the Movement for the Prevention of Wrongful Convictions: 2005–2009

2 The Beginning of the Movement for the Prevention of Wrongful Convictions: 2005–2009

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8  Problems and Prospects: China’s Response to Wrongful Convictions



8.3.2 Deep Flaws in the Justice System

The safety net for the prevention and remedy of wrongful convictions seldom

works as it should, mainly due to the deep flaws that extend to the very root of

China’s justice system. In the authoritarian party-state, the police, procuratorates

and courts should have distinct roles in the justice system, but have turned into an

“assembly line” that begins with the police at one end, the procuratorate next and

courts last.52 On this line, the initial input is often a forced confession and the final

product is usually a wrongful conviction. This “conveyor belt”53 is powered by

pressure from the local PLCs, which often leads to verdicts of guilt in practice.54

The Chinese justice system is based on a balance of powers between the three

main state actors that still take combating crimes and maintaining stability as their

ultimate goals in the current political-legal environment.55 In theory, each branch

of justice institutions should act as a check on the other two by correcting their

mistakes and restraining their excesses, in order to reduce and rectify wrongful

convictions. Unfortunately, the close co-operation between all three branches prevents them from fulfilling their intended roles in the justice system, with too much

coordination by local PLCs and a lack of effective constraints. Their filtering functions, for example, the screening out of doubtful cases during investigations, prosecutions or trials, are severely weakened and even neglected, such that remedies

cannot correct errors at any stage of the process. Even if the innocent was forced

to confess guilt, the procuratorates, when left unchecked, still prefer to proceed to

prosecute, and courts yield to convictions.

The flawed net to prevent wrongful convictions has its roots in the performance

indicators that are used to evaluate officials by the local PLCs. For example, police

are evaluated on the rate at which they identify potential suspects for crimes, the

rate at which the arrests they make are approved by the procuratorate and on the

rate at which those they accuse are convicted in court. The ideal state of equilibrium between the aforementioned state organs has changed a system premised on

co-operation and mutual restraint into an imbalanced and ineffective regime lacking in internal and inter-institutional audit. Police officers who know of the prohibition against torture would rather risk being sanctioned contingently for

violations than receive a poor rating for their ability to solve cases. Most of the

time, torture is a high-benefit, low-risk approach to obtaining a conviction, especially given the merely symbolic penalties that are applied in the rare cases where



52See Na JIANG, “The Adequacy of China’s Response to Wrongful Convictions”, 4 International

Journal of Law, Crime and Justice 2013.

53Herbert L. Packer, Two Models of the Criminal Process, 113 U. PA. L. REv. 1964 (1): 11.

54Paul Mooney, “The ‘Hotpot’ Culture that Gives Chongqing Its Murky Image”, South

China Morning Post (11 April 2010), http://www.scmp.com/article/711145/hotpot-culturegives-chongqing-its-murky-image.

55See Michelle MIAO, “The Politics of China’s Death Penalty Reform in the Context of Global

Abolitionism”, 53 BRIT. J. CRIMINOL 2013: 500.



8.3  Deep Flaws in the Justice System: Institutional Problems



247



police are punished for torture.56 The procuratorates, which in China are designed

to audit the work of the police or the courts are also responsible for excluding illegally obtained evidence, but often fail to carry out their statutory duties because

doing so would have a negative effect on their performance indicators.57 Under the

huge pressure of achieving “full conviction rates”, partly linked to granted funds,58

the procuratorates tend to follow the powerful police that actually control the

“assembly line” to prosecute for uncontested crimes, in a manner similar to how

courts make decisions at trial and on appeal. This threatens ‘the whole institutional

edifice’ on which the ‘process rests and cast grave doubts upon the overarching

system to which it pays tribute’.59 The criminal justice system seems ‘subordinate’60 to the actual need for crime control.

Facing the tainted evidence and process, Chinese judges have to ‘co-ordinate’

with many leaders and bureaucratic agencies, including local government officials,

and the relevant PLC as ‘the body that ultimately manages all the state criminal

justice institutions’.61 In this sense, ‘the die is already cast and any residual

doubts’ on the acccused’s guilt hardly prevail before the judicial/trial committee as

the most authoritative body of deciding cases in court, court presidents or the local

PLCs.62 Worse, in most areas of China, the heads of PLCs also serve as police

directors. Given ‘supervision and subordination outside the courtroom’,63 Chinese

judges with doubts about a prosecution or conviction are still struggling with

obstacles to correcting or preventing errors. Hidden behind a highly bureaucratic

process, the deeply flawed ‘instruction’ system interferes with justice and rarely

grants judges permission to impose ‘a verdict of innocence in a case that has

reached the trial stage’.64

Apart from the party-state’s leadership, courts need to follow ‘prevailing public

opinions in high-profile cases to pacify public indignation’, so as to unify social,

56See



Ira Belkin, “China’s Tortuous Path toward Ending Torture in Criminal Investigations”, 24

Columbia Journal of Asian Law 2011 (2).

57See JEFF CHINN, “Intl. Wrongful Convictions—China Suspects Presumed Guilty Before

Trial”, THE CALIFORNIA INNOCENCE PROJECT (CIP) (20 May 2013), http://californiainnocenceproject.org/blog/2013/05/20/intl-wrongful-convictions-china-suspects-presumed-guiltybefore-trial/; also see Mark Godsey, “Successful Wrongful Convictions Conference in China

Held August 6–8, 2012”, (12 August 2012), http://wrongfulconvictionsblog.org/2012/08/21/

wrongful-convictions-conference-in-china-held-august-6-8-2012/.

58See “China has 99.93 per cent conviction rate”, Canberra Times (10 March 2014), http://article.

wn.com/view/2014/03/10/China_has_9993_per_cent_conviction_rate_5/.

59Mike McConville et al., Criminal Justice in China: An Empirical Inquiry, Edward Elgar

Publishing (2011), 447.

60Mike McConville, “Comparative Empirical Co-ordinates and the Dynamics of Criminal Justice

in China and the West”, in Mike McConville et al. (eds.) Comparative Perspectives on Criminal

Justice in China, Edward Elgar Publishing (2013), p. 51.

61Ibid., 379.

62Ibid., 441–445.

63Ibid., 451.

64Ibid., 452.



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political and legal effects together.65 Sometimes, they may convict the innocent

due to the mounting pressure from the public, albeit many other factors contribute

to the wrongful convictions.66 Even if populist intervention directly resulted in

such convictions, judges have to use their political wisdom to decide whether to

correct them or not at retrial, for the so-called well-balancing of criminal justice

and public opinions. In a conflicting institutional environment, criminal trials

become public forums where various forces compete and local PLCs seek for

political and social stability by pressuring courts to ease public resentment that

undermines confidence in the ruling regime.67

As demonstrated above, the deep flaws in China’s principle justice institutions

mainly relate to the Chinese Communist Party’s influential PLCs. Recent justice

reforms have been rendered symbolic because they have not actually affected the

PLCs. Unless reforms towards justice are allowed to heavily influence the PLCs’

political governance, the party-state will not loosen its grip over courts that seek

justice at the last line of defence, not to mention making the “safety net” to prevent and remedy wrongful convictions workable in China. In fact, ‘torture, ill

treatment and extracted confessions are the norm’68 in sensitive cases, but only a

subset of cases, such as high-profile convictions that incite popular anger, become

the focus of China’s active reform efforts. Clearly, deep flaws in the justice system

require mending, which will amplify the effect of justice reforms and satisfy the

ruling party’s aim, such as long-term control or good governance.69



8.4 To Fill in the Justice Gap: The Need for Institutional

Solutions

In order to mend the flaws reflected in wrongful convictions, a range of reform

measures were proposed in the Central PLC’s Guideline and the SPC’s Directive

in 2013. Both attempt to fill in the gap between the law as it is written and the

law as it is actually put into practice, particularly, focusing on building a more

65Michelle MIAO, “The Politics of China’s Death Penalty Reform in the Context of Global

Abolitionism”, 53 BRIT. J. CRIMINOL 2013: 500.

66See “Last Year All Murder Cases were Solved for the First Time with 90 % of them Solved in

One Week” [wuhan qunian shoudu shixian ming’an quanpo 90 % ming’an yizhou nei gaopo],

XINHUANET (2 January 2014), http://news.xinhuanet.com/yzyd/legal/20140102/c_125946042.

htm?prolongation=1.

67See Gries PH & Rosen S, Chinese Politics: State, Society and the Market. London and New

York: Routledge (2010).

68See David McKenzie and KJ Kwon, “China’s Push to Reform its Maligned Court System Met

with Skepticism”, CNN (15 August 2013), http://www.cnn.com/2013/08/14/world/asia/chinajudicial-system/index.htm.

69Pitman Potter, “The Chinese Legal System: Continuing Commitment to the Primacy of State

Power”, 155 The Chinese Quarterly 1999: 681.



8.4  To Fill in the Justice Gap …



249



professional judiciary in which legal processes are observed and rulings are made

based on sound evidence. However, the ultimate political control over courts,

police and prosecutors is too deeply entrenched to be overturned by a Directive.

The deep flaws in the justice system demand institutional solutions to close the

gap between the law and reality.



8.4.1 Why Close the Justice Gap?

An examination of Case Uncle and Nephew ZHANGs, Case Five Youths and Case

CHEN Keyun reveals why the 2012 CPL is insufficient to remedy wrongful convictions in capital cases. The reforms contained in the 2012 CPL have not been

properly implemented. As with previous reforms, they are present in the law as

written but have not actually been put into practice. The main problems exposed

were police torture leading to false confessions, false witness testimony, the abuse

of forensic evidence, prosecutorial misconduct, passive judges and extra-judicial

factors. As with many other cases, these wrongful convictions were not rectified

until water-tight evidence of the accused’s factual innocence became available,

because biased police presumed the suspects’ guilt, prosecutors sought for a conviction without much oversight and judges never corrected errors. Most of these

practices are contrary to what was required by the 1996 CPL then in effect and

reveal the poor implementation of that law. Alas, the legislative shortfalls in the

CPL as written also contributed to wrongful convictions, albeit as secondary problems in closing the gap.

To effectively prevent wrongful convictions in China through current legal

mechanisms, the defence should be allowed to cross-examine prosecution witnesses so as to demonstrate when their testimony is false. Regrettably, there is

basically no full or effective cross-examination guaranteed in actual implementation of the 2012 CPL. Together without any independent or professional agency,

like the Criminal Cases Review Commission in UK,70 to help the wrongly convicted in China, it is especially difficult for the defence to effectively produce

strong evidence of innocence in court.71 Even if they can produce such evidence, it

is still highly unlikely for them to obtain judicial rectification of wrongful



70See



“CRIM. CASES REV. COMMISSION”, http://www.ccrc.gov.uk/index.htm; also see Rob

Warden, “The Revolutionary Role of Journalism in Identifying and Rectifying Wrongful Convictions”,

70 UMKC L. REV. 2002: 803.

71See Ma Guoshun and Wen Jie, “25 Years of Petition of a Wrongful Convicted” [Yige Mingyuan

zhe de 25 Nian Shensu Lu], GANSU RIBAO (28 January 2011), http://gsrb.gansudaily.com.cn/

system/2011/01/28/011873009.shtml.



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8  Problems and Prospects: China’s Response to Wrongful Convictions



convictions, without help from influential organs, such as the local PLCs,72

People’s Congresses73 and the media,74 to prompt courts to rectify them.75

In fact, the discovery of wrongful convictions in China largely relies on chance,

such as true murderers’ reappearance76 or supposed victims coming back “from

72See Fang Sanwen, Zhao Jianwu & Zhang Ainong, “An Innocent Young Man Was Tortured

to Confess and Sentenced to Death Penalty, Who Knows How the Serious Erroneous Case

Ends” [Wugu Qingnian qu da Cheng Zhao bei pan Sixing Yunnan Teda Yuanan Jiujing Ruhe

Shouchang], NANFANG ZHOUMO (15 May 1998), http://simon7217.blog.163.com/blog/

static/20028200571649220/.

73See



Liu Zhuo & Qi Chongzhun, “A Tough-Minded Mother Petitioned for Eight Years:

My Son Is Innocent and Should Not Be Executed” [Jianqing Muqin ba Nian Shangfang:

Wo er Wuzui Qiang xia liu Ren], FAZHI ZHOUBAO (3 July 2006), http://news.163.

com/06/0703/12/2L40794300011229.html.

74See Liu Shuang, Wang Zhendong & Gu Ran, “The Investigation of a Wife Murder Case that

Occurred 19 Years Ago” [19 Nian sha qi yi an Diaocha], XIN WENHUA BAO (25 July 2005),

http://news.sina.com.cn/s/2005-07-25/15476524049s.shtml; also see Xiao Rui, “The Wrongful

Conviction of Hao Jinan” Becomes “The Model of Rectification”, [“Hao Jinan Yuanan”

Cheng “Jiucuo Dianfan”], NEW BEIJING NEWS [XIN JING BAO] (4 February 2008), http://

www.360doc.com/content/08/0204/10/142_1026062.shtml.

75See Li Yanhong, “A Man Convicted of Rape Was Wrongfully Imprisoned for Nine Years”

[Nanzi Zaoyu Qiangjian Ruyu Niunian], YANZHAO DUSHI BAO (20 July 2007), http://news.

sina.com.cn/s/l/2007-07-20/021912237000s.shtml; see also Zhao Limin, Zhao Fang and Zhang

Hongliang, “The Whole Story of the Exoneration of Xu Jingxiang” [Xu Jingxiang Chonghuo

Ziyou de Qianqianhouhou], JIANCHA RIBAO (13 April 2005), http://club.kdnet.net/dispbbs.asp

?id=3167112&boardid=1&page=1&1=1#3167112; also see TIM, “The Murder Case of Huang

Yaquan and Huang Shengyu of Wanning Couty, Hainan Province” [Hannan Sheng Wanning

Xian Huang Yaquan Huang Shengyu Guyi Sharen An], TIM Shequ [TIM Community] (14 April

2007), http://tm9mt.blog.sohu.com/42030039.html; also see “A Man of Hainan Province Who

Was Sentenced to the Death Penalty with Reprieve 10 Years Ago Was Declared to Be Innocent

in a Retrial” [Zhongshen pan Sihuan Zaishen pan Wuzui Qiong yi 10 Nian Chen Yuanan

Zhong Zhaoxue], HAINAN TEQU BAO (7 January 2004), http://www.hq.xinhuanet.com/

hainan/2004-01/07/content_1466778.htm.

76HUANG Shiyuan, “Chinese Wrongful Convictions: Discovery and Rectification”, 80 U. Cin.

L. Rev. (2012); see Guo Guosong and Zeng Min, “Is There Still a Justice Bao: The Letters of

Dui Peiwu Written on Death Row Move People to Tears” [Shishang Haiyou Baoqingtian

ma—Du Peiwu de “Siqiu Yishu” Cuirenlexia], NANFANG ZHOUMO (24 August 2001),

http://news.sohu.com/36/45/news146364536.shtml; also see Peng Xiancai & Shi Jiasan,

“The Whole Story of the Wrongful Conviction Case of Dui Peiwu” [Dui Peiwu Cuoan de

Qianqianhouhou], DIANCHI CHENBAO (8 November 2000), http://unn.people.com.cn/GB/

channel23/176/842/200011/08/6165.html; also see “A Farmer of Henan Province Has Been

Wrongfully Imprisoned for 10 Years and One of His Spleens Was Resected as a Result of Torture”

[Henan Nongmin Mengyuan Ruyu 10 Nian zao Xingxun Bigong Pizang bei Zha], ZHONGGUO

QINGNIAN BAO (26 December 2007), http://news.163.com/07/1226/09/40KJSOFQ0001124J.

html; also see Li Guangming, “A Wrongful Conviction Was Rectified in Bozhou City of

Anhui Province” [Anhui Bozhou Jiuzheng yi qi Yuanan], FAZHI RIBAO (6 November

2006), http://legal.people.com.cn/GB/42733/5001936.html; also see Li Yin & Yang Jiang,

“A Farmer of Huan Province Received House Arrest After Being Wrongfully Imprisoned for

Ten Years as a Result of a Coerced Confession” [Hunan Nongmin qu da Cheng Zhao Shinian

Yuanyu hou bei Ruanjin], XINMIN ZHOUKAN (27 September 2006), http://news.163.

com/06/0927/13/2S1F51U900011SM9.html; also see Jiang Guibin & Qu Dan, “A Wrongful



8.4  To Fill in the Justice Gap …



251



the dead”.77 The manner in which wrongful convictions are discovered demonstrates the weakness of China’s justice system in discovering judicial errors. Most

convictions that were later overturned resulted from false and coerced confessions

obtained by torture. The practice of torturing suspects must end if wrongful convictions are to be prevented. The Chinese criminal justice system is set up on the

premise that police, prosecutors and judges will act as independent checks upon

each other. Unfortunately, they co-operate with each other far too much so that the

self-monitoring and self-correction systems in the current network to prevent or

remedy wrongful convictions do not work. If any of the relevant actors had audited

or double-checked critical legal points in wrongful conviction cases, mistakes

would have been discovered or corrected much earlier, and the high risk of such

convictions would have been greatly reduced. However, there is no sound mechanism for preventing or correcting wrongful convictions in practice in China, which

demonstrates the need to mend shortfalls in ‘the assembly line’ of the justice system, by properly implementing the 2012 CPL.

In order to mend the deep flaws in the justice system, it is essential to fill the

justice gap between legislative requirements and actual implementation. There is a

tension between the ruling party’s legitimacy, calling for professionalism and justice, and social instability, requiring the police, procuratorate and judiciary to control crime by all means. Wrongful convictions involving tainted evidence are

ultimately the result of a desire on the part of the three institutions to control crime

and never allow a case to go unsolved,78 even at the cost of convicting the inno-



Footnote­  (continued)

Conviction as a Result of Coerced Torture” [Xingxun Bigong Zaocheng de Yuan jia Cuoan],

GUANGMING RIBAO (4 February 2005), http://www.gmw.cn/content/2005-02/04/content_177726.htm; also see Liu Gang, “Wu Daquan: I Would Still Be in Prison if I Had Not Come

Across the Real Perpetrator” [Wu Daquan: Ruo bu Ouyu Zhenxiong, wo hai Mengyuan Yuzhong],

XIN JING BAO (15 November 2010), http://society.people.com.cn/GB/13209669.html.

77E.g.,



see “Zhao Zuohai Was Exonerated” [Zhao Zuohai bei Wuzui Shifang], JINGHUA

SHIBAO (10 May 2010), http://epaper.jinghua.cn/html/2010-05/10/content_546910.htm; also

see “The Murder Wife Case of She Xianglin of Huibei Province: How the Innocent Person Was

Wrongfully Convicted” [Hubei she Xianglin “Shaqi” an: Yuanan shi Zemyang Xingcheng De?],

YAHOO, http://news.cn.yahoo.com/05-04-/361/2ap4l.html; also see ZHANG Li, “On April

Fool’s Day He Was Exonerated” [Yurenjie zhe Tian, ta Wuzui Chuyu], NANFANG ZHOUMO

(7 April 2005), http://www.southcn.com/weekend/top/200504070009.htm; see also CHEN Tuo,

“A Farmer Was Executed 17 Years Ago for Murder and Mutilation and the Victim Is Still Alive”

[Nongmin 17 Nian Qian yin Sharen Suishi bei Qiangjue Beihairen Reng Zaishi], MINZHU YU

FAZHI SHIBAO (13 February 2006), http://news.qq.com/a/20060213/000867.htm.

78See PAN Gaofeng, “In Last Year the Rate of Solving Murder Cases Being Nearly 99 %

in Shanghai” [qunian shanghai ming’an po’an lv jin baifen zhi jiushijiu], CHINA NEWS

NET [ZHONG GUO XIN WEN WANG] (12 January 2014), http://news.xinhuanet.com/

yzyd/legal/20140112/c_118932245.htm?prolongation=1; also see YU Lixiao, “The Rate

of Solving Murder Cases in Beijing Being the Highest in Mainland China for Three

Consecutive Years” [Beijing ming’an po’an lv lianxu sannian neidi diyi], CHINA NEWS NET

[ZHONG GUO XIN WEN WANG] (23 January 2014), http://news.xinhuanet.com/yzyd/

legal/20140123/c_119103758.htm?prolongation=1.



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cent. Outside the state apparatus, defence counsel has been marginalized as a different group. Chinese procedural laws have undergone several serious reforms,

but, so far, no reform has led to the wholehearted implementation of legislative

requirements in practice. Transforming China’s institutional constraints becomes

as important as, and even more essential than, reforming laws.



8.4.2 How to Fill in the Justice Gap?

The overseas experience against wrongful convictions, e.g., in the US,79 UK80 and

Canada,81 has demonstrated that no due process or fair trial can avoid them. In

comparison to causal factors in the US, UK and Canada, many of factors causing

wrongful convictions in China are similar based on adversarial processes, while

others are unique with Chinese institutional constraints or inquisitorial tradition.

Among the three foreign countries, their similarities relate to eyewitness identification, forensic evidence, expert testimony, false confession, in-custody informers,

lawyering, tunnel vision, false accusations, or other forms of irregularities and

incompetence. Their main differences involve government conduct, public pressure, media assault and the game culture in practicing adversarial processes in the

US, prosecutors’ perceptions of their role and “fresh evidence” to be admitted for

appeal in the UK,82 and prosecutorial education in Canada.83

A combination of inquisitorial and adversarial elements can best prevent and

remedy such convictions in each jurisdiction.84 Adversarial countries generally



79See Barry Scheck, “Overturning 258 Wrongful Convictions (and Counting)”, BIG THINK,

http://bigthink.com/ideas/23055; also see “Other Projects Around the World”, INNOCENCE

PROJECT, http://www.innocenceproject.org/about/Other-Projects.php.

80See Barry C. Scheck & Peter J. Neufeld, “Toward the Formation of “Innocence Commissions” in

America”, 86 JUDICATURE 2002: 98, 100; also see Lissa Griffin, “Correcting Injustice: Studying

How the United Kingdom and the United States Review Claims of Innocence”, 41 U. TOL. L.

REV. 2009: 107, 108; also see Keith A. Findley, “Learning from Our Mistakes: A Criminal Justice

Commission to Study Wrongful Convictions”, 38 CAL. W. L. REV. 2002: 333, 348.

81See “THOMAS SOPHONOW INQUIRY REPORT”, http://www.gov.mb.ca/justice/publications/sophonow/index.html; also see FRED KAUFMAN, “REPORT OF THE KAUFMAN

COMMISSION ON PROCEEDINGS INVOLVING GUY PAUL MORIN”, http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/morin/.

82Philip Rosen, “Wrongful Convictions in the Criminal Justice System”, http://publications.

gc.ca/Collection-R/LoPBdP/BP/bp285-e.htm# (4).

83Federal/Provincial/Territorial Heads of Prosecutions Subcommittee on the Prevention of

Wrongful Convictions, “The Path to Justice: Preventing Wrongful Convictions”, www.ppsc-sppc.

gc.ca/eng/pub/ptj-spj/ptj-spj-eng.pdf.

84See Kent Roach, “Wrongful Convictions: Adversarial and Inquisitorial Themes”, XXXV

N.C. J. INT’L L. & COM. REG 2010: 388; also see Kent Roach, “The Role of Innocence

Commissions: Error Discovery, Systemic Reform or Both?”, 85 Chi.-Kent L. Rev. 2010: 89.



8.4  To Fill in the Justice Gap …



253



advocate a holistic approach to ensuring judicial independence and promoting

more transparency based on the current due process or fair trial system in order to

improve their mechanisms for preventing them. To achieve the goal of removing

the institutional constraints that disrespect the presumption of innocence, China’s

entire criminal justice system will also need to be holistically reformed. Reformers

must focus on strengthening its weakly functioning criminal justice institutions.

The role of defence counsel must be expanded and judges must be granted the

independence to stand up to the combined weight of the police and procuratorates.

To be sure, the exclusion of evidence should not be automatic; evidence should

generally not be excluded without a strong defence bar that provides good arguments against its inclusion through full and effective cross-examinations in

practice.

8.4.2.1 A Holistic Approach

Difficulties and problems in implementing past reforms affirm the importance

of adopting a holistic approach to the criminal justice reform, which could help

overcome institutional restraints on administration of justice in enforcement of

the 2012 CPL. Successful reform will require the entire justice system to undergo

holistic change, and the power of the local PLCs over the criminal justice system

needs to be curtailed in China’s justice practice.

It is necessary to reform the entire criminal process because it is impossible to

introduce methods to prevent wrongful convictions except as an organic part of

systematic reforms to China’s whole legal system. If any reform is to work, institutional incentives that lead judges to value a high rate of convictions over achieving justice must be abolished. Police and prosecutors should be encouraged to rely

on legally obtained evidence only and not forced confessions. Similarly, torture is

not an isolated problem but a systematic part of China’s justice system. Only when

the institutions of criminal justice are reformed will torture will be fully eliminated. The role of defence counsel must be strengthened and a presumption of

innocence recognized if all evidence tainted by torture is to be excluded. In addition, torturers must be prosecuted to the fullest extent of the law. Laws penalizing

defence lawyers who insist that their clients’ rights be upheld should be removed

and not be abused contrary to law or justice. Adversarial reforms are not effective

unless lawyers can use new procedures to assist the accused.

The 2012 CPL has introduced a mechanism for the exclusion of illegally

obtained evidence, but additional institutional reforms are required to prevent the

use of such evidence and the miscarriages of justice that result. These include

strengthening the ability of defence counsel to seek the exclusionary remedy

in the 2012 CPL. The accused should be able to avail themselves of the rights

they already have under law. If tainted evidence is not excluded, the administration of justice will be brought into disrepute through more wrongful convictions.

Unfortunately, illegally obtained evidence continues to be used in both pretrial

and trial processes in China. The current evidence rules have not been properly



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implemented and this suggests that the implementation of the exclusionary mechanism in the 2012 CPL will also face difficulties.

For the new law to succeed in eliminating the use of illegal evidence, what is

necessary is a wholesale institutional reform in which all legal actors take the presumption of innocence more seriously and are open to collecting evidence that

may reveal that the accused is not guilty. The role of defence lawyers will often be

key, and they should have the right not only to challenge the state’s evidence but to

produce their own evidence, especially forensic and other evidence that may help

reveal the accused’s innocence. The law is not powerless to effect such a transformation. One reform would be to exclude all evidence derived from coerced confessions. Another would be to discipline those law enforcement officials who abuse

their powers. Another would be to clearly place the burden on the state to demonstrate that the evidence was not obtained by coercive means. If the law is ultimately interpreted according to these reforms, many high profile issues will depend

on whether the procuratorate and courts their resist normal urges to co-operate with

police. Unless judges or prosecutors can act as an effective check on police misconduct, the 2012 CPL will collapse under the weight of its own contradictions.

8.4.2.2 Judicial Independence

Moreover, China requires an independent judiciary willing to apply the provisions in the 2012 CPL, a strong legal profession, fair-minded prosecutors and better trained police. The ability of the newly introduced mechanisms to prevent and

discover wrongful convictions should not be nullified by the assembly line of the

police, prosecutors and courts. There is a need for judicial independence to ensure

that reforms can be implemented and to serve as a check on police work. Also,

prosecutors need properly check the police in enforcement of law so as to avoid

the main shortfall of the system that has led previous reforms to stagnate over

many years, due to the influence of the bureaucratic ‘iron cage’ from which no

institution can escape in hierarchies. The ‘iron cage’ in China’s justice practice is

actually a set of mechanisms for performance evaluation that the three institutions

are subjected and must observe, like a machine that the institutions are pulled into

to limit their independence from superiors and other state powers. Under institutional restraints, police, prosecutors and judges need adhere to such mechanisms

for good evaluation rather than the required law for fundamental justice, in order

to survive in the political-legal environment. To ensure each institution’s role in

promoting impartial law enforcement, the independence requires the cage be broken so as to better prevent wrongful convictions in practice.

Similar to the ‘outdated Soviet-style model that treats the courts as just another

government agency’85 in which judges’ decisions are reviewed by court leaders

85Stanley Lubman, “What China’s Wrongful Convictions Mean for Legal Reform”, CHINAREALTIME

(17 July 2013), http://blogs.wsj.com/chinarealtime/2013/07/17/wrongful-convictions-and-chinas-legalreform-push/.



8.4  To Fill in the Justice Gap …



255



and courts are financed by local governments,86 the operation of the procuratorates

or judiciary is encountered with intervention from all sides, including from local

PLCs.87 Hence, it is necessary for the CCP leadership to carry out reforms leading

to greater judicial independence in order to curb interference by any sources of

state power in the one-party state.88 In order for reforms to work, the ruling partystate must be willing to loosen its grip over the system and ensure that no organisation is above the Constitution of the PRC and laws.89 Only if it does so can a

new round of responsive justice reform make substantive breakthroughs in

improving its justice system.90

Furthermore, the procuratorates and courts should be relatively independent

from other state agencies when handling cases. Only independence can ensure that

the procurotorates and courts strictly observe the facts and the laws in handling

cases. In China, local PLCs have the power to lead judicial work, but this leadership should be restricted primarily to principles, policies and organisational matters, and not interfere with the procurotorates or courts in their handling of specific

cases. Thus, the Central PLC called for cancelling the system of party committees’

approving cases in 2010 and 2013, which remains to be actually implemented by

all levels of the committees to ensure judicial independence. Within the current

institutional restraints, it is very difficult for local PLCs, totally not to involve or

impact specific cases,91 and also impossible to ascertain whether relevant guidelines on the system are closely followed, based on rare reports.92

Also, the procuratorate and courts should be independent from local governments. According to China’s state power structure as established by the

Constitution, no level of government has the power to direct the procuratorates and

courts at lower levels, who need not consult with or report to same-level government bodies. But in practice, local party committees, PLCs and even government

sectors intervene and attempt to influence the procuratorate and courts at the same

86See FU Hualing, “A Bird in a Cage: Police and Political Leadership in Post-Mao China”, 4

Policing and Society 1994, (4): 277.

87See Patrick Boehler, “Supreme People’s Court judge urges end to wrongful convictions”,

SOUTH CHINA MORNING POST (29 August 2013), http://www.scmp.com/news/china/

article/1232279/supreme-peoples-court-judge-urges-end-wrongful-convictions.

88See Cao Jingjing et 

al., “Deputy Wu Xiaoling from National People’s Congress: The

Secretaries of the Political-Legal Committees Cannot Concurrently Take the Position of the

Heads of Public Security Bureaus” [renda daibiao wu xiaoling: zhengfa wei shuji buneng shenjian gong’an juzhang], XINMIN EVENING NEWSPAPER [Xinmin Wanbao] (13 March 2010),

http://news.sohu.com/20100313/n270790480.shtml.

89See Chun Peng, “Is the Rule of Law Coming to China?”, THE DIPLOMAT (10 September

2013), http://thediplomat.com/2013/09/10/is-the-rule-of-law-coming-to-china/.

90See Stanley Lubman, “What China’s Wrongful Convictions Mean for Legal Reform”,

CHINAREALTIME (17 July 2013), http://blogs.wsj.com/chinarealtime/2013/07/17/wrongfulconvictions-and-chinas-legal-reform-push/.

91Mike McConville et al., Criminal Justice in China, Edward Elgar Publishing (2011), 379.

92See Kathryn Campbell, “Policy Reponses to Wrongful Convictions”, 41 Criminal Law

Bulletins 2005: 154.



256



8  Problems and Prospects: China’s Response to Wrongful Convictions



levels as governments in handling particular cases. In fact, the system of “three

heads’ meetings” held by same-level PLCs and government departments involves

the court president, procurator-general and police chief who jointly discuss how to

handle various cases. This practice actually negates the independent power of the

procuratorates to decide whether to prosecute a case and the independent power

of the courts to determine culpability. As a result, final case outcomes often reflect

the views of local PLCs, government departments or individual leaders.

8.4.2.3 More Transparency

As the above case studies demonstrate, one of the biggest implementation flaws

remain in the recording of interrogations, which is not transparent even to the

extent that records of interrogations or judicial deliberations are made public.

Without recording an entire course of interrogations, it is very difficult to detect

and prove the occurrence of torture, not to mention excluding such evidence from

use in conviction. Similarly, the review process of death sentences with immediate

execution is basically inquisitorial, without full hearings or the participation of

various parties.93 The SPC mainly conducts paper review on such death sentences,

together with the questioning of most defendants through long distance ‘videoconferencing’,94 which greatly reduces the actual effect of death penalty review.95

Chinese experience has signaled ‘caution about relying on official investigations’96 that cannot produce substantive justice given the above flaws, suggesting

the importance of more transparency in the due process of criminal cases.

There is a need for increased transparency to blend the advantages of both

adversarial and inquisitorial systems,97 which allows for more effective and broad

supervision of the justice system, in order to better prevent wrongful convictions

from being imposed on the innocent. Police interrogations should be fully

recorded and the entire recording should be played back at trial. The role of the

defence counsel should be expanded so that they can appear in court at all stages

of the criminal process. In particular, defence counsel should be able to make submissions to the SPC’s final review of death sentences.98 Such important appeals

93See Liqun Cao, Ivan Y. Sun & Bill Hebenton, Handbook of Chinese Criminology, (Routledge,

2013), p. 82.

94See ZHOU Bin, “China’s interview rate in death penalty review cases reaches 90 %” [Woguo

sixing fuhe anjian tishenlü da jiucheng], LEGAL DAILY [Fazhi ribao] (23 March 2012).

95See SUN Zhongwei, “Revision on the Criminal Procedure Law of the PRC in the Eyes of a

Defence Lawyer in Death Penalty Cases” [Sixing bianhu lüshi yanzhong de xin xingsufa xiugai],

LAWTIME (19 March 2012), http://www.lawtime.cn/article/lll440595445689oo92417.

96Kent Roach, “Wrongful Convictions: Adversarial and Inquisitorial Themes”, XXXV N.C. J.

INT’L L. & COM. REG 2010: 388.

97See ibid., 402.

98See ZHANG Yuan, “Guard well the final gate in death penalty cases” [Bahao sixing anjian zuihou yidao guankou/], LEGAL DAILY [Fazhi ribao] (2 December 2012).



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