Wednesday, June 9, 2010

Chinese Lawyer Interviewed on New Measures to Prevent Torture: “Key to Stopping Torture Is Presence of Counsel, Right to Silence”

Over the past ten days, the Chinese media have been reporting on the recent adoption of two new sets of rules by China’s five main law enforcement institutions—the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of State Security, and the Ministry of Justice. The "Regulations on Several Questions Concerning the Investigation and Judgment of Evidence in Handling Capital Cases" and "Regulations on Several Questions Concerning the Exclusion of Illegal Evidence in Handling Criminal Cases" (referred to below as "the regulations") set out new procedural standards aimed at preventing criminal cases from being decided on the basis of illegally obtained evidence, especially evidence obtained through physical torture.

As one might imagine, the coverage has been overwhelmingly positive, with several respected legal scholars endorsing the adoption of the regulations as major progress in China’s legal reform. The announcement of the rules could not be more timely considering the scandalous discovery last month that a man named Zhao Zuohai had served 11 years of a death sentence commuted to life imprisonment for a murder he did not commit, all because of a confession that had been extracted through police torture. But true assessment of the impact the new rules will likely have on preventing future cases of injustice must await their publication—at the time of this writing, the actual texts had not yet been released—and, more importantly, consideration of how thoroughly and enthusiastically they will be enforced.

While acknowledging the importance of the new regulations as a first step, some Chinese lawyers in particular have pointed out that the problem of torture and use of illegal evidence is a systemic problem in China’s criminal justice system and that the new regulations might not be strong enough medicine to cure the disease. In a lengthy interview (translation below) with the Beijing News published on June 5, well-known criminal defense lawyer Xu Lanting argues that giving suspects the right to remain silent and, even more importantly, the right to have a lawyer present during questioning, would have a much greater impact on curbing the problem of coerced confessions.

[Translator's note: Chinese texts rarely refer to "torture" (kuxing) in discussions of the domestic context. China’s Criminal Law prohibits the use of corporal punishment or "disguised" corporal punishment to obtain a confession from a suspect or a witness statement, and this is the primary basis upon which China claims to prohibit torture. To reflect this practice, the text below routinely translates xingxun bigong literally as "coercion of confession," rather than extrapolating with the word "torture."]


1. Having interrogators appear in court is of great significance

Beijing News (BN): Media reports on the regulations have universally focused on the sections concerning coerced confessions. How do you rate this content?

Xu Lanting: Each country primarily uses “rules on the exclusion of evidence” to stop coerced confessions, for example by ruling that evidence obtained through coerced confessions is illegal and cannot be used. This forces the investigating organ to stop relying on coerced confessions to obtain evidence.
     The enactment and thorough enforcement of these new regulations are of major significance in [the effort to] stop the coercion of confessions and other illegal methods of obtaining evidence, as well as in the protection of human rights.
     First of all, they overcome past limitations that excluded only illegal statements and clarify that illegally obtained physical evidence and documentary evidence will also be excluded. "When physical evidence or documentary evidence is clearly obtained in violation of the law and could possibly have an impact on the fairness of the adjudication, [the court] should order redress or make a reasonable explanation; otherwise, the physical evidence or documentary evidence in question may not be used to determine a case."

BN: I understand that in some countries any evidence obtained through coerced statements is categorically excluded. Are there loopholes in our regulations?

Xu: In the United States, this kind of evidence is called “fruit of the poisonous tree” and is categorically excluded. There’s debate about this among Chinese academics. Some advocate that consideration be made of specific circumstances on a case-by-case basis, [and so] if the violations of law involved in obtaining some physical evidence is not too serious or it can be used after making redress, it shouldn’t be excluded.
     My own view is that any physical evidence obtained in ways that violate the law—especially through leads provided in coerced confessions—should also be excluded. Otherwise, there will be no way to eliminate coerced confessions. [The investigator] will think, "I’ll beat you first to get a confession. I might not be able to use that confession, but I can then rely on that confession to find other evidence."

BN: What breakthroughs do the regulations have in the area of procedures for excluding illegal evidence?

Xu: The regulations establish five procedural stages: initiation of the proceedings, preliminary court investigation, the prosecution’s presentation of proof, examination of the evidence by both sides, and the court’s decision. In the past, provisions in this area only took the form of principles or slogans. Now there is a big improvement because there is a clear procedure that is more practicable.
     It’s worth pointing out that, unlike in the past, investigators will give testimony in court. Also, if the prosecution’s evidence is not credible or sufficient enough to rule out that a defendant’s pre-trial statements were obtained illegally, the court may rule those statements to be illegal and exclude them. On a certain level, this can be seen as "inverting the burden of proof" and forcing the investigating organ to preserve the interrogation [process] through audio and video recording.

BN: But this so-called [requirement that] investigators give testimony in court is still passive, being initiated only after defendants or their defense attorneys make allegations of coerced confessions. Why can’t China do like some other countries and make court appearances by investigators routine?

Xu: It’s true that in some countries it’s routine for investigators to testify in court. In countries that follow the Anglo-American system of law, investigators are treated as witnesses and all witnesses must appear in court or else their testimony is treated as hearsay and cannot be used. I’ve also observed that some European countries’ trial systems make their investigators appear in court, even if only to state how they originally took the suspect into custody.
     Our regulations can only be considered a "limited principle on court appearance," but this is realistic and reasonable. First, it’s probably impossible at present to make investigators in each case appear in court, and it’s not necessary. If there’s no argument over the records and statements, then there’s no need [for investigators] to appear in court.
     But even if there’s a limited [requirement] to appear in court, it will pressure and deter investigators. Just think: if an investigator is always being called to testify in court over allegations of coercing confessions, he will become passive and embarrassed.

2. There’s often no way to prove coerced confessions

BN: Can these breakthroughs in the regulations be written into the Criminal Procedure Law?

Xu: It should be possible to integrate them. We can say that these regulations are the fundamental rules regarding evidence in criminal cases, but that the current Criminal Procedure Law’s provisions regarding things like how to examine and judge evidence, how to accept evidence, how to establish the facts of a case, and precisely how to set the standard of proof are all very crude and difficult to carry out in practice.

BN: How does this crudeness primarily manifest itself? Why do you say it’s difficult to carry out in practice?

Xu: For example, in cases I’ve represented some defendants have alleged their confessions were obtained by coercion or disguised coercion—in other words, illegally obtained evidence [of the type] described in the new regulations—but they couldn’t prove it. This is where the difficulty lies.

BN: Why couldn’t they prove it?

Xu: First, if the lawyer is not present when a suspect is interrogated, there is no way to monitor and provide evidence. Defendants themselves are even less able to produce evidence. Even if there is bodily injury, how does one prove it is the result of an investigator’s beating? It is very possible to blame it on a cellmate or struggle during arrest.
     Moreover, the investigation period often lasts a long time, with several months to half a year before trial. Any wounds can heal [during that length of time].

BN: Then what do you recommend to defendants about whether to speak out or not?

Xu: I tell them to tell the truth. If something like that happened, you can and should speak up. But often there’s no way to confirm the allegation.

BN: If the “victim” in the Zhao Zuohai case hadn’t returned alive, to this day there would probably be no way to prove [that Zhao’s confession had been coerced through torture].

Xu: Why didn’t Zhao Zuohai petition [the court to rehear his case because his confession had been coerced]? Because petitioning was useless and the case couldn’t be overturned. Even the judge couldn’t confirm [the allegation], because he wasn’t present at the interrogation, either.

3. The crux of the interrogation [problem] is lack of a third-party monitor

BN: Based on your experience with criminal cases, why do you think that time and again it has been impossible to prohibit coercion of confessions?

Xu: The reasons are many. The first is because of mindset and ideas. Even though the law provides for a presumption of innocence, some investigators still operate with a presumption of guilt, thinking, "I’ve caught you, so you must be guilty." So, some investigators start off by asking suspects, "Do you know why we’ve arrested you?" or "If you say you’re innocent, show us proof."
     Also, many law enforcement agents still focus on fighting crime and ignore the protection of human rights. They worry that they won’t be able to solve a case without a confession and will be too soft on a true criminal.

BN: Isn’t fighting crime most important?

Xu: According to the provisions of the Criminal Law and the Criminal Procedure Law, law enforcement agencies ought to fight crime as well as protect human rights, putting equal focus on each. Moreover, given a choice between being too soft and wrongly convicting someone, I’d rather be too soft on the occasional criminal than wrongly convict an innocent person. When a criminal is let off the hook, the violation is only one-way. But if you wrongly convict a good person, not only have you let the real criminal off the hook, you’ve also unjustly punished an innocent person, causing double the harm to society.

BN: What are the systemic and institutional causes of [the failure to eliminate coerced confessions]?

Xu: There are some specific systemic problems such as [emphasis on] the rates at which cases are solved, arrests are approved, and convictions are handed down, or [on] requiring that all capital cases be solved or that cases be solved within a particular period of time. Because of criteria for [performance] assessment, it seems as if the procuratorate must approve all arrests reported to it or all cases prosecuted at court must result in conviction—otherwise, it affects work [performance] results. This has a negative impact on the thorough implementation of the presumption of innocence and the exclusion of illegal evidence.
     As for the justice system, the law requires the public security, procuratorate, and courts to cooperate through division of labor and also to mutually check each other. But currently there’s more cooperation and the monitoring and checking functions aren’t really brought into play. For example, the public security organs all do their own investigation and interrogation. They take someone into custody and interrogate them, too. No approval is needed to place someone under criminal detention, and this detention can last up to more than 30 days. During detention, acts of illegally seeking evidence are common, such as repeated interrogation sessions lasting several dozen hours.

BN: It seems as if all television crime series show suspects being subjected to overnight interrogation as soon as they are taken into custody. Even when striking a blow to the suspect’s face, the investigator’s face is serious, both dignified and devoted.

Xu: Many countries don’t allow nighttime interrogations and prevent interrogations from exceeding a certain number of hours. We don’t have any regulations on this point. What’s more, many interrogations don’t take place in the detention center, but rather in the police station or some other location. At least there are many other people who can observe in the detention center, making coercion difficult. In the end, it’s a matter of not having the attorney present, not having a neutral third-party monitor.

4. Time is ripe for granting suspects right to remain silent

BN: Can enactment of these regulations stop the coercion of confessions?

Xu: Stopping the coercion of confessions is a systemic project that requires comprehensive management. My personal view is that the best way is to grant defendants the right to remain silent and the right to have an attorney present.

BN: Don’t the Law on Lawyers and the Criminal Procedure Law already provide for lawyers to intervene [in a case] during the investigative stage?

Xu: The law allows a suspect to hire and meet with a lawyer from the moment of first interrogation or being placed under coercive measures. But in practice, lawyers are not present during the interrogation. If lawyers were present to monitor and witness, obtaining evidence illegally through coercion, fraud, or inducements would be impossible.

BN: In other words, if the lawyer is not present, the suspect could refuse to answer?

Xu: Right. This is the suspect’s right. Such provisions are primarily to ensure that confessions are made voluntarily. I’m even in favor of invalidating the record of a confession if the lawyer isn’t present.

BN: Then the right to have a lawyer present should be provided for simultaneously with a suspect’s right to remain silent.

Xu: Correct. The right to remain silent and the right to have a lawyer present (also known as the right to a lawyer’s assistance) are inseparable. The suspect’s right to remain silent is an international standard to prohibit forcing self-incrimination. A suspect has a right to an attorney’s assistance, and, if he has no money to hire a lawyer, the state should appoint an attorney to provide legal aid.
     If we could enact both of these rights simultaneously, it would be even better, but if they cannot be enacted simultaneously we should at least provide the right to have a lawyer present. A lawyer must be present especially when a confession of guilt is being made (except when the suspect voluntarily waives [the right]), in order to guarantee the voluntary and true nature of that confession of guilt.

BN: Isn’t it a bit premature to have a right to remain silent as far as China is concerned? It’s still written [on the walls of] some detention centers: "Come clean and be treated leniently, resist and be treated severely."

Xu: Actually, it’s not premature. Many countries in the world have such provisions. It’s okay to require suspects to answer [questions] in a forthcoming way, but the problem is when the suspect truthfully answers with a defense that he is innocent and the officer handling the case believes that he is not answering truthfully.

BN: Some investigators have complained that many cases won’t get solved if you enact a right to remain silent.

Xu: In short, they still put too much emphasis on confessions. In fact, even some judges feel unsure [about how to handle a case] if there’s no confession or no one pleading guilty. Actually, the right to remain silent doesn’t encourage suspects to refuse to confess; rather, it emphasizes voluntary confessions in order to ensure their truthfulness and prevent unjust or error-filled cases. In countries [following] the Anglo-American [legal system], a trial is not even necessary if there’s a voluntary admission of guilt—they can go straight to sentencing. This shows they, too, place an emphasis on confession, but only if the confession is made with the assistance of an attorney and is made voluntarily, rather than being obtained through coercion.