Wednesday, February 2, 2011

Translation: How "Three Difficulties" of Criminal Defense Became "10 Difficulties"

In a previous post, Dui Hua translated an account by a Chinese criminal defense lawyer of the obstacles he encountered trying to get police to allow him to meet with a detained suspect. The challenges facing criminal defense lawyers in China have been documented again and again, and explain why many new Chinese lawyers are reluctant to pursue criminal defense work.

This subject was taken up in an article (translated below) included in a recent issue of Legal Weekly, a newspaper published under the auspices of the Ministry of Justice—which regulates the legal profession in China. In the article, interviews with several lawyers create a sense of shared and growing frustration on the part of criminal defense attorneys. Where lawyers identified the difficulties of getting access to suspects, obtaining case files, and carrying out discovery as the "three difficulties," observers see common challenges endemic in 10 different areas.

Some of these difficulties involve procedural barriers, but others pose risks to the pursuit of substantive justice. Of particular concern among the lawyers interviewed is the rarity with which Chinese courts accept defense pleas and find defendants innocent. When there is no real presumption of innocence and a decision to acquit could lead to repercussions for police and prosecutors, judges have little incentive to give serious consideration to defense pleas. The article warns that this threatens to stunt the growth of the criminal defense profession, not only because it saps the morale and confidence of lawyers but also because defendants may start to question whether there is really any point at all in trying to defend oneself in a Chinese court.


How "Three Difficulties" of Criminal Defense Became "10 Difficulties"

Difficulty Getting Defense Arguments Accepted
Stunts Growth of Criminal Defense Work

Sun Jibin
Legal Weekly
January 20, 2011

Research indicates that over the past decade, the rate of active representation by lawyers in criminal cases has been declining. The primary reasons for this are the great hazards and difficulties associated with criminal defense work.

How difficult is criminal defense work? The answer to this question is continually being revised, growing from the "three difficulties" of the past—the difficulty in meeting [with suspects], the difficulty in getting access to [the prosecution’s] case files, and the difficulty in carrying out investigation and collecting evidence—to five or even 10 "difficulties."

The newly-defined "seven difficulties" include: the difficulty of obtaining bail, the difficulty of getting witnesses to appear in court, the difficulty of getting a hearing for an appellate trial, the difficulty of pleading innocent, the difficulty of [participating in the process of] death penalty review, the difficulty of abolishing Article 306 of the Criminal Law, and the difficulty of proving that evidence was illegally obtained.

Of these new "seven difficulties," the difficulty of pleading innocent may pose the most insurmountable obstacle for criminal defense lawyers, and its root is the difficulty lawyers face in getting courts to accept their innocence-defense arguments.

When the infamous, wrongly-judged cases of Du Peiwu, She Xianglin, and Zhao Zuohai were exposed, people discovered that the defense lawyers in these cases had all made innocence pleas on behalf of the defendants but that, clearly, none of their defense arguments had been accepted.

Lawyers believe that, compared to difficulties involved in participating in the criminal justice process, the difficulty of getting courts to accept defense arguments is the most central hazard. It not only saps the confidence of lawyers who carry out criminal defense work, it also saps the confidence of defendants in engaging lawyers in criminal cases. This has a huge impact on a country's [ability to] develop rule of law in the area of criminal justice.

Criminal Defense Work Transformed into "Ten Big Difficulties"

In 2008, the revised Lawyers' Law took effect. Much hope was placed in this "advanced" law, which said lawyers could meet [suspects] if they provided the "three documents" [i.e., license to practice law, license of the law firm, and either power-of-attorney or legal-aid documents] and could get access to [the prosecution’s] case files once [the procuratorate's] investigation had begun—perhaps it could bring resolution to criminal defense lawyers' "three difficulties."

Two years later, people have realized that, while there has certainly been a breakthrough in some locations, in general there has not been a very big improvement.

Looking at [how things work] in practice, not only has there been no solution to the old problem of the original "three difficulties," other difficult problems related to defense work are emerging daily. Not long ago, at the "Fourth Annual Shangquan Criminal Defense Forum," the well-known Beijing defense attorney Xu Lanting first spoke of the "ten difficulties" in criminal defense work.

Besides the old "three difficulties" of meeting [with suspects], accessing [the prosecution's] case files, and conducting investigations and obtaining evidence, the new "seven difficulties" can be seen in: the difficulty of obtaining bail, the difficulty of getting witnesses to appear in court, the difficulty of getting a hearing for an appellate trial, the difficulty of pleading innocent, the difficulty of [participating in the process of] death penalty review, the difficulty of abolishing Article 306 of the Criminal Law, and the difficulty of proving that evidence was illegally obtained.

Lawyers can encounter difficulties at every part of the criminal litigation process. In an interview with Legal Weekly, Xu Lanting said that these new "seven difficulties" are increasingly becoming a new bottleneck restricting the development of criminal defense work in China. Witnesses—especially key witnesses—do not appear in court, hearings are not held in appellate proceedings, it is difficult for lawyers to participate effectively in the death penalty review process, and it is difficult to get illegal evidence excluded. These all directly contribute to lawyers having no way to carry out a full defense.

Beijing lawyer Jin Xuekong, who has many years of experience in criminal defense work, sees things similarly.

Jin told Legal Weekly that the primary reason lawyers request that a witness appear in court is because that witness can prove exculpatory facts or might change earlier statements alleging a crime. But because law enforcement organs proceed from [the principle that] the first impression is the strongest and prejudge the guilt of the defendant, anything that might change that preconception or challenge their judgment—especially the appearance of key witnesses in court—gets strictly limited.

According to [Article 187 of] China's Criminal Procedure Law, hearings should be held in criminal appellate trials as a matter of principle, with trials without hearings being the exception. But in practice, because it is much easier to try the case without hearings and because it creates less work, it has become common for appellate trials to be held without hearings and hearings have become the exception.

"In practice," said Jin Xuekong, "no matter how great the differences between the prosecution and defense over the facts or how many facts or pieces of evidence need further investigation in the appeal proceeding, as long as the judges believe that the original verdict should be upheld, it is hard for a lawyer’s request for a trial hearing to be accepted." [He added that] the level of difficulty in getting an appellate trial hearing is revealed by the way that many defendants and lawyers treat getting an appellate trial hearing as a major procedural victory. "If hearings are not held to try most appeals, it is bound to cause appellate trials to become a mere formality. If appellate trials cannot fulfill their oversight function over first-instance trials, there will be no way for defendants to seek remedies when their rights have not been protected."

And in the death penalty review phase [by the Supreme People’s Court], lawyers are presently only able to submit written defense arguments and arrange for meetings with judges to discuss their defense arguments. (Meetings by lawyers with judges are not available in every case.) Lawyers cannot meet with defendants or review [prosecutors'] case files. Xu Lanting points out that if a lawyer has not represented a defendant in stages prior to the death penalty review, there is no channel for them to understand the facts of the case even if they directly participate in defense during the death penalty review. What kind of defense is this?

Moreover, in the course of criminal defense work it is also very difficult to prove investigators' use of coercion, fraud, or inducements to obtain confessions.

Many lawyers report that in practice it is very hard to get courts to acknowledge coercion of confessions through torture, obviously [meaning] there is no way to get illegal evidence directly related to coerced confessions acknowledged [by the court] and excluded [from the trial]. More detailed provisions concerning the determination and exclusion of illegal evidence took effect on July 1, 2010, when the "Rules Concerning Questions about Exclusion of Illegal Evidence in Handling Criminal Cases" took effect. But since that time, even though investigators have testified in court in many cases, there have been nearly no instances in which illegal evidence has been found.

Difficulty Getting Defense Arguments Accepted Becomes Bottleneck

In the view of Jin Xuekong, regardless of whether there are three or 10 "difficulties" in criminal defense work, the core difficulty currently faced in defense is that of getting one’s defense opinions accepted, of which the difficulty of pleading innocent is the most notable example.

Jin points out that if one says that the difficulty in getting one's defense opinions accepted is a hazard on the substantive side [of criminal defense work], other defense difficulties such as the difficulty of meeting [with a suspect], the difficulty of getting access to the [prosecution's] case file, or the difficulty of getting a witness to appear in court can all be seen as hazards on the procedural side. A lawyer's [ability to] meet [with a suspect], access case files, carry out investigations and collect evidence, request witnesses to appear in court, get an appellate trial hearing, participate in the death penalty review procedure, and exclude illegal evidence are all means of [carrying out a] defense, whereas having one's defense opinions accepted is the ultimate goal.

"If defense arguments that should be accepted are not accepted," Jin Xuekong said in an interview with Legal Weekly, "lawyers and defendants will all lose faith in the criminal defense [process]. Lawyers won't be willing or dare to engage in criminal defense [work] and defendants won't be willing to hire a lawyer. The impact on criminal defense work will be total and long-lasting." [He went on to say that] the difficulty in getting defense arguments accepted could become the main bottleneck restricting the growth of criminal defense [work] in China.

Jin Xuekong points out several main reasons why it is so difficult to get defense arguments accepted: a longstanding approach to litigation that values fighting crime and places emphasis on the allegations, while de-valuing protection [of rights] and downplaying defense; the standard for determining mistaken cases and the responsibility system; and the professional knowledge and experience of those handling cases.

Approaches to litigation differ, and the same issue may result in different judgments and assessments. When law enforcement agencies and personnel—or even the public at large—place excessive emphasis on fighting crime and maintaining social stability, defendants' legal rights and lawyers' defense [efforts] will of course be restricted and it will become more difficult for lawyers to get their defense opinions accepted, becoming an obstacle to lawyers' criminal defense work that is difficult to surmount.

Jin Xuekong points out that the standard of proof in China's criminal procedure law is insufficiently complex and varied. For the stages of completing the investigation, indictment, and conviction, the standard of proof is always the existence of clear facts and evidence of a crime. Were an indicted defendant to be later found innocent, it would mean the indictment was in error. Even though the standard of proof for criminal detention and arrest is lower, when a defendant who has been placed under criminal detention and arrested is then later found innocent, there is no question that the [decisions] to place under criminal detention or arrest would be seen to have been made in error.

A mistakenly-decided case can affect the performance appraisal and promotion of the individuals handling the case and even the image and prestige of the court itself. Because of this, it has been difficult to implement the presumption of innocence and for lawyers' pleas of not guilty to succeed. If a court renders a verdict of not guilty, it will feel the pressure not only from victims and the public but from the public security organ and the procuratorate as well.

Documents show that over a period of many years, the national rate of acquittal in criminal cases has rarely broken above 0.2 percent. In other words, it is possible that a given court does not have a single case of acquittal in a particular year. Looking at media reports or annual court work reports, one sees that some courts go many years without even one acquittal. A judge can hear hundreds of cases over a period of several years without a single acquittal. And in so doing, these courts and judges are seen as advanced and models.

A criminal defense lawyer observed that the acquittal rate is a direct reflection of the current state of acceptance of defense opinions. If defense has no impact, how significant would greater procedural participation really be? If defense has no impact, what defendant would still be willing to engage a lawyer?