Friday, March 18, 2022

Dr. Grace Yu Mou: "The Construction of Guilt in China – An Empirical Account of Routine Chinese Injustice" A Q&A (European Chinese Law Research Hub)


The folks over at the European Chinese Law Research Hub (with thanks to Marianne von Blomberg, Editor ECLR Hub, Research Associate, Chair for Chinese Legal Culture, University of Cologne) have posted a marvelous Lu Yu and Björn Ahl (both of Cologne University): "The financial credit information system and China's evolving data protection law"  Xin He's (Law Faculty at the University of Hong Kong)  marvelous summary essay around his recent book.

Marianne von Bloomberg explains:

More than 99,9% of the defendants in criminal cases are convicted in China. Behind this extraordinarily high rate lies a well-tuned cooperation of the police with the procuratorate to prepare a narrative that the court simply accepts. At the heart of the process lies the case dossier, argues Grace (Yu) Mou. We asked Dr. Mou about the research behind her new book which is based on extensive fieldwork in a procurator's office and her observations of the coming and going of reform projects in China's criminal justice system.
Dr. Mou's conversation makes for quite interesting reading. Particularly interesting is the discussion around high conviction rates. Here,especially, one sees the large differences that ideological approaches to the construction of a justice system can have on its operationalization. In liberal democratic states the courts are the site where the state is put to its evidence against the accused. The courts have little impacts pressure on conviction rates (through there is some more openly expressed form time to time). In this sense the courts occupy the center of the administration of justice. But in China, perhaps it is better to understand the courts as de-centered from the process of putting the state to its proof.  It is the space for confession, and for the presentation of evidence deemed sufficient to occupy the court's time--mostly.  The state is put to its proof elsewhere--Dr. Mou suggests that it is triggered at the pre trial stage and is centered on the work of the procuratorate-  It is there rather than at trial that the work of the lawyer is at its most critical.  And perhaps then it is there that the law of criminal procedure ought to focus  with respect to ensuring and enhancing the principles of fairness and state obligation in the administration of justice. That, in turn, suggests a closer integration of the work of the police with the process of justice administration--a task that has proven difficult in all jurisdictions.

I am cross posting the essay below. The original ECLRH post may be accessed HERE. And as a plug for the marvelous work at the European Chinese Law Research Hub: iIf you have observations, analyses or pieces of research that are not publishable as a paper but should get out there, or want to spread event information, calls for papers or job openings, or have a paper forthcoming- do not hesitate to contact Marianne von Bloomberg.


The Construction of Guilt in China – Q&A with Grace Yu Mou

Grace Yu Mou’s book The Construction of Guilt in China – An Empirical Account of Routine Chinese Injustice was published with Hart Publishing

The People’s Republic’s criminal justice system has come a long way since the Gang of Four were brought to trial in 1980, just one year after the Criminal Law was passed

To start off: What drove your interest in criminal justice in China?

My research interests in Chinese criminal justice came from my experience when I first observed a criminal trial as a teenager. The crime scene, as described at the beginning of my book, was strange to me: I was expecting some form of cross-examination, just like those commonly seen in television court dramas. The trial, however, had no drama and did not make much sense to me at the time. The prosecutor read out the case dossier in an aggressive manner. The defence lawyer, whose response was not addressing the issues raised by the prosecutor, sheepishly read her pre-prepared defence statement. The trial was by no means exciting – it was a boring presentation of the criminal case dossier. Sitting in the audience, I was at a loss to understand what they were talking about. The case dossier apparently was a critical instrument,  which was passed on from the prosecutor to the judge to decide the guilt or innocence of the defendant.  This encounter of criminal justice prompted me to think about the way in which criminal justice is conducted in China; but differing from the criminal justice literature which focuses on why witnesses are absent, the question that piqued my curiosity was – if case dossiers play such an important role, determining the outcome of the case, how are they created? Are they truly reliable? Have the criminal procedures provided sufficient safeguards to ensure that the convictions made on the basis of the dossier are really safe? These questions motivated me to think about criminal justice from a different perspective.

Your book is extraordinarily rich in empirical data on a field that is very hard for scholars, and non-Chinese scholars in particular, to observe. Can you also tell us a little bit about the data collection process?

I was lucky enough to access the field site at a time when criminal justice institutions (the procuratorate and the courts in particular) were still open to researchers. The data gathering process was a mixed experience. After staying at the prosecutor’s office for a period of time, it was relatively easy to strike-up a conversation with different people who came to the procuratorate on business. I had lots of conversations with police officers, defence lawyers and sometimes victims in the prosecutor’s offices. Those conversations were extremely informative in revealing various aspects of the criminal justice process. My understanding of how criminal cases were constructed, for example, was initially described to me by some police officers and prosecutors during an informal conversation. Surprisingly, I found it more difficult to set up formal interviews with defence lawyers. I approached a number of defence lawyers after I finished my observation in the prosecutor’s office in 2012. But quite a few defence lawyers declined the interview request (some of them declined in the last minute), expressing their concerns about the topic and how it could affect them in a deleterious way. 

The most frequently mentioned fact about the PRC’s criminal justice system is probably the extremely high rate of convictions – over 99.9%. What explanations have you found?

The exceptionally high conviction rates can serve as a useful indicator of the functions of the criminal justice institutions. With the high conviction rates, we can say with confidence that acquittal is not a commonly accepted result of court decisions. For this we must question the function of the courts and their truth-finding mechanism. A lot of questions will inevitably follow. Are judges allowed to acquit criminal cases? If not, why? What are the implications of an acquittal? Are the overwhelmingly majority of prosecution cases strong enough to convict? To answer these questions, we have to understand the pre-trial process, especially the role of the prosecutor and how the criminal cases are constructed. For example if the courts are divested of the power of acquittal (apart from exceptional cases), how are weak cases filtered out of the system? What role do the prosecutors play? How do they scrutinise the police evidence and evaluate the persuasiveness of the case? Since the courts rarely exercise the power of acquittal, the defence lawyers need to engage earlier in the process with the true decision-maker in order to make an effective impact. What are the relationships between the prosecutor and the defence lawyer like? Can the defence lawyer positively influence the prosecutorial decision-making? To answer all these questions, we need to comprehensively assess the pre-trial process and understand the practices on the ground. These areas are featured in Chapters three, four and five of my book, which depicts a depressing picture of the ways in which criminal justice operates on the ground.

Your book addresses the complex question of how the police makes out the facts of the case, the truth of what happened – or as they call it, create the ‘official version of truth’. How is diverging evidence treated and how is the police’s account treated in court? Has the practice of ‘aligning later evidence’ become common practice?

To begin with, introducing new evidence to challenge the police/prosecution case at trial is extremely difficult in China. It is well documented that defence lawyers who tried to contact the witnesses to verify the prosecution case in the past were arrested and prosecuted for perjury contrary to Article 306 of the Criminal Law. Defence lawyers may expose themselves to various professional hazards in the course of collecting evidence in favour of their clients. Due to such constraints, it is challenging to present an alternative version of the facts at trial. There are a very small number of cases in which defence lawyers have managed to creatively construct a defence case to contradict the prosecution case (without sacrificing their own safety) and have then secured an acquittal. But these cases are very rare. Of course, the courts may decide not to admit the defence evidence which contradicts the prosecution evidence and to reject the alternative version if they are not convinced with the story of the defence. 

Why do police officers try to align evidence? What incentives does the police have – and how do they work together with the prosecutor?

The reason why the police construct their case in such a way is because few witnesses come to the court to testify and the court relies on the case dossier to determine the guilt or innocence of the accused.  According to Article 200 of the Criminal Procedure Law, convictions should be based on a chain of evidence that points to the same guilty facts without reasonable doubt. Therefore, in order to formulate a persuasive narrative against the accused, the police have to ensure that different accounts from witnesses, the victims and the accused corroborate each other, or at the very least they do not contradict each other in order to prove the guilt of the suspect. It would be very difficult for judges to make a decision if the items of evidence contradict one another. This is also necessary as the evidence contained in case dossiers are a manifestation of the objective facts, which are treated as ‘objective’ in the sense that whoever reads the dossier will come to the same conclusion that the accused is guilty. This is also a protecting mechanism for judges, as the facts presented in the case dossier can be repeatedly reviewed, by their leaders and the higher court. To achieve this result, police and prosecutors have to make sure that the facts are well supported by the evidence.

What role does the guilty plea play in China? Since 2019, if a suspect admits the crime and accepts the penalty, the punishment may be reduced – 认罪认罚. Is this procedure a step towards improving the criminal justice system?

The guilty plea system has a profound impact on criminal justice in China. In a chapter that I recently completed on Leniency for Pleading Guilty and Acceptance of Punishment (LPGAP, 认罪认罚), I have argued that the guilty plea system under the principle of LPGAP has paved a route to miscarriages of justice en masse. This is very much due to the fact that the system has significantly empowered the prosecutor, who has taken on the roles of a policymaker, case manager, adjudicator and sentencer. Judges have retreated from the substantive decision-making process (including sentencing). The rights of the accused are further eroded and safeguards diminished. The guilty plea system is largely dominated by the procuratorate and has largely replaced the traditional criminal justice system.

To effectively defend their cases (especially to the effect that their clients receive a reduced sentence), defence lawyers need to learn how to adapt to the system without exposing themselves to great dangers. […] A successful defence in China requires much more courage, experience, commitment and sometimes even luck, compared to their peers in Western countries.

Given the high conviction rate, how powerful are defence lawyers? Which strategies do they adopt and what are their limits?

Defence lawyers have never been powerful in Chinese criminal justice. They are marginalised by the criminal justice system, which is dominated by the Iron Triangle – the police, the procuratorate and the courts. As mentioned in my answer to Q4, defence lawyers are subject to various obstacles, which include (and are not limited to) criminalisation pursuant to Article 306 of Criminal Law when they engage in the proactive construction of defence cases, difficulties in meeting their clients in detention centres and in accessing the case dossier in a timely manner. To effectively defend their cases (especially to the effect that their clients receive a reduced sentence), defence lawyers need to learn how to adapt to the system without exposing themselves to great dangers. In Chapter five of my book, I described that a defence lawyer did successfully challenge the prosecution case and secure an acquittal through creatively using Google’s satellite map and the weather report. A successful defence in China requires much more courage, experience, commitment and sometimes even luck, compared to their peers in Western countries.

What problems have officials in charge of improving the criminal justice system identified, which suggestions do they make and which ones do you think are promising?

The main problem of the way criminal justice operates in China is miscarriages of justice. Since 2014, a series of reforms have been carried out to re-shape criminal justice in China. For example, a quota system (员额制) was introduced in 2017 to classify the working staff within the procuratorate and the courts into three categories, namely quota prosecutors/judges, auxiliary prosecutors/judicial staff and administrative staff. Only a fixed, small number of quota prosecutors/ judges now count as professionally recognised judicial staff, who are expected to lead criminal prosecutions or adjudicate criminal cases. There was also a devolution within the procuratorate and the judiciary to de-bureaucratise the internal approval process. For example, in 2019, the departments within the procuratorate formerly in charge of various facets of criminal procedures, that is the Department of Public Prosecution and the Department of Investigative Supervision in particular, were merged (捕诉合一), with prosecutors being re-grouped into new cohorts and dedicated to handling specific types of cases from investigation to trial. Apart from a small categories of cases which are still required to be signed off by the Chief Prosecutor and/or discussed by the prosecutorial committee, the internal hierarchical reviews appear to be relaxed and prosecutors are accorded more autonomy in the vast majority of instances. More significantly, a lifelong accountability reform was introduced to tie judges’ and prosecutors’ reputation and career perspectives to the quality of the cases regardless of their employment status. Realising the crucial role that prosecutors play in the criminal process, the Procurators Law from 2019 has required prosecutors to be bound by the facts and law and adhere to an objective and just position (秉持客观公正的立场) in performing their functions. In my article on prosecutorial accountability, I have argued that the building of judicial and prosecutorial professionalism would be a welcome advance to improve the criminal justice system. However, as we have seen in practice, aside from restructuring the institutions, little has been done in practice to cultivate professional integrity, which lies at the heart of minimising miscarriages of justice. Hitherto no systematic review of criminal justice took place. Judging from the on-going criminal justice reform, eliminating institutional vulnerabilities has not been the chosen route in those reforms. With the mass implementation of the guilty plea system under the principle of LPGAP, wrongful convictions are likely to remain numerous but more difficult to detect.

In fact, almost all criminal justice reforms within the last decade are focused on preventing and minimising miscarriages of justice. However, no comprehensive official report has been produced to identify the systematic risks that are likely to lead to wrongful convictions.

Your illustration of day to day criminal justice in China offers rather bleak prospects. Do the problems you identify not undermine the judiciary’s legitimacy and more broadly, that of the government or Party?

Miscarriages of justice can certainly undermine the legitimacy of the judiciary and that of the rule of the Party. For example, the wrongful conviction of Zhang Yuhuan reported in August 2020 had long-lasting repercussions on public trust in the criminal justice system. The criminal justice institutions, including the courts, are fully aware of the damaging effect. In 2014, the Supreme People’s Court announced that miscarriages of justice had a damaging effect on public trust in the judicial system and said that to resolutely combat the problem, “systematic pitfalls must be tackled at the institutional level.” In fact, almost all criminal justice reforms within the last decade are focused on preventing and minimising miscarriages of justice. However, no comprehensive official report has been produced to identify the systematic risks that are likely to lead to wrongful convictions. The current reforms appear to be on an ad hoc basis and lack in creating an overarching principle or guidance. 

Based on your findings, what do you think the judicial reforms in the next years hold for the criminal justice system?

Although the judicial reforms may enhance the awareness of the problem of miscarriages of justice and curtail wrongful conviction to a certain degree, the effort can be easily offset against political agendas, according to which the criminal justice system should first and foremost be perceived as the ‘dagger’ (刀把子) in maintaining the social security of the Party-state regime. Alongside the judicial reforms, there has been a backlash that prioritises procedural economy at the expense of suspects’ rights as well as political pressures to reinforce the punitive nature of the public prosecution crime control in the last two years. For example, the trial centred reform initiated in 2018 which attempted to introduce cross-examination to the trial proceedings came to a halt recently. There are a lot of uncertainties as to how the system will evolve in the future. Although I hope that the reform gradually improves the system, it will be very difficult to implement in practice and may take much longer than most people expect.

Dr. Grace (Yu) Mou is a lecturer in criminal justice at SOAS University of London where she teaches criminal justice, Chinese law, and law and justice in contemporary China. Her new book, The Construction of Guilt in China: An Empirical Account of Routine Chinese Injustice, is based on extensive fieldwork in a local procuratorate. She previously discusses her book at the U.S.-Asia Law Institute, the recording is available here.


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