An Observation of Criminal Defense in China

Ji Xiangde

Ⅰ Introduction

The year 1996 saw a series of crucial amendments made by the National People’s Congress of Criminal Procedure Law of P. R. C, in which the amendments on criminal defense system is a material reform in historic sense. Under the adjusted Criminal Procedure Law, comparing with the Law of 1979, timeframe for lawyers and other defenders’ involving into criminal litigation procedure is largely brought forward, the number and qualification of defenders are defined explicitly, courts’ discretion of advocacy by designation is expended, attorneys’ and other defenders’ litigation rights are enlarged, interrogation system is introduced into court trial, etc. In a word, attorneys shall involve into criminal litigations in various procedural stages, adopting various measures. The amendments were designed to better human right protection though perfecting defense system, therefore laying a solid foundation for the development of China’s criminal defense system on the path of rule of law. The amendment of Criminal Procedure Law can be considered a great leap in the reform of criminal judiciary in China, and optimistically even the milestone in seeking a criminal procedure legislation on the basis of science and democracy, if we take it from a mere legislation point of view; however, in judiciary practice,1 the amendments have played quite a material and negative role in criminal defense system. The judicial interpretations or ordinances issued by involving authorities have put the legislators on the fire of an unexpected situation of ridiculousness, embarrassment and difficulties.2

With the application of the “bettered” criminal procedure law, the environment for criminal defense has been even worse. Take Zhejiang province as an example, the ratio for criminal defense adoption in courts declined with the application of the amended law.

About the author: Xiangde Ji（1964－）,male, from Qingzhou city of Shangdong province, lecturer of People’s Police University of China, doctor of Laws of Law Faculty of Peking University, Researcher of Postdoctoral Group in CASS, who is specialized in studies in the field of criminal litigation, criminal law, judicial system and judicial reform.

1 “it is without doubt that the revised criminal procedure law demonstrates a more scientific style, include more democratic content, and plays a more important role in punishing the crime and safeguarding the people ”, Chen Weidong, Research Report on the Application of Criminal Procedure Law, P1, Fanzheng Press of PRC, May 2001, 1st edition. Prof. Chen comments as follows “the revision and improvement of the criminal procedure law indicates a key development in legal system construction of China. ” 2 From December 7 to 9 of the year 2001, “International Seminar on Judicial fairness and Criminal Defense”, which was co-sponsored by Criminal Committee of All China Lawyer Association and Law Faculty of People’s University, was held in Daoxianghu Training Center of Beijing. The check-in day witnessed the first snow of the year and so a troubled journey for the participant. It took hours, even more than ten hours to cover the distance used to take tens of minutes; and besides, the participants were so worried and disturbed. The next day in the discussion, Prof. He Weifang from Peking University thoughtfully compared the criminal defense environment in China as persons in the troubled journey. The comparison received thunder-like applause instantly, for the participants quite understood the description for the tough environment for criminal defense in China as well as quite appreciate the smart ingenuity of Professor.

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Refer to the sheets below for statistics:3

Statistics for Lawyers Conducting Criminal Defense in Zhejiang Province from 1995 to First Half of 2002

Year Number of Cases with Lawyer Defenders

Number of Cases with Defenders Designated by Courts

Ratio of Criminal Defense Adoption in All Cases

1995 13689 993 21.89%1996 14912 1359 19.3%1997 13247 1300 15.3%1998 14692 1575 15.37%1999 17754 2001 16.26%2000 16164 2224 14.48%2001 20471 2680 16.26%2002 9104 1144 14.89%

Statistics for Lawyers Conducting Criminal Defense in Hangzhou City from 1997 to First Half of 2002

Year Number of Cases with Lawyer Defenders

Ratio of Criminal Defense Adoption in Cases

1997 2308 20.4%1998 2637 19.8%1999 3027 19.2%2000 3090 16.7%2001 3200 14.6%2002 1269 11.6%

Concering statistics show that currently over 70% criminal trial in courts are heard without defenders in China.4 Some law firms even retreat from criminal defense serveice market, and a large number of experienced lawyers in the field are relunctant to provide the service. Correspondingly, a large proportion of the criminal defending lawyers now are newly established inexperienced ones.5 Therefore, people’s procuratorates and people’s courts complained about the inferior service by lawyers in criminal cases handling, service by the designated defenders in particular, especially when lawyers are required to give reasonable and key point-highlighted defense opinions; Meanwhile they also complained that defendants and the criminal suspects felt less and less trust to defense lawyers and the public tended to consider the role of criminal defense more and more negligible. The author designed a special questionnaire on the topic and investigated the detainee of three prisons in Yantai city and also law students from Law Faculty of Beijing University in March 2004. The feedback showed statistics as follows: within all criminal suspects and defendants totaled 303, 20.13% totaled 61 chose the 3 Sun Yequn, How hard to Be a Criminal Defending Lawyer—Reelection on Issues Regarding with of Lawyers’ Participation in Criminal Litigation, <China Lawyers>, p. 69, Issue 4, 2003. 4 Fan Chongyi: Studies of Problems and Strategies Regarding Criminal Procedure Law Application, p.100, People Police University Press, 2001. 5 Yi Xiangde, Legal Reflection on Developing Qualification for Criminal Defense, <China Lawyers>, p.11, Issue 2, 2001.

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answer A “i trust the lawyer”; 71.62% totaled 217 chose answer B “ Defending lawyers do work, but it is most important to rely on oneself and relatives”; 8.25% totaled 25 chose the answer C“ Criminal Defense never works”

Chart One: the Number of Different Answers Choosing

Chart Two: the Proportion of Different Answers Choosing

The author has also investigated 100 Law Faculty students of Beijing University with the topic of the role of criminal defense in criminal trial hearing, with 15% undergraduates, 80% postgraduates, and 5% doctors. 6% numbered 6 chose the answer “playing an great role”; while 76% totaled 76 chose the answer “play a negligible role”; and 18% totaled 18 chose the answer “no clear understanding”. As for the figures, refer to the following charts:

Chart One: the Number of Different Answers Choosing

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Chart Two: the Proportion of Different Answers Choosing

The above-mentioned phenomena and problems behind make legislators retrospect, lawyers worried, academic figures concerned, the public disturbed, but judiciary indifferent? Recently seminars on Criminal Defense have been held one after another, involving different countries such as US, UK, Canada, EU. The annual meetings on litigation law and on criminal defense have absorbed great attention. Different Prescriptions are given to reform in legislation, judiciary, people’s awareness, quality or even administration. I would like to take the advantage to show my considerations and opinions in the field with my experiences practicing criminal law and specialized research in latest years.

Ⅱ Natural Characters of the Right to Defence Looking from Criminal Defense Development History

The right to defense has been, since the old times, one of the fundamental rights endowed to human beings, which can be clearly traced in the criminal defense development history. Generally, the history can be divided into following phases:

1. Seeding phase

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Defense right defined as a system working to protect the rights of the accused, is generally believed to be traced back to the primary clan eras. With social division and social contact expansion in the primitive society, conflicts arose among the members of the clan correspondingly. Due to the lack of legal methods, conflicts can only be eased by private remedy which took the form of consanguinity retaliation. There used to be a compete set of procedures for retaliation. Morgan illustrated the process in his book Ancient Society as follows: “Once a member of a clan is killed, the clan shall revenge for him; however, the both clans the killer and killed person belonged to shall try to mediated the conflicts before any radical measure is taken. Members of both clans shall hold meetings respectively and advance conditions for killer’s relief. Agreement can generally be met when there are justifications for the murder or for the relief of the killer.” So even in the primitive stage of social development with no classes division, the resolution to so called criminal cases has already include within it the defense right, criminal defense and agency emerging.

2.formulation phase

Criminal defense system was born in Athens of Ancient Greek. Ancient Athens has witnessed a couple of social reforms, which are so well known such as Solon Reform in 594BC, the Pericles Reform from 443 to 429 BC. These reforms abstained from severe punishments while established jury system, consultation system to democratize the adjudication, besides parties were allowed to defend for themselves through debate. It is the democratic and free air of Athens that brought out criminal defense system. By Athens laws, parties of a case can exercise the defense right by themselves or entrust the right to others. The laws also provided clearly the contents, time span, and location for debate. However, there were no professional defenders in Athens, while the first professional defender, say lawyer today, presented himself in Rome. Ancient Rome is where lawyer system emerged. Rome boasted itself in civil law, but procedure law also played an important role in ancient Rome, one of its contribution to the world being the lawyer system. In the Rome Republic between 3 to 1 century BC, social disputes, especially commercial ones, arose increasingly due to the development of commerce, and an increasing number of law suits were put forward to courts. However, merchants were so engaged in their business that they had to look for professional defenders who provided legal service to the parties. The responsibilities of defenders were: act as the agent of a party, speak on behalf of the defendant in court, and refute the complaint. In the first century AD, when Rome Empire emerged, the representation system and the principle of debate developed themselves into the lawyer defense system.

3.Criminal defense system was interrupted in middle ages, or feudal society.

The prevailing of autarchy in both the oriental and west has squeezed all the air of freedom in human society, leaving no room for criminal defense development. In the oriental such as feudal China, prosecution by the state and inquisitional techinics were adopted. The only person in law suits who had all the litigation rights was the omnipotent judge. What is more, a judge was endowed both the adjudication power and prosecution power, which enabled him to judge as well as investigate and prosecute the accused.

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While the accused was only a subject of being questioned, enjoyed no defense rights but only assumed obligations to confess. Just as one Italian expert indicated, with the establishment of inquisitional system, debate aroused out of one party being accused can find no preconditions any more, so negligible.6 Inquisitional proceedings were designed to avoid the outcome, due to the over-emphasis of human rights protection, of prosecuting the persons who did commit crimes. But the proceedings may be lead to the radical view that the findings can justify the measures adopted. In western countries, religion and theology were so dominant that they gradually involved themselves into litigation and occupied the position of judging-maker. Religion required people to unify their thoughts and opinions, leaving no space for free debate, therefore, proceedings grew into a mere state power at the rulers’ discretion. So in this era criminal defense system was interrupted. Although Britain established its jury system into statutes and the application of the system, to some extent, preserved criminal defense system, but it still differed greatly from the defense system in real sense.

4. Development and prosperity phase

The Enlightenment Movement in 16 and 17 centuries, and the Capitalism democratic revolutions in 18 and 19 centuries greatly assisted the revival and further development of criminal defense system. Those values of democracy, freedom and equality, together with the principle of presumption of innocence, laid a solid theoretical foundation for the revival and development of the system. The two major law systems emerged and common law system and continental law system both established their criminal defense systems, which due to the different historical tradition, differed to some degree in the specific provision of criminal defense. Common law system puts the priority to human rights protection with a stress on procedures. Common law system holds that procedure is an independent value we are seeking, and what people seek is not only the facts to be found, but a fair judging to the accused which can put into place with fair proceedings. That is why common law system emphasizes on criminal defense system, warranting the defendant, claimant and also the judging party equal status in proceedings, and the defendant full defense rights at different stages such as investigation, examination for prosecution, and trial proceedings. Meanwhile, continental law system highly treasures the collective public interests, and holds the procedures as only instrument to realize the goal. For continental law, criminal litigation is designed to find the facts and preserve social order, with no values by nature. Therefore, in continental law countries, we can find the claimant, defendant and prosecutors and judges enjoy different status, with comparative large restrictions to the rights of the former.

Two major legal systems have shown a tendency of merging since the 20 th century, and it has come to be a common concern that human rights protection is a necessity for rule of law. In the endeavor of human right protection, the special protection provided to the accused persons in criminal litigation appealed to more attention, so all the countries have established defense right in criminal proceedings as a fundamental human right; furthermore, the highlight of criminal defense has changed from the verbal advocacy of

6 （意）朱赛佩·格罗索：《罗马法史》, translated by Huang Feng, China University of Political Science and Law Press, 1994, p.372.

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defense right to practical protection measures adoption. Meanwhile, the right of defense for the accused has been written into not only national laws but international standards for human right protection by UN in a series of international documents. Criminal defense has entered its prosperity stage of development.

All in all, the description of the criminal defense historical development directs us to two points:

Firstly, defense right, as a natural right embedded into human instinct of defense for complaints against him, has presented itself generally in all the historical eras and the three major procedure laws of modern times. Among the right of life, health, and freedom, defense right for the accused is quite a distinct one as a natural right for suspects and defendants as human beings.

Secondly, defense right has had different faces in different historical conditions and under different system backgrounds, especially for the practical measures to realize the right. However, defense right has undergone a development from nothing to something, and from accused right-highlighted to victims right-highlighted, and protection for the accused has seen an effort of intensification and perfection. It can be illustrated by the way “the history of criminal litigation is the history of enlarging defense right.” 7

Ⅲ. Theoretical Foundation for Criminal Defense

Why should we defend for people who committed crimes? That is the No one problem we have to answer in the exploration of criminal defense system. The answer lies in a deep study into the environment for the system establishment and values the system treasures. The development of the system relies on the massive theories supporting behind, which can be illustrated from three perspectives as follows:

1． Philosophical foundation: Law of the Unity of Opposites

Criminal proceedings focus on finding out the facts related to cases through investigation, then apply appropriate law accordingly, so as to punish criminals and protect the innocent. As either cognition activity or testifying activity, the proceedings shall not exclude the guideline of materialist dialectics and the law of the Unity of Opposites，which is widely agreed as the philosophical foundation for criminal defense system.8 The law of the Unity of Opposites is one of the three key principles for materialist dialectics, demonstrating an ideology for human beings to understand the world and its evolution. By the law, everything in the world has two aspects which both relate and repel each other, in this way opposing and unifying each other at the same time. The opposing and unifying activities work together to move the whole thing forward. The law requires us to recognize and reform the world according to objective fact as they actually exist, adopting the method of analysis through contradictions and 7 Criminal Procedure Law, Law Press, 2000, p. 89.8 Xiong Qiuhong: On Criminal Defense, Law Press, 1998, p. 104.

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observing and handling things comprehensively and scientifically.

Criminal suits are generally commenced when offenses have been committed, so the judge can never witness the offenses by himself. To safeguard a fair adjudication, a comprehensive and unbiased investigation of evidence is a must. The evidence forwarded by the claimant is generally material or facts disadvantaged to the defendant, and cannot be taken for granted in case of discrimination. A debate between claimants and defendants on equal position can help avoid the discrimination and offset each other and adjust each other, and through debating people are liable to select the reliable facts and evidence, which serve as the reliable basis for cases handling. It can be illustrated as an American scholar as follows: “debate seems to be the only effective way to offset the human instinct of casually drawing conclusion to unclear issues with what they are familiar with.”

2. Material Foundation: Social Division and Economic Development

People started to defend for themselves since the early ages of human society; however, the existence of defense right can not naturally lead to the establishment of defense system, lacking the material support which is needed. Primitive society enjoyed an inferior social productivity, so people had to work collectively. The simple social relations resulted in only a few disputes. At that time, people settled the disputes according to clan customs, leaving no requirements for professional defenders. But with the development of human society and the growth of productivity, the three key social divisions came forth, leading human society to further economic prosperity. With the divisions, the second and third in particular, handicraft industry and commercial industry experienced a fast development, so brought out complicated economic relations and consequently more and more disputes. To solve the disputes, the state had to provide a series of laws and regulations, and accordingly the technical and specialized requirements for litigation procedures increased, therefore parties tend to seek help from people specialized in laws. It is in this process that professionals serving for litigation proceedings presented themselves, that is, independent professional lawyers. Thus social division and economic development laid the material foundation for criminal defense system.

3. Value Foundation: Safeguarding Rights of the Accused

What is the value lying beneath criminal defense? It is a problem still disputable. Some hold the truth discovery theory or fair trial theory, but by the author, either can not provide a justifiable foundation for defense system other than safeguarding the right of the accused.

Criminal proceedings centered around the prosecution exercised by the state to the accused. To achieve the goal, state uses the instrument of judiciary, even mandatory measures to restrict or deprive the right of freedom of the accused. Furthermore, when the criminal offense is testified to be real, the state shall deprive even other rights of the accused. In a word, the status of the accused is comparatively weaker compared with the

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powerful state. That is why the right of the accused has to be protected in case of any irreversible damages. To prevent the suppression of an over-powerful prosecutor to the accused, some balance factors must be introduced so as to maintain an even litigation construction. In practice, the accused has to be given the right of full participation to defend claims and statements and to debate on one’s own behalf, furthermore the effectiveness of the defense has to be ensured to prevent unfair prompt adjudication.. So human right protection should be the value foundation for criminal defense right.

Ⅳ A Review of Criminal Defense Status in China

1. Inadequacy of Criminal Defense Position

The deficiency of criminal defense position consists of both legislation deficiency and judiciary deficiency. That is no clear defination in legislation as for the functions of criminal defense and defending lawyers in judiciary.

(1). Obscurity for functions of criminal defense

Criminal defense structure refers to the mode by which state authorities, parties, and other participants conduct criminal proceedings, and the pattern of their relations in the proceedings9, or can be defined as the legal status and inter-relations among prosecutors, defendants and judges designed to realize certain goals and embodied by litigation proceedings and litigation patterns regulated according to evidence rules.10 From the definitions above, the basic concept of criminal litigation includes within the legal status and inter-relations of prosecutors, defendants and judges. The litigation structure can be classified into three major categories throughout the world: ex officio doctrine, which is represented by France and Germany, adversary system under common law, which is represented by UK and US, the mixed style with an emphasis on adversary system and a second emphasis on the other, which is represented by Japan. The criminal defense structure adoption of one country is decided by its value orientation. All the countries have to balance between the two values of punishing the crime and protecting human rights, and further realizing substantial justice and procedure justice. ex officio doctrine highlights social order and security and put the priority on the interests of state and society, therefore inclined to punishing crime. So in this kind of litigation structure, defendants’ rights are generally restricted, and their status is comparatively lower compared with prosecutors and judges. Adversary system focuses on individual dignity and interests. Individual interests generally prevail over state interests when conflicts arise, therefore inclined to protect human rights and procedure justice. So in this kind of litigation structure, rights of prosecutors and judges as agents of the state are comparatively restricted and the defendants’ rights are enlarged, status of the three parties being the equal. From a view of development as for criminal litigation, any country can not adopt radical or one-edged approach in establishing its fundamental values but the balanced approach. In this way the mixed style presented itself as a realistic and justifiable approach for future. In this kind of litigation structure, whether we should 9 Chen Guangzhong (compiler): Law of Criminal Procedure (New Edition), China University of Politics and Law Press, 1996, P10.10 Li Xinjian: On Constitution of Criminal Procedure, China University of Politics and Law Press, 1992, p7。

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emphasize on adversary system or ex officio doctrine depends on historical and cultural tradition, social security situation, and human right protection status of each country. But considering the development tendency of modern legal structure, more emphasis should be put on human right protection. In this sense a mixed criminal litigation structure which highlights adversary system seems to be more beneficial.

The function of criminal defense and criminal defense structure in China are, as usual, decided by the value adopted into criminal litigation. China has, in an extensive time period, under the extremist influence, been inclined to adopt the approach of punishing crimes, protection people, and safeguarding social security. Criminal offenses were regarded as disputes arising between people and their enemies, so the criminal procedure law must work to punish the enemies. With the approach, the accused were the target of authorities administration, and their rights had to be restricted; while the prosecutors and judges are endowed omnipotent powers and worked together to exercise prosecution. In the criminal litigation structure, defendants and prosecutors as well as judges enjoyed different status, so the value behind the structure can be illustrated as super ex officio doctrine. With the economic growth of China and establishment of socialist market economy, the construction of rule of law has seen a marching forward, meanwhile many modern ideology of rule of law have been introduced into China. The tiding of human right protection especially appeals to our consideration, and the adopted values behind criminal litigation changed accordingly. The Criminal Procedure Law of 1996 integrated within some contents of adversary doctrine. But due to the under-understanding of human right protection, the integrated contents were only amended in the trial hearing proceedings by introduction of debate. Ex officio system still dominates investigation proceedings and lawsuit commencement proceedings, with no defense rights enlargement no equal status established.

The ill-balanced structure, under which adversary doctrine dominates in trial hearing proceedings, and ex officio system dominated in investigation and suit commencement proceedings, has brought criminal defense into a dilemma in practice. On the one hand, no sufficient defense rights can be employed to safeguard defendants in investigation and suit commencement proceedings, therefore defendants can never collect evidence to the full extent; meanwhile, prosecutors with omnipotent powers can easily collect sufficient evidence. On the other hand, the two parties are required to confront and debate on equal footings, which is obviously far from equal.

(2) Deficient Positioning for Defending Lawyers

The right of criminal defense is usually exercised by lawyers who undertake their businesses of legal practices. The studies on the right are, therefore, directed to the observations on the lawyers --- the subject to implement the right. The positioning of the lawyers refers to the position where a defending lawyer is within the criminal procedure. The positioning is essential to the lawyer system in terms of being and evolution, which is considered to be the most important. The positioning or the definition of the responsibilities affects the extent to which the defense can play a role in a jurisdiction.

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In 1997 when it was established, the criminal procedure was devised into a tool for the implementation of the state policies and fight against the opponent class. Prescribed by the procedure, a lawyer has to take side of safeguarding the benefits for the public when he serves his clients. The criminal defender, therefore, becomes an agent of the public for a certain purpose apart from being an agent of the accused meanwhile. The ideology that held a lawyer as a delegate of the public interests drove the legislators to position the lawyer in name of state functionary. With the unsound law system, a lawyer, when defined as a legal specialist for country, was authoritative. Positive in correcting the traditional understanding to equalize between a lawyer and a judge, the notion did good to a lawyer in carrying out his services and protecting his due rights. 11

The 1997 Lawyer’s Act defined lawyer as a practitioner who provides legal services with the lawful qualification, say, a legal servant for the public. The lawyer was an agent of the client other than the delegate on behalf of the public interests. The definition is more rational than that of the legal specialist for the country, the alteration coming to be a historical progress in terms of the nature of lawyer. 12

The change, however, brought about a series of negative consequences. The definition of state functionary actually put a lawyer into a place equal with that of a prosecutor and a judge who therefore accepted a lawyer to be an insider instead of an outsider, which gave respect to the rights of the lawyer. After the amendment, the lawyer who was not a functionary any longer was consequently regarded as an outsider, a “trouble”, a “sore” by the police, prosecutor, and judges, particularly the first two who are of a great number, when the lawyer was in service. Lawyer is non-publicly own intermediary, who is believed by the public to be the same with the private owner of business.

2. Inadequate Legislation

(1). Limited right to investigation for evidence

Criminal Procedure Law stipulates for lawyer the right of investigation for evidence with limits. The limits cover three respects: firstly, the investigations are not allowed at the stage of investigation by prosecutors. Article 96 of the Law tells that a lawyer is then authorized to be engaged in the case by providing advice, raising appeal and accusation on the agent basis; inquire the investigator about the accusation; meeting the accused for related information; applying for provisional release with bailment on the behalf of the accused, etc. But he is not authorized to get evidence.

Secondly, investigation rights are only partly allowed at the stages of law suit commencement and trial. At these stages, a lawyer takes the right to investigate for the related information from witness, victim and his kinship, the witness recommended by the victim or other related parties, provided that the investigation is agreed by the investigatees. Where the victim or his kinship and the recommended witness are investigated, it has to be allowed by the prosecutor or judge. It is obviously that that the 11 Chen Weidong: Study of Chinese Lawyers, People’s University Press, p. 52-53, 1990.12 Chen Xingliang, Defend for Defense Right, <Sino-US Seminar on Lawyer’s Defense Function and Judicial

Justice>,p. 128.

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right is constrained because as long as the investigatees refuse, the right comes into vanity.

Thirdly, the rights are not legal coercive. Despite the authorization by the Law to apply prosecutor and judge for investigation for evidence, the prosecutor, free from the any detailed and deliberated provision on conditions, usually deals with the application in his need. In fact, the application is usually neglected.

(2). Inadequate protection for rights of person of the defender

Provided with as one of the rights in Principles on Role of Lawyer by the United Nation, the right of expression immunity serves as a privilege for a lawyer to defend accusations and relieve from the contradiction of obligations, in this way protecting usual provision of services. The lawyer in China is not only deprived with the said right, but also subject to the accusations of destroying, forging evidence and impeding witness by Laws of Criminal Procedure and Lawyer’s Act, which minimized the willingness to participate the criminal defense in scare of the accusations. Lack of the protection for the defenders themselves is one of the predominant reasons for the embarrassment and dilemma of criminal defense.

(3) Inadequate legislation for right to presence

Commonly applied to the criminal procedures in modern countries, the right of presence is of great significance in the procedures of pre-trial. It not only prevents the investigators from offending the legitimate rights of the suspect, but also safeguards the timely implementation of the rights of the suspect in accusation and preserves the criminal procedure13, the reasons why the right of presence comes out in most jurisdictions. The stubborn phenomena of extortion of confession by the investigator resulted, aside with the severe dependence upon the confession, largely from vacancy of lawyers at the presence.

3.Inadequate Judiciary

Arising from the contradictory positioning in role and deficiency in legislation, the criminal defense comes with following obstacles in judiciary practices:

(1). The right to meeting the suspect at the investigation stage of the lawyer is deprived by the judiciary to some extent.

Meeting the suspect and the accused in detention is one of the basic rights in Criminal Procedure Law, and the precondition for the preparation for the case, but the right is widely deprived in judicial practice “in accordance with the Law”. For one thing, the forwarding application for meeting, once an exception, comes to be a convention; the second, the investigator obstructs the meeting with various excuses to holds it back and limitations on duration and frequency; the third, the meeting is forbidden to touch upon 13 Song Yinghui: Study of Pre-trial Procedures of Criminal Cases, China University of Political Science and Law

Press,2002, p. 398.

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related information of the case, and besides, information exchange between a lawyer and the accused is under the control of an investigator who is usually at the presence.

2. The provisions regarding the right to review case files is retrogress compared with the previous Law

Article 36 in Criminal Procedure Law prescribes that a lawyer is allowed to consult, extract, and duplicate the judicial documents pertaining to the current case and technical verification materials from the date evidence is transferred for examination. The provision itself limits the right of consulting the documents for it excludes the documents with decisive power that a lawyer expects to read, including the testimony of witness, material and documentary evidence. And in practice, the prosecutor deliberately sets up impediments for this right that has been limited. At this stage, what a lawyer can access to is only enforceable documents such as warranties for custody, arrest and search, and the conclusion of appraisal. The decisions of registration, approval of arrest and feedback on accusation that partially picture the case are usually away from the lawyer.

The amended law allows the lawyer to consult, extract and duplicate the documents on the accused crime since the court decides to open a court session. But the prosecutor, according to the Law, is only in supply of the prosecution bill attached with lists of evidence and witness, and copies or photographs of the evidence, but all the evidence and files. In practice, the list of witness is generally provided without testimony, while the evidence is only provided with those justifying guilt, especially a felony, sentence, with no evidence justifying innocence and misfeasance. The lawyer thus has no way to the evidence and related information through judiciary, whatever the evidence supporting prosecution or the suspect and defendant, which disadvantages the lawyer to prepare the defense.

(3). Exercising the Right to Investigation by Lawyer faces great difficulties

Because of deficiency of law and lack of awareness of the public, witnesses often refuse to testify. According to the provision, a lawyer can’t get evidence if the witness refuses, which makes the investigation for evidence in extreme difficulties. Furthermore, once the evidence collected contradicts what the investigator gathered, the lawyer takes the risk of being accused of perjury. Threatened with the professional risks, most of the lawyers choose to cut down what a lawyer is supposed to do, which severely affects quality of the defense.

4. Stubborn notions of value

Backing up a matching system in its design and operation, the value is the fundamental problem for the embarrassment and obstacle in the practices of justice. The decisive factor for the litigation mode in a country, according to the theory of litigation modes, is the ideology and bureaucratic layout14. The author believes that the role and function of the lawyer in defense are closely related to the bureaucratic layout and ideology.

14 Mirjan Damaska, Faces of Justice and State Authority, Yale University, New Haven and London, 1986.

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1. Analysis of bureaucratic structure

Mirjan Damaska divided the bureaucratic layout into hierarchical and parallel types. He argues that in the hierarchical type, owing to the professional official with long term in office will inevitably go toward the professionalism and formulationism, which in turn lead to a specialized territory and develop an awareness of identity. The insider gradually becomes distinct from the outsider whose voice comes to be mute15. Influenced by the type, the role of the lawyers is strictly confined.

As a counter, the ideal parallel mode is comprised of the judges who are untrained outsiders. These outsiders temporarily implement the responsibilities of authority within a time limit, who are clearly cut from the insiders16. In this type, the role of the lawyers is enormously enhanced.

2. Analysis of ideology

Mirjan Damaska also divided the ideology into two types likewise: conservative and radical. In a conservative country, the responsibility of the country is to provide the social interaction with a framework. Its government is named after minimalism, which takes the responsibilities to keep order and solve the troubles that the parties fail to handle. In litigation, in consideration of fairness, the rules of procedure are only ones that the parties ought to abide. To make the fairness prevail, the parties need to be equally armed. The conservative countries hence choose to assist the weak with legal relieves so that the lawyer is to diligently safeguard the rights of his clients who define what the rights are17.

Contrary to the conservative, in a country dominated by the radical ideology, the country and government take the power to set goals for the society and are empowered to enforce the ideology nationwide. If the conservative defines a government with the function of keeping social balance, the radical allows the government to invade all the areas. Accordingly, in the later mode of procedure, the legitimacy of a verdict is up to rightness of itself other than fairness of the procedure that is expected to maintain the verdict for an entity as right as possible, but not to intensify the fairness or protect the value of the parallel entity. The loyalty of a lawyer to his client is subject to the remote consideration of interests of the country, which overwhelms the interests of a citizen when they contradict18. The lawyer is thus of minor significance.

In 1979 when setting up Law of Criminal Procedure, China obviously followed the radical ideology to lay stress on the social order and stability, prioritizing the interests of the country as a top choice. To ensure the implementation of state policies, the judicial bureaucracy is laid out in a hierarchical way, excluding the lawyer by nature. The 1996 amendment gave out some conservatives with procedure designs of justice awareness, but a substantial change didn’t occur to the bureaucratic layout that is not conservative in

15 Mirjan Damaska, supra note 1, pp.18-22.16 Mirjan Damaska, supra note 1, pp.23-28.17 Mirjan Damaska, supra note 1, pp.73-146.18 Mirjan Damaska, supra note 1, pp.80-180.

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general and still in command of bureaucracy.

The author launched a questionnaire in terms of the reasons of the impotent defense in March 2004. The subjects of students in law faculty of Beijing University produced the results as follow: among the total of 100 investigatees, 16 resort to “problem of legislation”, accounting for 16%, 81 to “judicature”, for 81% and 3 to “lawyers themselves, for 3%. See the chart below:

Chart I: distribution of the amount of people

total:100

Chart II: distribution of percentages

The result is consistent with the author’s experience and analysis.

V. Fundamentals for Establishing the Criminal Defensive System

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1. Repositioning the Criminal Defense and Defense Lawyer

(1). Regulating the Criminal Defense by the rule of law ideology

Tiding towards the supplements of protecting the rights of the accused in the criminal cases, the world, with a view of protecting human rights, is coming to be aware of the significance of protecting the rights of individual persons, arising from the consciousness of the devastative oppressions over the humanity in the two world wars. Check of powers and fair procedures are essential to protect individual rights and fighting against power monopoly, which is the basic of the modern law. The renewal of criminal cases including within the protection of the rights of the accused becomes our future, which enhances the status and expands the rights of the accused in a full range throughout litigation proceedings. The inconsistent positions of the criminal defense at the early, in the middle, and at the end of the whole prosecution process should be thoroughly altered by legislation, which shall clearly define the status and role of criminal defense.

(2). Understanding the defence lawyers by the rule of law ideology

In China, with the influence of ex officio doctrine, lawyers take side of the government laying stress upon safeguarding the enforcement of the law though they are factually the legal relievers for the suspect and accused and should act on their behalves. It, therefore, comes out that on one hand, a lawyer received the entrustment and entered into a commercial agreements with the accused; on the other hand, he is responsible to secure law implementation and judicial justice which requires him of building defense on the basis on law and facts, the motifs of both appearing contradictory. It is hard to tell whether or not the participation of a lawyer mediates the imbalance between the prosecutor and the prosecuted although he is supposed to help produce the balance19.

All in all, lawyers ought to be the guards for private rights, say, to protect the rights of their clients to maximum within the existing law system. “A government who is efficient with integrity can’t go against itself on behalf of a citizen though it can do good to the people. Only a lawyer can do so. The justice of a judiciary rests its root upon the balanced hearing of both the parties and constraints of the power while the lawyers safeguard the root20.

Entirely bound to the benefits of the prosecuted, a lawyer should defend for a verdict of innocence or alleviated sentence. Meanwhile, he must stay away from any conduct telling against the accused that renders him disadvantageous consequence. A lawyer is free from safeguarding judicial justice. With law in mind, he, however, has to keep a bottom line --- the forbidden by laws. The divergent purposes of a lawyer and a prosecutor were made clear with the penetrating remarks by Mr. Cai Dunming, a Taiwan scholar, “A lawyer is

19 Zhao Xuguang: Responsibilities, Confidential Obligation and Refusal Right to Testify, <Essay Collection of Sino-US Seminar on Lawyer’s Defense Role and Judicial Justice>, p.331.

20 Tian Wenchang: Profound Observation of Lawyers’ Positioning, <Essay Collection of Sino-US Seminar on Lawyer’s Defense Role and Judicial Justice>,p.397.

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for the public in the sense of protecting the legitimate rights of the accused, say, to protect the rights of the accused with judicial assistance for justice as a plus. But he is in a different position for the public from that of a prosecutor who goes against the crime on the stand of the law on purpose of preserving the social order. Rather than with protecting the rights of the public, a lawyer is concerned with protecting the rights of an individual person from being done wrong or suffering from penalties more severe than he deserves. Therefore, they have different focus in serving the public21.

With reference to Adversary System, the amendment of Criminal Procedure Law in 1996 introduced the mode of the said system at the stage of trial, but ex officio, or even super ex officio doctrine still applies to the investigation and accusation stages. The absence of the criminal defense becomes a predominant defect of legislation, leading to the immediate deformation of the role and position of the lawyer. The author often claims in places where the voice representing lawyers is auditable: who need a lawyer, the country (a society) or a citizen? For whom does a lawyer defend, for a citizen, or for the country (the society)? It’s a provoking question.

2. Protecting rights to defence of lawyer’s

Criminal Procedure Law ought to be added with the following rights for a lawyer by now:

(1) Authorization to investigate for evidence. It should be legally allowed that a lawyer is authorized to independently investigate for evidence at all the stages of criminal proceedings; is free from the applications for obtaining evidence; and legislatively has the assistance from all related persons in getting evidence.

(2)Authorization to consult the documents. It is suggested that the lawyer is protected with the right to consult the documents by the establishment of the rule that the prosecutor is obliged to show the lawyer all the evidence before the court session. On purpose of guaranteeing justice and efficiency, the lawyer is also obliged to show his evidence in return. As to the scope and degree of the display, it may be set down in line with the current judiciary system, litigation procedure and balance between the two parties, etc.

(3) Authorization of profession immunity. It is pressingly expected that article 360 of Criminal Law is abolished as soon as possible and a lawyer is exempt from the punishment for his professional conduct22.

3.Changing attitudes to lawyers

The author believes that the criminal judiciary will never ride onto the modern rail until the defense rule is set up. The judiciary, as well as the police system, needs to change the notion that the involvement of a lawyer brings about obstacles for investigation, 21 Cai Dunming: On Criminal Procedure Law, Taiwan Wunan Press, 1993, p.98. 22 For details of discussions on the cancellation of Article 306 of Criminal Law: Ji Xiangde, On Urgency of Cancellation of Aticle 306, Criminal Law, China Lawyer, 2004, issue 7.

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prosecution and sentencing into the idea that his participation is of necessity to protect the legitimate rights of the accused, fairly treating the lawyers with an accepting mind. Along with the contributions of the lawyer, we are making progress of the judicial undertaking in China.

4. Developing professional qualification system for defence lawyers23

It is undoubted that the inconsistent quality of the criminal lawyers is one of the demanding reasons of the current embarrassment. Aside with the above mentioned role transformations and legislative amendments, China is in need of tightening the access of lawyers to the criminal defense. In view of building up the rules for qualified lawyers to meet the requirement of criminal defense, the lawyers who are inexperienced and ineligible may not be admitted with the qualification, which is urgently expected in future.

The author holds that in order to put into place the above-mentioned goal, it is central to start with the reform of the exam system for qualified criminal lawyers by opening a professional exam based on the existing unanimous exam for judicial qualification. A lawyer of common practices, if intending to access to the criminal defense, has to devote himself to systemic studies on criminal laws before he can be eligibly admitted. The professional examination not only intensifies professionalism but also incubates responsibility and elitism. The lawyers qualified by the professional exam are apt to have confidence and trust by the public, which does improve their status and aggrandize their honor.

23 For details of discussions on the topic: Ji Xiangde, Legal Observation of the Establishment of Criminal Defense Qualification, China Lawyer, 2001, issue 2, p.11.

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