The adequacy of China's responses to wrongful convictions

This paper examines a series of reforms that followed the discovery of high-profile wrongful convictions in China since 2005. There have been two waves of criminal justice reforms to prevent future wrongful convictions and to improve China's criminal justice system more generally. But it will be suggested in this paper that China's responses are inadequate because they allow traditional police and judicial practices that will lead to future wrongful convictions to continue. Further reforms will be suggested. First, police interrogations should be fully recorded, and the entire recording should be played back at trial. Second, the role of the defense counsel should be expanded. The use of state secrets as evidence against the accused should be curtailed. The close cooperation between the police, procuratorates and judiciary in the criminal justice should be counteracted by the creation of an independent body to review all serious convictions. Finally, the Chinese criminal justice has proven itself not safe enough to allow the broad use of capital punishment as a punishment for non-violent offences and at the very least, the immediate execution of prisoners who lose their final appeal must be abolished.     

Iron triangle of the gong jian fa: Lessons from wrongful convictions in capital cases?

This article examines the iron triangle of the gong jian fa (police, prosecutors and courts) in China, based on Chinese lessons from high-profile wrongful convictions in capital cases. It argues that the iron triangle acts as both an administrative and a political control on such cases, behind which lies overly close cooperation between the three state institutions. This cooperation often results from coordination by local political-legal committees (PLCs). Under this institutional environment, the police, prosecutors and courts have to work together and cooperate with combating crime, without necessary restricts to ensure criminal justice even in capital cases. Responding to repeated occurrences of such typical injustices, China has promoted several waves of justice reforms to prevent and reduce wrongful convictions over the last ten years, but has failed to make substantive progress without effectively addressing the iron triangle. This continued failure calls for a holistic approach to future systemic reform. Particularly, specific measures are required to enhance judicial independence and to reduce intervention from local PLCs during the handling of individual cases. Such reforms would greatly reduce the risk of wrongful convictions in capital cases.     

刑事错判证明标准的名案解析

错判的发生具有普遍性和蛰伏性,错判的认知具有模糊性和对抗性,因此我们需要明确认定错判的证明标准。通过对美国、英国、德国的错判证明标准的实例解析,我们可以看到,他们在认定错判的时候都不适用刑事诉讼中认定被告人有罪的证明标准,而且认定错判的证明标准都低于认定有罪的证明标准。我们应该重新阐释中国刑事诉讼中错判的证明标准,而且应区分启动再审的证明标准、认定错判的证明标准和决定国家赔偿的证明标准。     

刑事错案形成的心理原因

刑事错案的成因包括直接原因、环境原因和心理原因,其中心理原因(主要表现为包括"遂道视野"、"证实偏差"等在内的各种心理偏差)对错案的形成有更根本的影响。绝大多数直接原因,如刑讯逼供、隐瞒有利于犯罪嫌疑人、被告人的证据、忽视辩护律师的合理意见等等,都是各种心理偏差的外在表现。而绝大多数环境原因,如不合理的考核方式、司法经费不足等等,之所以会导致错案,主要是因为它们强化了这些心理偏差。根据这些心理偏差对错案形成的可能影响,可以在心理学层面总结出刑事错案的形成过程及规律,而我国近年来纠正的22起刑事错案可以为此提供验证。我国有必要完善当前的刑事司法体制,以减少这些心理偏差对办案人员的影响,进而更有效地防止错案的发生。     

Forensic DNA evidence and the death penalty in the Philippines

The death penalty remains a contentious issue even though it has been abolished in countries such as Australia, New Zealand, Canada, European Union member nations and some Asian countries such as Cambodia, East Timor and Nepal. Many argue that the irrevocability of the death penalty, in the face of potential erroneous convictions, can never justify its imposition. The Philippines, the first Asian country that abolished the death penalty in 1987, held the record for the most number of mandatory death offenses (30 offenses) and death eligible offenses (22 offenses) after it was re-imposed in 1994. Majority of death penalty convictions were decided based on testimonial evidence. While such cases undergo automatic review by the Supreme Court, the appellate process in the Philippines is not structured to accept post-conviction evidence, including DNA evidence.Because of the compelling nature of post-conviction DNA evidence in overturning death penalty convictions in the United States, different groups advocated its use in the Philippines. In one such case, People v Reynaldo de Villa, the defendant was charged with raping his 13-year-old niece that supposedly led to birth of a female child, a situation commonly known as ‘criminal paternity’. This paper reports the results of the first post-conviction DNA test using 16 Short Tandem Repeat (STR) DNA markers in a criminal paternity case (People v Reynaldo de Villa) and discusses the implications of these results in the Philippine criminal justice system.     

死刑程序的正当化

死刑程序正当化的要求应高于非死刑案件,主要表现在对死刑的适用应有更严格的程序,对于面对死刑的人应赋予更多的诉讼权利。《公民权利和政治权利国际公约》以及《关于保护死刑犯权利的保障措施》从审判程序、诉讼权利、证明标准等方面确立了死刑案件程序正当化的最低标准。参照这一标准,并针对我国有关死刑程序的立法与司法现状,应采取相应的改革措施,即死刑案件的审理程序可分为定罪程序和量刑程序,应完善死刑复核程序和执行程序,应区分死刑案件和非死刑案件的证明标准,还要加强面对死刑的人强制辩护权的保护。     

CASE STUDY ON THE CAUSES OF WRONGFUL CONVICTION IN CHINESE CRIMINAL PROCEEDINGS

In recent years, with the disclosure of wrongful convictions in the media, the topic has become a focus of attention in China. Those wrongful convictions led people to ask: What is going wrong in Chinese criminal justice system? Since late 1995, the author of this article led a group of researchers and embarked upon an empirical study of wrongful convictions in China. According to our study, false confessions extracted with torture are a major evidential cause, or direct cause, for wrongful convictions in China. However, there are indirect causes behind the problem of torture in the criminal proceedings. They are the nominal checks among the police, the procuratorate and the court; the bowing to public opinions in contradiction to legal principles; the unlawfully extended custody with tunnel vision; the nominalization of courtroom trials; and the reducing of punishment in a case of doubt. These causes of wrongful convictions reflect the institutional flaws, outdated mentalities, and improper practices in Chinese criminal proceedings.     

Estimating wrongful convictions

Although numerous cases of wrongful convictions have been documented in the literature and in the media, criminologists have yet to devise a methodology for estimating the extent of such errors in the criminal justice system. I explore several methodologies with this purpose in mind, including the use of official data, inmates' self-reports, and case study approaches. Specifically, I use court-ordered discharges from imprisonment as a basis for measuring official error. In addition, I employ data from the RAND inmate surveys to estimate the extent of convicted offenders who deny their commitment offenses. Studies that attempt to catalogue individual wrongful convictions also serve as a basis for estimating false positive errors. Each methodology has its own limitations, but by employing multiple measures and approaches, I make possible an estimate of the “dark figure” of wrongful convictions.     

Rights Restoration and the Entanglement of US Criminal and Civil Law: A Study of New York's “Certificates of Relief”

Despite burgeoning interest in prisoner re‐entry and the “collateral consequences” of criminal convictions, we know little about the practical operation of policies governing the rights and privileges of people with criminal convictions. This study examines New York's Certificates of Relief from Civil Disabilities to explore the workings of the US carceral state at the intersection of criminal and civil law. These certificates remove some legal restrictions accompanying convictions, particularly licensure barriers, and are easier to achieve than pardons; other states have used New York's policy as a model. Interviews with judges and probation officers reveal deep variations in how they understand and award certificates. In some cases, differences stem from informal local agreements, particularly concerning firearms in rural communities; in others, from discretionary judgments in a context of legal ambiguity. These practices demonstrate how specific legal, organizational, and cultural factors contribute to complexity and variation in the US carceral state.     

WRONGFUL CONVICTIONS AND THE EXCLUSIONARY RULES IN CHINA

Wrongful conviction is the shadow of the criminal justice system. Under this shadow are the flaws and deficiencies of the system, which must be shed light on in order to instigate and promote reforms and improvements to the system. Extracting confessions with torture is a major cause for wrongful convictions in China. The exclusionary rules against illegally obtained evidence should be an effective way to eliminate tortures from criminal justice. The Provisions on Several Issues Concerning the Examination and Evaluation of Evidence in Death Penalty Cases and the Provisions on Several Issues Concerning Exclusion of Illegal Evidence in Criminal Cases and the newly amended Criminal Procedure Law have made progresses in this regard, but we still have a long way to go to turn the laws on paper into the rules in action.     

死刑犯的权益保障

死刑问题是近年来刑法学界的热点之一.关于废除死刑还是保留死刑,这方面的论述颇多,尚无定论.学者们能够达成共识的是,我国目前还处于社会主义初级阶段,在当前的物质发展水平和公众观念的条件下,还不能废除死刑.因此,死刑在今后相当长的一段时间内仍将在我国存在.那么,对于可能被判处死刑的"准死刑犯"和已被判处死刑的"死刑犯"而言,如何最大程度地保障他们的合法权益,既是死刑犯及其家属们所切实关心的问题,也应当是刑法学者们密切关注的课题.     

刑事错案的深层次原因——以检察环节为中心的分析

检察机关在刑事诉讼中的职能与地位决定了大多数刑事错案的形成与发展都与检察机关的诉讼活动有关。因此,检察机关制定有效预防错案的对策有必要首先从检察环节寻找原因。本文主要以刑事诉讼过程的检察环节为研究对象,具体分析了传统法律文化的影响、刑事诉讼机制、刑事司法机关工作机制和司法机关与外部关系方面导致刑事错案形成或继续发展的主要因素及其作用机理,认为这些深层次原因的共同作用削弱了刑事司法机关预防错案的功能。     

Study of issues over public hearing in death penalty cases

The death penalty is involved in the most severe criminal offenses. Holding public hearing in these cases seems to be the best way to guarantee judicial fairness. A public hearing in death penalty cases is of important significance in safeguarding judicial fairness and protecting human rights, which has attracted a high level of attention domestically and internationally. This paper interprets the requirements of the United Nations’ related agencies for the public hearing of death penalty cases, defines the nature of public hearing in the aspects of rights and obligations, analyzes the special nature of the requirements for the public hearing of death penalty cases, introduces some practices and issues of the public hearing of death penalty cases in foreign countries, analyzes China’s present practice of the pubic hearing of death penalty cases and puts forward some suggestions and channels to realize it.     

Legal Reform and Good Governance: Assessing Rights and Economic Development in Chile

Legal reforms throughout Latin America have increased the transparency of the criminal justice process and improved defendants' rights. Many scholars conjecture that such reforms also improve “good governance” and by extension economic development. Paradoxically, despite such assertions, there are few quantitative studies that examine the precise effect of such legal reforms. Using original data sets, the impact of Chile's criminal law reforms on the rights of criminals and economic development is tested. The results show that Chile's criminal law reform has enhanced defendants' rights by reducing the percent of individuals incarcerated. The reform has had a positive effect on regional economic activity, but little effect on foreign direct investment at the regional level.     

论我国死刑制度的实质性改革——以《刑法修正案(八)》削减死刑罪名为视角

《刑法修正案(八)》的出台引起社会高度关注,因为与以往历次《刑法》修正案相比,本次《刑法》修改可以说是幅度和力度最大的一次。《刑法修正案(八)》的亮点之一就是削减了死刑罪名,由于死刑是剥夺犯罪人生命的刑罚,因其严厉性、残酷性、非人道性和不可纠正性而长期为人所诟病,死刑之存废也是学界一直关注和争论的焦点问题,然而,就我国现阶段而言,对死刑依然保持现状或轻言完全废除都不可取,更重要的应当是在刑事立法和司法适用上对死刑进行有步骤地、渐进式地改革。从此意义上说,《刑法修正案(八)》充分表明我国已进入对死刑的实质性改革阶段。     

Identifying Miscarriages of Justice: Why Innocence in the UK is Not the Answer

This article examines two contrasting proposals for the reform of criminal appeals: the government's recent proposal that the guilty should no longer have their convictions quashed on 'technicalities'; and calls by campaigners for the Court of Appeal to consider innocence rather than the 'safety of the conviction,' together with their associated attempts to establish Innocence Projects in the UK. Despite the rhetorical power of 'innocence' as a campaigning tool, it is contended that to import such a standard into the legal system would be retrogressive and counter-productive, both as a safeguard against wrongful convictions and in protecting the integrity of the system. In order to be meaningful, due process protections must apply to all. The government's proposals attack this principle directly; innocence campaigners risk unwittingly assisting their endeavours.     

论死刑的替代措施——以我国刑法立法为基点

我国在一定时期内不可能全面废除死刑,但由于我国已经签署联合国《公民权利与政治权利的国际公约》,因而应当将死刑罪名控制在有限的范围内。我国现行刑法对68种犯罪规定了死刑,主张废除其中的56种犯罪的死刑,保留其中12种犯罪的死刑。在废除56种犯罪的死刑后,除传授犯罪方法罪、组织卖淫罪这两个罪的死刑规定明显不合理,不属于废除死刑后采取替代措施的外,对其他54种废除死刑的犯罪均应以25年不得假释或者减刑后服刑期不得少于25年的无期徒刑作为其替代措施。     

Officials' Estimates of the Incidence of “Actual Innocence” Convictions

Evidence indicates that the conviction and imprisonment of factually innocent persons occur with some regularity. Most research focuses on causes, but the incidence of wrongful convictions is an important scientific and policy issue, especially as no official body gathers data on miscarriages of justice. Two methods are available for discovering the incidence of wrongful conviction: (1) enumerating specific cases and (2) having criminal justice experts estimate its incidence. Counts or catalogues of wrongful conviction necessarily undercount its incidence and are subject to accuracy challenges. We surveyed Michigan criminal justice officials, replicating a recent Ohio survey, to obtain an expert estimate of the incidence of wrongful conviction. All groups combined estimated that wrongful convictions occurred at a rate of less than ½ percent in their own jurisdiction and at a rate of 1–3 percent in the United States. Defense lawyers estimate higher rates of wrongful conviction than judges, who estimate higher rates than police officials and prosecutors. These differences may be explained by professional socialization. An overall wrongful conviction estimate of ½ percent extrapolates to about 5,000 wrongful felony convictions and the imprisonment of more than 2,000 innocent persons in the United States every year.     

毒品犯罪死刑问题研究

出于现实中打击毒品犯罪的需要,我国现行刑法的毒品犯罪仍然保留了死刑。但是,从司法实践角度看,我们应当严格限制毒品犯罪死刑的适用;从立法论角度看,出于对人权的保护和尊重,以及受到毒品合法化等因素的影响,我们应当力争废除我国刑法中毒品犯罪保留的死刑。     

Destiny of the Death Penalty in China in the Contemporary Era

This paper is a study on the abolishment of death penalty in China. The author first reviewed the ancient death penalty in China, looked at the history of death penalty from its evolution and reform, then examined the status quo of China’s death penalty, and brought forward a practical question of what course should the flourishing death penalty in China follow in the international trend of abolishing and restricting death penalty. In this regard, the author analyzed the conditions for abolishing death penalty from the perspectives of public opinion’s influence, choice of politicians, control of crimes and structure of criminal penalty. He also designed a course for China to restrict and abolish death penalty from the legislation setting and judicial restriction, expecting to find a practical way to abolish death penalty.