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George Washington University Law School

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Friday, January 8, 2010

Li Zhuang's conviction and the problem of witnesses

Yesterday I blogged about the trial of Li Zhuang, a lawyer accused of fabricating evidence in the course of defending his client in the Chongqing gangster crackdown. The trial has drawn attention because it involves the use of Article 306 of the Criminal Law, which Chinese lawyers have long complained has been abused by the authorities to persecute them. A source I should have included in yesterday's post (a 2006 report from Human Rights in China) has this to say:

Approximately 500 lawyers were detained between 1997 and 2002[5] for any reason, and more than 100 lawyers have specifically been accused of violating Article 306 by fabricating evidence. Of these Article 306 cases, more than 90 percent have been cleared.[6] This statistic implies that the statute is often invoked improperly or misused by officials attempting to silence defense lawyers. This has resulted in both imprisonment and the revocation of lawyers' licenses to practice. For example, Ma Guangjun was convicted of fabricating evidence in 2003 and detained for 210 days because the witnesses he produced changed their testimony and admitted to fabricating evidence after being interrogated by the police.[7] Article 306 unnecessarily singles out lawyers in light of other Criminal Law provisions regarding fabrication of evidence.

[5] Bill Savadove, "Justice Remains Shanghaied in City's Law Courts; Intimidation and Physical Violence Against Lawyers Is on the Rise, and Getting a Fair Trial is still Far from Guaranteed," South China Morning Post, February 7, 2006.

[6] "Chinese Article Claims That Research on the Difficulties Faced By Criminal Defense Lawyers Restricted After Revealing "Shocking" Initial Results," Congressional - Executive Commission on China Website, January 13, 2005, http://www.cecc.gov.

[7] Jian Fa, "Independence Called for Lawyers," Beijing Review 47, No. 42, October 21, 2004, http://www.bjreview.com.cn/200442/Cover-200442(B).htm; Congressional - Executive Commission on China, "Chinese Article Claims That Research on the Difficulties Faced By Criminal Defense Lawyers Restricted After Revealing 'Shocking' Initial Results," January 13, 2005, http://www.cecc.gov.

The news today is that Li Zhuang has been convicted and sentenced to two and a half years [Guardian report | China Daily report].

According to one report, not a single witness actually appeared at the trial - including the key witness, Li's client, who testified that Li had falsely claimed he (the client) was tortured. Instead, witness statements obtained out of court by the prosecutors were read into the record. Perhaps because it is too common to be considered news any more, none of the reports notes that this is a clear violation of China's Criminal Procedure Law. Art. 47 of that law says, "The testimony of a witness may be used as a basis in deciding a case only after the witness has been questioned and cross-examined in the courtroom by both sides, that is, the public prosecutor and victim as well as the defendant and defenders, and after the testimonies of the witnesses on all sides have been heard and verified." (Emphasis added.) China is not the only country that has exceptions to this seemingly absolute rule; the US has exceptions to the rule against hearsay. But it seems that witnesses are routinely absent in Chinese criminal prosecutions even when no applicable exception would seem to apply. For example, in Li's case, the prosecution could hardly claim that his client was unavailable to testify - they were holding him in detention as he was being tried himself.

I came across some interesting local statistics on this issue a while ago. In a study of a basic-level court covering the three years 1994 through 1996, the researcher found the following:

  • Fully 85% of witnesses had their testimony simply read aloud in court, instead of actually appearing and being subject to cross-examination.
  • Of 243 cases of absent witness testimony being read aloud in court, in 58 cases the name of the witness was not even revealed. (Source: 毕玉谦,《关于证人出庭作证问题之探析》,in 毕玉谦编,中国司法审判论坛 (vol. 1, 2001), pp. 144-145.)

Data from one court 15 years ago is not, of course, solid social-science evidence. But it's consistent with complaints we keep hearing to this day about the absence of witnesses, and the institutional factors that made this possible 15 years ago (i.e., the lack of any incentive for prosecutors to produce witnesses, since courts are still willing to use the evidence even when the witnesses don't appear) remain unchanged.

UPDATE (JAN. 9, 2010): Two Beijing lawyers have written an open letter on due process issues in the Chongqing gang cases and in the Li Zhuang case in particular, also noting that none of the eight witnesses testified in court. (They don't, however, point out that accepting their testimony violates the Criminal Procedure Law.) The letter is addressed to the (Party) Discipline Inspection Commission, the (Party) Central Political-Legal Committee, and the Supreme People's Procuracy.

http://lawprofessors.typepad.com/china_law_prof_blog/2010/01/attorney-li-zhuang-convicted-of-fabricating-evidence-in-chongqing-gang-case.html

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