Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

Friday, August 17, 2012

Does it matter that Xinhua called the evidence against Gu Kailai “irrefutable”?

There have been some rumblings in the press about Xinhua having declared the evidence against Gu Kailai “irrefutable” before she even went to trial. The implication of these comments seems (at least to me) to be that Xinhua’s declaring the evidence irrefutable before the trial somehow indicates that the fix was in.

Now, just to be clear about this, I am not disputing the point that the verdict is a foregone conclusion. It will come out on Monday, and I don’t think I’m going out on a limb to predict that she will be found guilty. But it’s important to point out that the Chinese system is designed to prevent cases about which there is any uncertainty about the evidence from getting to the trial stage in the first place. Weak cases are supposed to be sent back for more investigation or else dismissed. That design is not necessarily inconsistent with producing a just result.

In other words, if everyone involved in the investigation and prosecution of the Gu case did their jobs in an utterly impartial, objective, and highly competent way, Xinhua—and indeed any observer—would be justified in concluding that the evidence must be pretty strong. Therefore, we can’t take Xinhua’s statement as prima facie evidence that the whole proceedings are biased. Sure, China’s conviction rate is incredibly high: from 1997 through 2005, only 0.66% of criminal defendants upon whom judgment was pronounced were found innocent. The acquittal rate in South Korea, however, is even lower: 0.5%. In Japan, it’s below 1%. (I’ve blogged on this here, with a note on US acquittal rates as well.) That might be because a lot of innocent people get convicted in South Korea and Japan, but it might also be because prosecutorial incentives are such that prosecutors don’t want to bring cases with the remotest chance of losing.

China is not, of course, South Korea or Japan, the biggest difference (relevant to this discussion) being that judges in South Korea and Japan have much more independence. Judges in China are subject to the same political leadership—the local Party Political-Legal Commission—as prosecutors and police. Still, the point remains that when the system functions as it is formally supposed to—a way that is by no means unique in the world, inherently unfair, or confined to single-party dictatorships—we would still expect to see a very high conviction rate.

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Sorry, but yes, the fix was in. Xinhua is a state-owned media outlet and, to use the People's Daily's description of itself, "mouthpiece of the party". "Irrefutable" is an absolute, not relative statement - literally there is no way in which the evidence can be disproved. Therefore this was the government telling us what the result was ahead of time, not with 99% certainty, or 99.9% certainty, or even 99.99% certainty, but 100% certainty.

Posted by: FOARP | Aug 17, 2012 2:11:51 AM

Unlike many jurisdictions where justice is seen to be done, once a trial starts, it has to finish. The Judge cannot order nor can the prosecutor request that the trial be stopped to collect better evidence to make the case stronger against the accused. In China, that approach is routine and they don't seem to matter. Procedural justice is not respected in China. Hence the Chinese government may have assessed the public reaction in the interim before it decides what to do next.

Posted by: Frankie Fook-lun Leung | Aug 17, 2012 9:24:54 AM

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