Of course, confessions are also more cost-efficient than forensic or shoe-leather policing; they require less paperwork and ensure a successful prosecution. “Confessions were usually required in traditional Chinese law, and torture was used if the accused refused to admit guilt,” Stanley Lubman, a specialist in Chinese law at the University of California, Berkeley, School of Law and author of Bird in a Cage: Legal Reform in China After Mao, explains via e-mail, adding that China is by no means historically unique in this.
In fact, according to Chinese law, the suspect has a “statutory duty… to answer [‘relevant’] questions,” explains Professor Hualing Fu, an expert in criminal justice at the University of Hong Kong. “This gives the police the corresponding legal right to demand answers… There is no right to silence” and, moreover, “little procedural protection during interrogation.”
Currently, “what a suspect needs the most is to have a lawyer during the interrogation,” says Hualing. But “that particular right is unlikely to be available in China in the near future.”Enjoying this article? Click here to subscribe for full access. Just $5 a month.
“Yan,” a lawyer based in the mainland and speaking on condition of anonymity, adds the caveat that “confessions can’t become evidence to convict, unless corroborated in detail by other evidence.” The infamous She and Zhao cases alone suggest this to be wishful thinking, at best. Either way, as Lubman states: “The practice of relying on confessions is deeply established.”
The practice of overturning such convictions is decidedly less established. China has long boasted a conviction rate that never drops below 99 percent (last year, it was 99.93; jury trials in the U.K. and U.S., by contrast, usually hover around the 84-85 percent mark). Observers disagree about the meaning of these figures, though Yan argues it is because there is “a high standard of proof in pre-trial procedures.”
If so, a reliance on confession obtained under torture undermines that standard. And the absence of well-organized NGOs – such as the Criminal Cases Review Committee in the U.K., Canada’s Royal Commissions, or the Innocent Projects in the U.S., New Zealand, Canada and U.K. – means the wrongfully convicted must rely on apparatus that falls under the purview of the state: media, prosecutors/procuratorates, courts and (least effectively) people’s congresses. Even without professional and financial NGO support, few prisoners have the know-how to assemble the evidence needed for a strong case.
Getting heard is no easy matter. In the tortuous case of former Gansu official Pei Shutang, whose 1986 rape conviction was eventually overturned after literally thousands of petitions, it took Pei’s alleged victim to personally accompany Pei to the Supreme People’s Court to admit that she had fabricated the rape charges as part of a local political plot to oust him from his post.
Old-fashioned petitioning methods are fraught with danger, and usually take years – though there are occasional successes. Traditional media has sometimes played a critical role as a mouthpiece for the wronged, such as in 2005, when the New Culture Daily looked into the case of Wang Haijun, released in 1998 after serving 11 years of a 15-year sentence for homicide. The newspaper successfully petitioned Jilin officials to clear his name after presenting the results of a three-month investigation. In more recent years, though, the rise of social media has provided an unofficial – though potentially more effective – method of voicing grievances. The success of such campaigns, however, depend on factors unrelated to strict judicial procedure. They can have unfortunate consequences for those who dare to speak out. In the most celebrated cases, they can also have a considerable impact. Deng Yujiao, the Hubei pedicurist who famously killed her would-be rapist, a government official, in all likelihood would have been jailed had the case “not attracted so much national attention and generated so much pressure.”
The government’s awareness of the issues is not in question: Shen Deyong, vice-president of the Supreme People’s Court, called the blight of wrongful convictions an “unprecedented challenge to the People’s Courts.” In their annual work report, the Court pointed out it had overturned 7,415 verdicts in 2013. Even China’s President Xi Jinping has apparently taken notice, publishing a document in February outlining rare, though cautiously vague, support for Zhou Qiang, president of the Supreme People’s Court, who has also publicly backed judicial reform (albeit with boilerplate rejections of supposedly “Western” ideas, such as trial by jury).
The remarks have a token quality, but the issue is critical – even within the Party’s definition of what really matters: social order. “A criminal readiness to send people to the hangman and let the real criminal slip away […] encourages serious criminals to step up their efforts, secure in the knowledge that crime pays,” writer Genyuan observes. “Law-abiding citizens also realize, that no matter how much they try to keep to the straight and narrow, a wrongful conviction charge can drop on them out of the clear blue…they might as well break the law and line their own pockets.”
One significant recent breakthrough has been the National People’s Congress’s “Decision Regarding the Amendment of the Criminal Procedure Law,” which most specifically outlaws “using torture… threats or any other illegal means to gather testimony” and went into effect on January 1, 2013. To protect suspects from police brutality, “the new rule is to require the police to transfer [them] to a detention center within 24 after his or her detention… thus limiting the opportunity for torture,” explains Professor Hualing. Crucially, “There is a general requirement of videotaping interrogation in serious criminal offences.”
While the law now technically protects regular citizens, it apparently doesn’t extend to cover officials caught up in the shadowy shuanggui detention system, making some doubt the sincerity of the bold reform talk. As Michael Davis, a professor of law at Hong Kong University, explained to Voice of America, “To live up to international standards under the [UN’s International Covenant on Civil and Political Rights] would require… very serious political reform.”
Then again, “Not everyone seems to agree on law reform,” observes Stanley Lubman, adding that legal progressives face opposition from an array of factions. “Hardline CCP members don’t [want it], the police don’t want to lose power and neither do local governments that select lower-court judges and fund the courts,” Lubman says. But the problem goes deeper than that: “‘Legal reform’ could have political implications, such as defining the kind of ‘rule of law’ that is to be established.”
One ineluctable progression is scientific. Early on, there were question marks over the efficacy of Chinese labs in DNA testing: Zhao Zhenshang’s headless “body” was originally misidentified from a faulty DNA test that had been conducted four times. (The prosecution would later explain that the technology was new; indeed, uncertainty about identification was just one of many acknowledged weaknesses in the case.) Now DNA technology is now more widely deployed, though testing is resisted or even considered wasteful by some local authorities. According to a 2013 study of 26 cases of wrongful conviction by Huang Shiyuan, an associate professor at Shandong University Law School, “no effective conviction was overturned as a result of new DNA testing in China.” The Innocence Project meanwhile claims that 314 convictions have been overturned through DNA exoneration in the U.S. In China, there has yet to be a single one.
Oddly enough, when Aiqing walked through the door of her mother’s house and into the annals of criminal law in 2005, local police requested (and received) DNA confirmation of her identity within 24 hours. This ensured her husband was released within four days of Aiqing’s miraculous reappearance, on April 1. So it was via a simple test, performed 12 years too late, that, with thinning hair and nothing to his name but his innocence – and on April Fool’s, of all days – the benighted She Xianglin felt the sun on his pale complexion, for the first time in four years, finally a free man. Legal reformers won’t be basking in the sun anytime soon, though, Hualing suggests: “I would not be surprised if it happens again.”
Robert Foyle Hunwick is the former Editor in Chief of That’s Beijing, and current Editor at Large for BeijingCream.com. He is a China-based journalist, with a focus on lifestyle and society and has written for, among others, the Asia Sentinel, The Atlantic, Danwei, The Times and Sunday Times of London and VICE magazine. Follow him on Twitter @MrRFH