Forensic Errors Leading to Wrongful Convictions in China

Original Article

Forensic Errors Leading to Wrongful Convictions in China

*Corresponding author: Jiang Na, Law Professor, Beijing Normal University in China, Ph.D. in Law (U.K.); Deputy General-Secretary of the International Association of Penal Law (AIDP) China; E-mail: na.jiang@bnu.edu.cn

 

Abstract

Background: China promptly responded by public inquiries into such cases and by a series of legal reforms for better preventing future miscarriages of justice.

 Methods: This paper examines several high-profile wrongful convictions as the milestones of China’s recent reforms on forensic and other evidence, in order to explore the causes of convicting the innocent. This paper will focus on case studies of most notorious wrongful convictions that reveal the influence of forensic errors on the developing course of wrongful conviction, so as to examine the actual effect of implementing current justice systems in China.

 Results: New reforms are needed to help set a safety net in order to reduce forensic errors leading to wrongful convictions in China. Fundamental flaws such as forensic errors leading to wrongful convictions in China’s justice system, reported by diverse media, have received a broad attention of major overseas media, Chinese authorities and scholars, promoting correction of such convictions.

 Conclusions: As tragic stories of wrongful convictions play out in the headlines, China is actively in the midst of responsive transformation of its judicial sector or official adoption of new methods in an attempt to reduce the risk of injustices and improve international image.

Keywords

Forensic Error; Convictions; Legal Reforms; miscarriages of justice; judicial exonerations; innocent; investigation; eyewitness testimony; DNA testing; interrogation; Prosecutorate; Defense

Abbreviations

CPL: Certificate of Pending Litigation; DNA: Deoxyribonucleic Acid; BPC: Basic People’s Court; HPC: Higher People’s Court; IPC: Intermediate People’s Court.

Introduction

The common causes of high-profile wrongful convictions in China are generally similar to the causes of such convictions in other countries. Forensic failings have been reported that jeopardize the lives of people suspected of committing capital crimes.        This paper will focus on case studies of most notorious wrongful convictions that reveal the influence of forensic errors on the developing course of wrongful conviction, so as to examine the actual effect of implementing current justice systems in China. This research will also attempt to critically analyze and rationally assess major problems in and new challenges for combating repeated injustices, based on the lessons of flawed justice in convicting the innocent.

Methods

  1. Case Studies

Case SHE Xianglin and Case ZHAO Zuohai have provided good examples of China’s forensic systems. Their judicial exonerations have finally brought some helpful responsive reforms in China. It is worthy of note for reformers to fully examine details in such cases.

  1. The Case of SHE Xianglin

SHE Xianglin was convicted in 1994 of the murder of his wife. In reality, ZHANG had married another man in another Province and lived well there. During the investigation, the female body was identified as SHE’s wife in a written report called the medical expert evaluation. This identification was not based on DNA testing or eyewitness testimony.

In early 2015, four months after the HPC remanded SHE’s case for retrial, his mother provided the letter from witness which alleged that SHE’s wife was alive. Not only no institution pay attention to the truth, but also the mother was arrested and falsely accused of the crime of ‘covering up convicts. Unfortunately, this clue that SHE’s wife was alive, known by both police and judges, was not used as evidence to enter an acquittal [1].

The appearance of the ‘victim’ ZHANG, who was later identified through DNA testing by police, thoroughly revealed SHE’s factual innocence and thus contributed to his judicial exoneration, which included a refutation of the wrongful conclusion in the original trials and retrials that SHE had been engaged in murder. The wrongful conviction was the result of a false confession that SHE was tortured into making during 10 days of interrogation.

  1. The Case of ZHAO Zuohai

Mr. ZHAO Zuohai was convicted of murder for killing a fellow villager who had disappeared after their fight at night [2].  Mr. ZHAO consistently denied killing the ‘victim’ at the prosecutorate and court. His court-appointed legal counsel, who was not a fully qualified lawyer, attempted to question the prosecutor about ‘unclear facts and insufficient evidence’ and defend his innocence against the allegations of intentional killing in court [3].  The trial judge, however, ignored such arguments and ZHAO’s affirmative defense, concluding with his murder conviction and imposing the death sentence with a two-year reprieve. The judge’s decision was based on ZHAO’s confession, which had been extracted under police torture, along with the existence of a headless, decomposed corpse which was uncertainly identified as the victim’s dead body [4].

The main evidence at trial against Mr. ZHAO came from his oral confessions of murder during interrogation, when he had to admit that the cause of the alleged victim’s death was intentional killing and even asked for his wife’s help to obtain his own parent’s bones to use as a stand-in for those of the murder victim so as to confirm his guilt [5].  ZHAO did not provide any medical evidence to challenge this testimony and prove his factual innocence but instead denied his guilt at trial and argued that his confession resulted from police torture [6]. During his detention, ZHAO was beaten with a stick and had firecrackers set off over his head [7].  They also forced his wife to identify the body as the ‘victim’s’, as was necessary for his murder.

  1. Evaluation: The Causes of Injustice
  2. Forensic and other Expert Evidence

Faulty forensic or other expert evidence in China appears to be an important cause of numerous wrongful convictions, as it is in many developed countries, such as Canada [8]. In response to the danger of wrongful convictions, the collection and production of such evidence should be strictly regulated to reduce these mistakes, especially where DNA evidence is unavailable or unreliable. In both Chinese wrongful convictions, investigators, prosecutors and judges had assumed that the kind of evidence offered by the state was infallible despite the defence’s assertion of factual innocence and arguments against former confessions at trial. A decade later, similar retrials were held in the second-instance courts when body feature evidence had been overthrown by the alleged victims’ reappearance and their identification through DNA testing.

In Case SHE, for instance, it was necessary for investigators to use DNA testing to identify whether the dead body was in fact that of the wife of She Xianglin, given the many doubts in this murder case. They should not have concluded that the deceased was his wife, ZHANG Zaiyu, solely on the basis of body features like height, as was done by the police in this case. Indeed, such reasoning is against the CPL. As ZHANG’s brother remembered, a legal medical expert said that the body had been dead for about 80 days, given the degree of decomposition. Such a time of death was consistent with the length of time for which ZHANG had been missing [9].  Then, ZHANG’s family proposed the use of DNA testing to further confirm the identity of the corpse, but the local police asked them to pay RMB 20,000 for DNA testing because the police could not otherwise afford to do so [10]. According to an out-of-court statement by Mr. SHE’s brother, Mr. SHE’s family never saw the dead body. They asked the policemen how to find out whether the dead body was ZHANG or not. The responsible policemen replied “on behalf of” the governmental authority that ‘it is not you to have the final say, the government is certainly not wrong’ [11].

Hence, the dead body was identified mainly on the basis of probable similarities in height and on the time between the estimated time of death of the body and the disappearance of ZHANG, rather than more reliable scientific or eyewitness evidence obtained by lawful means, e.g. the DNA testing that was later used for the judicial exoneration of SHE. This is obviously far from the legal standards on evidence enshrined in the CPL.

  1. Passive Judges

As Case SHE and Case ZHAO have indicated, trial judges who decide whether to admit or exclude evidence offered by the prosecution should have played a significant and crucial role in excluding unreliable evidence from the criminal process. In the past, trial judges had so much discretion that the PC deferred to them when deciding whether to accept a confession or not, even though they were both potentially under the pressure of the Committee’s instructions. It was only after the 2010 Reform, which responded to the judicial exoneration of Mr. ZHAO, that judges were able to take more active and independent initiative in determining the reliability of evidence at trial. In particular they have been able to focus on whether there was a factual basis for confession when deciding whether or not to exclude illegally obtained evidence. Apart from restricting the admissibility of evidence that is likely detrimental to criminal justice, judges made creative decisions in allowing the innocent to re-open cases and exonerated them even though their appeals have been exhausted.

As in the misjudged Case SHE, judicial passivity in allowing unreliable evidence and in refusing to exclude illegally obtained evidence at trial has caused the conviction of the innocent for murders that never happened. Despite numerous discrepancies in SHE’s story, and a lack of DNA testing that to confirm whether the body was his wife’s or not, the innocent Mr. SHE was still sentenced to death. Clearly, the evidentiary requirements had clearly not been met. Following the procedure for first instance, the case was appealed to the Hubei Provincial Higher People’s Court (HPC) that revoked the original judgment and remanded it for a retrial in the second instance. But at the retrial, local Basic People’s Court (BPC) sentenced SHE Xianglin to 15 years’ imprisonment, which was upheld by other courts without examining DNA evidence.

Furthermore, the wrongful conviction of Mr. SHE appears to result directly from the HPC’s remanding for retrial, despite deep flaws in the prosecution case. It was the HPC of Hubei Province that first arbitrarily abused its discretion in remanding Case SHE for a retrial to avoid its responsibilities for upholding justice while handling criminal appeals. The HPC deviated from designated requirements of revising original judgments after the facts are ascertained if facts are unclear or evidence therein is insufficient, with an exception of remanding back the case for retrial. The HPC intended that the former first-instance Court which originally tried the case should take on the responsibility of retrial in accordance with the procedures of first instance. Given the initiation of the retrial procedure by the HPC, the former first-instance Court which originally tried it should have taken on the responsibility of retrying the case, in accordance with the procedures of first instance. The legal responsibility of retrying the case was shifted to the lower court, contrary to the 1996 Criminal Procedure Law (CPL), to increase trial efficiency and reduce the probability of retrial. These objectives were obtained at the expense of criminal justice. Without any legal bases, a case tried under the former procedure for second instance cannot be transferred to procuratorial organs in later retrial procedures in order to prevent a backflow of criminal proceedings. Doing so can lead to wrongful convictions. Moreover, such cases, carrying penalties such as life imprisonment or the death sentence belong to the category of those under the jurisdiction of the Intermediate People’s Court (IPC) in the first instance, rather than the County BPC, as per Article 20 of the 1996 CPL. These procedural problems were the primary factors that influenced Mr. SHE’s appeal to be misjudged by the second-instance HPC and his wrongful conviction not to be overturned. He would not receive proper justice until his wife returned alive one decade later.

  1. Penal Policy

The penal policy known as ‘Strike Hard’, has also contributed to wrongful convictions in the past. The ‘Strike Hard’ policy, now no longer in operation, provided Chinese police and prosecutors with a great advantage of litigation efficiency, but this advantage came at the expense of justice.

As indicated in the Conference on National Work of Social Order and Public Security, the basic principle of ‘Strike Hard’ stated that the clarity of basic facts or the reliability of basic evidence was sufficient to convict the accused in serious criminal cases [12].  By contrast, Article 162 of the 1996 CPL states that reliable and sufficient evidence are required for a conviction, a higher standard than that required under ‘Strike Hard’. Under the penal policy, courts dealt with unclear or unreliable evidence by imposing the death penalty with a suspension of execution. The availability of this lesser sentence led prosecutors to seek convictions and judges to convict based on a lower standard of evidence, given that the new sentence allowed for less severe consequences of a wrongful conviction.

The truth of such wrongful cases appears to be exposed from death sentences with ‘a suspension of execution’ rather than immediate execution, as a temporary expedient that prosecutors or courts may use in considering full of doubts remained. Capital cases which lacked other mitigating circumstances, were often concluded with death sentences with a suspension, implying that judges who were uncertain of the guilt of the accused were willing to convict the accused and apply the death penalty, given political pressures to convict and the possibility of an appeal should the judge be mistaken. Yang Songting, the presiding judge of Criminal Tribunal I at the IPC exonerating ZHAO, noted this tendency in his comment on the wrongful conviction, even though ZHAO faced a death sentence based on uncertain evidence, when discussing case lessons and reform proposals in 2010.

Conclusion

Fundamental flaws such as forensic errors leading to wrongful convictions in China’s justice system, reported by diverse media, have received a broad attention of major overseas media, Chinese authorities and scholars, promoting correction of such convictions. As tragic stories of wrongful convictions play out in the headlines, China is actively in the midst of responsive transformation of its judicial sector or official adoption of new methods in an attempt to reduce the risk of injustices and improve international image. Following SHE’s exoneration, the critical media has pushed China to take on a series of judicial reform.

But the first wave of justice reform has been frequently criticized for not solving the most obvious problems in SHE’s wrongful conviction. Similarly, from the lessons of ZHAO’s wrongful conviction, reform proposals have contained various measures on judicial supervision and restraint mechanisms to curb such convictions in the second wave of reforms. Resolving around forensic evidence, the principle of excluding illegally obtained evidence has been adopted in the 2010 Evidence Rules and further been codified as law in the 2012 CPL. Its full implementation is likely to reduce and prevent forensic errors in convicting the accused, for new reforms are needed as a new safety net to increase justice in using forensic evidence.

Reference

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12.‘Murder’ Case Likely to Be Retried in This Week, Abuse of Power to Remand Back for Retrial Being a Primary Reason. China 2005. Accessed on 15 September 2018.

13.Yuhua L. ‘Strike Hard’ Being A Requirement of Penal Policies. JCRB 2001.

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