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Excluded : The Zhang Guoxi Case

October 17, 2011

Excluded : The Zhang Guoxi Case
Oct 9th, 2011 | By USAsialawNYU |
Jeremy Daum
Normally, ‘dog bites man’ is not news, but in the generally bleak climate for reform that pervades China’s criminal justice system, a story of “judge upholds law” has gained some traction in the Chinese media. As Chinese and foreign experts scrambled to absorb new draft revisions to China’s Criminal Procedure Law (CPL) in time to offer their opinions during the single month allotted for public comment, another less publicized story was also making waves in the legal community. A trial court in Ningbo has been hailed as the first to give full force to rules on the exclusion of illegally gathered evidence jointly introduced slightly over a year ago by China’s Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Justice and top law enforcement agencies (“the Rules”), by excluding a confession and allowing a defendant to go unpunished.
 As the time since the initial release of the Rules, intended largely to curb violent interrogations, grew longer, many had begun to fear that they would exist largely on paper, having little impact in actual practice. The Ningbo case, which is now being reviewed by an intermediate court, will be an interesting test of China’s commitment to these reforms and to procedural reform more generally. The intermediate court’s decision, and the reaction of the criminal justice and law enforcement communities, may influence the ongoing reformulation of the CPL more than any public commentary ever could.
 The case itself is remarkable only in its mundanity.  It is an ordinary bribery case in which Zhang Guoxi (章国锡), an official from a local construction administration project, was accused of abusing his office to accept seventy-six thousand yuan (about $12,000 U.S.) in graft over four years. The mistreatment that Zhang allegedly received at the hands of interrogators is also not the sort of blood-curdling horror story that “shocks the conscience” or that one might expect would provoke a judge to take a stance against his investigative and prosecutorial colleagues, risking his career and reputation. Prior to trial Zhang was interrogated several times for periods of two to three days, during which he was questioned through the night and given only irregular breaks a few hours long. During these interrogations he was reportedly handcuffed, and at one point jostled by five or six interrogators causing a 2 cm scratch and some severe bruising on his arm. At one point his wife was also threatened with detention which would leave their three year old child unattended, and the initial investigation was marked by a general failure to follow procedures or establish a basis for continued detention.
 The interrogation techniques were perhaps no more appalling than the legal conditions of Zhang’s pretrial confinement.  Zhang reports that he was assigned to work long days assembling strings of colored lights, trying to make unreachable quotas, until his hands blistered from the labor. It is not hard to imagine that even an innocent man, finding himself unexpectedly confined and aggressively interrogated, exhausted and with no clear view of his future, would readily confess in order to find relief. Zhang did in fact confess to several instances of accepting bribes, and recanted all but the most minor instances shortly thereafter, only to confess again at the next interrogation. It is said that his story flipped five times in a single month, but ultimately Zhang continued to claim his innocence of serious wrongdoing even through trial.
  What is exceptional about the case is instead the trial court’s insistence that prosecutors and investigators follow both the spirit and the letter of the law. Defendants and lawyers who have attempted to challenge the legality of evidence in the past have often found courts simply unwilling to listen or make any rulings, despite the directive of the new exclusionary rules. The vague wording of the Rules makes it arguably unclear how much evidence a defendant must present in order to initiate an investigation into the legality of evidence, and what proof the prosecution must then offer to dispel any doubt about the legality of it its interrogation before the evidence can be admitted. Although the Rules mention that the prosecution should comply with court requests to present evidence such as records and recordings of interrogations and call even investigatory personnel to testify on the matter, most courts have been content to rely solely on signed, written letters of explanation asserting that the interrogations were above board. Even in those few cases where interrogators do appear in court, they often make only a prepared statement, taking no questions from either side.
 When the prosecution in this case offered signed and sealed letters from the investigators stating that the interrogations had proceeded “legally,” in a “civilized” fashion, and that there “was no physical coercion or enticement”, the court demanded more.  Between hearings, the court independently investigated the allegations, going to the detention center to consult health records and verify that Zhang had sustained his injuries while held there. The court demanded a reasonable explanation for the injuries, requested that investigators appear in court and asked that video recordings made of Zhang’s interrogations be played in court. The prosecution was unyielding, however, and made clear that there would be no court appearances. They agreed to play clips of the video-taped interrogations, specifically the parts in which Zhang confessed, but refused to play the entire contents of the tapes in court on the grounds that it would reveal state secrets and waste too much time. The prosecution argued that their investigative tactics in bribery cases were themselves state secrets, and that open discussion of these would allow future suspects to evade the law. Defendant Zhang, to meet his lower burden of providing leads regarding the time, place and nature of illegal evidence gathering, presented detailed written records of his interrogations and detention, including even the names of interrogators.
 The exclusionary rules are clear that when the issue of illegal evidence is raised and the prosecution fails to present sufficient and reliable evidence demonstrating the legal acquisition of confessions, or where the prosecution has presented some evidence but there is still doubt, the challenged confessions cannot be the basis of conviction. It is no easy task, however, for judges to rule against the prosecutors and public security offices that are institutionally stronger and outrank courts in the local party structures that determine key issues of funding and policy. Further, the Chinese legal culture is one that emphasizes mutual coordination, support and supervision between these three functions- investigation, prosecution and adjudication- rather than a system of checks and balances, causing some to see a judgment in favor of excluding evidence as a betrayal of a joint law enforcement mission. Finally, there is the fear of public outrage, should the public view the case as evidence that the courts are letting a corrupt official walk.
 Not only was this court remarkable in its willingness to break ranks with prosecutors and investigators, but it also produced a remarkable and thoughtful opinion. The judgment addresses the case’s procedural and factual disputes separately, and places the procedural issues before the substantive reasoning. This may seem only natural, as the procedural questions will determine what evidence is to be included in the factual discussion, but for a legal system that has long undervalued procedural law as mere formalities rather than a safeguard of substantive justice, this is something of a breakthrough. In the procedural section of the opinion, the court also carefully cites the law and regulations upon which it relies in finding that the prosecution failed to meet its burden of proof and, thus, that the evidence should be excluded.
 The court did not find Zhang to be entirely without guilt, but did release him without further punishment.  Without the confessions, the court found that the remaining evidence was insufficient to prove Zhang guilty of accepting many of the bribes alleged. For those small gifts that Zhang admitted to having accepted, the court held that the value and harm to society was small. For one incident where Zhang took payment for lending the use of his professional credentials to a company, the court found that this was a common violation and that while it could be considered an improper transaction, it did not amount to bribery as meant by the law. The prosecution appealed the ruling immediately, hoping the higher court would be more receptive; the defendant also appealed, hoping to receive a judgment of not-guilty.
 It is difficult to say what the impact of this case will be.  It is, after all, just one case. There may even be forces at work in the background of the case that had more impact on the court’s ruling than its commitment to law or belief in Zhang’s factual innocence. Yet, it does demonstrate that a court can respect defense attorneys’ objections and hold evidentiary investigations without overly disrupting the flow of trial, a common concern regarding the new exclusionary rules. The decision also brings to the forefront questions of the scope of abuse that might result in exclusion. The Rules call for the exclusion of confessions acquired by torture and other illegal means, but it remains unclear if this includes only severe physical violence, or whether minor injuries or soft torture, such as use of exhaustion and stress positions, might merit exclusion. The court’s carefully worded and reasoned opinion has also been praised by academics as setting a standard for future opinions, and has made the judgment process in this case more transparent.
Prosecutors, charged with the initial investigation of corruption cases like Zhang’s, complain that proof of bribery is simply impossible without a confession, and that this leads to overly aggressive interrogation. Following this decision, many prosecutors across the country temporarily suspended corruption investigations while investigators reviewed their records to determine if inappropriate tactics had been used and to reconsider how to proceed. The draft revisions to the CPL offer many new interrogation techniques, such as secret wiretaps, that were previously unavailable to prosecutors  and might help remedy this evidence gap, and this case may stimulate further discussion in this area as well.
The verdict of the intermediate court now reviewing this case will send a message to lower courts, prosecutors and investigators as to whether such outcomes are acceptable or desirable, and it is clear that legal actors across the country are watching. The case will also influence the adoption of the draft CPL.  The CPL draft revisions under consideration at this time enshrine the exclusionary rules into law, and this case is sure to be considered when determining whether the system is workable. It was another case, that of Zhao Zuohai (赵作海), a man wrongly imprisoned for murder on the basis of a false confession, that is credited with providing the impetus for promulgation of the exclusionary rules, and many say that public dissatisfaction with that case had forced prosecutors’ and law enforcement’s hand in consenting. This case, involving physical abuse much more mild than that generally acknowledged to occur in other cases, runs the risk of having the opposite impact. It would be unfortunate, for example, if those opposing the Rules now used this case to argue that they are overprotective of the accused, and swayed public opinion by saying that corrupt officials are escaping punishment on a “legal technicality.”
For further information on the case please consult the following Chinese language sources:
1.     The Case Verdict
2.     章国锡案凸显规则背后公检法权力再分配, September 1, 2011, Guangdong Publishing Group
3.     以程序正义的名义, September 7, 2011, Legal Weekend
More articles on the Exclusionary rules, in English, in PDF format:
Margaret K. Lewis, Controlling Abuse to Maintain control: The Exclusionary Rule in China, 43 N.Y.U. J. Int’l L. & Pol. 629 (2011).
Jeremy Daum, Tortuous Progress: Early Cases Under China’s New Procedures for Excluding Evidence in Criminal Cases, 43 N.Y.U. J. Int’l L. & Pol. 699 (2011).
Yu-jie Chen, One Problem, Two Paths: A Taiwanese Perspective on the Exclusionary Rule in China, 43 N.Y.U. J. Int’l L. & Pol. 713 (2011).

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