During criminal trials in China, the accused is called by the prosecutor first for questioning. He is questioned about the crime and what his explanation might be; he has a duty to give a statement to the court about the incident. The rest of the inquiry rests on his statement about the crime.
This statement is made on the basis that the accused does not have the right to remain silent. Therefore, the right to remain silent and the presumption of innocence are related; in China, both are disregarded. Instead of the right to remain silent, there is a ‘duty’ to speak at the beginning of the trial. If the accused does not give a statement or does not answer the questions adequately, he would be seen as having a ‘bad attitude’.
It should also be noted here that the accused is brought to trial after a long period of detention at a police station; in China, from the time of arrest to the time of being produced before the court, there is usually no right to bail.
This is noteworthy because pressure can be placed on the accused during detention to prepare for the statement he should make in court. If there is pressure, in particular if he is tortured or threatened with torture, any statement he makes under such circumstances cannot be assumed to be voluntary and free.
Moreover, it cannot be assumed that the statement of the accused is truthful. It is generally accepted that persons under detention, particularly prolonged detention, will adjust their statements to agree with their interrogators or other officials, in order to safeguard their security. This makes it easy for interrogators to obtain statements correlating to their own agendas, rather than to any ‘truth’, whether directly or by insinuation.
An important component of a fair trial is proof; the burden of proof of the accusation is on those making the accusation. Forcing an accused person to make a statement at the very beginning of the trial amounts to placing the burden on the accused rather than the prosecution. Even if the prosecution has no evidence to support its accusation, they can still prosecute the case on the basis of what the accused says, or is made to say.
The legal principle that the statement of the accused is not enough and should be collaborated in some way is no safeguard. The reason for this is that once an accused is made to say something, it is quite possible to find something else to collaborate it. Even the factor of collaboration will depend on what the accused himself says.
In other words, the Chinese trial does not consider proof to be of utmost importance. What is important is to find the truth through facts. This is in fact a slogan of sorts, and a kind of ideological statement. Through the concept of searching for the truth, the concept of proof is suppressed.
For the Chinese trial, proof is rather to be based on a logical connection of the facts brought before a judge; the arguments of a case. These arguments are made to establish certain elements of a crime, and ascertain whether the facts are established in terms of the statement made by the accused.
The justification used in China for this process is that the person who knows best about a crime is the accused, and therefore he should speak first. It is a sort of common sense method, where the court approaches the accused and asks him to explain things. Whatever idea is formed later will depend on the explanations given by the accused. If he is unable to explain certain things, that would inevitably be held against him. Such explanation seeking, placing the burden of proving innocence on the accused, is in fact a reversal of the fair trial process.
Reasons for teaching fair trial
One way of teaching fair trial is to teach the principles of fair trial. This type of education has been ongoing for many decades in China, and the principles are now commonly known, and even accepted. Chinese lawyers, judges and experts have no difficulty in saying that they accept all basic fair trial principles in both common and civil law.
There is a difference however, between the accepted principles and the actual procedure adopted in a trial. When it comes to the trial, the principles do not seem to matter at all, and a separate set of principles operate in judging the guilt or otherwise of the accused—assumptions made from the ‘facts’ and linking these to whatever the accused says. It is therefore necessary to investigate this issue by those contributing to the study of fair trial in the country.
The repetition of principles over and over again only leads to training that is disconnected from the actual procedure and explanations during the trial. Such training leads to a discussion on principles on the one hand, and a practice unrelated to any of these principles on the other. Not only is the practice unrelated to the principles; it is in fact, in contradiction to those principles.
Before and after the 1997 reforms
Prior to 1997, China followed the socialist trial system found in other socialist countries. In a socialist trial, there was no question of the guilt or otherwise of the accused. The socialist system held trials for the sole purpose of the defense of the state, and the accused person’s role was simply to demonstrate that he had committed an act against the state.
Within a socialist system the concept of fair trial did not exist. Rather, trials were an ideological exercise where the state explained certain wrongs to the population by making an example of a particular individual. This individual was expected to speak out and confess the wrong committed, and to explain why he had committed it. In cases where guilt has to be aggravated, political factors will be attributed to the actions of the accused, for example, he has done this under the instigation of foreign elements or those acting against the state and so forth. Mitigating factors would be that he was unaware, was not properly educated, or for various reasons he did not intend to hurt the state. The entire trial was about what the accused would say to the charges made by the state; there was no question of the accused being found not guilty at the end.
The 1997 reforms
The reforms that occurred in 1997 changed the questioning of the accused by the judge to the prosecution. The accused still had to speak however, and what he said remained the same. The reforms did not really affect the approach taken towards the accused therefore.
Also, by 1997 the ideological elements of the trial seemed to be reduced, and there was greater focus on the elimination of crimes. As a result, training and education focused on issues relating to specific crimes and the need to eliminate such crimes.
Despite this, a trial system in which the person on trial is considered innocent until proven guilty, and where the burden of proving guilt is on the prosecution, has not yet found any foundation in China.
Death sentence
It must be noted that the ultimate punishment in China can be a death sentence. A trial beginning with the questioning of the accused himself can therefore easily end in a guilty verdict and the imposition of the death sentence.
Various incentives have been initiated to reduce the death sentence, by suspended sentences and other ways. However, this will only create a reason for the accused to somehow account for acts he may not have committed; taking the stance of innocence will be treated as a bad attitude that can end in a death sentence. Giving an explanation for the actions or admitting guilt would be seen as a more convenient approach. In these circumstances, the death sentence could be imposed on persons who are in fact innocent.
It is therefore essential to look into these matters, understand the implications of fair trial, and identify areas where changes are really needed, when developing education on trials and other related matters.
