How a people’s jury system is helping Chinese courts to open up as part of vital judicial reforms

  • Grenville Cross says the recent case of a man who languished in prison for a murder he did not commit is but another miscarriage of justice in China. However, two recent reforms to Chinese law should help prevent such cases
PUBLISHED : Wednesday, 21 November, 2018, 3:31pm
UPDATED : Wednesday, 21 November, 2018, 7:20pm

Jin Zhehong, 50, has languished in prison since 1995, when he was convicted in Jilin province of raping and murdering a 20-year-old woman. The prosecution alleged that he gave her a ride on his motorbike, then killed her and dumped the body in a ditch. Although Jin protested his innocence at the trial, he was sentenced to death on the basis of a confessional statement, which he insisted had been made under torture.

However, Jin’s conviction has been reviewed by higher tribunals, resulting in several retrials. In October, the latest retrial concluded in the Jilin High People’s Court, with prosecutors agreeing with defence lawyers that the facts were unclear and the evidence insufficient. Although the formal verdict is still awaited, Jin’s lawyer, Xi Xiangdong, said “the court recognised that Jin had not committed a crime and was therefore not a suspect”.

Jin’s case is but another miscarriage of justice arising from coerced testimony. However, recent reforms to China’s criminal procedural law should help curb such abuse. The court’s focus is now on whether the alleged confession was made voluntarily, not its truth. If the prosecution cannot show the suspect made the confession freely, the judge is now required to exclude it, as in Hong Kong.

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The exclusion of involuntary evidence is, however, only one means of ensuring a fair trial. Another hugely important reform has been the expansion of the role of people’s assessors in the trial process, as they discharge a function not dissimilar to that of jurors in Hong Kong.

In April, the National People’s Congress Standing Committee enacted a law on people’s assessors, which enables citizens to try cases with professional judges. In consequence, people’s assessors will “have equal rights” as judges in trials, unless the law specifically provides otherwise. Although the assessors cannot vote on legal questions, they can discuss them, and they vote with the judges on issues of fact, which are decided by the “principle of majority rule”.

Although people’s assessors were first introduced in the 1950s, to give the public a voice in the judicial process, the new law provides them with a specific legislative foundation, intended to “advance judicial democracy”. Their role will be expanded, into what is effectively a people’s jury system. They can now participate in the most significant cases, including those which involve the death penalty. Although they will normally sit on three-person collegiate benches, they are also eligible, in the graver cases, to be on seven-person panels, usually comprising three judges and four assessors. They cannot, however, try a case alone, nor act as the chief judge of a panel.

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An assessor must be a Chinese citizen aged at least 28 who has received at least a high school education. He or she must also be upstanding, law-abiding and committed to upholding the constitution. Although assessors are randomly selected for five-year terms, some people, as in Hong Kong, are ineligible, including lawyers, notaries and arbitrators, and those of bad character.

Since the people’s assessors come from outside the system, they will hopefully provide a degree of independent scrutiny that has not always been possible. This may help guard against any improper pressure being applied, as well as against possible corruption. The assessors have acquired a significantly enhanced role, and they must not be afraid to flex their muscles. If, for example, they are presented with tainted evidence, they will need to insist on its exclusion, and, where the evidence is deficient, to press for an acquittal. If they do this, the assessors will have proved their worth as “people’s jurors”.

Although there is an obvious danger that lay assessors will be overawed by professional judges, the Supreme People’s Court will shortly be issuing detailed provisions to enhance the operation of the system. This is expected to include special training for assessors in the law, judicial principles and professional ethics.

Quite clearly, unless they understand the system, the assessors will be out of their depth, and unable to contribute meaningfully to case deliberations. If, however, they are on top of their brief, they will have much to contribute, and their presence should help to ensure just outcomes.

China’s enhanced use of people’s assessors demonstrates its realisation that criminal trials stand to benefit when they are not left solely in the hands of judges. As various Asian jurisdictions have recognised, different perspectives on cases undoubtedly assist decision-makers in their quest for the truth.

In Japan and South Korea, for example, lay assessors now assist judges, albeit to various degrees. Citizen participation also provides the judicial system with greater legitimacy in the public’s eyes, and also provides suspects with the reassurance that they are being tried by their peers.

It is vital, however, that the people’s assessors step up to the plate. They must appreciate that they are not simply in the court as window-dressing, and that they have a significant role to play in promoting criminal justice. They must assert their right to full participation in the court’s deliberations, and be prepared, where necessary, to argue with professional judges. If they do this, they will have done much to ensure that such tragedies as befell Jin Zhehong will not recur.

Grenville Cross SC is a criminal justice analyst