Training and Advocacy for Procedural Safeguards in Criminal Cases
The U.S.-Asia Law Institute is currently completing the last year of a multi-year project that seeks to assist Chinese legal scholars and practitioners in strengthening procedural safeguards for criminal defendants through bi-annual workshops in China. At the start of this project, NYU’s U.S.-Asia Law Institute Executive Director Ira Belkin, a former U.S. prosecutor and Program Officer of the Ford Foundation based in Beijing, provided his program evaluation expertise and extensive knowledge of Chinese law and the civil society sector. Specifically, Mr. Belkin focused on working with staff to align our activities and objectives with the needs of scholars and legal practitioners in China. These early project evaluation and planning sessions created a set of program activities that emphasize the practical needs of our partners in China.
Thus far, our workshops have covered the following topics:
o Bail Provisions. More specifically, how to implement the CPL’s new requirement that prosecutors, at the time of approving arrest, must make a determination about the need to detain the suspect. This is the first time the CPL has provided a mechanism for implementing its bail provisions. We believe that the time is ripe to help our Chinese partners understand how other systems handle similar problems, including the use of hearings to give both sides an opportunity to be heard, and background investigations and risk assessment tools to determine the risk of flight and recidivism, in order to assist prosecutors in determining the need for detention.
o Live Testimony. We will look into how to implement the new provisions regarding the requirement of live witness testimony. We would propose to use both a rights-based approach, focusing on the right to confrontation, the right to present evidence in one’s own defense and the mechanisms to ensure the safety of witnesses. We would also include a component on how judges can assess witness credibility. While the new CPL offers some improvements over prior law, it appears that implementation will be very challenging. The rules invest a great deal of discretion in the courts. However, the courts have little experience with making credibility determinations, because they rarely confront conflicting testimony.
o Undercover and Technical Investigations. This topic will address how to protect the rights of citizens during undercover investigations and technical investigations. The CPL authorizes the use of undercover investigations and technical investigative tools, including electronic surveillance for the first time. This is a broad topic, in which our Chinese partners have expressed great interest. Our focus would be a rights-based approach that examines the balance between the right to privacy and the right to be free from entrapment, which is an inherent problem in the use of these surveillance techniques.
In May 2012, we successfully carried out an expanded series of five workshops to engage Chinese partners from a diversity of geographic regions to identify issues that are most critical to realizing procedural protections for criminal defendants as the implementation rules for the revised CPL were being developed. In December 2012, we held two in-depth workshops at Sichuan University in Chengdu and at Northwest University of Politics and Law in Xi’an. These two workshops focused on engaging judges, defense attorneys, prosecutors and public security officers from the each of these regions. The curricula focused on investigation stage topics and specifically included police interrogation techniques and false confessions, electronic recording of police interviews, the role of defense counsel, and judicial review of illegally-obtained evidence.
In June 2013, we organized workshops in three new locations in Fuzhou, Wuhan and Beijing, China. With feedback and encouragement from scholars and practitioners who attended our previous events, we adapted our December 2012 workshop curricula for audiences in these other regions of China, pursuing an opportunity to jointly organize a national-scale event with the Supreme People’s Procuratorate’s (SPP) Institute of Procuratorial Theory and Practice, a GONGO research institute associated the SPP. The SPP invited almost 300 prosecutors throughout China, with five or six prosecutors from each of Mainland China’s 33 provinces, autonomous regions and special districts, plus prosecutors from districts across Hubei Province. These participants were joined by a large local delegation of Chinese legal scholars and practitioners.
In December 2013, we worked with our partners at Sichuan University’s Chinese Judicial Reform Research Center in Chengdu and Northwest University of Political Science Law (NWUPL) in Xi’an to address the challenges surrounding pretrial release and detention, a topic relevant to the China law field as implementation of the 2012 CPL reforms continues to take shape.
Building upon our experience organizing previous workshops, we have endeavored to use multiple, creative ways to communicate content.
For our December 2012 and June 2013 workshops, the NYU research team, under the guidance of Professor Jerome Cohen and Executive Director Ira Belkin, wrote a set of research memoranda and compiled articles and other resource materials for our participants. We also worked with our Chinese partners to develop case studies for mock hearings based on U.S. and Chinese criminal procedure law. The mock hearings were one of the highlights of our participatory training program, which we subsequently updated and implemented at our June 2013 events.
In preparation for our June 2013 workshops, we also acquired the rights to add Chinese subtitles to the acclaimed documentary film, The Central Park Five, which sheds light on how five New York teenagers came to falsely confess and implicate each other in a brutal crime that none of them committed. Our NYU research team will soon develop these resource materials into an interactive teaching module that can be integrated into a variety of Chinese legal education curricula. We plan to adapt our material and thoroughly examine any existing Chinese workshop material that can augment our original content in the development of this module.
In preparation for the December 2013 workshops, we reviewed feedback from our June 2013 workshop participants and conferred with our Chinese partners to assess the success of our previous methods and identify areas for improvement. Evaluations of the workshop surveys revealed that participants found mock suppression hearings relevant and useful to their understanding of the criminal procedure in the United States. In addition, participants found our Chinese and English language materials very useful as supplementary aides in the workshops and for future use as course materials.In light of the enthusiastic response from participants and partner organizations, we integrated more mock hearings into our workshop curricula. Additionally, in order to accommodate the participants’ varying levels of English comprehension, we provided a supplementary digital Chinese and English language materials packet for workshop participants.