Ira Belkin. China’s Tortuous Path Towards Ending Torture in Criminal Investigations. Columbia Journal of Asian Law

2011

On May 21, 2010, Chief Judge Zhang Liyong of the Henan Provincial High Court left his office in the provincial capital of Zhengzhou and traveled to a remote peasant village. There, in front of national television cameras, he bowed deeply three times and personally offered his apologies to Zhao Zuohai, a poor farmer, for his unjust murder conviction. Thus, a “month of reflection” in all of the “judicial organs”-the courts, the prosecutors’ offices an the police of Henan province-came to a close. This rare public display of contrition by Chinese officialdom was occasioned by this embarrassing case of the Chinese justice system convicting an innocent man of a murder that had never occurred.

There was no gainsaying the wrongfulness of the conviction and the innocence of Zhao Zuohai. This was not a case of a guilty party getting off on a technicality. After serving eleven years in prison, Zhao Zuohai was exonerated by the most persuasive evidence possible: after more than a decade’s absence, the alleged murder victim, Zhao Zhanshang (no relation), returned to their home village still very much alive to claim social welfare benefits. Village officials were shocked to see Zhao Zhanshang “return from the dead.” Years earlier, the two Zhaos had been seen quarreling shortly before Zhao Zhanshang disappeared. A headless body was found shortly thereafter and the police suspected Zhao Zuohai of murdering Zhao Zhanshang. They arrested him and subjected him to physical and mental abuse for weeks until he finally confessed to the “murder.”

This story would have been simply bizarre had it not had a particular deja vu quality. The Zhao Zuohai case seemed like a replay of the She Xianglin case, which sent shock waves through the Chinese legal community only five years earlier. Like Zhao, She Xianglin was convicted of murder, in his case, the murder of his wife, Zhang Zaiyu. As in the Zhao case, the alleged victim had not been murdered at all and was still alive. She Xianglin’s wife had simply run away with another man to a different village only to return ten years later. Like Zhao Zuohai, She Xianglin was tortured by the police until he “confessed.”‘

At the heart of the wrongful convictions of She Xianglin and Zhao Zuohai were false confessions that had been obtained by police torture. Moreover, the She Xianglin and Zhao Zuohai cases are hardly isolated outliers. Even before the Zhao Zuohai case came to light, Chinese journalists and legal scholars had documented thirty-three cases of wrongful convictions for capital offenses over the last few years and in each case, the defendant had been coerced to falsely confess to the crime. Another group of researchers analyzed fifty wrongful conviction cases and found that in forty-seven of them, the defendant’s false confession had been coerced. Most of these cases came to light because someone else subsequently confessed to the crime or, as in the cases of She and Zhao, the “dead came back to life.” It is impossible to know how many actual cases of coerced confessions and wrongful convictions have occurred in the Chinese criminal justice system. The Ministry of Public Security reported that in 2oo9, 1,8oo police officers were punished for their involvement in torture. According to a 2oo6 survey, seventy percent of inmates claimed that they knew someone who had made a confession under coercion.

Coerced confessions, especially those that lead to convictions of innocent people come at a high cost. In purely financial terms, the wrongful convictions of Zhao Zuohai and She Xianglin cost the Chinese government hundreds of thousands of dollars in compensation, not to mention the wasted costs of investigation, prosecution, trial, conviction, appeals and sentencing for crimes that had never occurred. Of course, there are incalculable losses to the lives of the individuals involved and their families. While he was in prison, Zhao Zuohai’s wife left him, remarried and put two of their four children up for adoption. Those two children had no money for school and are now illiterate. In addition, in both the Zhao and She cases, corpses of individuals had been found and it is likely that crimes had been committed. Because of the coerced confessions and false convictions of Zhao and She, however, those crimes were never properly investigated and the actual criminals are presumably still at large. Such cases, when exposed, can also have tragic consequences for the public officials involved. In at least one case, once the scandal came to light, one of the police investigators committed suicide.

All of these costs, while significant, pale in comparison to the loss of public trust in the criminal justice system that follow from these cases of gross injustice. It is clear from several of the reforms and campaigns over the last few years that the Chinese government is very concerned about public opinion and public trust and support for the legal system. The exposure of one wrongful conviction after another undermines all of the government’s efforts to shore up public trust in the legal system and, by extension, trust in the government and the party.

Since at least 1997, China has officially acknowledged that coerced confessions have been a problem in its criminal justice system and has announced measure after measure to address the problem. Despite these efforts, there seems to be little discernible progress. Following the Zhao Zuohai case, the government announced new measures, including an exclusionary rule for coerced confessions. Since the new rule is less than a year old, it remains to be seen what impact, if any, it will have.

This article discusses and analyzes the effect of past measures and the likelihood of success of the new exclusionary rule. Part I of this article discusses the problem of coerced confessions in Chinese criminal justice. Part II reviews and analyzes the history of Chinese efforts to prevent coerced confessions, including the most recent adoption of an exclusionary rule for coerced confessions. Part III discusses why past efforts have failed and why the most recent reform is also unlikely to succeed. Part IV draws upon Chinese experts’ prescriptions and the American experience and discusses additional suggestions for reform. Part V concludes that police torture in criminal investigations will not be substantially reduced unless and until there is broad recognition by political leaders that coercing confessions undermines the pursuit of justice and the legitimacy of the government. Only then will there be a fundamental change in the way criminal investigations are conducted. Once reliance upon confessions as the principal means of investigation comes to an end, reforms that effectively protect the rights of citizens suspected of criminal activity can be adopted and enforced.

This article was originally published in the Columbia Journal of Asian Law, Vol. 24, No. 2 (2011).  For the full article, click here.