Abstract
Based on survey data of 348 lawyers in Fujian, this study empirically tests how lawyers' political embeddedness (i.e., lawyers' bureaucratic, instrumental, and/or affective ties to the courts and prosecutors) has impacted upon their defense practices in criminal trials and their pursuit of liberal values. Our data reveal that politically embedded lawyers report more (not fewer) difficulties in practice (e.g., in requesting witness testimony in court, requesting new evidence, and requesting new evaluations and investigations of the case). Clients are more satisfied with representation by politically non-embedded lawyers than lawyers who are embedded. Using statistical evidence, this paper analyzes potential reasons and draws out the implications.
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Notes
It should be pointed out that the majority of lawyers in our sample did not specialize in criminal defense. The fact is that most Chinese lawyers are general practitioners and few would specialize in criminal defense work given the difficult and risky nature of such a practice in China. Rather, our sample covers lawyers who are more specialized in criminal defense work and also those who have had any experience representing a client in a criminal case (see Table 1 below).
The main reason why these two variables were utilized is due to the small number of valid cases in both variables. We reran our analyses (both bivariate cross-tabs and multiple regressions) with the variable “turning to PPC’s help” as the sole measure of ‘political embeddedness’, and the results (available upon request) essentially remained the same. In contrast, the number of valid cases for the variable "one's prior work as PPC" is too low to be utilized as the sole measure.
In both Michelson’s and Liu & Halliday’s studies, lawyers’ connection with the PPC stands out as the most important indicator of one’s political embeddedness. Communist Party membership was not a direct indicator of political embeddedness in these past studies, and to keep our criteria similar to these prior studies, we utilized Party membership as a control variable only. We ran all bivariate and multiple regression analyses with Party membership as a proxy of political embeddedness: membership failed to exert any significant effect, which confirmed Michelson’s regression results (p. 389).
According to China’s Lawyers’ Law, no law degree is required to take the National Judicial Examination. Anyone with a college degree, regardless of major, can obtain the lawyer qualification certificate by passing the exam.
To put these numbers into perspective, a monthly income of 8000 yuan would be equivalent to about US$1300 based on the current exchange rate. Note that statistics on Chinese lawyers' incomes are rather sporadic and there are great regional and professional variations among lawyers. For instance, Sun's study (2006) showed that the average yearly income for all lawyers were about 65,000 yuan in 2002, while Huang’s study (2004) showed the average yearly income for lawyers in Huainan (a mid-size city in Anhui province) was only 9561 in the same year. Statistics disclosed in 2008 mentioned that the average yearly income was "less than 100,000"; while 30 % of all lawyers were doing well, 70 % 'struggled' with their professional living (data retrieved from http://news.xinhuanet.com/legal/2008-04/18/content_8001042.htm). For studies on Chinese lawyers' practice in general, see Alford 1995; Chen 2013; Liu 2006; Michelson 2006.
The two caseload variables could be summed as a new composite variable measuring one’s overall caseload yearly (Cronbach's Alpha = .764). Unfortunately, these two variables are recorded as ordinal level variables given the way that the original questions in the survey were recorded (e.g., 0–4 cases, 5–10 cases). As a result, they cannot be technically summed to create a composite variable accurately measuring one’s overall caseload.
Our questions separately asked, “what would the court do if lawyers requested witness testimony/new evidence/new evaluation and investigation?” Respondents were asked to choose from (1) “court would grant the request”, (2) “not grant it”, or (3) “don’t know”. We treated ‘granting request’ as ‘lawyer experiencing no difficulty’, and vice versa. Our diagnosis (e.g., correlation, reliability analysis) shows that these three variables could be potentially summed as a new composite variable measuring the overall practice difficulty (Cronbach's Alpha = .693). We further reran our bivariate and multiple regression analyses replacing the three specific variables on practice difficulties with the composite variable. The results remained exactly the same. However, it is our judgment to better leave them separated for two main reasons: (1) there would be consistence with other dependant variables in our bivariate and multiple regression analyses; and (2) it would leave some subtlety among three variables on practice difficulties.
A simplified criminal trial procedure is allowed under the Criminal Procedure Law of the PRC, under three conditions: (1) when facts of the case are clear and evidence is sufficient, (2) when the defendant/defense does not dispute criminal charges based on the facts of the case, and (3) when the potential punishment is not severe (e.g., under 3 years of incarceration). For a study based on empirical data, see McConville et al. (2011). Though a form of simplified/speedy trial is often available in other nations, China’s simplified trial generated more controversy in protecting defendant’s rights, especially given the lack of judicial independence.
Note that coding directions in each measurement are adjusted so that the higher the coding (i.e., the bigger the score), the more liberal the respondent is. As a result, some of the coding do not seem to be consistent, but their theoretical meanings are actually in the same direction and the interpretation is much easier. The same coding adjustments are made to variables that measure legal protection of both clients’ and lawyers’ rights.
Pre-trial discussions in various forms (e.g., by the adjudication committee of the court) were a very common practice in the past and are still utilized from time to time today, especially in sensitive cases. In many instances, decisions are already internally made before the trial even gets started, a problem recognized as “verdict first, trial second” (xian pan hou shen) (e.g., see, Clarke and Feinerman 1996, p. 140; Lubman. 1999, pp. 261–66).
Among all possible measures of association at the ordinal level (e.g., Somer’s d, Kendall’s Tau-c), we chose to report the gamma values in Table 2. The results of other measures are consistent with the outcome of gammas values as reported.
In the first difficulty measurement (on witness testimony), chi-square test failed to pass the conventional .05 significance level but gamma barely passed the test.
In eight models we tested in Tables 3 to 6, the test of parallelism passed the conventional .05 significance level, which suggests that multinomial regressions should be considered. We rerun all models with multinomial regressions separately. The results are almost identical (particularly with regard to political embeddedness) with a few exceptions of control variables in a few models.
We acknowledge this finding could potentially suffer from an endogeneity problem. In other words, the causality may go the other way: the more liberal lawyers are, the more likely that they choose to work with migrant workers. Further examination should be taken to tackle the relationship here.
It is likely that the observed differences between embedded and non-embedded lawyers here are not differences of viewpoints but of professional experiences and lawyering strategies (given their experiences) in handling criminal cases. For instance, instead of a weaker belief in pursuing liberal values, the reason why embedded lawyers in our sample were more likely to persuade their clients into submission could be purely strategic and might be connected to their experiences within the parameters of the Chinese system. For the same logic, embedded lawyers in our sample could have made another strategic choice not to express support for improved rights protection. Despite such a feasible explanation, our (quantitative) data would not allow us to speculate such strategic differences unfortunately. Rather, we focused on the theoretical framework of Liu and Halliday’s (2011) in testing the relationship between one’s liberal pursuits and one’s political embeddedness. Regardless of their motivation (e.g., political viewpoints or lawyering strategies), the effects of the outcomes of lawyers’ practices (as shown in our data) could be of great importance to both clients and the further development of the Chinese legal system. Please see Liu & Halliday’s study (2011) for their typology of different lawyering practices (including specific techniques) given their status of political embeddedness.
One major concern is that lawyers over-reported their clients’ satisfaction (i.e., being boastful of their work). A close examination of the data (Table 2, satisfaction cross-tabs) showed that 17.8 % of politically embedded lawyers (compared to 36.5 % of non embedded lawyers) reported clients’ dissatisfaction with their work. Our comparison is built upon the assumption that the boasting effect, if existing, would work similarly for both groups (instead of more for the former than the latter group). In addition, data on clients’ satisfaction with courts reported much lower satisfaction rates (an indication of little boasting effect), and the overall comparison between embedded and non embedded lawyers held similar patterns between satisfaction with lawyers and with courts, which lent us more confidence in the outcomes.
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Liang, B., Lu, H. & He, N.(. Political Embeddedness and its Impact on Chinese Lawyers’ Practices in Criminal Defense Cases. Eur J Crim Policy Res 22, 341–361 (2016). https://doi.org/10.1007/s10610-015-9289-3
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DOI: https://doi.org/10.1007/s10610-015-9289-3
Keywords
- Clients' satisfaction
- Criminal defense in China
- Empirical evaluation of defense work
- Legal representation
- Political embeddedness