Abstract
China has witnessed significant changes in its criminal justice system in the last three decades. As one of the major components of criminal procedure reform, the (re)emergence of criminal defense lawyers (and their expanding roles) is among the most noteworthy. Nevertheless, research on criminal defense work in China continues to post serious questions about the effectiveness of criminal defense in the current Chinese legal system. Based on recent survey data from a diverse group of criminal justice practitioners in J province, China, this study examines how actual criminal defense practices are evaluated by defense attorneys themselves and by the dominant ‘iron triangle’ (i.e., the coalition of the court, the prosecution, and the police officials). Our empirical findings consistently reveal that the work of Chinese defense lawyers is grossly undervalued by the ‘iron triangle’. Chinese criminal defense lawyers concur readily with the ‘iron triangle’ that the effectiveness of their legal representation is questionable and that their work bears little substantive impact on the final outcomes of the criminal trials. Implications for future reforms and research are discussed.
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Notes
One of the reviewers correctly pointed out that our data which was collected during 2009–2011 may not be representative of the context of new stipulations provided by the amendment of the Chinese Criminal Procedure Law in 2012. Ongoing evaluations are certainly needed to assess the impact of the most recent changes.
Reference of current Chinese criminal defense lawyers as “new comer” is made in the context of the lawyers’ expanded roles and increasingly autonomous professional status compared to their former role as state-employees (representing the best interest of the state instead of their clients). We would like to acknowledge the reviewer’s helpful suggestion for this clarification.
Grateful acknowledgement is made to the John D. and Katherine T. MacArthur Foundation for funding the pilot project. The points of view in this document are those of the authors and do not necessarily represent the position of the Foundation.
References
‘Big Stick 306’ and China’s Contempt for the Law. New York Times, 03624331, 5/6/2011
Chen, R. (1996). Amended Chinese criminal procedure law: an analysis from the angle of international norms on criminal justice (in Chinese). Modern Legal Studies, 5, 15–20.
Chen, R. (2000). From streamline operation to centering on adjudication: a thought on the reform of criminal justice in China (in Chinese). Legal Studies, 3, 24–34.
Chen, W. (Ed.). (2001). Investigation reports on the problems reflected in the enforcement of criminal procedure law (in Chinese). Beijing: Fangzheng.
Chen, W., & Liu, Z. (2008). Analysis and building of China’s exclusionary rules (in Chinese). Chinese Journal of Law, 6, 127–140.
Clarke, D. C. (2008). China’s legal system: New developments, new challenges. Cambridge: Cambridge University Press.
Cohen, J. A. (1968). The criminal process in the People’s Republic of China, 1949–1964: An introduction. Cambridge: Harvard University Press.
Cohen, J. A. (Ed.). (1970). Contemporary Chinese law: Research problems and perspectives. Cambridge: Harvard University Press.
Epstein, E. J. (1991). China’s legal reforms. China review (pp. 9.1–9.38). Hong Kong: Chinese University Press.
Fu, H. L. (1998). The possible impact of the 1996 Criminal Procedural Law Reform. The China Quarterly, 153, 31–48.
Halliday, T. C., & Liu, S. (2007). Birth of a liberal moment? Looking through a one-way mirror at lawyers’ defense of criminal defendants in China. In T. C. Halliday, L. Karpik, & M. M. Feeley (Eds.), Fighting for political freedom: Comparative studies of the legal complex and political liberalism (pp. 65–107). Oxford: Hart Publishing.
Hou, S., & Keith, R. (2011). The defense lawyer in the scales of Chinese criminal justice. Journal of Contemporary China, 20(70), 379–395.
Karpik, L., & Halliday, T. C. (2011). The legal complex. The Annual Review of Law and Social Science, 7, 217–316.
Ji, X. (2011). Survey analyses of certain issues in Chinese criminal defense (in Chinese). Justice of China, 7, 29–35.
Leng, S. (1985). Criminal justice in post-Mao China: Analysis and documents. Albany: State University of New York Press.
Li, E. (2010). The Li Zhuang case: examining the challenges facing criminal defense lawyers in China. Columbia Journal of Asian Law, 24(1), 129–169.
Li, V. (1978). Law without lawyers—Comparative view o law in China and the United States. Boulder: Westview Press.
Liang, B. (2005). Severe strike campaign in transitional China. Journal of Criminal Justice, 33, 387–399.
Liang, B. (2008). The changing Chinese legal system, 1978–present: Centralization of power and rationalization of the legal system. New York: Routledge.
Liang, B., & He, N. (2013). Criminal defense in chinese courtrooms: an empirical inquiry. International Journal of Offender Therapy and Comparative Criminology (OnlineFirst Version, http://ilo.sagepub.com/content/early/2013/07/01/0306624X13493077).
Liao, M. (2009). A study of interruption in Chinese criminal courtroom discourse. Text & Talk, 29(2), 175–199.
Liebman, B. (1999). Legal aid and public interest law in China. Texas International Law Journal, 34, 211–286.
Liu, W., & Situ, Y. (1999). Criminal courts in China transition: inquisitorial procedure to adversarial procedure? Crime and Justice International, 15(25), 13–21.
Liu, P., & Situ, Y. (2001). Mixing inquisitorial and adversarial models: Changes in criminal procedure in a changing China. In J. Liu, L. Zhang, & S. Messner (Eds.), Crime and Social control in a Changing China (pp. 133–150). Westport: Greenwood.
Liu, S., & Halliday, T. C. (2009). Recursivity in legal change: lawyers and reforms of China’s criminal procedure law. Law & Social Inquiry, 34(4), 911–950.
Liu, S., & Halliday, T. C. (2011). Political liberalism and political embeddedness: understanding politics in the work of Chinese criminal defense lawyers. Law & Society Review, 45, 831–864.
Lo, C. W. (1995). China’s legal awakening: Legal theory and criminal justice in Deng’s era. Hong Kong: Hong Kong University Press.
Long, Z. (2008). A few problems with witness testimony in China’s criminal trials: centered around cross examination (in Chinese). Tribunal of Political Science and Law, 26(4), 22–32.
Lu, H., & Drass, K. A. (2002). Transience and the disposition of theft cases in China. Justice Quarterly, 19, 69–96.
Lu, H., & Gunnison, E. (2003). Power, corruption, and the legal process in China. International Criminal Justice Review, 13, 28–49.
Lu, H., & Miethe, T. D. (2002). Legal representation and criminal processing in China. British Journal of Criminology, 42, 267–280.
Lu, H., & Miethe, T. D. (2003). Confession and criminal case disposition in China. Law & Society Review, 37(3), 549–578.
Lubman, S. B. (1999). Bird in a cage: Legal reform in China after Mao. Stanford: Stanford University Press.
Lynch, E. M. (2011). China’s rule of law mirage: the regression of the legal profession since the adoption of the 2007 Lawyers Law. The George Washington International Law Review, 42, 535–585.
McConville, M., Choongh, S., Wan, P., Hong, E., Dobinson, I., & Jones, C. (2011). Criminal Justice in China: An empirical inquiry. Cheltenham: Edward Elgar.
Potter, P. (1999). The Chinese legal system: continuing commitment to the primacy of state power. The China Quarterly, 159, 673–683.
Reichel, P. L. (2008). Comparative criminal justice systems: a topical approach. Prentice Hall.
Trevaskes, S. (2002). Courts on the campaign path: criminal court work in China’s “Yanda 2001” anti-crime campaign. Asian Survey, 42(5), 673–693.
Trevaskes, S. (2003). Yanda 2001: form and strategy in a Chinese anti-crime campaign. The Australian and New Zealand Journal of Criminology, 36, 272–292.
Trevaskes, S. (2007). Severe and swift justice in China. British Journal of Criminology, 47, 23–41.
Xiao, B. (2008). The distance between criminal justice procedure of China and the international norms and its adjustment: an analysis on the first repatriation case in Shanghai (in Chinese). Chinese Criminal Law Magazine, 5, 80–84.
Young, A. (2005). The continuing lack of independence of Chinese lawyers. The Georgetown Journal of Legal Ethics, 18(3), 1133–1149.
Zuo, W. (2009). A domestic model building of China’s criminal litigation (in Chinese). Chinese Journal of Law, 2, 107–120.
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Liang, B., He, N.P. & Lu, H. The deep divide in China’s criminal justice system: contrasting perceptions of lawyers and the iron triangle. Crime Law Soc Change 62, 585–601 (2014). https://doi.org/10.1007/s10611-014-9545-3
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DOI: https://doi.org/10.1007/s10611-014-9545-3