Author: Zhang Jianwei, male, born in February 1966, is a professor and doctoral supervisor of Tsinghua University Law School, concurrently serving as the vice president of the Criminal Procedure Law Research Association of the China Law Society and a member of the expert advisory committee of the Supreme People's Procuratorate. He graduated from Southwest University of Political Science and Law in 1989 with a bachelor's degree in law. In 1992 and 2000, he obtained his LL.M. and Juris Doctor degrees from China University of Political Science and Law. From 1992 to 1997, he worked in the Law and Policy Research Office of the Supreme People's Procuratorate. From 2000 to 2003, he taught at China University of Political Science and Law. From 2013 to 2014, he served as the deputy director of the Supreme People's Procuratorate's Dereliction of Duty and Infringement Procuratorate, and from 2022 to 2023, he served as the deputy director of the First Department of Public Prosecution of the Supreme People's Procuratorate. His academic achievements include a number of legal monographs such as "Judicial Competitiveness: Anglo-American Litigation Tradition and Chinese Trial Methods", "Principles of Criminal Justice System", "Criminal Justice: Multiple Values and Institutional Configuration", "On Prosecution", "The Face of Evidence: The Field of Justice", as well as textbooks such as "General Principles of Criminal Procedure Law" and "Essentials of Evidence Law". The academic essays are collected as "The New Clothes of the Emperor of Law", "The Scarecrow of the Law", "Ashamed to Call a Doctor", "Who Has the Right to Forgive**", "The Specimen Significance of Ah Q's Death", etc.
In order to shape the style of the WeChat public platform at the forefront of legal academia, the external titles pushed by WeChat are added by the editors based on the understanding of the article and do not represent the author's position.
Introduction
This book attempts to study the law of wrongful convictions. The author clarifies the criteria for judging "wrongful convictions", and on this basis, the causes of wrongful convictions. The essential factor of a wrongful conviction is error, and the cause of the wrongful conviction is usually not intentionally caused by the adjudicator or the case handler, and the result of the wrongful conviction is usually not happy to be seen by them. There are certain rules to follow for wrongful convictions. Many wrongful convictions come out of a mold and are almost produced according to a specific formula; Even if there are obviously different wrongful conviction cases, there are the same or similar wrongful conviction factors, and if we are not vigilant about the reasons for the wrongful conviction, the wrongful conviction will "replicate itself" when certain factors are present.
This book examines the various factors that cause wrongful convictions one by one in actual foreign cases and the wrongful cases disclosed in China, explores the rules from them, and further prevents and reduces the occurrence of wrongful convictions by repairing the system or establishing a new system. This book also examines the law of unjust political cases in ancient China, and analyzes wrongful cases from a perspective that is different from the existing domestic research results, so that the discussion of wrongful cases has a certain historical depth.
Purpose
Introduction
Part I: Extraterritorial Observations: Pathology**
Chapter I: General Laws for Finding Wrongful Cases from Specific Cases
Chapter 2 A fair judicial process cannot ensure correct conclusions
Section 1: Procedural fairness helps to reduce, but not eliminate, wrongful convictions.
Section 2 Case Study: Lord Salsberg Case.
Section 3 Case Observations: The Bentry Case.
Section 4 Case Observations: The Case of Tim Evans.
Section 5: Further analysis of the three wrongful convictions.
Chapter 3 Many factors can deceive the most prudent judge
Section 1: Causes of Wrongful Convictions in France.
Section 2 Case Observations: Dreyfus's Wrongful Case.
Section 3: State power as a factor in wrongful convictions.
Chapter IV: There are rules to follow for the causes of wrongful convictions
Section 1: When we see a lot of wrongful cases, we can discover patterns.
Section 2: Case Observations: Several Similar Wrongful Convictions.
Section 3: Research by American Scholars on the Causes of Wrongful Convictions.
Chapter V: Whether or not wronged cannot be determined in its entirety
Section 1 Unjust and wrongful cases are also found in Germany.
Section 2 Case Observations: The Carl Howe Case.
Section 3 Case Observations: The Harry Waltz Case.
Section 4 It seems that the "detective**" is missing at the end
Addendum: Trust and Truth.
Chapter 6 Why the Error Correction Mechanism Fails
Section 1 A misfortune rooted in social mechanisms.
Section 2: Case Observation: Masao Matsuo's Unjust Case.
Section 3: Case Observations: Suga Jiali and Unjust Cases.
Section 4: The Lesions of Japan's Unjust Prisons.
Part II: Chinese-Style Wrongful Cases: **Analysis
Chapter I: The Formula for Chinese-style Wrongful Convictions
Section 1: "Self-replication" of wrongful convictions
Section 2: Case Observations: Du Peiwu's Case.
Chapter II: Objective Factors of Wrongful Cases: Suspicion and Coincidence
Section 1: Suspicion.
Section 2 Coincidence.
Chapter III: Subjective Factors of Wrongful Convictions: Human Weaknesses
Section 1: False Accusations.
Section 2 Coarseness.
Section 3: Assumptions.
Section 4: Framing.
Section 5 Fear.
Section 6: Prejudice.
Section 7 Ambiguity.
Chapter IV: The Subjective Factors of Wrongful Convictions: Superstition
Section 1 In ancient times, justice was superstitious.
Section 2: Witch Hunts in Western Judicial History.
Section 3 The Ancient Witch Prison in China.
Section 4 Superstition of "Scientific Evidence".
Chapter 5 Political Factors: The General Laws of Unjust Cases in Traditional China
Section 1: Political injustices originate from power.
Section 2 Mode 1: Cannibalism.
Section 3 Mode 2: Cutting grass and eradicating roots.
Section 4 Mode 3: Rabbit Dead Dog Cooking.
Section 5 Mode 4: Suspicion and Killing.
Section 6 Mode 5: Self-destruction of the Great Wall.
Section 7 Pattern 6: Strangling dissent.
Section 8 Mode 7: Framing and Rebellion.
Section 9 Mode 8: Revenge ** Style.
Section 10: Revisiting the relationship between ** power and political injustices.
Chapter VI: Judicial Inertia: Confessionalism and Torture
Section 1: Case Observation: "Kill if you don't make it clear".
Section 2: Methods of Torture: Hard and Soft.
Section 3: Causes of Torture: Shallow and Deep.
Section 4: Case Observation: The Case of Zhao Zuohai.
Chapter VII: Judicial Forms: A Hotbed of Wrongful Cases
Section 1: Closed investigations.
Section 2: Formal Trials.
Chapter VIII: Social Pressure: The External Environment for Wrongful Convictions
Section 1: The Grim Situation of Crime.
Section 2 Pressure from the public.
Section 3: Judiciary Influenced by Public Opinion.
Part III: Prevention and Control: A Remedy for Wrongful Cases
Chapter 1 How to Prevent Miscalculations
Section 1: The wounds of a wrongful conviction can be broken at any time.
Section 2: Gain wisdom from the lessons of misjudgment.
Section 3: Case Observation: Japan Resumes the Jury Trial System to Deal with Wrongful Convictions.
Chapter II: Substantive Truth Discoveryism and Unjust and Wrongful Cases
Section 1: The substance of the case is found to be true during the service period.
Section 2: Substantive Truth Discoveryism Promotes Unjust and Wrongful Cases?
Section 3 Substantive Discoveryism: The Transition from Positive to Negative.
Chapter III: When there is doubt, it is to be handled in favor of the defendant
Section 1 Case Observation: If it is not confirmed, it is equivalent to non-existent.
Section 2: The presumption of innocence and the suspicion of guilt are never guilty.
Chapter 4 Reduction of Confession Dependence
Section 1 Case Observations: The Huge Jiltu Case.
Section 2: The rule of privilege not to be compelled to incriminate oneself.
Section 3: Arbitrariness is a condition for admissibility of confessions.
Chapter V: Judicial Control of Investigative Powers
Section 1: Structures for the exercise of power.
Section 2: Investigative Centerism.
Section 3: Restraint of Public Power.
Section 4: Litigation structures that suppress power.
Chapter VI: Substantive and Fair Trial
Section 1: The substance of the trial.
Section 2: Fairness and openness of trials.
Section 3: The right to a real trial and cross-examination.
Section 4: Safeguards for the Right to Judicial Remedies.
Chapter VII: The Growth of Defense Forces
Section 1: Without a defense, the trial is null and void.
Section 2 Why Defences Are Often Ineffective.
Section 3: The defender may say no to interference with power.
Section 4: Case Analysis: The Case of Li Jiangong.
Chapter VIII: Restrictions on the Death Penalty
Section 1: Observation of Judicial Practice: Manslaughter and Wrongful Killing.
Section 2: Death Penalty and Inherent Defects in Criminal Trial Procedures.
Section 3: Restricting the Application of the Death Penalty: Legislation, Judicial Interpretations, and Procedural Arrangements.
Chapter IX: Rehabilitation: Correction of Wrongful Cases
Section 1: The Judge's Discernment.
Section 2: DNA and Rehabilitation of Wrongful Convictions.
Section 3: Appeals by parties and their relatives.
Section 4: The Emergence of the True Murderer and the Return of the Dead.
Section 5: Social support forces for redressing unjust cases.
Section 6 **Wrongful Convictions in the Vortex.
Section 7: Who will investigate possible wrongful convictions.
Section 8: The Black Hole of Case Time.
Chapter X: Wrongful Cases and Reconsideration of Matters
Section 1: Ignoring the Matter and Prohibiting the Double Danger.
Section 2: 'Where there are mistakes, they must be corrected' in our nation's criminal justice
Chapter XI: Responsibility for Wrongful Cases
Section 1: The Generalization of Responsibility for Wrongful Convictions and Its Drawbacks.
Section 2: Distortions in the pursuit of responsibility for wrongful convictions.
Section 3: Criminal Compensation: The whole people pay for wrongful convictions.
Conclusion
Preamble
A wrongful conviction is a judicial wound that blooms, heals, and blooms again.
Wrongful convictions have their causes. If we look at many wrongful convictions together, we can find some of the reasons that have long been known to peopleIn different cases, it is just a matter of permutation and combination
On closer inspection, it can also be found thatWrongful convictions often focus on exposing deficiencies in the judicial systemEfforts to hold individuals accountable, or to stop at the superficial review of the causes, and not resolve to make up for these deficiencies, may not achieve satisfactory error-proofing results. If wrongful convictions are treated as isolated and occasional cases without being reviewed and innovated at the institutional level, the value of wrongful convictions will not be utilized. When a wrongful case is discovered, there is only a temporary shock, and as time passes, unjust and wrongful cases will occur again and again in a regular manner. Therefore, some scholars have pointed out that "the criminal justice system should actively and diligently address the issue of factual accuracy, especially the risk of wrongful conviction." The conflicting values of the criminal justice system——— the acceptance of sentences by the public, the preservation of authority, and the expression of social values——— cannot be realistically achieved without minimizing the risk of wrongful convictions. ”
The insufficient supply of the system is an important reason for wrongful convictionsFor example, the suspect's or defendant's right to defense is insufficient, an effective defense cannot be formed in the course of criminal proceedings, and some wrongful cases could have been avoided, but it is later discovered that the defense party had already put forward pertinent opinions in the course of handling the case, but these opinions were not adopted at all; Violence, coercion, inducement, deception and other illegal methods of evidence collection are common, but the system design of the law to curb these illegal evidence collection behaviors is not rigorous, and case-handling personnel mostly regard these as shortcuts to the end of the case and advance the litigation process, which in turn leads to the occurrence of wrongful convictions. Obviously, the lack of a thoughtful design of the system is not enough to prevent the case-handling personnel from committing misdeeds; If we do not work the system, even if the punishment of those specifically responsible is severe, it will still not prevent the recurrence of wrongful convictions according to the same pattern.
There are many institutional reasons that plant fuses for wrongful convictionsFor example, a bad system will cause a disconnect between power and responsibility, and you don't see, the highly administrative judicial system makes the personnel who specifically undertake cases do not have the power to independently handle the judicial affairs assigned to themCommand - obey the systemThey can only obey the orders of their superiors, and their sense of responsibility and even pride in their work will be lost, and they will not be able to cultivate the sound personality that judicial personnel should have, but will gradually form a state of judicial bureaucracy. This judicial model of collective operation makes no difference between high-quality and low-quality judicial personnel, and they are all obscured from the public, which is not conducive to forming an internal motive force for judicial personnel to improve their own quality, and it is difficult to improve the overall judicial level.
Obviously,The retrospective of the causes of wrongful convictions, the pursuit of personal responsibility, and the repair of the fence of the system must go hand in hand. There is still a lot of room for improvement in China's judicial system, and wrongful cases have repeatedly reminded us to examine the causes of wrongful cases and to improve the defects of the judicial system.
Our country is rich in resources for wrongful convictions: due to the wide coverage of **, it is not a matter of effort to collect these cases. Cases on paper are quiet, and these summaries of events composed of words can hardly carry the torment and pain that the victims of unjust cases have really experienced. Most of the victims in these cases have the same misfortune, and most of them have the same luck - they were once victims of judicial errors (some of them are still in doubt), but when the suspicion is cleared, most of them are still alive and see the day when they are rehabilitated.
As soon as the unjust and wrongful cases are revealed, the government and the opposition will be shaken in some countries, and perhaps our nation has suffered too much, and people are unwilling to face bloody wounds for a long time, and people are accustomed to avoiding and forgetting. Rehabilitating the victims of wrongful convictions and giving them compensation, the attention to the case will be eliminated, just as the breeze is blowing and the water is not rising, and people are willing to use forgetting to anesthetize themselves.
Adolphs. Huxley once said, "Facts do not exist just because they are ignored." "In the same way, miscarriage of justice does not exist because we do not pay attention to it, and the grievances of innocent people do not exist because we do not face themIf the causes of judicial errors are not eliminated, and the root causes of the grievances of innocent people are not eliminated, mistakes and crimes will recur again and again.
After a wrongful conviction occurs, we should ask: Why are innocent people detained, prosecuted and convicted, and what are the reasons for wrongful convictions? Why is there always torture for Chinese-style wrongful convictions? Why are some wrongful convictions still taking place despite repeated revelations? Who is responsible for criminal miscarriage of justice and what should be liable? How can miscarriages of justice be avoided or reduced? How can public confidence in the judiciary be restored?
As long as this is done, people will learn a lot from the mistakes of the past. Just like Francis. Bacon said, "It is easier to find truth out of error than out of confusion." ”
In the face of unjust and wrongful cases,What legal scholars should do is to look for possible truths in judicial errors. They don't have to be conceited that they have discovered and monopolized these truths, what they do is only part of the human effort to discover the truth. Such a declaration should be humbled in the face of the immense pain and incurable wounds of the victims of unjust imprisonment.
Based on the above reasons, this book provides a comprehensive diagnosis of the causes of wrongful convictions and the inadequacy of criminal justice.
Conclusion
There is a "shortcut" for grassroots people to become "celebrities", that is, to become victims of criminal injustices.
The process is not easy and enjoyable, and it involves extraordinary mental and physical suffering, even at the cost of life.
In the process of writing this book, a number of new unjust cases, such as the case of Zhang's uncle and nephew in Zhejiang and the case of Zhang Zhichao, have been rehabilitated and left in people's memories along with other cases: Nian Bin in Fujian was acquitted, Yang Ming in Guizhou walked out of the prison wall with an innocent body, and Chen Man in Hainan was retried and the verdict was changed ......
During this time, Hugjiltu, a name that had been hidden from public awareness for many years after his execution, became almost a household name. When the High People's Court of the Inner Mongolia Autonomous Region initiated the retrial procedure, the name became a kind of public knowledge overnight; When the expected acquittal was announced, even those who couldn't pronounce the name came to talk about it.
The most common thing to hear is that those responsible must be held accountable; Someone asked:How are unjust cases created, and how can similar unjust cases be prevented from happening again? Many were filled with righteous indignation, and their words were full of indignation.
Some people rejoiced that Hugejiletu had been wronged, and justice had finally given him justice.
It has been noted that the credibility of the judiciary has been repaired to a certain extent after the acquittal was commuted in this case, and that the judicial organs have finally summoned up the courage to correct the wrongful convictions, which is commendable. It is reassuring to think that justice is late, but not absent.
I don't feel any joy at all, because there is still a lot of work to be done in the follow-up of the caseThe most important thing is to hold the relevant responsible personnel accountable and give a clear explanation to the relatives of the deceased and the public. In this case, even if Zhaoxue is obtained, people will still experience a great sense of sadness.
Hugjiltu had been on the bloody execution ground 18 years ago, and his world had been completely destroyed as blue smoke rose from the muzzle of a gun. A not-guilty verdict is meaningful to the living, but it has no real meaning for the dead——— Hugjiletu could not hear the judge read the verdict of innocence, could not struggle to get up, to breathe the air of freedom, and could not fill the empty defendant's chair in the courtroom with a smile. This not-guilty verdict, if Hugjiltu were alive, would have made sense even a second before the gunshots rang out for the execution. But now, he has no way to accept anyone's apology, no way to accept anyone's condolence money, the stigma after his death has been washed away, and the court has given him a clean slate, but,Is he conscious?
There is a basic consensus on the death penalty——— it is the only punishment that cannot really be repaired, because the deceased has gone away unjustly, and a change of sentence after his death cannot repair the world he once had, and the warmth and coldness, sunshine and water in his world are all gone with him.
For the living, this acquittal is meaningful. Not only meaningful, but significant. The significance of this lies in the so-called "making amends" by correcting a wrongful conviction and reviewing and reforming the problems existing in the criminal justice system and judicial operations. A review of the problems existing in the criminal justice system and the administration of justice can lead to solutions to prevent similar tragedies from happening again. The occurrence of an unjust case itself is certainly distressing, but it is even more distressing to retain the lesions caused by judicial errors after the unjust case has been rehabilitated. In any case, it is gratifying to correct wrongful convictions, but if the significance of correcting wrongful convictions is limited to the wrongful convictions themselves and not magnified to the reform of the judiciary, the root cause of the tragedy will not be touched, and people will wonder in horror: Who will be the victim of the next unjust case, and which one will be the unjust case that will happen again?
There is a lot of room for review in the Hugjiltu case: not to mention the person who reported a homicide, but turned into the biggest suspect (unless relatives such as husband and wife committed the crime), what kind of investigative approach is this? In the future, when someone is murdered, who will dare to report the case? What is really worth pondering in this case isWhy do the various mechanisms for preventing and correcting errors in the criminal procedure system fail, and why does a case still lead to a tragedy when so many people check it?
Human cognition is limited, and no country or region can completely eliminate wrongful convictions, and no litigation model can claim that its judiciary will never create any grievances. The limitations of rational capacity lead to the fact that criminal trials are inherently imperfect procedural justice, and even if a relatively complete criminal justice procedure is established and properly followed, wrongful convictions may still occur.
If it's just a mistake in understanding, even God will forgive it.
However, the Hugjiltu case is not merely a mistake of perceptionIn the course of investigating and handling cases, there were circumstances of inducing or defrauding confessions, and there were major negligences on the part of the case-handling personnel in the follow-up procedures -- not seriously verifying the factors that might have been wrongfully stated. Phoenix Satellite TV's Social Visibility column once disclosed the details of the interrogation of Hugejiltu's case: One month before he was shot, Hugejiletu was interrogated by the Hohhot city prosecutor and insisted that he was innocent. There is such a passage in the transcript: "What I said today is true, and what I said at the beginning of the Public Security Bureau was also true, but then they thought that there were many doubts that I couldn't explain, and they told me that the woman was not dead, and I was in urgent need of urination, and they said that I could go to the toilet and go back after I finished speaking, so I just said that, and what I said was false." "Deception, inducement, and continuous interrogation that binds ** and does not let people go, like torture, may lead to untrue confessions, and Hugejiltu has revealed this to the case-handling personnel, but although the Criminal Procedure Law prohibits inducement and deception to obtain confessions, there is no explicit provision for the exclusion of such illegal evidence, and the case-handling personnel cannot exclude evidence that these contents may be untrue from the principle of truth, and Hugjiltu's chance to be rescued has been lost in vain.
Is there only one chance of salvation? **According to the report, some police officers believe that the Hughjil pattern is very likely to be an unjust case. He said: "You haven't seen Hugejiltu's confession, one of them is very interesting: Hugjiltu, who carried out ** in the black-lit public toilet, actually knew that the victim was wearing jeans, the belt was inserted to the left, and there were two metal buckles on the belt! Some comrades told me, "The more I look at it, the more it looks like a confession?" ”Why didn't the Gongong Princes, who had examined the case, notice this reasonable suspicion?
The tragedy of judicial errors is often caused by many factors, and there are obvious major negligences in the illegal collection of evidence and in the examination and judgment of evidence. At that time, the Criminal Procedure Law had just been amended, and although it had not yet been formally implemented, why did the principle of innocence have no influence in this case?
We can no longer use the teleological theory to justify the illegal evidence collection methods of the case-handling personnel, nor can we use the inevitability theory to cover up the major negligence of the case-handling units.
What needs to be seriously questioned is why this case was delayed for 9 years to be rehabilitated, and what is the reason for this long journey? If the case is wrong, the relevant responsible personnel must be held accountable; If the process of rehabilitation is too delayed, the relevant responsible personnel should also be held accountable. If there are people who cover up and want to interfere with or obstruct the rehabilitation of unjust cases, they should be held accountable.
For a long time, the public security and judicial organs that handled the case did not recognize the speculation that the Hugejiltu case was an unjust and wrongful case, and refused to accept Zhao Zhihong's admission of guilt in the case on the grounds that there was no physical evidence to support it. People should ask: Did the corresponding physical evidence be carefully collected at the beginning, and did it be properly stored after collection? Who is responsible for the loss or even annihilation of evidence? None of this should be let go lightly. To indulge those responsible for causing wrongful convictions and obstructing rehabilitation is to be irresponsible to the deceased and to the public.
If everything is lightly spared, the lesions of tragedy will be left behind, and unjust cases may happen again.