Legal Representation and Criminal
Processing in Chinese Courts: A
Pilot Study in Fujian (2009-2011)
(Supported by MacArthur Foundation)
Phil He
School of Criminology & Criminal Justice, Northeastern University
5/4/2011
Framing the Research Project
• Why do we study legal representation and criminal
processing in China?
• Why do we focus on district level courts and criminal
cases only?
• Why do we conduct the pilot in Fujian?
• What do we expect to learn?
• Which methods should we use to achieve our research
objectives?
• How do we successfully implement our research plan?
• What would be the logical next step after the pilot? Why?
Philosophical Foundation for the Substantive
Inquiry Concerning Legal Representation in
Chinese Criminal Court
– Human rights
– Procedural justice
– UN: Universal Declaration of Human Rights
– Europe wrestled with alignment of criminal
procedural safeguards (as basic human
rights) at European level
• EU Charter of Fundamental Rights on Justice
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Right to fair trial
Right to legal counsel
Presumption of innocence
Legality & proportionality of penalties
Right not be tried/punished twice for same offense
– Such rights not widely available across Asia
• Right to Counsel in the
U.S.
– 6th Amendment, US
Constitution (“in all criminal
prosecutions, the accused
shall…have the assistance
of counsel for his defense.”
– What happens when one
could not afford an
attorney?
– Facts about Indigent
defense in the U.S. (BJS,
2000 Special Report)
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•
•
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66% felony defendants (in federal
ct.) and 82% felony defendants (in
state ct.) were represented by
public defenders/assigned counsel
90% of federal defendants and
75% state defendants were found
guilty, regardless of the type of
attorney used
Among those found guilty, higher
% of the defendants with publicly
financed counsel were sentenced
to incarceration (FC-88% vs. 77%;
SC-71% vs.54%)
95% of all criminal defendants are
tried in state courts
• Evolution of the Right to
Counsel Reform in the
U.S. (1853-2002)
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Webb v. Baird, (1853), Indiana
Supreme Court (principle of
civilized society)
Powell v. Alabama (1932), US
Supreme Court (all state capital
cases)
Johnson v. Zerbst (1938), U.S.
Supreme Court (reaffirm the right
in all federal courts)
Betts v. Brady (1942), US
Supreme Court (denied extending
it to state felony proceedings)
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•
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Gideon v. Wainwright (1963), US
Supreme Court (overruled Betts)
In re Gault (1967), US Supreme
Court (children)
Argersinger v. Hamlin (1972), US
Supreme Court (misdemeanor
state proceedings with a potential
loss of liberty)
Strickland v. Washington (1984),
US Supreme Court (effective
counsel)
Alabama v. Shelton (2002), US
Supreme Court (counsel must be
provided for the accused in order
to impose a suspended prison
sentence)
The American Reality Re Indigent Defense
• “Gideon’s Broken Promise: America’s Continuing Quest
for Equal Justice” (ABA 2004 Special Report)
– Lack of adequate funding (inadequate compensation; lack of
resources/state fiscal crises/resource disparity between
prosecution and indigent defense)
– Inadequate legal representation (competency; caseload; contact;
ethics)
– Structural defects (uneven service; delays in process; lack of
data)
• Recommendations: adequate funding; raising assigned
counsel fees; increase state oversight
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Chinese Court Structure
• Supreme People's Court (1 national)
• Higher People's Court (29 provincial)
• Intermediate People's Court (337 prefectural and
larger cities)
• District People's Court (2,902 rural counties;
municipal districts; autonomous counties)
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 The Chinese Reality
 About 724,112 criminal cases tried in 2007 (plus about
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200,000 reeducation through labor cases rendered by the
police per yr)
China had about 3,000 practicing lawyers in 1980 and
about 143,967 in 2007 (1.3 billion pop.); US has 1.2 million
lawyer (307 million pop.)
Legal representation not mandated in criminal cases
(except for capital offenses and a few other circumstances)
Estimated lawyer density ratio in China:1 per 8,867 citizens
(US ratio: 1 per 281)
Over 450 law schools now (2 in 1978); Chinese Bar passage
rate: 7%-14% in recent years
No law firm in 206 counties nationwide
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 What do we know about legal representation in
China today?
– Availability of lawyers
 Prevalence of legal representation (mixed estimates)
 2002 National estimate: 15%-30%; C city/2004: 44%
(Zuo, 2007); 20% (Lu & Miethe, 2002, based on 237 theft
cases from one district ct; Belkin, 2011)
– How are clients represented in Chinese courts?
 Lu & Miethe (2002): lack of effectiveness; do not
challenge “facts”
 Liang’s (2008) court observation study (54 cases from
Chengdu and Beijing, including 22 criminal cases):
professionalism and effectiveness varies greatly
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Why Fujian?
Research partner at XMU, School of Law
Alumni base and good rapport with courts
35 million population; diverse economy; market
economy experimentation; distance from Beijing
Feasibility, efficiency, training, research control,
depth of inquiry
– IRB Protocol
• Possible experimentation and policy impact
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• What do we expect to learn?
– Benchmark the current rate of legal representation
– Identify gaps and shortcomings of present system of
legal representation
– Ability to recommend strategies for addressing gaps
– Work with Chinese partners to develop shared
strategies going forward including additional research
questions and recommendations for improvements to
system
Focus of This Afternoon’s Discussion
Design and Implementation of the
MacArthur-Fujian Pilot Study: The
Methodological Experience
• Design of the Pilot Study
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Purposes: benchmarking + future research + targeted reforms
Sampling: why/how?
Research questions: what/why/how?
Implementation: feasibility + adjustment
• Data Analysis and Interpretation of Results
– Descriptive: convergent + divergent results
– Analytical: test of hypotheses
• Implications for future research and policy
– How well did we execute our research plan?
– Benefits of: pilot study/triangulation of methods/evidence-based
policy
Basic Considerations on Sampling
• Representativeness is a key element
• Feasibility of implementation is uncertain due to
lack of prior local research experience
• Political Sensitivity and Possible Risks for:
– Researchers
– Research participants
• Regional differences in accessibility and
cooperation
• Flexibility and adjustment are required in a pilot
study (e.g., cost; training; supervision; sample size; time
constraint; travel, etc.)
Key Questions for Fujian Pilot Study
• What is the extent of legal representation for criminal
defendants in district level courts（基层法院）?
• How are criminal defendants represented?
• What is the dynamic of the courtroom working group
(judges, prosecutors and defense attorneys)?
• How are the outcomes of criminal cases really decided in
these courts?
• What are the prevailing perceptions of legal practitioners
on criminal justice reforms?
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Fujian Pilot Key Hypotheses
• Level of legal representation in criminal cases is low in
Chinese District People’s Court
• There is a difference in the use of legal representation by
case types (e.g., violent crime defendants are more likely
to seek legal representation)
• There are variations in both the availability and quality of
legal representation across regions of different economic
development
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Fujian Pilot Key Hypotheses (cont. -a)
• There are variations in both caseload and distribution of
case categories across regions of different economic
development
• Chinese criminal lawyers have little substantive impact
on sentencing outcome based on the defense they
provide in court
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Fujian Pilot Key Hypotheses (cont.-b)
• Chinese criminal lawyers focus not on acquittal but on
presenting mitigating circumstances to impact the
sentencing decision
• Extra-legal factors (such as sensitivity of the case, a
defendant’s residency/employment statuses, an
attorney’s professional reputation in the courtroom and
political connections) play significant role in determining
case process and outcome
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Fujian Pilot Key Hypotheses (cont.-c)
• Criminal defense attorneys are marginalized in Chinese
court by their professional peers such as judges and
prosecutors
• There are decreased (communist) party influence on
case outcomes in the lowest court (i.e., less requests
submitted by a presiding judge to the judicial committee)
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Fujian Pilot Key Hypotheses (cont.-d)
• There is an increase in qualification and professionalism
among Chinese legal practitioners in the past three
decades
• Job satisfaction (with regard to prestige, stress, turnover,
financial reward and upward political mobility) is low for
judges, prosecutors and defense attorneys who work in
the lowest level Chinese court
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Data Collection (1): Survey
• The Design of Survey Questionnaire (基层法院刑事辨护
机制的调研)
– What kind of questions to ask, and why?
• Knowledge from the field (informative; comprehensive; exhaustive; timely)
• Relevance to the current and follow-up research on the topic (closed vs.
open-ended Qs.)
• Relevance to the ongoing criminal justice reform in general
• Questions that can be answered by multiple occupational groups
• Questions that can be correlated for analytical inquiries later
– How do we record responses?
• Response scale
• Pilot test of the questionnaire with an eye on anticipated responses
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Data Collection (1) cont.
• Implementation of the Survey and Presentation of the
Results
– Who completes our survey?
• Juris Master candidates (Fujian law schools)/Local Lawyer’s
Associations/Major local law firms
• Focus is on lawyers, but contrast from other CJ occupational groups is
desired
– Empirical analysis of the survey
• Descriptive
• Correlational (hypothesis testing on group differences)
• Narrative
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Data Collection (2): Courtroom Observations
• Purpose: (1) observe the overall dynamics of courtroom
interactions; and, in particular (2) roles played by
defense counsel in actual criminal trials
• Data collection Instrument: Ct. observation form (听审记
录表）
• Implementation process
– Where
– When
– How
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Data Collection (3): Case Files
• Case level data collection
– Complete case files(卷宗 )
• Record keeping
• Confidentiality concerns
• How to make use of them?
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Cross-sectional differences (professionalism; inter-agency disparities)
Longitudinal differences (professionalism; intra-agency changes)
Statistical analysis (codification of files)
Narrative exploration; impact of legal reforms on ct. (sentencing)
practices
– Summary judgment files (判决书)
• Open court/legal web site access
• Utility (large quantity; recent cases) and limitation (selection
bias; limited jurisdictions; limited case types uploaded)
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Fujian Pilot Key Findings
(see Tables in Word format)
What’s next after the Fujian pilot?
Why do we propose to improve Juvenile
Indigent Defense first?
Follow-up Concept Paper