Legal Representation and Criminal
Processing in Chinese Courts: A
Pilot Study in Fujian (2009-2011)
(Supported by MacArthur Foundation)
Phil He
College of Criminal Justice, Northeastern University
• 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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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 Debates 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)
– 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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Key Questions for Fujian Pilot Study
• What is the extent of legal representation for criminal
defendants in District level courts?
• 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 court reform?
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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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Fujian Pilot Key Hypotheses
• Level of legal representation in criminal cases is low in
Chinese District People’s Court
• There is a modest increase in legal representation in the
past three decades
• There could be an accelerated increase in legal
representation after the latest revision of the Chinese
Lawyers’ Law (6/1/08)
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Fujian Pilot Key Hypotheses (cont. -a)
• 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
• There are variations in both caseload and distribution of
case categories across regions of different economic
development
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Fujian Pilot Key Hypotheses (cont.-b)
• Chinese criminal lawyers have little substantive impact
on sentencing outcome based on the defense they
provide in court
• 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 increased specializations in Chinese District
People’s court in the past three decades
• 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
• Questionnaire Surveys
– XMU Juris Master (current candidates & alumni)
– Provincial Lawyer’s Association
• Case level data collection
– Summary judgment
• Court Observations
– Pilot study (court access)
• Data Collection Instruments & Online data entry
(controlled access)
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Fujian Pilot Tentative Findings
Prevalence of legal representation:
 based on initial survey results: 43% (violent
crime cases)-55%(property crime cases)
 based on pilot court observations (193 criminal
trials; 54 Fujian courts; July-August, 2009): 85%
Effectiveness of legal representation
 Survey results (See examples in handout)
 Court observation (ongoing)
 Summary judgment files (ongoing)
What’s next after the pilot?
• Follow-up study?
• Court experiments and evaluation??
• Some personal thoughts
– Tipping point?
– Resources for court research and reform?
– Hong Kong/Taiwan/Japan/Korea?