1.
To what extent is the presumption of innocence recognised in the Criminal Procedure
Law of PRC?
2 dimensions of presumption: distribution of burden + due process
Distribution of burden:
Burden of proof on P (CPL Art 51) >> +
Standard = BRD (CPL Art 55) >> +
Same standard for police, procuratorate & court >> decision is somewhat settled by the
time of trial
Why repeat the procedures again & again? >> Possibility 1: improve public perception;
possibility 2: better display of due process; possibility 3: driving towards a judicial-centric
system
Why no written presumption of innocence? >> (1) Legal culture: concept of criminal
procedure relatively free, people tend to believe in authority & presume sb prosecuted as
guilty, di cult to accept presumption of innocence; (2) Evidential convenience: easier to
start collecting evidence by presuming sth went wrong / sth was done wrong
Due process (e.g. right to silence, right to defence):
No forced self-incrimination (CPL Art 52) >> + (** Confessions/witness statement obtained
by inducement ≠ forced self-incrimination e.g. letting D go free immediately in return for
confession)
First ask if guilty & let D state facts of crime / explain their innocence, then ask questions
(CPL Art 120) >> -
Encouragement of confession (CPL Art 15: leniency for those that admit guilt & accept
punishment) >> -
Right to defence (Constitution Art 130), right to counsel (CPL Art 11)
2. What are the major powers of the public security organs, procuratorates, courts in the
criminal process?
Public security organs: opening & investigation (most crimes), decide most coercive
measures except arrest (need approval of procuratorate), execution of coercive measure
& penalty
Procuratorate: opening & investigation (crimes of duties of judicial personnel),
examination & prosecution, protest & ask for retrial, general supervision power over all
stages
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Court: adjudication ( rst instance, appeal, retrial), execution of ne, opening (private
prosecution), declare guilty
3. What are the rights of defend lawyers in the criminal process?
Right to be informed of the charge against D & relevant information of the case
Lawyers can intervene upon commencement of investigation (CPL Art 34)
Right to meet & communicate w/ Ds in custody (= detention, arrest) & under residential
surveillance during investigation stage (CPL Art 39)
Right to meet w/o monitoring
Right to access & duplicate dossiers of the case since examination & prosecution (CPL
Art 40)
Right to collect evidence / request P & court to collect (CPL Art 43)
Right to report & challenge illegally obtained evidence
Right to submit opinions to investigation agency before completion of investigation
Right to submit opinions to P w/ regard to its review of the arrest proposal
Right to apply for modi cation of coercive measure
4. What are the di culties facing the defence lawyers in the criminal process?
Meeting w/ D: hard to locate client, hard to know what is going on, hard to communicate,
police may be present at meeting, police may intimidate clients at meeting, may expand
meaning of provisions governing restricted access to client (e.g. “and” >> “or”)
Accessing dossiers: only given procedural evidence & materials at prosecution,
substantial evidence & materials given at trial (= no duty of full disclosure on P)
Collecting evidence: hard to access evidence e.g. witness, risk of being charged w/
perjury, hard to collect evidence by nature
Ministry of Justice regulations of lawyers
Local gov’t initiatives to deter lawyers from taking “sensitive”/“collective” cases
Crackdown of “radical” rights defence lawyers
Unauthorised impediments
SOS case: illegal detention/arrest/prosecution
Wen Zhicheng case: illegal detention, forced confession of forgery, crackdown of lawyers
defending criminal suspects, parading of arrested lawyers
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