Even in countries where the rights of defendants enjoy high priority, miscarriages of justice occur. So it is unsurprising that in China, where the emphasis has long been on the need to “solve” cases, there has been a high rate of conviction of innocents. As discussed in He Jiahong's Back from the Dead, the reasons for this are manifold. They include a lack of professionalism on the part of the law enforcement and judicial personnel, and the unsavory role of the Party's all-important “political and legal-work committees.” The courts have played only a nominal role (p. 169), usually rubber stamping the findings of investigators, who themselves were under pressure to “solve” all cases quickly, in part to appease public opinion. Indeed, law enforcement tends to yield to public pressure, even though, according to He, “so-called public opinion is complex and diverse and often capricious and contradictory” (p. 95). Although He does not deny that there should be a role for public opinion, he would prefer that it be reflected in some sort of jury system (chap. 13).
Investigators tend to rely on testimonial evidence (“no confession, no conviction”). They give short shrift to physical evidence and very little weight to exculpatory evidence (p. 53). According to He, “[t]his love of confession appears not only among investigators but with procurators and judges as well” (p. 26). He describes a series of cases, all of which “involved some use of force to extract confessions” (p. 43). Torture, which on paper is illegal, fully accounted for all but 6 percent of the wrongful-verdict cases studied.
Much of the problem of wrongful convictions owes to what He calls “outmoded thought patterns.” Traditionally, there has been no presumption of innocence—deemed a capitalist principle. Even when there is obvious doubt, the issue at best is resolved in favor of a reduced sentence (p. 135). But the tendency of investigators is to assume guilt and use any means to prevail upon the defendant to confirm it. From the point of view of the police, there is little “downside” to torturing suspects; torturers usually go unpunished due to lack of evidence (p. 50). And in the rare cases where they are held to account, the punishments tend to be disproportionately soft. Scholars may perceive a legal trend toward innocence presumption, but this notion has little impact on the ground, where even a detainee's right to remain silent has not been clearly established.
One might expect lawyers to play a role in correcting such errors, but in most of the country defendants do not have ready access to lawyers. “For people in remote villages,” He writes, “‘lawyer’ was a totally alien concept” (p. 55). Even where a defendant does have appropriate legal representation, over-eagerness on a lawyer's part can lead to one more person being jailed.
He's Back from the Dead has what we might call a subtext concerning the collateral damage of wrongful convictions. While the suffering of the wrongly accused goes without saying, other victims include their pariah children, the victims of subsequent crimes of the actual perpetrator, and society at large. The public interest is poorly served when the people involved in law enforcement and the judiciary are widely distrusted, as unfortunately is still the case in China.
One is hard-pressed to find any fault with this fine book. Although there are a few places where the material could have been set forth in a more reader-friendly manner, in general the writing is engaging. He is the author of two well-received English-language novels, and it shows. Given that much of the Chinese terminology inevitably translates awkwardly into English, a glossary with Chinese characters, or at least the provision of transliteration in the text, would have been welcome.
Should China's judicial system shift from a pro-conviction preference to more of a rights-respecting regime? He argues: “A wrongful acquittal entails only one mistake, while a wrongful conviction involves two,” because the actual perpetrator is still at large. “The danger posed by two mistakes exceeds that posed by one” (pp. 136–37). This is not the thinking that prevails in China's judicial system, though the mindset “has begun to change” (p. 195). So in a final 2015 postscript, He is able to conclude on a somewhat positive note: “When most government officials and the general public form law-abiding habits, then China can realize its rule of law. The goal is not far from us, but the question is, how fast can we act to achieve it?” (p. 207).
