Yu Mou's path-breaking book The Construction of Guilt in China provides a comprehensive and insightful analysis of how the lower-level criminal justice system operates in China. Drawing on extensive ethnographic observations at a local procuratorate, as well as detailed content analysis of case dossiers and in-depth interviews with various actors in the criminal justice system, Mou argues that the everyday work of criminal justice actors has generated what she terms “routine Chinese injustice”; that is, the regular manipulation of legal rules in low-profile cases by China's three main criminal justice agencies – the police, the procuratorate and the courts. This type of injustice serves institutional interests and social control functions at the expense of defendants’ procedural rights. Mou's meticulous study makes a significant contribution to the field of Chinese criminal justice by illustrating the repressiveness embedded in the mundane and invisible working of the Chinese legal system.
The book centres on the social process of the construction of “case dossiers.” These written documents, which contain prosecution evidence and police interrogation records, are arguably the most important determinate of case outcomes in China. Mou traces the dossier through three stages of the criminal process: police investigation, pretrial prosecutorial preparation, and trial.
Chapter one builds the conceptual foundation for the book. It compares the meanings of truth, justice and injustice in Chinese and Western contexts. Mou points out that, whereas many Western criminal justice systems view truth as a social construction that emerges through procedural justice in which facts emerge through competing narratives in court, Chinese criminal justice, which is highly influenced by Marx's dialectical materialism, asserts the existence of objective truth that must be “found” in every criminal case (p. 13). However, in China, this view of truth does not correspond to any clear method in the truth finding process. Mou points out that the theory of objective truth is “profoundly problematic in directing criminal justice practices, especially evidence acquisition” (p. 18).
In the Chinese legal context, prosecutors occupy a supervisory role in the system and the prosecutorial review serves as a “transitional procedure connecting both the police investigation and the trial” (p. 26). Chapter two shows that Mou managed to conduct 182 days of ethnographic fieldwork at a local procuratorate and get access to 240 case dossiers. Complemented by in-depth interviews and casual conversations with judges, police officers, prosecutors, witnesses and victims, Mou provides an extremely detailed presentation of how injustice is produced on a regular basis by the system.
Chapters three to six form the bulk of the book. Chapter three examines how police officers construct the investigative dossier. Mou illustrates that the construction process is seriously flawed, as the dossier does not faithfully reflect the way a police investigation is carried out. Chapter four discusses the complicity of the prosecutorial review in police misconduct, in which prosecutors focus on the formalism of the presentation of the investigative dossier rather than the authenticity and legality of the underlying evidence. During prosecutorial interrogation, they interrogate suspects in a way that corroborates their previous confessions in order to prevent suspects from retracting confessions and pleading not guilty.
In Chapter five, Mou discusses prosecutorial decision-making. This chapter is best captured by her observation that “[d]ecisions to prosecute criminal cases can be made unimpededly by any prosecutor regardless of her work experience, whereas prosecutors’ discretion to discontinue a case is cautiously exercised and carefully scrutinized by layers of bureaucratic schemes” (p. 166). Mou illustrates that this pro-prosecution model is shaped by institutional and external factors, such as departmental relationships within the procuratorate, prosecutors’ own interests incentivized by the appraisal system, and the state's goal of social control.
Chapter six focuses on courts and criminal trials. Mou reveals that the court and the procuratorate engage in a complicated “game playing” relationship (p. 183). Each institution has a lever of control: the procuratorate's power to counter appeal and the court's power to acquit. These control tactics, however, are not often initiated unless they are unavoidable, since a stable alliance serves the mutual interests of both agencies. As a result, criminal defendants are treated like “human shells” in criminal trials in which their criminality is confirmed (p. 203).
The great merit of this book lies in the unprecedented empirical detail Mou provides. Her qualitative work on prosecutors is particularly rich. Though Mou's work exposes a dynamic relationship among prosecutors, police and the courts, we get a much better sense of the routine practices of the first group than of the other two. Future work is needed to bring a similar level of detail to the routine activities of the police and courts.
While The Construction of Guilt provides a nuanced account of everyday criminal justice in China, at times it risks caricaturing the alternatives. For instance, the book's emphasis on the concept of ‘routine Chinese injustice’ is embedded in an idealized Western version of justice and criminal procedure. Many sociolegal scholars have unveiled the dark side of routinized criminal justice in Western countries as well. Nevertheless, Mou's book is a must-read for everyone who wants to learn about the routine criminal justice that the overwhelming majority of criminal defendants experience in China.
