Back from the Dead: Wrongful Convictions and Criminal Justice in China by He Jiahong (review)

He Jiahong 何家弘, the author of this fascinating and important book, is a professor of law as well as the director of both the Center for Common Law (Putongfa zhongxin 普通法中心) and the Institute of Evidence (Zhengjuxue yanjiusuo 证据学研究所) at Renmin University (Renmin daxue 人民大学) in Beijing. His book’s introduction provides an autobiographical sketch to explain his own personal evolution as an advocate of legal reform. Having suffered as a youth during the Mao era (for his “bad” family background), he was one of the lucky, brilliant few who passed the re-established college entrance exam in 1979, winning a place as a law student at Renmin University. He subsequently spent 1990–1993 at Northwestern University in the United States, completing a doctorate in law with a dissertation that compared Chinese and American approaches to criminal justice. His time at Northwestern included exciting “ride alongs” with the Chicago police, which he recounts with great nostalgia. Profoundly influenced by his American experiences, Professor He returned to China (and to a faculty position at his alma mater) to become a leading and highly innovative figure in efforts to reform China’s criminal justice system. He has also written several detective novels, which are a source of evident pride.

He Jiahong writes in an entertaining and accessible style (derived, he says, from his fiction writing) that does not lose sight of the gravity of his topic. The empirical foundation of his research is a series of notorious cases of wrongful conviction for homicide, which he analyzes in light of several large-scale surveys he and his team have conducted among legal professionals across China (including public security bureaus, procuratorates, courts, law firms, and regional justice departments). He tacks back and forth between a close reading of individual cases and a broader, quantitative analysis of the criminal justice system as a whole. He evaluates the causes of wrongful conviction according to principles found in Chinese legislation, but in addition he often cites Western legal norms to highlight specific shortcomings in the Chinese system that should be reformed according to foreign models.

In part 1, Professor He focuses on factors that distort the process of investigation. The police face tight deadlines for solving criminal cases (and in sensational cases, public pressure as well), which exacerbates their tendency to use torture to extract confessions from suspects before collecting evidence. He makes it clear that torture is an absolutely ubiquitous feature of criminal investigation in China, despite its nominal prohibition; moreover, no right to remain silent or to avoid self-incrimination is recognized. After extracting a confession, the police tend to collect evidence in a prejudicial manner in order to confirm guilt, while ignoring (or failing to look for) other evidence that might exonerate. In the process, scientific evidence (such as DNA) is often misrepresented. This confession-to-evidence sequence of investigation is perhaps the most basic and frequent cause of wrongful convictions.

In part 2, Professor He addresses factors that distort outcomes after the initial investigatory stage. The nominally prohibited but nevertheless common practice of extended pretrial custody produces a sort of “tunnel vision,” so that the longer a given suspect is in custody, the less likely the authorities are to release them or to consider alternatives. Moreover, the lack of a rigorous presumption of innocence means that when a defendant’s guilt is in doubt, the authorities will usually opt for a reduction in penalty instead of exoneration.

The most important factor affecting outcomes, however, derives from the institutional structure framing the criminal justice system. Systematic collusion between the police, the procuratorate (responsible for prosecution), and the courts means that trials are decided in advance, at informal meetings of senior representatives of the three branches. Subsequent courtroom procedures serve the purely “nominal” role of rubber-stamping whatever case has been submitted by the procurators. Professor He’s analysis of this institutional factor is the closest he comes to criticizing the...