China Criminal Defense Manual - Cases Involving a Possible Death Penalty

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Introduction

There is no denying that it is most difficult and challenging for the legal aid lawyer to defend a client who is likely to be sentenced to death. Death penalty cases are usually entrusted to the legal aid lawyer. CPL Article 34 regulates, "If there is the possibility that the defendant may be sentenced to death and yet he has not entrusted anyone to be his defender, the People's Court shall designate a lawyer that is obliged to provide legal aid to serve as a defender." In death penalty cases, the legal aid lawyer must not only help the defendant confront the dire situation, but may also himself suffer the hostility of the defendant's family members, other lawyers, government officials, the mass media, or even the society at large. The purpose of this section is to provide legal aid lawyers with some strategies of defense for death penalty cases that will help them persuade the court to grant the client his or her life.

Could the defendant possibly be sentenced to death?

According to CL Article 49, "The death penalty shall not be imposed on persons who have not reached the age of 18 at the time the crime is committed or on women who are pregnant at the time of trial." In addition, the legal aid lawyer should make a careful analysis of the defendant to judge whether the defendant should bear the criminal responsibility, be given a mitigated punishment, or even be exempted from punishment. For example, CL Articles 18 and 19 stipulate, "If a mental patient causes harmful consequences at a time when he is unable to recognize or control his own conduct, upon verification and confirmation through legal procedure, he shall not bear criminal responsibility," and, "If a mental patient who has not completely lost the ability of recognizing or controlling his own conduct commits a crime, he shall bear criminal responsibility; however, he may be given a lighter or mitigated punishment." Furthermore, "Any deaf-mute or blind person who commits a crime may be given a lighter or mitigated punishment or be exempted from punishment." CL Article 5 stipulates, "The degree of punishment shall be commensurate with the crime committed and the criminal responsibility to be borne by the offender." Therefore, the legal aid lawyer should first determine whether the defendant should bear criminal responsibility. The answer to this question will have a significant impact on the investigation, procurement of evidence, and defense in court regarding the alleged crime.


Could the defendant possibly be sentenced to death for the crime committed?

CL Article 48 states, "The death penalty shall only be applied to criminals who have committed extremely serious crimes;" this is the applicable maxim for the death penalty. If the crime committed by the defendant is not extremely serious, he is not supposed to be sentenced to death. The death penalty can only be applied in the following three circumstances:

  1. The crime committed is extremely serious, for example, intentional crimes like (intentional) homicide, arson, rape, robbery and kidnapping which seriously endanger society.
  2. The crime has resulted in very harmful consequences, for example, the death of many people, severe injury, or great loss of property.
  3. The way in which the crime was committed was very brutal, for example, the accused resorted to especially cruel means to complete the crime.

Regardless of these circumstances, even in the case of intentional homicide, the court and the prosecutor should ideally not seek to sentence the accused to death. CL Article 232 provides many possible types of punishments, including fixed-term imprisonment of not less than ten years and life imprisonment. If the circumstances are relatively minor (this is especially possible and should be emphasized in cases involving issues of self-defense or family violence), the defendant might even be sentenced to fixed-term imprisonment of not less than three years but not more than ten years. CL Article 5 regulates that the degree of punishment shall be commensurate with the crime committed and the criminal responsibility to be borne by the offender. In addition, CL Article 63 states, "In cases where the circumstances of a crime do not warrant a mitigated punishment under the provisions of this Law, in the light of the special circumstances of the case, the criminal may still be sentenced to a punishment less than the prescribed punishment." When the case largely involves external elements and considerations, such as family cases, the defender should take this regulation into consideration.

Why is the relationship between the legal aid lawyer and the defendant as well as his family members so important?

In the process of preparing and arguing a case, the legal aid lawyer should always keep close contact with the defendant. It is indispensable to maintain a good relationship with the defendant and his family members in order to conceive of and practice effective counsel. Of course, the confidentiality clause between the lawyer and the defendant is still valid and applicable to the relationship between the lawyer and the family members of the defendant.

The defendant and his family members are the chief sources of information for the legal aid lawyer to find out about the life of the defendant. If possible, the legal aid lawyer should immediately have an exhaustive talk with the defendant and his family members. Suggestions about this initial interview have been included in the chapter "Interview the family members of the defendant" of this handbook. An interview at the earliest possible stage will help the legal aid lawyer collect the evidences needed for a mitigated punishment. A friendly lawyer-defendant and lawyer-defendant's family member relationship is of great help to the process of the case.

Although the Criminal Procedure Law of China does not comment on out-of-court settlements, precedence indicates that such consultation can arise in death penalty cases. Therefore, another reason for establishing a good relationship with the defendant and his family members is to find out any information that might mitigate the defendant's potential punishment in the early stages of the case. For example, suppose the defendant is a woman who suffers her husband's physical and mental abuse for years and who then kills him. According to CL Article 232, the circumstances of this murder are relatively minor and she should not be sentenced to death. The defendant and her family members may inform the legal aid lawyer of this background information, and the lawyer can make use of the information to persuade the procurator and judges outside of court (this is legal practice) not to employ the death penalty. Then, the legal aid lawyer can cooperate with the procurator to find a more appropriate punishment and persuade the court to adopt it.


What defending strategies are relatively effective in death penalty cases?

CPL Article 35 states, "The responsibility of a defender shall be to present, according to the facts and law, materials and opinions proving the innocence of the criminal suspect or defendant, the pettiness of his crime and the need for a mitigated punishment or exemption from criminal responsibility, thus safeguarding the lawful rights and interests of the criminal suspect or the defendant."

In death penalty cases, the legal aid lawyer aims to persuade the court that 1) The defendant is innocent; 2) Even if the defendant committed crimes, he should not bear criminal responsibility; 3) Even if the defendant committed crimes and should bear criminal responsibility, in the light of the true circumstances of the case, he should not be sentenced to death.

Whatever theory of defense the legal aid lawyer adopts, he should realize that it is sometimes a bit contradictory to try to prove the defendant's innocence and simultaneously help the defendant avoid the death penalty. Thus, the legal aid lawyer should attempt to resolve all the potential contradictions in the defense theory, endeavoring to prove the defendant innocent, as well as requesting a mitigated punishment for the defendant even if the court has found the defendant guilty.

The legal aid lawyer should first determine whether he can prove the defendant innocent. Some possible defense theories include, but are not limited to: proving an alibi (when there are reliable witnesses or material evidence); proving no capacity (i.e., the defendant did not have the capacity needed for committing the crime); demonstrating that the prosecutor relies on the unreliable eyewitnesses (e.g. eyewitnesses who could not or did not see the true circumstances of the crime); arguing that government officials, the victim, other defendants, or other people are attempting to frame the defendant.

If the defense lawyer cannot prove the defendant innocent, he should consider whether he can prove that the defendant shall not bear criminal responsibility. For example, according to CL Article 18, if a mental patient causes harmful consequences at a time when he is unable to recognize or control his own conduct, upon verification and confirmation through legal procedure, he shall not bear criminal responsibility. CL Article 14 states that only when the defendant "clearly knows that his act would possibly entail harmful consequences to society but [still] wishes or allows such consequences to occur, thus constituting a crime," is he deemed to have committed an intentional crime. If there is any doubt about the mental state of the defendant at the time of the offense, the legal aid lawyer should immediately seek the evaluation of an expert. If there is evidence of a mental disorder, the legal aid lawyer should appeal to the court to allow the expert to testify at trial. The legal aid lawyer should also consult an expert on whether the prosecution's or court's evaluation of the defendant's mental state is in accordance with CPL Article 120.

If the legal aid lawyer can neither prove the defendant innocent nor prove that the defendant should not bear criminal responsibility, he should then argue to his utmost ability for a mitigated punishment. (In fact, whatever defense theory he adopts, the legal aid lawyer should prepare a defense that argues for a mitigated punishment in case the court finds the defendant both guilty and bearing criminal responsibility.) CL Article 61 stipulates, "When sentencing a criminal, a punishment shall be meted out on the basis of the facts, nature and circumstances of the crime, the degree of harm done to society and the relevant provisions of this Law." However, even if there are no special regulations in CL, in the light of the special circumstances of the case, and "upon verification and approval of the Supreme People's Court," the court may still give "a punishment less than the prescribed punishment" (CL Article 63).

A frequently employed defense strategy is to find fault with the victim. Ideally, the legal aid lawyer can prove that if the victim was not at fault, the defendant would not have reacted and committed the crime. For example, suppose that the defendant suffers from the "Maltreated Women Syndrome" because of the victim's abuse. In this case, the legal aid lawyer needs to provide material evidence to prove that the victim frequently hit the defendant. In addition, witness testimonies and other materials need to be provided to analyze the victim's character and the relationship between the victim and the defendant. The legal aid lawyer can investigate, for example, whether the defendant ever tried to divorce the victim; whether there are photos, medical reports, or other pieces of evidence concerning the defendant's bodily injuries; whether the victim has a criminal record, and so on. An expert should be retained to testify in court on the psychological effects of family violence and why an abused woman might not be able to leave her husband. The legal aid lawyer can present these facts surrounding the case within the limits of the law, and can find other individuals or organizations that have significant social influence and know the harm of family violence to support the defendant. The verdict of similar cases can be counted as secondary evidence, helping the lawyer to explain why the maltreated woman who revengefully killed her husband should not be sentenced to death. The legal aid lawyer can argue that because the defendant did not cause society serious harm, and because the victim had previously abused and incited the defendant, the defendant should be given a lighter punishment. (CL Articles 5, 61, 63, and 232)


How to Conduct Investigation in Death Penalty Cases

A trial is often a battle between different versions of a story, with the prosecutor's version almost always at odds with the defendant's version. The ideal theory of defense presents the defendant's statements as a coherent and credible account that connects the various facts of the case. The legal aid lawyer's defense theory also provides the basic train of thought for finding and presenting evidence and witnesses. Whatever defense theory the legal aid lawyer adopts, it cannot violate the truth or the law; at the same time, it should demonstrate contradictory pieces of evidence or logical inconsistencies in the prosecutor's opinions, explain and mitigate evidence that is unfavorable to the defendant, and describe the defendant as a person of flesh and blood who should not be sentenced to death for the crime committed.

When investigating death penalty cases, note the following in particular:

  1. The legal aid lawyer should independently conduct an investigation and research the circumstances of the case and the possibility for a mitigated punishment. Once the lawyer takes up the case, he should immediately set out to do all above things tirelessly.
  2. Regardless of the defendant's or others' admissions or statements that may indicate guilt on the part of the defendant, the lawyer should investigate the true circumstances of the case.
  3. Even if at the beginning stage of the case, the defendant himself holds little hope of attaining a mitigated punishment, the lawyer should still investigate the possibility of a mitigated punishment, exhausting all available evidence, attempting to refute any evidence in support of death penalty, and appealing to the court for a mitigated punishment.
  4. Sources of available and useful information include, but are not limited to:
  • Documents of indictment: try to obtain all the documents of indictment and analyze them according to the relevant laws. Consider the following:
    • The elements of the indictment, especially those which seem to support the death penalty;
    • The applicability of the death penalty, the alleged crime, and a feasible defense theory for the defendant;
    • any possibility of challenging the documents of indictment.
  • The defendant: After the legal aid lawyer takes the case, he should interview the defendant within 24 hours unless there is sufficient reason to delay. Even if delayed, the interview should be conducted as soon as possible. If possible, the lawyer should complete the following work by the first interview, or in that first interview (and if this is not possible, the work should be done was as soon as possible in later interviews and investigations):
    • Obtain information about the process of indictment, notice whether the police infringed upon the defendant's rights in the course of investigation or indictment.
    • Obtain the following: information concerning the alleged crime, information on the mental state of the defendant, information about the laws and regulations concerning the death penalty and mitigated punishment.
    • Get information about the defendant that will need to be used in the sentencing stage of the trial, including but not limited to: medical reports (on mental or physical injury or illness, intoxication or drug-use, congenital deficiencies, etc.); educational background (performance, school reports, mental or learning disabilities); records of military service (type of military service, length, performance, special training); work and technical training (technical skills, performance, any circumstances that might hinder or affect work); family and social experiences (physical or psychological maltreatment, sexual harassment); criminal record; re-education experiences (the supervision, education, training or treatment received); and any cultural influences.
    • If the above information is private or confidential, try to exert influence on the relevant departments. Appeal to collect and employ the information.
    • Seek the names of other insiders, or find other sources of information to verify, explain, and expand the information you have.
  • Looking for witnesses: the legal aid lawyer should meet some potential witnesses, including:
    • The eyewitnesses at the scene or other "insiders;"
    • Those who are acquainted with the defendant and are familiar with his life story. Their testimonies can help the lawyer determine whether the defendant would, in all probability, commit crimes. The testimonies can also help the lawyer identify potential arguments for a mitigated punishment or exemption from the death penalty.
    • The victim's family members who oppose the death of the defendant (here, the lawyer needs to ask the court's permission according to CPL Article 37). If the legal aid lawyer conducts such interviews of potential witnesses, he should attempt to do so in the presence of a third person. If necessary, the third person can appear in court as the defense's witness.
  • The police and the prosecutor: the legal aid lawyer should try to obtain information from the prosecutor or the police.
  • Material evidence: If possible, the legal aid lawyer should collect the material evidence and the expert evaluation concerning conviction and sentencing from the police or investigation organs.
  • Scene: If possible, the legal aid lawyer should attempt to view the scene of the alleged offense. This should be done under circumstances as similar as possible to those existing at the time of the alleged incident (e.g., weather, time of day, and lighting conditions).
  • Obtain expert assistance: The legal aid lawyer should secure the assistance of experts where it is necessary for:
    • The preparation of the defense;
    • Adequate understanding of the prosecution's case;
    • Rebuttal of the prosecution's case;
    • Applying for a mitigated punishment.

The expert helping with investigation and evaluation should work independently from the defense lawyer, and the conclusion should be kept confidential under the protection of law. The defense lawyer and his team should attempt to obtain the necessary information to the best of their abilities.

  • Cases with similar circumstances and favorable verdicts for the defendant: the legal aid lawyer should find cases with similar circumstances for which the court rejected the death penalty. If necessary, the legal aid lawyer should seek help from other legal aid centers, professors of Criminal Law, or other individuals who know the death penalty well. The lawyer should cite these cases in his or her defense, and refer to CL Article 5 that states, "The degree of punishment shall be commensurate with the crime committed and the criminal responsibility to be borne by the offender."
  • Communication with the court: Within the limits of the law, the legal aid lawyer should inform the court of the truth of the case and explain why the defendant should not be sentenced to death.
  • Seek the help of other individuals or organizations: Within the limits of the law, the legal aid lawyer can consider seeking the help of the following organizations or their members: Women's Association, Labors' Association; the unit (danwei) of the defendant; other individuals or organizations that support of the defendant. If the defendant's experience is especially noteworthy, consider contacting and cooperating with media outlets that would sympathize with the defendant.

What evidence can be presented to persuade the court not to employ the death penalty?

In deciding which witnesses or pieces of evidence to employ in court, the legal aid lawyer should consider the following types of witnesses:

  1. Those who are familiar with the defendant's life experiences and sympathize with the defendant, and are capable of exculpating the defendant from the crime or rebutting the prosecutor's evidences.
  2. Experts who can provide medical, mental, sociological or other kinds of interpretations of the defendant's act; experts whose evaluations testify to the defendant's capacity for reform; experts who can rebut the expert evaluation provided by the prosecutor.
  3. Those who have a basic understanding of how the death penalty is employed; those who are familiar with cases involving similar circumstances in which the death penalty was not sought.
  4. Family members and friends of the victim who object to sentencing the defendant to death.
  5. In addition, the lawyer can consider whether the defendant should make a statement showing deep sorrow and pleading for his life to be spared. According to Interpretation on Some Issues Concerning Implementing Criminal Procedure Law of the People's Republic of China, Article 128, item 4, the defendant has the right to make a final statement after the end of argumentation in court. The legal aid lawyer, together with the defendant, should evaluate both the potential positive and negative effects of such a statement. If the lawyer and the defendant deem the statement advantageous, the lawyer should carefully prepare the defendant to deliver the statement. Such a statement should be sincere, sorrowful, and express the wish to bear the responsibility for the alleged offense.

The legal aid lawyer should provide the court with all and any evidence that would support a mitigated punishment, unless there are important reasons for not adopting this strategy. Depending on the circumstances of a particular case, the following types of evidences may be employed:

  1. Medical report (mental or physical injury or illness, intoxication or drug-use, congenital deficiencies and so on);
  2. Educational background (performance, school reports, mental or learning disabilities); opportunities or hardships
  3. Record of military service (type of military service, length, performance, special training);
  4. Work and technical training (technical skills, performance, any circumstances that might hinder work);
  5. Family and social experiences (including the physical, psychological, or sexual abuse); any cultural influences; re-education record (including the supervision, education, training or treatment received);
  6. Potentials to be educated and reformed;
  7. Criminal record (especially when the defendant has little or no criminal record, or has record of only nonviolent crimes);
  8. Expert evaluation concerning any of the above items.

The legal aid lawyer should consider any and all kinds of evidence that might support a mitigated punishment and submit this evidence to the court. The evidence might take the form of witnesses, a warrantor, reports (where possible, pointing out the informational or logical inconsistencies of the prosecutor's case, and the information that favors the defendant), letters, and national files.


The Prospects for Defense in Appeals Trials and for Review of the Death Penalty

As is well known, criminal procedure in death penalty cases in China has gradually improved; especially since the Supreme Court now has the right to review the death penalty in many cases. Recent interpretations of criminal procedure law regarding the appeal of death penalty cases indicate that lawyers, especially the legal aid lawyer, will play an even greater role in these cases.

On Dec. 7, 2005, the Supreme People's Court issued Notice of the Supreme People's Court on Further Doing a Good Job in Opening Court Sessions to Hear Appeal Cases Involving Death Sentences, which states that as of Jan. 1, 2006, the court shall open sessions and try cases in which the defendant has submitted important facts or evidence for appeal, making sure that the lawyers, key witnesses, and expert witnesses shall be present in court. In the spirit of the Notice, the defense lawyer in death penalty cases should try to file appeals ahead of time. The defense lawyer should present clear facts and evidence in these appeals, and should re-examine the case's evidence in the court session and there attempt to establish opportunities for his client to avoid the death sentence.

Although the defense lawyer in death penalty cases has no right to attend the review of the death penalty under current law, with the current procedural reform of the right for death penalty review, there is every reason to believe that defense lawyers will soon be granted the opportunity to participate in these reviews, either in person or through written argumentation. The defense lawyer, especially the legal aid lawyer, should make every effort to comprehend and familiarize himself with the key points in the counterplea, and as a long-term goal, to accumulate the experience necessary for defending death penalty cases. The defense lawyer should also conduct as much of a defense as is possible under the constraints of the law in death penalty reviews.


Conclusion

Although death penalty cases are the most challenging of all cases, the defense lawyer can still humanize the defendant's experience and present the court with a powerful argument for a mitigated sentence. To effectively defend the client in death penalty cases, the lawyer needs to conduct an investigation as soon as possible and utilize his or her patience, persistence, creativity in establishing a friendly relationship with the defendant and his family members. The lawyer's utmost objective to evoke empathy for the defendant; by presenting the case from the perspective of the defendant, the lawyer can convince the court to understand and even sympathize with the defendant's actions at the time of the offense.


See China Defender Manual