For English language background on China’s exclusionary rules, click HERE.

‘Investigation of the Actual Implementation Status of the ‘Two Evidence Rules’

Current Operation and Obstacles to Implementation of the “Two Evidence Rules”

The ‘two evidence rules’: current operation and feedback.

From the statements of meeting participants, we learn that the operation of the two evidence rules has generally proceeded well since their promulgation: On the one hand, the quality of case management in both capital cases and ordinary criminal cases has increased noticeably, and in practice, exclusion procedures have been initiated and there have been cases of excluding evidence;  coerced confessions and other illegal evidence gathering activities have met a certain amount of restraint. At the same time, the legal outlook of personnel from the police, prosecutors and courts is continuously evolving and their evidence consciousness grows incrementally stronger.

At the local level, the Court President of the High People’s Court of Hainan Province, DONG Zhiliang, indicated that the Hainan court system has strictly applied and implemented the two evidentiary rules,  and the 2011 annual report stated that all death penalty cases sent to the Supreme People’s Court for final review were approved. Vice-President of the Hainan Intermediate Court, Feng Ming, stated that since “the two evidence rules” have come into effect, the rate of appeals from basic level court first-instance trials, the rate of corrections by intermediate courts of basic level courts’ first-instance cases, and the rate of corrections by the high court of intermediate level courts’ first-instance cases have all decreased. Vice-President Du Yusu of the Xi’an Intermediate Court and Chief Prosecutor Li Zhong of the Ningbo prosecutors’ office also said that the ‘two evidence rules’ were conceptually advanced and balance human rights protections and crime fighting, while also making clear the value of proper procedures.

Dai Changlin, Chief Judge of the Supreme People’s Court’s (SPC’s) third criminal tribunal, indicated that after  the’ two evidentiary rules’ took effect, the quality of evidence at investigation, indictment and trial coming from every level of judicial organ across the country showed improvement. For example, in the SPC’s final review of death penalty cases and other serious criminal cases, there was a clear decrease in the number of cases returned for further hearing because the facts were unclear and evidence insufficient .

Chen Guoqing, the director of the Supreme People’s Procuratorate’s (SPP’s) legal policy research room, indicated that the two evidentiary rules, particularly the exclusion of illegal evidence, play an important cautionary and guiding role in the legal collection of evidence.

While confirming the positive significance of the two evidence rules, experts from theoretical circles also raised pertinent criticisms.

First, the two evidence rules differ in the effectiveness of their implementation.  Professor Long Zongzhi  of Sichuan University and Vice-President Du Yusu of the Xi’an Intermediate Court both put forward that the implementation of the ‘Evidentiary Rules for Death Penalty Cases” was more effective than that of the “Rules on the Exclusion of Illegally Obtained Evidence”. The primary reason is that the former relates to operational standards on techniques for evidence gathering, examination of evidence, and approval of evidence, and is thus relatively easy for judges to understand, grasp and utilize; while the latter concerns the conflicting standards of the values of excluding evidence, which is difficult for judges to get a handle on and implement.

其次,《非法证据排除规定》在执行过程中存在诸多问题。根据海口、西安、廊坊、宁波等地与会法官、检察官代表的发言总结,实践中主要存在的问题是法院“不敢排、不想排、不能排、不会排、排不动”,检察院“有监督之名、无监督之实,事前无法预防非法取证,事后无法证明取证合法”等现象,其中既有条文规定的缺陷,也有实践方面的障碍。

Secondly, several problems exist in the course of implementing the “Exclusionary Rules.” According to meeting participants from Haikou, Xi’an, Langfang, Ningbo and other areas, and the summary statement of the procuracy representatives, the biggest problems in practice are that courts “don’t dare to exclude, don’t want to exclude, can’t exclude, won’t exclude, and exclude to no effect”; procurators “supervise in name only, but don’t actually supervise, have no ability to prevent the illegal collection of evidence before the fact, and have no ability to prove the legality of evidence collection later. “

Finally, there are problems with the use of evidence gathered through technological investigative methods.  Meeting participants began a discussion of provisions in the “Evidentiary Rules for Death Penalty Cases” and “Draft Amendments to the Criminal Procedure Law” relating to technological and covert investigation techniques, but the disagreement amongst courts, public security organs and scholars on the  use and rehabilitation[1] of evidence gathered through technological methods remained quite large.

Obstacles to the application of the “Exclusionary Rules”

First, judicial independence has not yet been realized. Participants widely felt that the basic reason that it is difficult for judges to exclude illegally acquired evidence is a lack of strong adjudicatory independence. As to ensuring institutional adjudicatory independence, Vice-President Du YuSu of the Xi’an Intermediate Court and Chief Judge Zheng Lanqing of the Hainan High Court’s first criminal tribunal, both felt that the structure of the current criminal procedure, and its weak position for the courts, leaves the courts with insufficient authority and capacity to lead; adjudicatory personnel generally don’t dare to exclude evidence.  As to updating the concept of adjudicatory independence, Professor Long Zongzhi  of Sichuan University raised the issue of judicial ethics, and Qinghua University Professor Zhang Jianwei felt that improper judicial practices should be abolished and not taken in and accepted as part of the national conditions.

Second: the relationship between public security organs, procuratorates and courts. According to article three of the  “Exclusionary Rules” , the people’s procuratorates when performing review for approval of arrests or indictment, also have a duty to exclude illegal evidence. Yet participants from the procuracy reported that they also face great pressure when excluding illegal evidence. For example, Chief Procurator Li Zhong, of the Ninbo City, Beilun District Procuratorate, put forward that the procuratorate is the bridge that connects the courts and the public security organs, but , procurators at once have no channel through which to supervise the investigatory organs’ evidence gathering activities, methods or procedures, and thus, when they are approving arrest or indictment , they have no idea, whether illegal evidence gathering occurred.  At the same time, the system of reporting between higher and lower courts also puts the procurators in truly weak position during the course of tiral that ultimately creates splits between investigation, approval of arrest and prosecution.

Third:  Pressure from performance evaluation indices and case time limits: Participants from the People’s Courts felt that trial time limits are another major reason that trial judges are unwilling to exclude evidence. Vice-President Feng Ming of the Haikou Intermediate Court expressed that judges spend a large amount of time investigating sentencing evidence, mediating attached civil suits, and verifying certain evidence, so that case time limits are extremely tight.  Vice president Du Yusu of the Xi’an Intermediate Court also expressed that the intermediate court judges have large case loads with little time to try them, and that case closure rates and case handling times are an important assessment indicator that effectively pressures judges to not actively initiate evidence exclusion procedures. But, Beijing University Professor Wang Jiancheng said that as a newly enhanced system, the exclusionary rules naturally require increased judicial investment, otherwise we’ll be confronted with the awkward situation of a decrease in lawsuit efficiency.

Fourth:  system of accompanying regulations for the exclusionary rules. Participants from practice and theoretical circles all readily emphasized the need to create a system of accompanying regulations for the exclusionary rules. From a big picture perspective, Professor Long Zongzhi of Sichuan University said that considering the current national conditions we should strengthen prevention measure to effectively prevent illegal evidence gathering behavior from happening, and not merely rely on the evidence exclusion procedures. Beijing Normal University Professor Song Yinghui specially emphasized the need to further refine and make more explicit the provisions of the Exclusionary Rules.  At the micro-level, The Ministry of Public Security’s Legal Affairs Bureau Director Sun Maoli said that the public security offices have spared no expense in their efforts to control and contain the use of torture to extract confessions, for example separating case handling and rest areas and having 24 hour continuous a/v recording in the case handling areas.

Scholars Wang  Jiancheng, Wang Minyuan, Song Yinghui  all mentioned that China should develop its system of guiding cases and that the National People’s Congress Legal Affairs Committee should make unifying legislative interpretations.

Deputy Director Shi Xianzhi of the SPP  case management office  and Chief Procurator Li Zhong of the Ningbo City, Beilun District Procuratorate felt the system for simultaneous a/v recording of interrogation should be further improved. ZheJiang Gongshang University  Professor Tan Shigui felt that we need to establish a system for allowing lawyers to be present during interrogations, clarify criminal suspects’ right to requrest a health examination,  and clarify methods of sanctioning investigatory personnel who don’t appear in court to testify. Professor Long Zhongzhi felt that the exclusionary rules should be used together with rules on hearsay evidence.

On Understanding the “Two Evidentiary Rules” and the Draft Criminal Procedure Law Amendments                        

The Substantive Rules on the Exclusion of Evidence

First, how should one understand the exclusionary rules? Unlike [their counterparts in] Western nations where the rule of law is advanced, China’s exclusionary rules were created under the weight of China’s unique history and seek to use exclusion of testimony to effectively contain the use of torture to extract confessions and the occurrence of unjust, wrongly-decided cases; and the exclusion of physical evidence is in no way at the center of the exclusionary rules. This results in the targets of exclusion being divided into testimony and physical evidence, the period of exclusion being extended across the investigation, approval of arrest, and indictment phases,  and the duty to exclude being entrusted to investigatory personnel and procurators. As to whether the above characteristics are reasonable and sensible,   meeting participants offered differing opinions.

On the one hand, the majority of those working in practice generally discussed the exclusionary rules in the context of Chinese criminal adjudication and were not yet aware of this issue, while expert scholars raise the differences between exclusion of evidence in China and abroad.

China Academy of Social Sciences (CASS) Researcher Xiong QiuHong said that we use exclusionary rules at three levels: Macro, middle and micro: The broad sense of exclusion of evidence is the same as admissibility of evidence; at the middle-level itss the same as prohibitions on evidence gathering found in German law; and the narrowest meaning is that found in the Fourth Amendment of the US Constitution’s  exclusion of physical evidence obtained through illegal searches and seizures. Professor Zhang Jianwei of of Qinhua University felt that we must not confuse the exclusionary rule with the voluntary confession rule and  Beijing University Professor Wang JianCheng expressed that exclusion of evidence only refers to exclusion by judges and that procurators are concerned with  the issue of ‘entry’ of evidence, not exclusion.

Secondly, how should we understand the exclusion of testimonial evidence? The Exclusionary Rules and the draft amendments to the CPL both regulate techniques for  obtaining illegal testimony. Representatives from practice had questions as to the definition and scope of “use of torture to extract confessions” and “threats, enticement, trickery”.  The academics offered an explanation and response.

Concerning “use of torture to extract confessions and other such illegal methods”, Sichuan University Professor Long Zhongzhi indicated that we need to make clear whether ‘disguised’ torture is  considered ‘use of torture to extract confessions’, and also that the scope of the ‘other such’ needs to be settled. China Renmin University Professor Chen Weidong and Beijing University Professor Wang Jiancheng felt that the phrase“other such” found in the Exclusionary Rules only includes physical punishment, threats, enticement and trickery, while the ‘other such’ found in the Draft CPL amendments could be interpreted  expansively, including physical punishment, cold, hunger, sun exposure, burning, freezing, boiling and other indirect or psychological torments.

Beijing Normal University Professor Song YingJun, however, feels that we cannot simply think that “use of torture to extract confessions and other such…” should include all of the above illegal evidence gathering techniques, but  we should still strictly delineate and specify what is meant by “other such”.

As to “threats, enticement and trickery,”  Professors Long Zongzhi and Song Yinghui discussed this question in detail. The former primarily summarized the problems in practice:  Since the two evidence rules came on the stage, ‘high-intensity’ torture to extract confessions has been somewhat reduced, but non-traditional torture and many forms of illegal evidence gathering have accumulated and increased so that in practice we now see threats and coercion, illegal methods of acquiring testimony that will always be difficult to eliminate. “Enticement and trickery”  occur in many forms,  and offering enticements is difficult to distinguish from ‘being lenient to those who confess’.  Use of ‘second confessions’ [confessions that repeat the content of a tainted confession but are not directly connected with illegal behavior[2]] is a regular occurrence.

The latter (Song Yihui) focused more on responding to the doubts of those in practice. If ‘threats’ reach the level of being inhumane and unethical, or enticement and trickery directly determine the content of a statement, then the confessions should all be excluded because they could lead to wrongfully decided cases. Also, there should be a absolute prohibition of repeat interrogation and ‘second confessions’.

Further, how should we understand the exclusion of physical evidence? Experts participating in the meeting largely felt that exclusion of physical evidence should proceed with caution. Researcher Wang Minyuan said that special caution is needed as to exclusion of physical evidence in capital cases. Professor Wang Jiancheng felt that the phrase “severely influence judicial fairness” found in the draft amendments to the CPL is too vague, illegal physical evidence is only limited to evidence acquired by illegal searches that violate citizen’s rights in their home[3] and unauthorized surveillance that violate’s citizens’ privacy rights.[4]

Finally, how should we understand exclusion of evidence and acquittal? Xi’an Intermediate Court Vice-President Du YuSu, Sichuan University Professor Long Zongzhi, and Langfang Intermediate court, Second Criminal Tribunal Chief Judge Xu Bing, all said that the relationship between excluding evidence and reaching a not-guilty verdict is difficult to get a handle on, even if the illegal evidence is excluded, it is very hard to announce an acquittal. Hainan High Court first criminal tribunal Chief Judge Zheng Lanqing, said that basic level court judges don’t really care whether evidence is illegal, but care only that the criminal acts were done by the defendant and that they can convict. China University of Politics and Law Professor Gu Yongzhong said that exclusion of evidence and its consequences needn’t all be addressed in a single strike, and that situations exceptions can be generated.

Procedural rules for the Exclusion of Illegal Evidence

Professor Fan Chongyi of the China University of Political Science and Law raised the problem of ‘situating’ the procedures for exclusion of evidence,  and participants had two types of view:  One view feels that this is a “trial within a trial” or ‘case within a case” and procedures should be constructed according to procedural rules. Zhang Zhihui, Director of the Department for Judicial Reform at the Supreme People’s Procuratorate, said that the problem addressed by evidence exclusion procedures is  whether or not evidence gathering activity was legal, trial procedures address the question of whether the crime was committed by the defendant, the two are qualitatively different and should proceed separately. Another view is that this is not an independent procedure and is just a component of the ordinary trial procedure.   Professor Gu Yongzhong felt that we don’t need to establish independent exclusion procedures- judicial resources and judicial customs don’t allow for it.  Professor Tan Shigui felt that Chinese courts don’t bear the burden of proof and that further, judges verify evidence either a piece at a time, in groups or altogether, and that if you want an independent approval procedure , making decisions would be quite difficult.

There was also controversy amongst participants  as to the timing of exclusion, and  there were three viewpoints: pretrial exclusion, exclusion during tiral, and exclusion after trial.

On the side of pre-trial exclusion, Professor Wang Jiancheng felt that an exclusion procedure should be setup before the start of the trial proper, which would allow consideration by the docketing judges.

On the side of exclusion during the trial, because article 181 of the draft amendments to the CPL has expanded the pretrial conference system, Professor Gu Yongzhong of the China University of Political Science and law and Director Zhang Zhihui of the Supreme People’s Procuratorate Department of Judicial Reform mentioned that the function of the pre-trial  conference is to help judges hear the comments of both parties before the start of adjudication, and to determine the key points and scope of in-court inquiry, to plan and design courtroom trial procedures before the fact, and is in essence just a type of preparation before holding court. As such, judges can begin investigating illegal evidence during the pre-trial conference, but cannot take any substantive actions. Illegal evidence should be excluded during the trial.

On the side of exclusion after trial, Zhang Zhihui, Director of the SPP’s Department of Judicial Reform felt that it should be clarified whether or not the parties have a right to request that evidence be excluded after the trial has concluded.  If a suspect or defendant has not requested that evidence be excluded throughout the indictment decision, the pre-trial conference and course of trial, he should be restricted from appealing on this basis after the conclusion of trial.

Participants also disagreed on the method of excluding evidence. The people’s courts and people’s procuratorates are both faced with the question of by what means to exclude evidence.

From the courts, Haikou Intermediate Court Vice-President Feng Ming and Langfang Intermediate Court second criminal tribunal Chief Judge Xu Bing said that the people’s courts have four methods for excluding evidence, the trial judges exclude evidence, collegial tribunals exclude evidence, department heads exclude evidence and adjudicatory committees exclude evidence. Exclusion takes three forms: oral exclusion, exclusion by judicial declaration and exclusion in the verdict. The law should offer clarification.

From the procuratorates, The SPP Case Mananagement Office Deputy Department head Shi Xianzhi and Ningbo City Beilun district procuratorate chief procurator Li Zhong said that the law should also clarify the method by which the people’s procuratorates should exclude evidence during the indictment decision, externally procuracy organs use direct exclusion and exclusion by hearing, while internally four methods are used, the exclusion by the procurator prosecuting the case, exclusion but the chief prosecutor, exclusion by people’s supervisors (人民监督员)and exclusion by the procuratorial committee. The law should offer clarification.

As to the burden of proof in exclusion of illegal evidence: regarding whether or not the defendant and his attorney bear the burden of proof. The Exclusionary Rules and the Draft Amendments to the CPL both dictate that when initiating procedures for the exclusion of evidence the defendant has the duty to provide ‘clues or evidence’. Professor Wang Jiancheng feels that this should not be understood and as a burden of proof, but should be understood as meaning that the suspect should provide clues and has the right to provide evidence.  Professor Tan Shigui however, feels that in practice courts essentially bear a certain burden to prove that the evidence gathering procedures were legal and that this burden should be carried by the prosecution.

The procuracy organs bear a burden of proving that evidence gathering procedures were legal during inquiries into illegal evidence, but whether the draft amendments to the CPL should clearly list the means by which the procuracy may prove this was controversial. Professor Chen Weidong of China Renmin University felt that the draft should clearly enumerate concrete methods by which the procuracy may make proof.

On the Standard of Proof, Haikou Intermediate Court Vice-President Feng Ming said that the standard is that the procuracy’s proof that evidence was legally obtained must be sufficient and reliable, not  that evidence proving exclusion must be sufficient and reliable. Langfang Intermediate Court second criminal tribunal Deputy-Chief Judge Xu Bing said that the law should make clear the relationship between ‘eliminating reasonable doubt’ and ‘inner faith’(内心确认)， to help basic level  court judges understand and master these two standards of proof.

Article35 of the ‘Rules of Evidence for Death Penalty Cases’ on the use of technological evidence in practice.

Public security Department, 12^th division, Section-head Jie Fang introduced the basis for the scope of technological investigations, the state of use in practice of evidence acquired by technological investigation methods, and the 12^th Division’s preliminary plans regarding the Draft Amendments to the CPL’s provisions on technologic investigations. Shanghai City public security technological investigation team, Deputy-team leader, Wang LinJin introduced the special characteristics of technologic investigatory evidence-gathering measures in practice, particularly explaining that these measures are a type of replacement for[other] investigative techniques and that technological evidence is a kind of fortifying evidence, and that further, its approval process is quite rigorous and its use quite cautious.

Expert Scholar participants widely agreed that  technological investigative methods have both a  political and secretive quality, but had differing opinions on how evidence gathered by these techniques should be used and “rehabilitated”.

Nanjing Normal University Professor Li Jianming felt that the draft amendments to the CPL should clarify ‘relevant regulations’, ‘strictly approve’ and other provisions’ meanings. Professor Chen Weidong felt that regular evidence and technologic evidence should be distinguished as they have different methods for examining the evidence. Research Fellow Xiong Qiuhong felt that the secret nature of technologic investigation methods doesn’t indicate that the evidence itself is at all mysterious, evidence obtained through technological evidence methods can apply the ‘two evidence rules’ just like any other evidence. Long Zongzhi, Wang Jiancheng, Fan Chongyi, Wang Minyuan and other professors all felt that technological investigation methods should be brought within the legal system, that public security organs should  approach technologic investigations from a legalistic perspective and separate them into internal work regulations and regular principle regulations, the former could be decided by the public security organs and needn’t be publicly disclosed while the NPC legal affairs committee would take the lead in formulating the latter.

From the Two Evidence Rules to the new Criminal Procedure Law。

Participants also commented on the integration of the ‘two evidence rules’ into this round of criminal procedure law reforms. Participants widely felt that the ‘two evidence rules provided useful reference and assistance for the CPL reforms.

CASS researcher Ji Xiangde said that the 1979, 1996 and now the current  CPL  reforms reflected three major transitions in the Chinese criminal procedure system and the gradually  establishment of exclusionary rules was a major manifestation of this. After the new CPL  is passed, we should continue to reform and perfect the relevant content in the two evidence rules in accordance with the revised law and use more concrete and more practicable interpretations to put the new CPL into effect.

“Moral questions aren’t well suited for reliance on the legal system.” With the opening of the Two Sessions close at hand,  National People’s Congress Representative and Dean of Chongqing University Law School, Chen Zhonglin’s, comments include one disapproving of the idea of creating new legislation to fight domestic violence.

Yesterday afternoon, the Chongqing Morning Post interviewed Chen Zhonglin after the close of Chongqing Net’s microblog (weibo) forum on the two sessions.

“Law is for the protection of the most basic social morality; don’t hurt people, don’t do bad things, these are a few widely recognized basic morals.”  Chen Zhonglin said that as of today a number of provinces and municipalities have put out ‘good samaritan’ laws, a few places have made it against the law to not help those in desperate need, and this is actually just making a legislating morality.

Chen Zhonglin told us of a specific case.  Not long ago, he attended a symposium on legislation addressing domestic violence. One of the main points was creating new legislation to control domestic violence. “There were a lot of people, including me, who voiced their disagreement.”Chen Zhonglin stated two reasons for disagreeing: First, the current laws and regulations already contain clear rules on domestic violence such as abusing a family member; Second, can matters between family members, like when a couple is fighting and the husband slaps his wife in a moment of anger, be resolved through the law? Only if you don’t want this family intact. Chen Zhonglin said that in relationships between family members, tolerance, forgiveness, support are more important and necessary for creating a family.

Domestic violence prevention legislation has already been entered into the this year’s work plan.

Domestic violence prevention legislation has already been incorporated into this year’s legislative work plan. This information revealed  on the 27th,  when the All-China Women’s Federation （ACWF） opened a forum on the prevention of domestic violence, by someone affiliated with the NPC legal-working committee.

Data from 2009, All-China Women's Federation

On the 27th, the All-China Women’s Federation released statistics from the third survey of women’s status in Chinese society. In the course of their marriage, 24.7% of married women have suffered some form of domestic violence. The ACWF department of rights and interests indicated that 86% of respondents felt that domestic violence was illegal behavior, and a large majority supported special domestic violence legislation. Wang Shizhou, a professor of criminal law at Beijing University who has long been interested in domestic violence legislation, said that anti domestic violence legislation already has a quite solid intellectual and social foundation and it should be fairly easy to put into place quickly.

Our reporters learned from the NPC’s official website that the legal working committee’s director of planning, Wu Gaosheng, and 6 colleagues have already begun  investigation and argumentation on domestic violence legislation.

Beginning in 2008, the ACWF has continued for 5 years in providing input to the NPC , to formulate a comprehensive social domestic violence law including prevention, control, assistance, education and corrective methods. But, over the years, these efforts have always bumped up against the obstacle of traditional social thoughts such as ‘domestic violence is a private family matter’ and progressed slowly.

Against this background  where the national domestic violence legislation has been forever delayed and never forthcoming, Hunan and 28 other provinces or municipalities have put forth their own specialized domestic violence regulations or official policies.

In the early morning hours, I run towards my workspace. My home is very far away, so I need to run a long time, need to run without stopping. Sometimes after running halfway I get discouraged, but quickly muster up some energy.  With the tip of my nose aimed at my workplace, I run towards it, at great speeds.

Today (every today, yet another today), as in the past, I hear my deep nasal breathing as I run, then I begin to pant in great huffs and puffs.  Yet, I keep at it. My coworkers are waiting for me. We’ll labor together at the workspace.

Although I’ve run with all my strength, I find that I’m still late when I reach the edges of the workspace. My coworkers are already there, and they become agitated, cautiously observing the workspace’s periphery. They see me running near and vigorously crane their necks, nervously watching me. They clearly haven’t recognized me yet. I jump up and in mid-air make a familiar gesture. They see it and start to scamper about with excitement. They scamper like this to welcome me, and to signify that a day’s work is about to begin. “You’re late again,” their posture conveys to me. I lower my head, expressing dejection; “It’s my fault….,” I respond with this posture. They forgive me, at which point we all jump up together!

At this time, the boss runs out from a hidden location and looks us over. Each of us hurries off to his station to start working. Our work is simply to grapple with our workspace in its every corner. I run over to the little corner that is mine and start to struggle and scrape with the workspace, kicking and stamping, unequivocally. When the struggle naturally reaches a certain point, I can no longer keep my balance and fall to the ground, but I still don’t let go of that corner that is mine, doing all I can to kick and stomp. I really want to clamp it down with my teeth, but that’s against work regulations.

My coworkers are also struggling with all their might, and for a while it’s as if the entire workspace has become a battlefield. As we battle, my coworkers  and  I sneak  peeks at the boss. The boss is satisfied; he even wants to join us, but holds himself in check and then heads back to the hidden place that is his.

After the boss has disappeared from sight, we quietly relax a little. Our struggle with the workspace becomes more rhythmic. Having gone through the fierce fighting of a moment before, the workspace has again come to appreciate our might. It shakes ever so slightly, showing its docility. One coworker lies down, another sticks his head into a small hole. They’re loafing off– so early and they are already loafing off….. I yawn, really wanting to lie down right on the ground. Just then, there is a huge “Bang!”  We immediately crane our necks. The boss comes out too, also craning his neck. What’s that noise? We look off into the distance together. Far off, at the periphery of the workspace, is a grassy lawn, and this lawn extends outwards endlessly all the way until it touches a cluster of rising clouds. Nothing appears and everything is quiet again. We relax a little, but keep a vigilant eye out.

The boss juts his teeth at a few coworkers to tell them to stand watch at the edge of the workspace, and they immediately run off in the direction of the big noise. They then vigorously crane their necks, looking out even further.  We can only see their backs, but their backs put us at ease. “They are our tiny sentries,” those of us that stayed behind are thinking. We are so happy and gratified that we almost want to start jumping.

We start to work again, once again fiercely wrestling with the workspace. I can feel  that half my body has sunken into this corner of the workspace that is mine. At first I’m startled, even a little afraid, but I soon begin to feel a bit proud: I’ve done it. It’s already become malleable and, with a little more effort, it will start to get some spring, and then I’ll have succeeded. Everyone will recognize me as an exceptional worker and I’ll be able to roll around the workspace to my heart’s content.

The boss again returns to the hidden location. I stop and take a breath. Since I’m already near success, why not rest a moment，gather myself, and then push through to the finish? With that thought, I stick my head into one of the workspace’s holes.  Although the hole is small, it is extremely deep. From here I can hear the sound of the earth; it’s the sound of each and every workspace in the world brought together. All the holes in the workspaces are interconnected.  I get a bit excited and start to blow deep down into the hole, and not long after a “Whoo Whoo” sound starts to come from deep within.  It’s hard to be sure if this noise is coming from me or is a response coming from some other country, but I begin to revel in this “whoo whoo” sound.

All of a sudden, there’s a sharp pain in my back. I’ve been struck. I hurriedly pull out my head—it’s the boss. He’s watching me. “Are you looking to be fired?”  His posture conveys this meaning. Finding myself in a bind, I lower my head and glance about. Just as I don’t know what to do next, there’s suddenly a disturbance off in the distance. The boss’s attention is instantly drawn to it.  Our tiny sentries have discovered some suspicious characters: some guys poking about. The boss quickly signals for everyone to run over and handle these invaders as a group, so we charge over right away.

The invaders are a few weasely looking guys, poking around, seeing if there is any mischief they might be able to get away with at our workspace.  The sight of us gathered and charging towards them scares them so badly they turn and run.

Most of my coworkers run to the edges of the workspace and stop, craning their necks, angrily watching the fleeing invaders. Only two other coworkers and I keep up the chase. The invaders don’t dare look back and, without stopping, we chase them quite far. When we get back, the boss has already forgotten about my loafing and on seeing our triumphant return is so happy he could almost jump. I bet that he wanted to keep on chasing with us, but held himself in check. He goes back to the hidden location.

After a bit of dallying about, it’s already time for midday break and we we’ll go have something to eat. For us workers, this is a happy and relaxing moment. We call to each other and trot over to where we eat.

The place we eat is on the outer periphery of the workspace. It’s bounded by several different workspaces and is a neutral territory. When we run up to it, there are already guys from other workspaces there. When they see us, they stop what they’re doing, crane their necks, and watch us. It isn’t friendly at all. Me and my co-workers also crane our necks, return their stares angrily, and move towards the food, one step at a time. They see how determined we are, are frightened, and move a little bit away. We begin gulping down some food. After a little bit, the guys we chased off are tired of waiting and they start moving this way, pressuring us, step by step.  This time, they are more determined than we are and we recede. By repeating this tug-of-war some ump-teen times, we are finally full; and having eaten our fill, our spirits soar and we jump up high into the air!

Our break is now half-over. Some co-workers choose to defecate, while some others go back to the workspace to lie down for a while. Two remaining co-workers and I decide to stroll about. We start to run along the border of the workspace, we gradually depart from the elliptical arc of the workspace and run to the grassy lawn.  One co-worker starts cheerfully rolling about on the lawn, the other cranes his neck looking out towards our workspace-  don’t know what he’s looking for. I breathe in the lawn’s clean fresh air and continue onward walking deeper into the lawn.

I see someone standing in the center of the field and become curious. Without thinking twice, I run off towards him. Once I’ve run up in front of him I realize he’s extraordinarily tall; I have to strain to look upwards before I can see his face. He’s skinny, with two surprisingly long arms. I stare at him, suddenly regretting it and wanting to run off, but he’s already discovered me and begun speaking to me. I can’t understand what he’s saying, but I’m entranced by his voice. I nervously watch the shape of his mouth, earnestly listening. I want to let him know I’m listening, and furthermore, that I understand.

“I stand here like an airplane; I have passengers, but they aren’t real passengers.  I carry them into the skies and then, with parachutes on their backs, they jump down.  One after another, and one after the other they jump into the boundless void. They are just like seeds, and after they hit land they will grow forth miraculous stuffs, some scenery, they become scenery. I will continue to fly, fly to a distant place where there are real passengers, honest to goodness passengers, and I will carry them into the sky and bring them here. They don’t have parachutes and the will not jump into the void, one after another. They will admire the scenery along the way, the scenery that the skydivers have become. I hope they can see some wonderful scenery.”

While the stranger is saying this, I’m entirely frozen in place, my eyes opened wide, understanding nothing, but unable to stir. I begin to have a vague sense of danger. “Have I come upon a bad person? Have I been hypnotized? Am I going to be beaten? Am I going to be carried off? Will I die?” I nervously wonder.

“So, are you willing to be my passenger?” the stranger invites me. But I am unable to answer and unable to run away. I don’t move at all. I’m frightened.

When I return to normal, it feels like it’s already been a long time since the stranger disappeared. It seems like he asked me so many times “will you be my passenger?” Yet that could also be a hallucination. In the lawn outside the workspace we often succumb to hallucinations. When my mind recovers, I find I’m squatting on the ground like a big bird preparing to fly. This posture seems to say “I want to fly”…NO…No.., I shake my head and turn around preparing to return to the workspace. I then notice my two co-workers observing me, they are concerned for me. I run towards them, and seeing that I’m safe and sound, they start happily scampering around me. To return this kind sentiment, I spin round really fast until I’m so dizzy I can’t see straight and I fall to the ground.

Break is over, and we run back to the workspace. I still haven’t recovered from my recent experience. I stand in the corner watching the” patter patter” of my sweat dripping to the ground. I stare at my sweat as it is quickly breathed in by the workspace. I start again to struggle with the workplace—- “Who says I’ll give in? !”

Just as I’m forgetting my work, another huge “Bang” sounds out. I jump up in alarm as do my other co-workers. We all vigorously crane our necks. This time, the noise came from the direction of the boss’s hidden location and we run over there together. The boss is standing there in the hidden place, craning his neck, nervously looking on in anticipation. We watch him in anticipation. But nothing appears. We relax, but the boss is still vigorously craning his neck.  He’s had a shock and can’t calm himself down, his nerves are spent. We can only leave him here, quietly backing out to our own work corners. We start to rhythmically struggle with the workspace, also sneaking  peeks at the exit of the boss’s hidden area.  After a long time, he comes out, looking weary and exhausted. He looks us over for a moment and then lowers his head and runs towards his home. He needs rest, he needs sleep.

After the boss leaves, we gather around in a circle and play a game called “we’re pretty grood,” and at its end come together in a group dance. Rather than say we’ve forgotten our work, it would be better to say that our work has dissipated of its own accord. We dance and dance, circle after circle spinning round, on and on until the sun sets in the west. It’s time to call it a day and each of us viciously slaps at the corner we are responsible for. We frantically nod our goodbyes at each other and then run off towards our own homes.

On the way back, I can’t help but think, I’m going to have a sleep in my home, dream, and then ‘tomorrow’ will arrive and I will again run to the workspace. Sooner or later there will be a day when our workspace becomes sleek and bouncy. We’ll be able to prance and move about at amazing speeds without the slightest effort. We will become one with our workspace.  Just thinking about it, my body is fully invigorated; and, with my full might, I start to jump!

Dr. Green paced about in his private clinic, sullenly looking over the floor, the light red medicine stains catching his eye. He went to the window and pulled the dark green curtains closed. As he did so, he caught a glimpse of Gelb the butcher crossing the plaza and heading towards him and this apartment he rented. Intuitively, Green knew that Gelb was coming to him as a patient. And sure enough, not five minutes later, the clinic doorbell rang. Green shook off his mood, put on a slight smile, and opened the door.

Without even waiting for Green to speak, Gelb entered at a brisk pace, pulling the door closed as he did so.  His face was ashen, his lips swollen like small eggplants. Green noticed that Gelb’s corpulent figure seemed stiff with rickets, as if he couldn’t even manage a stretch.

“Looks like you’re in bad shape, Mr. Gelb. What’s happened?” Green indicated that Gelb should take a seat.

“Take a look and tell me what this is” said Gelb as he pulled off his jumper and turned around, letting Green see his bare back.

“God, what is it?!” Green retreated two steps. On Gelb’s back, there was a small, flesh-colored house, which was actually an enormous growth.

“It looks like a house, doesn’t it?” Gelb twisted his head around and asked.

“It does indeed look like a house, but there’s nothing to it, it’s only a growth with a special shape and nothing more”, Green regained his composure, and drank what whiskey remained in his glass with a single gulp.

“No, it’s not just that, it’s really a house.” Gelb frowned and shook his head back and forth despairingly.

“Come here and climb up on the surgery table, I’ll cut it off for you, but first I have to make some preparations.” Green deftly washed his hands with disinfectant, put on gloves, and got out the surgical instruments.

“Wait, Doctor, Wait… listen….”

Green had already prepared the anesthetic and was a bit impatient, but nevertheless went over and lowered his head to listen closely. From inside the flesh house came the sound of singing, one male voice and one female. Green thought he must be mistaken, and stuck his ear in a bit closer. It was “Ode to Joy”, but a little off key.

“Is that you singing?”, Green looked over at Gelb.

“Of course not. A boy and a girl live in that house. They’re brother and sister and always chatting.”

“Well then, this is a bit complex. We’ll first need to need to cut these residents off you; they are the tumor’s soul.” Green pondered this, feeling that his own words were a bit ridiculous.

At this point, the flesh house’s door opened and from inside emerged a little tumor boy who circled round the house as if he were planting seeds. Then, he went back inside and closed the door with a bang.  Not long after, the area surrounding the flesh house grew little red flesh sprouts.

“I planted some roses, what do you think?”, the boy said. The flesh house’s window opened and a tumor girl stuck out her head, “They’re beautiful! You’re the best brother!”

Green gave Gelb a shot of anesthetic and then grabbed a shiny silver scalpel , cutting off all the flesh sprouts in a single motion. From inside the flesh house came the sound of a girl crying. Green calmly surveyed the flesh house, thinking over the next step of his strategy. Suddenly, his nose began to itch and he raced to the mirror where he saw that his entire nose had grown little red flesh sprouts. Clenching his teeth, he cut the little sprouts off one by one, with blood gushing forth. He applied a cotton swab to stop the bleeding, wrapped his nose with gauze and adhesive, and picked up his scalpel to approach the flesh house anew. He furrowed his brow at them, but the two of them just started to laugh. Gelb, hearing the laughter let out an angry roar.

Green thought up a plan. He went to the kitchen, stirred together a little bit of flour, milk, and sugar, and put this mixture into the oven. Shortly thereafter, it turned into a peculiar, fragrant little cake. By way of decoration, Green took a cherry and put it on top of the cake, then placed it on Gelb’s back, that is, in front of the flesh house’s door.

“Brother, take a whiff, it smell so good!”, the girl said.

“Hmm, it does smell good, but it could be a trap.”, the boy said.

Green took his scalpel and quietly squatted beside the surgery table.

“Brother, I’m hungry; go bring that cake in here.”

The door opened and the tumor boy carefully stepped out. His feet and the skin of Gelb’s back were attached to each other, so that as he took a step forward, Gelb’s skin was pulled upward. Just as the boy lowered his head to take the cake, Green sprang up, and raising his hand to bring down the blade, cut him right off. Only a sad, shrill little cry of pain could be heard. The tumor boy rolled down onto the surgery table, dripping in blood and twitching uncontrollably.

“Brother, what’s happened?!”, the girl cried out.

Green and Gelb roared with laughter. Green laughed until his stomach hurt, proudly looking at his own scalpel as if entranced. “You killed my brother?” The girl pushed open the door and charged out, furiously staring at Green who was doubled over with laughter. Green once again raised his hand and brought down his blade; again there was cry of pain, and the tumor girl rolled down next to her brother’s body. She died without time to close her eyes, and she still glared at Green just as before. Green bundled them up in some gause and brought them over to Gelb.

“These things are really disgusting, they wreak of stinking fish!’, Gelb covered his nose with his hand.

“Now it’ll be easy to deal with that house, I’m going to pull it out from its roots!”, Green said as he brought his knife to the flesh house’s door.

Suddenly, an old woman’s voice came from within, “As long as I’m still here, don’t even think about knocking down my house. Get my grandson and granddaughter and give them back to me.”

Green and Gelb were stupefied. Before they could recover their senses, hundreds of tumor men and women poured forth from the flesh house. They sang as they went to work. In no time, there appeared on Gelb’s back, a fleshy town. There was a clock tower, plaza, church, city hall, commercial district, and so on. Green even thought that in the midst of it he caught a hazy glimpse of the apartment building where he had his clinic. After completing the construction, the tumor people gathered in the public square, stomping their feet in unison and singing a majestic martial ballad. Green had the feeling that he’d heard this song in his youth, but couldn’t come up with its name.

“Save me, Doctor! Save me!” Gelb squealed like a pig being slaughtered.

Green went once again to the window and opened the curtains, looking out at the plaza. His ex-wife was just then leading two fair-skinned children to feed pigeons in a corner of the square. A pigeon landed on his daughter, who shrieked and ran with laughter. Green tore the gauze off his face, and let the sunlight shine down on his nose. He felt that this might disinfect it.

Gelb did not continue howling; he might already have been dead or have already accepted his fate. Green pushed open the window, stood on the dust covered windowsill，looked at his watch and the clock tower at the end of the plaza, then stepped off the edge.

Foreword

Ayr:

“Fadecraft” is to most people an unfamiliar word. It is actually a very unique popular art form. In the course of preparing for this interview, I have begun to have some slight understanding of this art’s core substance, but if you wanted me to describe it, I wouldn’t know where to begin. Today, we are fortunate to have fadecraft master Mr. Drayton join us; and I’m confident that in talking to him, the mysterious fog enveloping this subject can be dispersed.

Discussion

Ayr:

Mr. Drayton, would you please explain to us what is meant by “Fadecraft”?

Drayton:

Excuse me, first I must correct a small slip that you made. I’m really not a fadecraft master, I’m only an enthusiast,  an insider. Fadecraft isn’t really mysterious, it’s just that it’s true meaning naturally evades peoples’ line of sight. Now, let me attempt to introduce the basic feel of fadecraft. Many of us, when we were students, have had an experience like this: the teacher has assigned homework to prepare for class, but you haven’t done it.  As the teacher looks for a student to answer his questions; his eyes sweep over the classroom. You’re nervous that the teacher will choose you, but what can you do to put yourself outside his notice? If you appear jittery, it’s very likely that the teacher will call on you, but if give him a little smile, he might also take a shine to you. In this kind of situation, what on earth can you do? This is the problem that fadecraft seeks to resolve.

Ayr:

So can we say that fadecraft a technique for helping us stay out of others’ sight?

Drayton:

That’s not precise enough, fadecraft isn’t what we normally mean by ‘evasion’. It isn’t stage magic; there’s a fundamental difference between fadecraft techniques and stage magic’s sleight of hand. It also isn’t camouflage; it doesn’t use props，coloration or the like. Fadecraft afficianados look down upon obfuscation and sleight of hand, because they are methods contrary to the natural state. Relying on equipment etc., is even more vulgar. That sort of thing is often mocked by my colleagues as the “bionic fadecraft.” In competitive fadecraft, these two methods are prohibited.

Ayr:

You just mentioned “competitive fadecraft”, how are competitions held?

Drayton:

Fadecraft competitions are held amongst the crafts’ enthusiasts, and the contests’ structure really is a bit special. Usually, twenty fadecraft devotees form a group, then spread out and stand in a broad open area, after which an outsider will carry their photographs (drawings in ancient times) and approach them to identify them. The later a person is identified, the higher their place in the rankings. The photos are all provided to the contest organization committee by the participants themselves, and the committee members carry out strict appraisal of each picture.  The contestant and the image must be sufficiently identical. When the pictures are placed in the seeker’s hands, they are just like a deck of cards placed in a random order, and moreover, every time a person is identified, the ‘cards’ must be newly shuffled.

Ayr:

This is the first time I’ve ever heard of this type of contest, but the feeling I get is that winning or losing would be based entirely on luck.

Drayton:

That’s not an unreasonable thought. Every contest has an element of luck. Contests not only test skill, but also test luck; and fadecraft competitions are no exception. Yet, as the finalists are always the same few people, we must conceded that winning fadecraft competitions isn’t entirely a matter of luck. For example,  fadecraft master Shirle once won 61 consecutive contests, and this streak was only broken when he came across another international level master, the Dane Finsen.  As Schirle recollects, that contest was truly gut-wrenching. At the final stage, only he and Finsen had yet to be identified. Finally, he was defeated, but wholeheartedly conceded defeat, as even he hadn’t noticed Finsen’s presence, even though he had been looking forward to meeting him.

Ayr:

But how is this done? How can you stay out of other’s sight without relying on any camouflage or sleight of hand at all? Can you reveal a few of the secrets to our audience?

Drayton:

The skills of fadecraft are very difficult to put into words, and must be implicitly understood. My own trick is to pretend I never existed. When you think like this, you become a bystander to the whole affair, and the posture of a bystander is the most transcendent. The central premise of fadecraft is to let your mind and body melt into nature. Normally, people first notice what is irregular, so the more natural something is, the harder it is to discover. However, I must say, all the techniques and methods are secondary, as fadecraft isn’t really a competitive activity, but a state of mind. This spirit permeates the lives of the fadecraft masters.  For accepting the invitation to participate in this interview, I will presumably by scoffed at by some of the old poseurs in our field. One can hardly blame them; to a fadecraft devotee, appearing on television is a ridiculous thing. However, I have my reasons. In today’s society, putting one’s face out there is actually the most natural thing there is; the purest fadecraft isn’t to use vanishing to promote oneself, but rather to strive to totally disappear. Not only to vanish from the public, but also to strive to vanish from one’s own group. I think, my fellow practitioners, must reflect on this point.

Ayr:

When you say “vanish”, I really feel like you might just suddenly disappear .  Finally, I’d like to ask, what does fadecraft mean for ordinary people? Does it have any practical use?

Drayton:

Haha, as I already said, fadecraft is a form of spiritual cultivation, and it can lead one to a deeper understanding of nature, life, others and oneself. So, I tend to view it as a type of practical philosophy. But in everyday life, it is of course very useful. There are always moments when you must “hide in plain sight” from superiors, police, creditors, or one’s own wife. I even hope that I might rely on my skill to “hide in plain sight” and avoid Death himself.

Ayr:

Maybe you can even avoid the final judgment at the end of days?

Drayton:

That, I’m afraid, is impossible, but I can strive to be the last person judged.

The case launched a large discussion in the mainstream Chinese media about the seeming indifference of the many passersby. Many blamed recent tort suits in which rescuers were held liable for injuries with little indication they had been the cause. In the worst of these, judges have made statements to the effect that common sense tells us, a person wouldn’t help unless they had caused the harm, and that this is enough to establish some level of liability. Others said that the issue is more deeply rooted, and that the Chinese, as a culture have long felt unwilling to help those to whom they owe no duty.

As early as 1899 a published report from Notes and Commentaries on Chinese Criminal Law, and Cognate Topics demonstrates this phenomenon

“A subject of horror to foreigners is the apathy with which Chinese generally will stand by and see offences committed. It may be partially true to explain this away in  the usual manner by attributing it to languor; but it would be more correct to say that it is due to fear of the Law. It is laid down that persons must not interfere unless they have a right to do so by reason of relationship (…) or otherwise (…). So in a case wherein two ruffians attempted to ravish a certain man’s wife during his absence from home. A neighbour and some friends, attracted by her cries, went to her assistance, and one of them stabbed a ruffian – who turned quickly upon his assailant, but was thereupon knocked down and killed. The Governor, on the case coming before him, decided that the act was perfectly excusable; but the Judiciary Board insisted upon the man getting- several years’ imprisonment, on the ground that he had no right to interfere and also, apparently, that after the ruffian had been knocked down his assailant (not content with his knife) had struck him with the weapon he wrested from him.”

That this case has generated some introspection on the ethical duty to aid one’s fellows is a good thing, and it will be even better if laws protecting rescuers from liability are the result of the national uproar. It seems , however,that the immediate product of the discussion is racial and nationalistic hatred. China’s current culture is not the product of biology, nor is indifference to a dying child a universal part of the Chinese condition, yet those Chinese posting their distress about the case online have been met with comments implying that they are traitors, “wannabe whites”, or even worse. The comments from the West are even more disturbing, with some internet comments on the above video merely listing racial epithets, damning the Chinese (all Chinese) not just for failing to help a 2 year old car accident victim, but for stealing jobs.

The question is, how unique is this case to China? Foreigners abroad have a tendency to be hyper-alert for the unusual, and have an increased tendency to attributewhat they find to the foreign environment rather than considering whether the same event could take place in their country. I’ve had this happen with even little things, like fashion, where a particularly garish outfit strikes me as unbearably ‘Chinese’, until I return home and discover that everyone is wearing the same thing- that I am facing a generational, not cultural, barrier. While a devastated 2-year-old is something I have never been forced to address in any county, I, like most New Yorkers, have crossed the street countless times to avoid a groaning homeless person.

In first viewing the video of Wang Yue, many were reminded of the famous 1960′s  Kitty Genovese case in which as many as 36 witnesses ignored screams as a young woman was slowly raped and stabbed to death over half an hour. That case also led to much introspection about the indifference of urban residents to their neighbors, and unwillingness to get involved.

A more recent case, that of Esmin Elizabeth Green in 2008 shares other similarities. In this case, a 49 year old caretaker was allowed to die in a hospital waiting room where she had waited 24 hrs, the last 30 minutes of which she spent face down on the waiting room floor. Other patients, security cameras, security guards and even a doctor all observe her in this condition, but most quickly look away. As with Wang Yue, it was all caught on tape.

We need as a individuals to consider what it means to be a human, what our duties are to those around us. One would hope that these are questions we ask even without the prompting of a tragedy. If law can help to help to facilitate our moral obligations to aid the injured or the needy, fantastic, and we can work at least to ensure that the law doesn’t hinder such efforts. There is no excuse for compounding the tragedy and turning an accident into a basis for racial hatred.

The case itself is remarkable only in its mundanity.  It is an ordinary bribery case in which Zhang Guoxi (章国锡), an official from a local construction administration project, was accused of abusing his office to accept seventy-six thousand yuan (about $12,000 U.S.) in graft over four years. The mistreatment that Zhang allegedly received at the hands of interrogators is also not the sort of blood-curdling horror story that “shocks the conscience” or that one might expect would provoke a judge to take a stance against his investigative and prosecutorial colleagues, risking his career and reputation. Prior to trial Zhang was interrogated several times for periods of two to three days, during which he was questioned through the night and given only irregular breaks a few hours long. During these interrogations he was reportedly handcuffed, and at one point jostled by five or six interrogators causing a 2 cm scratch and some severe bruising on his arm. At one point his wife was also threatened with detention which would leave their three year old child unattended, and the initial investigation was marked by a general failure to follow procedures or establish a basis for continued detention.

The interrogation techniques were perhaps no more appalling than the legal conditions of Zhang’s pretrial confinement.  Zhang reports that he was assigned to work long days assembling strings of colored lights, trying to make unreachable quotas, until his hands blistered from the labor. It is not hard to imagine that even an innocent man, finding himself unexpectedly confined and aggressively interrogated, exhausted and with no clear view of his future, would readily confess in order to find relief. Zhang did in fact confess to several instances of accepting bribes, and recanted all but the most minor instances shortly thereafter, only to confess again at the next interrogation. It is said that his story flipped five times in a single month, but ultimately Zhang continued to claim his innocence of serious wrongdoing even through trial.

What is exceptional about the case is instead the trial court’s insistence that prosecutors and investigators follow both the spirit and the letter of the law. Defendants and lawyers who have attempted to challenge the legality of evidence in the past have often found courts simply unwilling to listen or make any rulings, despite the directive of the new exclusionary rules. The vague wording of the Rules makes it arguably unclear how much evidence a defendant must present in order to initiate an investigation into the legality of evidence, and what proof the prosecution must then offer to dispel any doubt about the legality of it its interrogation before the evidence can be admitted. Although the Rules mention that the prosecution should comply with court requests to present evidence such as records and recordings of interrogations and call even investigatory personnel to testify on the matter, most courts have been content to rely solely on signed, written letters of explanation asserting that the interrogations were above board. Even in those few cases where interrogators do appear in court, they often make only a prepared statement, taking no questions from either side.

When the prosecution in this case offered signed and sealed letters from the investigators stating that the interrogations had proceeded “legally,” in a “civilized” fashion, and that there “was no physical coercion or enticement”, the court demanded more.  Between hearings, the court independently investigated the allegations, going to the detention center to consult health records and verify that Zhang had sustained his injuries while held there. The court demanded a reasonable explanation for the injuries, requested that investigators appear in court and asked that video recordings made of Zhang’s interrogations be played in court. The prosecution was unyielding, however, and made clear that there would be no court appearances. They agreed to play clips of the video-taped interrogations, specifically the parts in which Zhang confessed, but refused to play the entire contents of the tapes in court on the grounds that it would reveal state secrets and waste too much time. The prosecution argued that their investigative tactics in bribery cases were themselves state secrets, and that open discussion of these would allow future suspects to evade the law. Defendant Zhang, to meet his lower burden of providing leads regarding the time, place and nature of illegal evidence gathering, presented detailed written records of his interrogations and detention, including even the names of interrogators.

The exclusionary rules are clear that when the issue of illegal evidence is raised and the prosecution fails to present sufficient and reliable evidence demonstrating the legal acquisition of confessions, or where the prosecution has presented some evidence but there is still doubt, the challenged confessions cannot be the basis of conviction. It is no easy task, however, for judges to rule against the prosecutors and public security offices that are institutionally stronger and outrank courts in the local party structures that determine key issues of funding and policy. Further, the Chinese legal culture is one that emphasizes mutual coordination, support and supervision between these three functions- investigation, prosecution and adjudication- rather than a system of checks and balances, causing some to see a judgment in favor of excluding evidence as a betrayal of a joint law enforcement mission. Finally, there is the fear of public outrage, should the public view the case as evidence that the courts are letting a corrupt official walk.

Not only was this court remarkable in its willingness to break ranks with prosecutors and investigators, but it also produced a remarkable and thoughtful opinion. The judgment addresses the case’s procedural and factual disputes separately, and places the procedural issues before the substantive reasoning. This may seem only natural, as the procedural questions will determine what evidence is to be included in the factual discussion, but for a legal system that has long undervalued procedural law as mere formalities rather than a safeguard of substantive justice, this is something of a breakthrough. In the procedural section of the opinion, the court also carefully cites the law and regulations upon which it relies in finding that the prosecution failed to meet its burden of proof and, thus, that the evidence should be excluded.

The court did not find Zhang to be entirely without guilt, but did release him without further punishment.  Without the confessions, the court found that the remaining evidence was insufficient to prove Zhang guilty of accepting many of the bribes alleged. For those small gifts that Zhang admitted to having accepted, the court held that the value and harm to society was small. For one incident where Zhang took payment for lending the use of his professional credentials to a company, the court found that this was a common violation and that while it could be considered an improper transaction, it did not amount to bribery as meant by the law. The prosecution appealed the ruling immediately, hoping the higher court would be more receptive; the defendant also appealed, hoping to receive a judgment of not-guilty.

It is difficult to say what the impact of this case will be.  It is, after all, just one case. There may even be forces at work in the background of the case that had more impact on the court’s ruling than its commitment to law or belief in Zhang’s factual innocence. Yet, it does demonstrate that a court can respect defense attorneys’ objections and hold evidentiary investigations without overly disrupting the flow of trial, a common concern regarding the new exclusionary rules. The decision also brings to the forefront questions of the scope of abuse that might result in exclusion. The Rules call for the exclusion of confessions acquired by torture and other illegal means, but it remains unclear if this includes only severe physical violence, or whether minor injuries or soft torture, such as use of exhaustion and stress positions, might merit exclusion. The court’s carefully worded and reasoned opinion has also been praised by academics as setting a standard for future opinions, and has made the judgment process in this case more transparent.

Prosecutors, charged with the initial investigation of corruption cases like Zhang’s, complain that proof of bribery is simply impossible without a confession, and that this leads to overly aggressive interrogation. Following this decision, many prosecutors across the country temporarily suspended corruption investigations while investigators reviewed their records to determine if inappropriate tactics had been used and to reconsider how to proceed. The revisions to the CPL offer many new interrogation techniques, such as secret wiretaps, that were previously unavailable to prosecutors  and might help remedy this evidence gap. , and This case may stimulate further discussion in this area as well.

The verdict of the intermediate court now reviewing this case will send a message to lower courts, prosecutors and investigators as to whether such outcomes are acceptable or desirable, and it is clear that legal actors across the country are watching. The case will also influence the adoption of the draft CPL.  The CPL draft revisions under consideration at this time enshrine the exclusionary rules into law, and this case is sure to be considered when determining whether the system is workable. It was another case, that of Zhao Zuohai (赵作海), a man wrongly imprisoned for murder on the basis of a false confession, that is credited with providing the impetus for promulgation of the exclusionary rules, and many say that public dissatisfaction with that case had forced prosecutors’ and law enforcement’s hand in consenting. This case, involving physical abuse much more mild than that generally acknowledged to occur in other cases, runs the risk of having the opposite impact. It would be unfortunate, for example, if those opposing the Rules now used this case to argue that they are overprotective of the accused, and swayed public opinion by saying that corrupt officials are escaping punishment on a “legal technicality.”

For further information on the case please consult the following Chinese language sources:

1. The Case Verdict
2. 章国锡案凸显规则背后公检法权力再分配, September 1, 2011, Guangdong Publishing Group
3. 以程序正义的名义, September 7, 2011, Legal Weekend

For more information on the Exclusionary rules, in English, provided by the NYU US-Asia Law Institute [Click Here]