Chinese Scholar: Abuse of Retrial Provisions a Leading Cause of Wrongful Convictions

Appeals courts reluctant to overturn criminal convictions often abuse a procedural provision that allows them to return cases for retrial, argues prominent Chinese criminal law scholar Chen Weidong in a Beijing News interview. He concludes that the practice leads to wrongful convictions. Chinese media have focused attention on the retrial issue in the wake of controversy over the wrongful conviction of She Xianglin (see related stories 1, 2, 3). In Mr. She’s case, an appeals court returned the case for retrial multiple times citing "unclear facts" and "insufficient evidence." It finally let the conviction stand after prosecutors declared they could not find additional evidence and the trial court changed Mr. She’s death sentence to 15 years’ imprisonment. Similar cases also have come to light in recent months (see related story here).

Under Article 189 of the PRC Criminal Procedure Law, appeals courts with doubts about a criminal case may cancel the conviction, alter the original judgment, or send the case back to trial courts for a retrial. According to Chen, the original intent of the CPL was that cases would be returned for retrial only in special circumstances, and courts are abusing the provision. He attributes the practice in part to the reluctance of appeals courts to overturn criminal convictions and allow cases to die in their hands. New judicial supervision systems that punish judges for "incorrect verdicts" also play a role, as appeals courts try to avoid conflicts with trial judges who would suffer professionally if their verdicts were overturned. In the retrials of Mr. She’s case, the trial court even asked prosecutors to conduct a supplemental investigation, a move Chen concludes had no legal basis. Such practices virtually eliminate the possibility that an innocent defendant would be exonerated, and have led some Chinese experts to propose limits on retrials (see related story here).