Rare Acquittal Heralds New Era? By Changhao Wei
Further Comment on Exclusion and the QIN “X.” Hui Case by Jeremy Daum
In a rare decision, a court in the Guangxi Autonomous Region has cleared five defendants of attempted homicide charges on the grounds that the facts were unclear and the evidence was insufficient after some evidence was excluded. The procuratorate that brought the charges has since filed an appeal in protest of the not-guilty verdict. While the judgment documents have not been made public, likely due to the pending appeal, media reports provide substantial evidence into the remarkable case.
The Prosecution’s Allegations
In their indictment and at trial, the prosecutors depicted a complex murder conspiracy in which, due to a perceived conflict of financial interests, Defendant QIN X Hui (覃某辉) sought to have the victim Wei X killed, and transmitted these orders down through a chain of command, including all the other defendants, to a hired killer who ultimately reneged on the contract. The chart below summarizes the scenario as alleged by the prosecution, and pieced together from various news sources:
|Facts Alleged by Prosecution and Procedural Events
|Defendant QIN X Hui (覃某辉) and a person surnamed HE (何某) entered into an agreement to invest in two real estate companies in Guangxi.
|The victim, WEI X (魏某), sued the same two companies in regards to an unrelated real estate development dispute.
|Fearing that WEI’s suit might negatively impact the two companies’ finances, QIN instructed Defendant XI X An (奚某安) to hire somebody to have WEI killed.
o Paid 2,000,000 RMB + 1,000,000 on completion
XI subsequently approached Defendant MO X Xiang (莫某祥) and asked the latter to make the arrangements to hire a killer.
o Paid 1,000,000 RMB
|MO hired Defendant YANG X Sheng (杨某生) to find a hitman, and gave him a white mobile phone loaded with photos of WEI, a license plate number, and a black-and-white picture of WEI;
o Paid 270,000 RMB + 500,000 on completion
Thereafter, Yang X Sheng in turn retained Defendant Yang X …
o Paid 200,000 RMB + 500,000 on completion
Yang X Sheng later hired LING X Si (凌某四) to kill WEI and the items containing WEI’s information were passed down to LING.
o Paid 100,000 RMB
|LING phoned WEI and arranged a meeting in a café in Nanning City in Guangxi Province, where he told WEI that someone had offered 100,000 RMB to have him killed. He also persuaded WEI to pose for a photo in which WEI was tied up, so that he could report to his employer. LING also handed over the white phone containing WEI’s photos to WEI.
|WEI called the police, who opened a case against LING for extortion.
|LING was apprehended but released the next day by police who decided not to pursue his criminal responsibility.
|The People’s Procuratorate for Qingxiu District of Nanning Municipality agreed and also decided not to formally arrest LING.
YANG X Sheng, MO, YANG X, and XI were later apprehended, one after another.
|QIN turned himself in to the police.
|QIN’s formal arrest was approved by the procuratorate.
|The police finished investigation and recommended indictment to the procuratorate.
|First visit by QIN’s defense attorney was allowed.
|After twice returning the case to the police for additional investigation and three times extending the time within which to indict, the procuratorate finally indicted the five defendants in the people’s court for Qingxiu District, seeking to punish them for the crime of intentional homicide under Article 232 of the Criminal Law.
|The first of three hearings was held. Over the course of trial, the prosecution twice requested to conduct additional investigation and submitted additional materials. Trial was postponed each time, and the hire court granted an extension of time in which a verdict might be released.
Prosecution files appeal.
Three Defendants Confessed in Court
In light of the final verdict, it may seem surprising that three of the five defendants—XI, MO, and YANG X Sheng—did not contest the charges, facts, or evidence against them and even confessed during trial. The remaining defendants, QIN and YANG X, on the other hand, mounted a not-guilty defense that has proven successful.
QIN’s defense attorney, WANG Yaohui, asked the court to exclude statements made by QIN and XI because the interrogation transcripts were not signed by all parties on each page as required by law. QIN further denied all the facts against him and claimed that his own statements were untrue and coerced by torture carried out by public security interrogators. WANG told a reporter that QIN claimed to have been tortured for as long as 11 hours on the day when he turned himself in.
QIN stated that while he had actually signed an agreement to invest in only one of the two real estate companies, even that deal proved impossible and was abandoned. He claimed to have never invested in either company, so that WEI’s disputes with the two companies had nothing to do with him and he had no motive for murder. Furthermore, he claimed to have never met WEI nor to possess any information related to him. Moreover, QIN alleged that co-defendant XI owed him several millions RMB, and was trying to frame him so as to get out of debt.
Court Excludes Key Evidence
The court is said to have initiated procedures for excluding illegally collected evidence in regards to several pieces of evidence: the white phone and the electronic information stored on it, statements by XI, MO, and YANG X, among others.
Several Defendants’ Statements
According to news reports, the court excluded several statements made by three defendants on several different occasions: QIN’s statements from 12:35 to 6:50 A.M. and from 4:00 to 6:50 P.M on November 21, 2014 (three days after he turned himself in), MO’s statements made on March 9, 2015, and YANG X’s statements from October 28, 2014.
The court is said to have based the exclusion of QIN’s statements on two factors. QIN’s first statement was made in the detention center after being brought elsewhere (外提), but no justification was given by the prosecution to explain the legitimacy and necessity of bringing him outside the detention center. In addition, QIN was said to have been interrogated for almost seven hours through the night, and the interrogation was not synchronously audiotaped or videotaped.
The report also mentioned that the court excluded MO’s particular statement because based on the video recording of the interrogation, interrogators used leading questions, thus casting doubt on MO’s voluntariness in making that statement. The court’s reasons for excluding YANG X’s statements were not reported.
Remaining Defendant and Witness Statements
The court accepted the remaining nine pieces of evidence in ascertaining the facts of this case, including five defendants’ remaining pre-trial statements and records of LING’s questioning. Nevertheless, regarding their reliability, the court was also skeptical; and noted that this was the only evidence directly implicating the defendants in an attempted contract killing.
First, the court doubted the truthfulness of three defendants’ statements. As stated above, QIN recanted his pre-trial confession during trial and YANG X denied any attempt to kill WEI (presumably contradicting his pre-trial statements). While MO did not contest the charges, he consistently stated that he had been instructed by XI to ‘straighten out’ WEI, which he interpreted as kidnapping and threatening, and that this was what he had asked YANG X Sheng to do.
The court found irreconcilable contradictions in witness statements regarding what they were hired to do to Wei. While four defendants (all excluding QIN) and LING mentioned rewards in their statements, only XI, YANG X Sheng, and LING claimed that the money was payment for killing WEI. In the court’s view, such discrepancies between the statements of members of the alleged contract killing scheme presented an unsurmountable break in the logic of the evidence chain that required a not-guilty verdict.
For our readers’ convenience, the following is a diagram of the alleged contract killing scheme. Each person’s position on whether the task was to kill WEI is shown under the corresponding name. Boxed persons were defendants in this case.
The White Phone
During trial, the prosecution introduced the white phone containing information related to WEI, which was allegedly passed down the conspiracy chain to LING and then to WEI, the intended victim. The prosecution also introduced records of having extracting and preserved electronic data from the phone and of printing photos from the phone which LING and WEI were able to identify. To lay a stronger foundation for the phone’s admission, the prosecution further introduced statements from LING and WEI saying that the phone was given to WEI by LING and then to police by WEI.
Nevertheless, the court expressed doubt about this piece of evidence, saying that the police failed to produce records or witness testimony showing the full chain of custody over the phone. Most importantly, the court saw no evidence demonstrating whether the phone, especially the data contained therein, had been altered in any way while it was in the possession of WEI. It therefore found that the legality of the evidence was placed in doubt because the collection procedures were flawed, and the truthfulness was in doubt as it could not be ascertained whether any electronic data were deleted, added, and/or otherwise altered.
The court’s ruling is not yet available on China Judgements Online [the nations’ unified judgment platform] or on the trial court’s website, presumably because it has yet to become an effective judgment due to the procuratorate appeal. The higher level procuratorate, the Nanning Municipal People’s Procuratorate, still has the option to withdraw the lower procuratorate’s appeal under the Criminal Procedure Law if it so decides.
When interviewed by the news report, ZHANG Guoshu, a member of the Criminal Specialty Committee of the All China Lawyers Association and member of the Guangxi Judge and Procurator Disciplinary Committee, predicted that the “principle” adhered to by the first-instance ruling “will have a profound effect on the criminal justice practices in China.” Ironically, the “principle” that he referred to—guilt or non-guilt does not depend on the defendant’s confession but on an unbroken and exclusive evidence chain—is hardly groundbreaking but has already been enshrined in Article 53 of the Criminal Procedure Law (which even stipulates that evidence used to convict should be “beyond reasonable doubt (排除合理怀疑),” an exacting standard).
In the interview, Chief Judge ZHANG spoke of this case in the context of ongoing criminal justice system reforms aimed to make in-court activities the basis of judgments (以审判为中心). Supposedly, these reforms will result in more witnesses taking the stand in criminal cases and more illegal evidence being excluded. Courts will hopefully become less of a part of a pipeline that sends defendants to prison, and be more truly neutral and fair adjudicators. Should more courts follow suit in excluding evidence, it may well be the case that we see a drop in the astonishingly high conviction rates across China, assuming of course that most cases proceed to final verdicts.
【Update, upon appeal the defendants were convicted. Qin was sentenced to 5 years, Xi to 3.5, Yang to 3.25, Mo to 3 years, and Ling to 2 years 7 months】
China’s rules for the exclusion of illegally gathered evidence have been held out as a key component of its struggle to prevent wrongfully decided cases since 2010. Although they were even formally incorporated into China’s Criminal Procedure Law in 2012, their impact has been less momentous than many had hoped.
The basic premise of the rules is that statements extracted by torture or other abusive techniques cannot be used as the basis of a conviction. Where physical evidence or documents are collected in violation of procedures, an explanation must be given for those defects before it may be used as evidence. The burden is on the investigators to prove the legality of evidence collection once it is cast in doubt.
The case of QIN et al represents a rare instance where the defendants may “walk” because evidence was excluded [subject to the pending appeal]. In the very few previous cases where the defense has won a battle against the prosecution to exclude evidence, it has usually only meant that one of several charges could not be proven, but that sufficient evidence was left to convict on others. Not-guilty verdicts of any kind are rare in Chinese public prosecutions, and it is even harder to imagine that someone factually guilty would ever be allowed to go free because of police misconduct.
The case is also remarkable for how little has been said about it. Now, over two months after the verdict was announced, only three articles could be found discussing it at all, and of those, only two mentioned the exclusion of coerced confessions. It seems like an ideal case for raising awareness of the exclusion procedures, but the pending appeal, and perhaps some confusion over the correct process and understanding of exclusion, has resulted in it being put to one side.
The discussion below briefly explores why exclusion cases have been so rare, why this case was an exception, and why so few are talking about it.
The goals of exclusion
China’s “exclusionary rules” have been generally characterized as playing two possible roles: (1) Deterring police misconduct by making clear that police will not derive any benefit from illegal conduct; and (2) Preventing wrongful convictions of innocents by excluding unverifiable or untrustworthy evidence. Other possible justifications for exclusion invoked in other nations have rarely been mentioned in China, including protection of the integrity of the courts, which would be blemished by implicit condoning of illegal evidence gathering if such evidence was allowed to support convictions
The first of these goals, de-incentivizing misconduct, is the key principle on which the U.S. relies in excluding evidence gained through illegal searches and seizures. The idea, put simply, is that police violate procedures (and defendants’ rights) because they want to solve cases and secure convictions, but that if they knew such misconduct would actually result in losing convictions, they would be more motivated to meticulously follow the rules.
In order for such a strategy to be effective, however, police must truly receive no benefit at all from the use of illegal practices. This is why the U.S. legal system employs a “fruit of the poisonous tree” doctrine to exclude not only the evidence acquired directly through misconduct, but also any subsequent evidence gained as a result of that initial illegality.
China’s exclusionary rules, by contrast, have no equivalent doctrine, so even if they were routinely and rigorously enforced, torture might still yield admissible evidence. A confession might occasionally be lost when found to be coerced, but might contain clues to the location of a murder weapon, the identities of additional suspects, or other additional evidence sufficient to gain a conviction. In some actual cases, police or prosecutors who knew that a confession should be excluded have simply conducted a new ‘lawful’ interrogation to get a confession they can use in court. So long as sufficient collaborating evidence is found, use of torture during investigations is of little consequence to the case outcomes.
So, putting aside the issue of whether exclusion of evidence is ever an effective means of changing police behavior, China’s rules seem poorly situated for deterring police misconduct. Where the totality of evidence suggests that a suspect committed the crime, there will be little concern over how the police acquired it. The use of torture to extract confessions is also a crime in China, of course, and prosecutions of torturers might even more directly deter such abuses, but in practice such prosecutions are even less common than invocations of the exclusionary rules.
The rules are more clearly focused on the second possible goal of limiting wrongful convictions. This is an important goal, but it should be understood that such a rule is as much about the reliability of evidence as the regulation of police. While there unfortunately remain advocates of coercive interrogation techniques around the world, the consensus has long been that information given under extreme duress is simply unreliable. This is the main grounds for excluding confessions that are ‘involuntary’ in the U.S.
If the goal of China’s rules is to avoid unreliable evidence, however, the exclusive focus on police conduct is misplaced. Moreover, healthy skepticism of the reliability of confessions is already codified in Article 53 of the Criminal Procedure Code, which provides that even a confession which is not excluded must not be the sole evidence for conviction.
The Challenge for Courts and Criminal Justice
In part, the rules are the victims of compromises that have left them a half-measure. Public opinion and the fear of social instability or even retaliation are a challenge for the courts. Wrongful convictions that have periodically emerged when alleged murder victims resurface or new suspects confess to an old crime, greatly damage the credibility of the legal system and enflame social passions. At the same time, enforcement of robust exclusionary rules with a ‘fruit of the poisonous tree’ doctrine is impossible because it would require that sometimes a guilty party might be exonerated due to police error, and the public demands that cases be solved and someone be punished.
Institutional pressures also make it quite difficult to rule against prosecutors and police. Where courts feel that a defendant is truly not-guilty, they have been said to either suggest that prosecutors withdraw the case, or to sentence the suspect to time served, so as to protect their colleagues’ performance ratings and to avoid the need for state compensation. There are reforms underway to resolve these issues, but they endure.
All of this is to show how truly remarkable it is that all five of the suspects were found not guilty in this case. So, what is special about this case that makes this verdict possible?
Why this case?
First, it matters that the case is one of an inchoate, or incomplete, crime. Had the alleged murder plot left a body, the pressure to convict a suspect would be much greater, and it would be much less likely that any, let alone all, of the suspects could be found not guilty.
Second, it is not clear that this case is a true case of exclusion so much as one of about the weight afforded evidence. From the contradictory media reporting, which is the only available source, we can see that the case did initiate procedures for exclusion of evidence, which can include a pretrial conference to discuss the issues, and that the court excluded several pieces of evidence: the white phone containing images of the intended victim supposedly meant to guide the killer to him; written agreements showing Defendant Qin’s investment in one of the companies, bank account documentation, and several pretrial statements by QIN, MO, and YANG “X” Sheng made during interrogation.
In explaining the reasons for exclusion, however, the court seems have considered the reliability of the evidence as just as dispositive as the police tactics. Consider for example, the exclusion of the white phone that was handed over to police by the intended victim. The discussion of the phone’s exclusion does not focus in any way on the illegality of the manner in which it was obtained, but instead considers the probative value of its contents—the court suggests that its content may have been altered while in the hands of the intended victim or police, so that it cannot offer accurate insight into what was on it when passed among conspirators.
Similarly, in looking at the confessions, the court seems less concerned by the procedural improprieties and coercion raised by the defense than by the internal inconsistencies of the various statements. While some articles have addressed the use of exhaustion, it seems critical that the court didn’t believe the confessions before it was willing to exclude them. [Update: some of the later news reports make clear that the probative value was discussed of the remaining pretrial statements, and more directly tie the initial statements to police misconduct.]
It is possible that this confusion might originate with the reporters rather than the court. One of the articles seems to suggest that the court excluded due to a failure to record the interrogations, a requirement only in more serious cases, and extended detentions. Still, the blending of questions of what weight evidence should be given, alongside the question of exclusion, raises a difficult question about the meaning of exclusion.
In the U.S., in jury trials, the exclusion of evidence means that the evidence will be unknown to the finders of facts. The grounds for exclusion are debated pre-trial out of the site of the jury, so that they cannot be impacted by an exclusion motions success or failure. In China, the judges hearing the case will have seen the evidence, but must not rely on it as the basis of conviction—instead finding that the remaining evidence is credible and sufficient. In both systems, the goal is that excluded evidence is entirely ignored in the fact finding process. Remaining evidence might be believed or disregarded, but this is in the hands of the fact finder, whereas excluded evidence must never be considered as a matter of law.
Finally, as to why this case has been largely ignored. It may well be that some are waiting to see the results of the procuratorate’s appeal before drawing too much attention to the case. This seems unnecessary as regardless of the outcome, the case can be used to illustrate why evidence should, or should not, be excluded. It may also be concern that increased public scrutiny would cause a backlash of voices demanding a conviction—certainly the intended victim must be concerned that someone may have made an attempt on his life and still be at large.
Hopefully the full case documents will soon be released, so that we can more fully understand it.