IP and Law

A courtroom, or a legal classroom?

Liu Renwen is a legal scholar at the Chinese Academy of Social Sciences and has been a visiting scholar at a number of international universities. As an expert in criminal law, he has been widely quoted in the western media concerning China's death penalty.

In an op-ed in The Beijing News today, Liu argues that education in the law should be kept out of the courtroom.

Should statements by the public prosecutor publicize the law?

by Liu Renwen / TBN

Not long ago, I talked in this column about how the apologies of the accused ought to be taken seriously rather than casually dismissed as "shams." After the article was published, I received a call from the public prosecutor's office at the Beijing Procuratorate that said the leadership there thought highly of my recommendation and thought that from now on, public prosecutors would start from a factual foundation when issuing opinions in court. This positive attitude encouraged me to express a few opinions about the statements of public prosecutors.

Several years ago and in another city, I attended the opening session of an intentional injury case as a part-time lawyer. After the court concluded its inquiry, the public prosecutor began his lengthy opening statement, a large part of which was legal publicity and education that had no direct connection to the case. I felt uncomfortable listening to this; as a "debater" I had nothing to debate, nothing to rebut.

Later, I inquired about this from an old friend of mine who is a public prosecutor. He told me: public prosecutors' statements must contain legal publicity and education - they had been requested to do this. I went online to the website of one procuratorate, and in a "professional guidance" section, found the following description of the relationship between a bill of indictment and a public prosecutor's statement: at the start of the court inquiry, the indictment is read by the trial prosecutor, while the prosecutor's statement is presented following the inquiry at the start of oral argument; it is a comprehensive lecture presented by the prosecutor. In particular, the bill of indictment states which specific criminal acts the defendant is accused of performing, the article and section of criminal law those actions violate, the nature of the crime, and a determination of criminal responsibility. The primary purpose of the prosecutor's statement to further elaborate and supplement the indictment, expose the crime, publicize the law, and educate the public.

Searching online for the keywords "prosecutor's statement," I found a number of transcripts of prosecutor's statements, and I discovered obvious points in which they "publicized the law and educated the public." First, they began with the line "Chief justice, judges, and the listening public," so it is apparent that they are speaking to the masses and not just to the chief justice and judges. Second, they contained lines like "Some illuminating points in this case," and "the sober lesson learned from this case."

I believe that adding a specialized discussion of principles and guidelines into prosecutor's statements for the purpose of publicity for and education in the law will give rise to the following problem:

A break with original intent behind the design of public prosecutor's statement. The stage for issuing a prosecutor's statement exists to let the prosecutor bring together the circumstances of the court's inquiry and to emphasize, elaborate on, or correct particular points in the indictment. It is aimed at both the particular facts of the crime and the accused, and this determines that it must be practical and concrete.

As the start of oral argument, the prosecutor's statement should provide a target for rebuttal by the defense; if it acts too much as publicity and education, it only serves to dampen the atmosphere of debate in the courtroom, creating a situation in which the prosecution and defense each speak on their own. This obviously is not beneficial to uncovering the truth, and it is not in accord with the original intent of court arguments - that the truth becomes clearer as it is debated.

Gradually lengthening public prosecutors' statements and diluting their salient points can easily produce a formalism that is harmful, instead of beneficial, to the court's efficiency.

In addition, when prosecutors' impassioned statements contain legal publicity and education, they can easily create the appearance of a strong moral position where there is none in reality; this is beneficial neither to the judge's impartiality as referees nor to a true "presumption of innocence" for the accused.

The sole mission of a court trial is to allow the judges, upon hearing the "performance" of the prosecution and the defense, to render with visible justice a right decision concerning the guilt or innocence of the defendant, the severity of the crime, and how to impose punishment. The saying goes that a mind cannot be put to two purposes, and a famous quote reads, "Render to God what is God's, and to Caesar what is Caesar's." So I feel that prosecutors ought to concentrate their courtroom energies on working to indict, unmask, and provide evidence for crimes. Besides, a high-quality court session itself is the best kind of legal publicity and education.

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There are currently 1 Comments for A courtroom, or a legal classroom?.

Comments on A courtroom, or a legal classroom?

I love the 'round the mulberry bush aspect of public debate in China! For those less adept at the dance, let me offer the following translation of a sentence from the article:

"they can easily create the appearance of a strong moral position where there is none in reality"

What he is saying here is actually:

"We all know that these parts of the prosecutor's statement are INTENDED to create the appearance of a strong moral position when frequently there is none."

It all comes from the purpose of law in Chinese society, which is not to protect the weak from the strong (or to protect property rights as a cynic might put it) but rather to prop up the Party.

Change that purpose, and everything else will fall into line. Allow that purpose to continue being the basis of legal practice, and Chinese justice will continue to be mostly a sham.

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