Must Know 101 for Criminal Cases in China(I)
The world of criminal justice is unique and highly specialized. Most foreigners in China are not familiar with the rules that operate this world. If you find yourself or a loved one suddenly involved in a criminal case, an experienced attorney is critical to help manage your case and obtain the best possible outcome. Here are few things you must know:
A. 40% sentence deduction-Turn Yourself In
One usually learns about being suspected of a crime by having received a call from the police asking him/her to visit the police station to explain certain issues concerning a crime, or through an unexpected detainment by the police.
These two approaches make a huge difference in the outcome of a case.
The former, voluntary surrender to the police, may be an important sentencing-mitigating factor. According to the Guiding Opinions on Sentencing for Common Crimes issued by the Chinese Supreme People’s Court, voluntary surrender may deduct a maximum 40% to a standard sentence. The latter, detainment by the police, has no such effect.
Therefore, if you are notified by the police of an ongoing investigation concerning you, first talk to your lawyer, then prepare to seize the opportunity to turn yourself in if necessary.
B. Know What to Say-Golden 30 Days Rule
From the day the decision of criminal detention is issued, we should start counting days. Normally the criminal detention lasts only 3 days, by law this period can be prolonged to a maximum of 37 days. During this time, the suspect is being held in a detention center, where he is prohibited from seeing his family. The lawyer chosen to represent him can come and meet with the client within 48 hours after detention.
It’s the police’s job to obtain “GOOD” testimonies within the initial 30 days, because they need to submit evidence to the prosecutor asking for an arrest warrant by the latest Day 30th. Then the prosecutor will have a maximum of 7 days to determine whether to grant an arrest warrant after considering all the available evidence. Written testimony is a very important element in proving one’s guilt, very often more important than what you say in court.
Therefore, it’s incredibly crucial to meet your lawyer as soon as possible after being detained. An experienced lawyer will tell you how to handle interrogations, including answering questions from the interrogators, understanding your rights, and knowing what to expect and be careful of, all of which will guide you in your written testimonies, and subsequently increase your rate of returning home soon.
Timing is everything. Meet your lawyer before more testimonies are made.
C. Arrest or Bail
Between day 30th and 37th, your lawyer can meet the prosecutor in charge of your case and tell the other side of the story. By law the investigator should gather both exculpatory evidence and inculpatory evidence, but sometimes facts that prove you innocence may be buried under piles of files or simply have not been written down in the testimony. A good lawyer who knows the law well and know your case inside out can submit a good legal opinion, to help the prosecutor make a better decision in granting or denying an arrest warrant.
Once the arrest warrant is granted, the chance for you to get out of detention center before the final judgment is relatively low. You may face a rather long pending trial period.
If, after so much effort, the prosecutor in charge decides not to grant an arrest warrant against you, then you will be granted bail. Once such a decision is made, you will be able to leave the detention center on the day of. For most cases that are granted bail at this time, the possible outcomes are: the case is closed during the investigatory stage, there will be no prosecution, or there is possibility for conviction but no real jail time sentence. Basically, it means you can stop worrying about the case for now.
The above-mentioned are basic must-knows during the investigation stage. In China, criminal procedures usually include 3 stages, namely investigation stage, examination & prosecution stage, and trial stage. I will address the other two stages in the following articles. If you have any questions or issues that you would like me to cover in the future, please write to me at firstname.lastname@example.org. To be continued...