The Guarantee of Voluntary Confessions under the Chinese Plea Bargaining System: Mechanism and Practice

• In Event: Empirical Research and Theoretical Debates on Plea Bargaining System in Chinese Criminal Justice

Abstract

Voluntary confession forms the foundation of the entire Chinese plea-bargaining system where the voluntary nature of confession is confirmed through a written statement during the charging process. Once a suspect signs and confirms the written plea-bargaining statement, the sentencing recommendation recorded in the statement has a semi-binding effect on the first-instance court according to Article 201 of the Chinese Criminal Procedure Law. A lawyer must be present when a suspect signs the statement. However, given the empirical study, the vast majority (approximately 75%) of suspects do not hire their own defense counsel and rely on duty lawyers for legal assistance, therefore, the duty lawyer system is one of the most important safeguards for the voluntary nature of confessions under the Chinese plea bargaining system.
The paper uses the following defense activities as technical indicators to analyze the participation of duty lawyers in plea bargaining cases: duration of involvement in cases; frequency and duration of meetings with suspects; whether they review case files; and whether they present substantive defense opinions. By comparing plea bargaining cases of similar nature, the paper aims to argue the following proposition: the involvement of duty lawyers neither safeguards the suspects' right to be informed nor helps them make informed decisions.
This indicates that relying on duty lawyers to safeguard the voluntariness of confession exhibits significant flaws. Therefore, given the critical importance of voluntariness in plea bargaining, it is necessary to establish a diversified mechanism to assure voluntariness. Specifically, this includes: Firstly, establishing a system where lawyers are present during interrogation. Secondly, based on the reform of "separating serious and minor cases," to implement a mandatory defense system in plea bargaining cases where a sentence of more than three years of imprisonment is possible. Thirdly, establish an independent voluntariness review mechanism.

Author

• Wu Hongyao, China University of Political Science and Law