Prof. Li Shaomin is being tried by China on charges of spying for the Military Intelligence Bureau of Taiwan's Ministry of National Defense. The prosecution claims to have overwhelming evidence, including Li's "confession," that he has violated Article 110 of the criminal code, which provides for a prison sentence that in most cases ranges from 10 years to life.
The prosecution claims that Li directly and indirectly collected Chinese leaders' speeches and official analyses of Taiwan-mainland relations published in books and magazines he knew were designated "secret." The trial will be conducted by three judges of the Beijing Municipal Intermediate People's Court, who are generally Communist Party members and in any event serve at the pleasure of the party.
Because it is deemed to involve "state secrets," the trial will be closed to the public, excluding foreign journalists and observers. Li's family will not attend, since they were never notified of the trial and were never given the opportunity. However, a representative of the U.S. Embassy, accompanied by an interpreter, will be allowed, as required by the U.S.-Chinese consular agreement.
After the presiding judge begins the trial and identifies the defendant, the prosecutor reads aloud the indictment. The defendant may then make a statement, and the prosecutor questions the defendant. Defense counsel and the judges may also question him. The judicial panel then hears witnesses and any experts introduced.
The prosecutor and defense lawyer have the right to cross-examine each witness and expert, and the judges may also. Witnesses and experts need not appear, however, in which case their statements are read aloud, and in practice they generally do not appear, which eliminates the opportunity for questioning.
Next, the prosecutor and defender introduce material evidence, including relevant records and other documents, which are read aloud. During the trial the defense may apply to summon new witnesses, subpoena new material evidence and call for further evaluation by experts, but it is within the discretion of the panel whether to grant the application.
Prosecutor and defender then, with the permission of the presiding judge, may express their views concerning the evidence and the case, answering each other's arguments. The defendant has the right to make a final statement before the panel adjourns to deliberate.
Defense counsel usually have little time to prepare for trial. Prosecution evidence becomes available to them only a short time before the court's pretrial procedural review of the case, and the trial can be held as early as 10 days after the court's notice of its decision to hold it. Moreover, it is often much more difficult for the defender than for the police and prosecutor to persuade witnesses to cooperate and to gather other evidence, because the public is legally bound to comply with government requests but not with those of the defense.
The defender is also restricted at the trial. Since China lacks an evidence law, rulings concerning the introduction and evaluation of evidence depend largely on the trial panel's discretion. And, of course, defenders are usually denied their right to cross-examine because of the prosecution's resort to written rather than oral testimony.
The court's decision may be rendered shortly after adjournment or some time later, depending on the post-trial procedure deemed to be required. The three-judge panel has the theoretical authority to decide the case, but, under the Criminal Procedure Code: "For difficult, complex and important cases for which the panel has difficulty reaching a decision, the panel may ask the President of the Court to submit the matter to the Judicial Committee for discussion and decision. The panel shall carry out the decision of the Judicial Committee."
In important cases such as this, the Judicial Committee, composed of the president, vice presidents, division chiefs and other leading officials of the court in question, makes the decision.
Cases brought to trial almost always result in conviction. The defendant has the right to appeal to the next higher court. The prosecutor also has the right to "protest" the lower court's decision and obtain appellate review. In principle, appellate procedure may range from a full rehearing of the case to a mere review of the record and separate interviews with prosecutor, defender and defendant. Many convicted persons decline the opportunity to appeal, and those who do appeal are in most cases unsuccessful, in part because frequently the lower court, prior to making its decision, has secretly consulted the higher court.
The entire judicial process is coordinated by the Communist Party's Central Political-Legal Committee, which does not hesitate to instruct the courts about the outcome desired in individual cases.
The writer is a law professor at New York University. He represents Gao Zhan, the defendant in another Chinese espionage case.