Introduction

The "National Young Criminal Procedure Scholars Series Lecture (Season 3)" is being held from May 4 to June 25, 2024. This series is organized by the Ministry of Education's Criminal Procedure Law Virtual Teaching and Research Room and the Litigation Law and Judicial Reform Research Center of Southwest University of Political Science and Law. The third lecture was presented by Professor Zhang Qing, Deputy Dean and Doctoral Supervisor of the Law School at Yunnan University, on "Procedural Justice in Plea Bargaining and Negotiation between Prosecution and Defense." Zhang Baiyi, Deputy Director of the Criminal Law Business Department and Partner, was invited as a commentator.

During the lecture, Professor Zhang Qing highlighted several issues in China's plea bargaining procedures, such as insufficient disclosure and acquisition of information, the nominal nature of rights and risk notification procedures, and the lack of transparency and reviewability in the negotiation process. He also discussed the three main models of procedural openness in major countries: the dualism of prosecution and defense, judicial participation, and judicial dominance. He proposed improvements to the information disclosure mechanism, strengthening the notification obligations of the procuratorates, and enhancing the institutional design of the negotiation process.

Based on his practical experience, Lawyer Zhang Baiyi commented on the lecture content. The following is the organized transcript of his comments:

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Thank you, moderator Professor Du. Respected Professor Zhang Qing, senior colleagues, and all online teachers and audience members.

I have just listened carefully to Professor Zhang Qing's lecture on "Procedural Justice in Plea Bargaining and Negotiation between Prosecution and Defense," as well as the comments from Professors Chen Zai and Zeng Yuanjun. Their insights have broadened my horizons and have been very enlightening. The two commentators have already summarized Professor Zhang's content well, so I will not repeat it. Instead, I would like to share my views.

I strongly support Professor Zhang's concept of ensuring procedural justice in negotiations. However, I have some doubts about the solutions he proposed, and I would like to share my specific thoughts and seek advice from all of you.

I. Structural Issues to Consider in Building a Just Procedure

Absence of Judges in Pre-trial Procedures

Before a criminal case is prosecuted, Chinese courts do not participate in criminal cases, and prosecutors effectively act as "pre-trial judges." Specifically, prosecutors have the authority to decide on the application of coercive measures, determine whether and how to prosecute a case, and guide investigations through review and approval of arrests and supplementary investigations. In practice, there are also many cases where they directly intervene early on.

In contrast, courts prefer to wait until the case arrives before commenting, and I have not seen courts publicize their early involvement in any cases. I believe this phenomenon is conducive to the impartiality of the courts, avoids preconceived notions, and is beneficial for forming a triangular litigation structure during the trial phase, which aligns with the direction of modern criminal justice reform.

Exclusion of the Defense by Case Discipline

The Criminal Procedure Law stipulates that the public security, procuratorial, and judicial organs should cooperate and check each other. However, in practice, cooperation often overshadows the checks and balances, leading to an imbalance between the prosecution and defense, effectively excluding the defense from criminal litigation activities. Much important information is kept confidential between the procuratorial and judicial organs, citing the protection of trial secrets and adherence to case discipline.

In the plea bargaining system, if the court believes that the sentencing recommendation is clearly inappropriate, it must first inform the procuratorial organ, which can choose to adjust or not. The court then reviews the case, and the defendant and lawyer are excluded from the process. There are many uncertainties about whether the court will give the procuratorial organ a psychological price range for sentencing and whether the procuratorial organ will honestly inform the court's price during the renegotiation process.

Unclear Relationship Between Prosecutorial and Judicial Powers

Many studies have shown that there is often a struggle between the two institutions in plea bargaining cases, and my experience in practice also reflects this. The procuratorial organ requires the court to "generally adopt" their recommendations, but the court believes that the ultimate judicial responsibility lies with the judge and cannot simply accept everything. According to data released by the Supreme Procuratorate, the actual adoption rate of sentencing recommendations is as high as 97.5%. I believe three factors should be considered: First, a large proportion of cases are drunk driving cases, which are almost 100% adopted. Second, the 97.5% adoption rate includes cases where the sentencing recommendation is adjusted after renegotiation. Third, for some cases, prosecutors do not propose precise sentencing recommendations for various reasons, but rather range-based recommendations, some of which are quite broad. In some new and controversial cases, prosecutors are still worried that judges will not approve their sentencing recommendations, and in some cases, we also hear prosecutors express concerns about whether their sentencing recommendations will be adopted. Prosecutors are strong in front of the defense but relatively weak in front of judges.

I believe the reason for this phenomenon is that the relationship between powers has not been properly defined. In civil litigation, judges are not only limited by the scope of the plaintiff's claims but also by the scope of the litigation request. Appellate judges are limited by the scope of the appeal request. In comparison, the procuratorial power's restraint on judicial power is weaker than that of the plaintiff in civil litigation.

This is reflected in both the first and second instance procedures of plea bargaining cases: In the first instance procedure, the provision of "generally should adopt" does not form a substantive constraint. The court reviews whether the sentencing recommendation is clearly inappropriate and can adjust it heavier or lighter. In some cases where it is adjusted heavier, the credibility of the procuratorial organ is very poor, and the parties will also have doubts about the plea bargaining system. In the second instance procedure, the second instance is limited by the principle of no additional punishment on appeal, but China's Criminal Procedure Law does not distinguish between appeals that are beneficial or detrimental to the defendant. If a case is appealed by the procuratorial organ because the sentence is too heavy, and the second instance court believes it is still not heavy enough, and the procuratorial organ has appealed, the second instance can theoretically impose a heavier sentence.

II. Different Opinions on the Optimization Plan

Regarding the problems in plea bargaining negotiations, Professor Zhang Qing has proposed his own solutions, and I have some different views.

Strict Regulation of Negotiation Venues and Written Records is Difficult to Implement

I completely agree with Professor Zhang Qing's suggestion to enhance the transparency of the negotiation process and the participation of victims. However, I do not agree with his suggestions to strictly regulate the venues and methods of negotiation and to keep complete written records.

From the practical situation, plea bargaining in the UK and the US is conducted privately, and even Germany's plea bargaining evolved from under the table, initially conducted in secret. China currently implements synchronized audio and video recording of plea bargaining, but what is shown on camera is basically the final signing process. There is almost no real negotiation, and it is actually difficult to record. From my perspective as a defense lawyer, on the one hand, I need to help the suspect or defendant negotiate with the prosecutor, and on the other hand, I also need to work with the suspect or defendant, acting as a "mediator." If the criminal defense lawyer informs the party of the entire negotiation process, then the lawyer is almost doing "transmitter-style" work of little value.

In addition, there are many compromise-style plea bargains in practice. Plea bargaining actually takes on the function of resolving wrongful cases. How can these cases be negotiated openly? Although there are problems with substantive justice, under the reality of the difficulty of acquittal, this is a less bad approach. If everything is recorded, how will these cases be resolved, and will it leave no room for retreat for the prosecution, defense, and trial, returning to more direct and intense conflicts?

Guiding Judges to Intervene Early in Negotiations is Difficult to Achieve

I also have different views on Professor Zhang's suggestion to appropriately guide judges to intervene early in plea bargaining negotiations.

From an operational perspective, there are two reasons: First, if the court's judgment result is still uncertain and there is still a small margin for negotiation between the prosecution and defense, once the judge intervenes early, the procuratorial and judicial organs are more likely to form a collaborative suppression, which is more detrimental to the exercise of the right to defense and the realization of procedural justice. Second, from the judges' perspective, unless the case has already entered the trial stage, current judges are not very willing to intervene early. Expressing opinions too early will bring risks to the judges' practice, which does not conform to the current concept of judges in China.

From a comparative law perspective, Professor Zhang Qing's suggestion comes from German law, but the German criminal procedure has a pre-trial stage where judges intervene, and the investigation is led by the public prosecutor, which is different from China's criminal procedure system. China's prosecutors are actually similar to the pre-trial judges in German law.

From the perspective of adjustment strategies, allowing a judge who does not conduct a substantive trial to participate in the negotiation, complicating the negotiation procedure, not only squeezes the limited judicial resources but also easily leads to inconsistencies between two judges' views. Why not directly optimize the trial stage and squeeze the center  of litigation back to the trial stage? Moreover, the linear structure and multiple review characteristics of China's criminal procedure are prominent. With the current frequent mobility of judges and prosecutors, judges are not necessarily more objective and fair than prosecutors just because they work in the court.

**III. Two Suggestions for Improving Plea Bargaining Negotiations**

Of course, the problems that Professor Zhang Qing wants to solve objectively exist. Regarding how to legitimize the procedure of plea bargaining negotiations, I propose two of my own views for your reference.

1. **Judicial Power Should Restrict Prosecutorial Power and Fully Review Suppressed Defense Opinions**

Professor Zhang Qing analyzed the situation of second-instance trials in plea bargaining cases, which is an indicator. Another indicator is the situation of prison appeals, and I suggest that the academic community conduct research on this.

In my own case handling process, I have also experienced some strategic and tactful pleas, which indicates that our suppressive judicial model, under the addition of plea bargaining, has not truly resolved litigation disputes. In such a courtroom, the prosecution continues to exert pressure, the defense is reluctant, and the trial judge remains silent. The disputes that should be reviewed by the adjudicator are covered up by the illusion of plea bargaining. Of course, theoretically, if the defense does not raise it, the judge can still review it, but in practice, if neither the prosecution nor the defense has any opinions, it takes a lot of courage and even a bit of stubbornness for the judge to take the initiative to review. In this regard, we should consider why the defendant and lawyer are afraid. I believe it is because they are worried that the procuratorial organ will withdraw the conclusion and be sentenced more severely in the end. This requires the judicial power to correct and restrict.

Based on the actual situation of China's criminal procedure, it is inevitable that the defense will be suppressed in the negotiation process, at least probabilistically. The judicial power should correct the improper suppression and ensure that the substantive defense opinions can be reviewed by the adjudicator. This requires a certain degree of liberation of the defendant and the defense lawyer, and appropriate restrictions on the circumstances under which the procuratorial organ withdraws, to achieve an effect similar to "no additional punishment on appeal." Of course, we need to consider the actual situation of having signed a plea bargain and cannot simply deprive the procuratorial organ of the power to withdraw the conclusion. We need to consider the effect of simplifying and diverting after signing the plea bargain, and the defendant's right to defense should be subject to certain restrictions. Defense lawyers should not always emphasize independent defense. The balance scheme is also suggested to be studied by the academic community.

The reason for the procuratorial organ to withdraw is that the suspect or defendant repents. What constitutes repentance should be clear. Professor Zhang Qing said that the procuratorial organ's rights notification is unclear, and the expression is very indirect and vague. In fact, the rule itself is not clear, and the procuratorial organ cannot write it even if it wants to inform. For the suspect or defendant to overturn the facts of the crime, the procuratorial organ should withdraw the conclusion, and there should be no different opinions in practice. There are some controversies in practice:

First, if the suspect or defendant has different opinions on the legal nature but indicates a willingness to accept the final judgment of the court, my view is that as long as it is not a not guilty opinion, it should not be considered as repentance, because the defense of the nature itself does not affect the plea, and the procuratorial organ cannot withdraw.

Second, if the suspect or defendant requests the court to impose a sentence below the sentencing recommendation but indicates a willingness to accept the final judgment of the court, it should not be considered as repentance, because this is a common human sentiment, and the procuratorial organ should not withdraw. Of course, the regulations in Zhejiang Province stipulate that raising objections to the sentencing recommendation or requesting changes is considered as repentance. My view is inconsistent with the regulations.

In addition, there is also the issue of whether the defense lawyer's defense can be a reason for withdrawal. The opinion in Zhejiang Province takes the defense lawyer's not guilty defense or raising objections to the main facts of the crime as a reason for the procuratorial organ to withdraw. In practice, there are also practices to avoid "contractual spirit" through changing lawyers or arranging duty lawyers to witness. This issue involves the nature and effectiveness of the lawyer's witness in plea bargaining, including whether the nature of the witness of duty lawyers and defense lawyers (including legal aid lawyers and appointed defense lawyers) is the same. Due to time constraints, I will not discuss it specifically, but this is also a basic issue for discussing the legitimacy of the negotiation procedure, and I believe it should be further clarified.

2. **Prosecutorial Power Should Restrict Judicial Power and Make the Negotiation Results Substantially Effective**

Professor Zhang Qing said that the negotiation results should be stabilized, and I also agree. The procedure is to produce substantive results, but the current result of the plea bargaining negotiation is just a conclusion book that records the facts, charges, and sentencing recommendations. Except for the scope of the facts, the charges and sentencing recommendations have no substantive binding force on the court.

Therefore, it is necessary to clarify the responsibilities of the procuratorial and judicial organs and give the negotiation results substantive effect to stabilize the negotiation results. Otherwise, all the legitimate procedures that Professor Zhang talked about would be a waste of effort. Specifically, there are two points: First, clarify the substantive constraints of the procuratorial organ's sentencing recommendations on the court. This constraint should play a role similar to the effect of the litigation request in civil cases, and the court cannot sentence beyond the procuratorial organ's sentencing recommendation. Second, clarify that the second instance should be restricted by the scope of the appeal request, and the second instance cannot impose a heavier sentence even for appeals that are beneficial to the defendant. Of course, the corresponding judicial responsibility should also be borne by the procuratorial organ, so as to achieve the effect of plea bargaining.

I made this suggestion, also considering that the linear characteristics of China's criminal procedure system are more obvious, and each stage is more like a multiple review and relay review model. Extending the principle of no adverse change from the no additional punishment on appeal to the stage of initiating a public prosecution is in line with the actual situation of China's criminal justice.