how does the Chinese criminal justice system work?

moderator admonition

Bosda. You’ve been around long enough to know we don’t take kindly to political slams in General Questions, no matter the slam is international or US centric.

samclem Moderator, General Questions

I offer my apologies.

If the jury is evenly divided, then you have a mistrial. Jury verdicts must be unanimous, either all voting guilty or all voting not guilty.

You may be thinking of the Scots verdict of “Not Proven”:

Not in the UK or - I think - in some other Commonwealth countries. At the judge’s discretion a majority verdict can be allowed.

Here in Canada, jury trials are viewed with suspicion by the powers that be - you need to be charged with a crime that could earn you 7 years or more to warrant a jury. However, the mechanics of our system - pretty much the same as the UK - is that a jury must rule unanimously, accused ar presumed innocent until found guilty, etc. Pretty much the US system too. However, there is only one Criminal COde for Canada - so what I suppose would be “felony” in the US is the same across the country; provinces have the right to make laws on more mundane matters - hunting game laws, traffic, securities, etc. So whatever you know about US trials generally probably applies to most British Commonwealth countries’ legal systems, except the tacky stuff like electing prosecutors.

I thought it was odd that the British version of Law and Order talked about “the people” - in fact the prosecution in the commonwealth is on behalf of the crown, who is nominally the government. Thus, a crime is an offense against Her Majesty and her attempts to keep the peace in the land.

IIRC, the French (Napoleonic) justice system, which I assume China’s is modelled on, does not allow you to refuse to testify - but you cannot be prosecuted for perjury no matter what you say. The presumption is that a guilty person will lie; and natural justice says you cannot paint someone into a corner. I assume China has a similar rule?

I guess the real question is what is considered “insanity” in a Chinese system? I have real problems with north American version of insanity; when you consider Hinckley can get off but Bundy gets toasted… I have read once that like many less “westernised” countries (is that the polite way to say it?) the Chinese do not give a great deal of sympathy to mental problems. Of course, once you scrape off the veneer, neither does the west. I can sort of sympathize with the view that if you are mentally capable of functioning well enough to live, then you know what you should not do.

Canada for example does not have “temporary insanity” - you either know right from wrong or you do not.

Face it, anyone who does a murder but not for profit is crazy. If they do it for profit, they are probably crazy too.

In most jury trials, the jury must all vote for guilt or not guilty (you don’t vote innocence). If the jury cannot agree, then it is a mistrial, and the prosecutor or judge can ask for a new trial. In other words, in most jury trials, it’s either 12 votes one way or the other. There is no middle ground.

However, in recent years (the past 20 years), there have been changes in some jurisdictions – especially in misdemeanor and state civil charges. In many of those cases, a smaller jury of 5 to 7 will be used. And, in some cases, unanimous verdicts aren’t required any more. See Duncan v. Louisiana. And in Williams v Florida, the court rules that a six member jury was okay because the sixth amendment didn’t state anything about juries.

Many legal experts completely disagree with these rulings because they go completely against common law history which always ruled that jury verdicts must be unanimous and there are 12 people on a jury. However, the Supreme Court ruled and that’s the law of the land.

What is strange is that in the Williams v. Florida decision, the Supreme Court ruled that a six member jury was okay because juries are still required to be unanimous. Then, the same court ruled in Duncan that jury verdicts didn’t have to be unanimous.

When these verdicts first came out, some attorneys joked that soon a jury of a single person who sort of thinks the guy could be guilty will be enough to convict.

No. A reading of the Criminal Code of Canada (“CC”) reveals that Canadian criminal law in this area is quite complicated, and does not lend itself to blanket statements such as the above. In essence (and very briefly), jury trials can be performed for all indictable offenses, no matter the possible sentence (CC s. 471), although the accused can elect not to have one: CC ss. 536 and 536.1. Regardless, jury trials in Canada are not “viewed with suspicion”; rather, they are a recognized and familiar part of our justice system.

Very generally speaking, what Americans would call a “felony” is to us an “indictable offense”; and what to them is a “misdemeanor” is to us a “summary conviction offense.” Both kinds of offenses, and offenses that can be prosecuted either way at the Crown’s option, appear in the CC (which is, as noted, nationwide). For a complete rundown on the division of powers between the federal government and the provinces in Canada, see the Constitution Act 1867, ss. 91 to 95 inclusive.

To the best of my knowledge, the M’Naghten Rules still apply in Canada. In other words, it is possible to raise an insanity defense in Canada–generally, it goes by the appelation “Not Criminally Responsible On Account of Mental Disorder,” or “NCROAMD,” for short. See the CC, ss. 672.1 to 672.95 inclusive.

Quite right - I was thinking of England and Wales, and had forgotten that they’d changed to allow a 10-2 verdict. Thanks for the correction.

However, my point in raising it is still good - that if the jury in England & Wales is evenly deadlocked, it doesn’t default to a not guilty verdict, which is what I understood handsomeharry to be suggesting. Evenly split juries result in a mistrial.

Spoons’ response to this is correct - the accused has a right to a jury in most indictable matters - unless you have a cite to support your assertion as to the law in Canada?

Again, do you have a citation to support your statement of the law in Canada?

It’s correct that there’s no defence called “temporary insanity”, but if you’re trying to suggest that an accused can only raise the defence of mental disorder if he/she is permanently incapacitated, you are incorrect. The defence of mental disorder focusses on the mental state of the accused at the time of the offence, as provided by s. 16(1) of the Criminal Code:

It is open to an accused person to argue that he or she was suffering from a mental disorder at the time of the offence, but has since recovered with the assistance or proper medical treatment. If that is accepted, the accused may be acquitted based on the mental disorder, but not be confined under the Criminal Code’s provisions respecting mental disorder, as provided by s. 672.54:

The procedure for a majority verdict in England and Wales is thus.
After deliberation the jury returns and advises the judge that they cannot come to a unanimous verdict. The Judge then tells to jury to return to its deliberations and attempt to reach a unaimoius verdict. They do so. If they fail to reach said verdict, they return and advise the judge, at which point His Honour or His Lordship asks them if a majoirty verdict, i.e where 10/12 juror agree is possible. If they say it is the judge has a discretion (almost always exersised) to allow them to come to a majoirty verdict or he may order them to try again for unanimous verdict or finally simply discharge them.

By no means is a majority verdict open to the jury except with the premission of the Judge.

I lied: It’s 5 years:

Trial By Jury
Most civil cases in Canada are tried by judges without a jury. However,

•anyone charged with a criminal offence for which there can be a prison sentence of five years or more has the right to a trial by jury,
•in some cases, a person charged with a criminal offence for which there can be a prison sentence of less than five years may have the right to choose a trial by jury, and
•some civil cases can also be tried by judge and jury.
Source: http://www.justice.gc.ca/eng/dept-min/pub/just/09.html

“in some cases” - yeah right - those exceptions will be few and far between. In 25 years in one location, I got called for one jury trial and the call was cancelled when the defendant cancelled - presumably for plea bargain. I suspect the defense lawyer was making the hassle of a jury trial part of his bargaining tactic.

Yeah, people have raised the “sleep-walking” defence and similar in several trials. And yes, we do respect mental disorder as a defence in Canada. However, from my IANAL reading of the news, it’s more effort to prove and has to be a definite mental problem.

I’m curious if anyone knows the state of Canadian law wrt “irresitable impluse”. I suspect that is not a good arguement for insanity.

Majority verdict is also accepted in Hong Kong, which evolved from the system of England and Wales.

Since the insane are the most dangerous of all and unpredictable, why would anyone NOT want them locked up in jail? I mean isn’t the whole idea of a justice system first to protect the public, then to make the criminal want to change to avoid more lockup?

Maybe the second goal will not work here, but the more important first goal is met. All such people should be found guilty (if they did the act) and only then found insane, as part of the “what prison to send them to” decision.

Are you serious? Or just out for (hypothetical) vengence? If someone is mentally ill at the time of the crime i.e. not able to realise what they’re doing, then whether or not they were dangerous at the time is irrelevant in the long run. If you use insanity/diminished responsibility as a defence you get handed over to the psychiatric profession to be helped, and if they can’t kept there long term (just as you would a prison). A prison cannot and will not reabilitate someone who is mentally ill.

Someone who knows full well what they’re doing and yet still does something they know is harmful and illegal is actually more dangerous in the longer term than someone who is mentally ill.

You would do well to acquaint yourself with the Criminal Code–it will clarify what you need to know in this area better than a general-information page on a government website.

The accused (what the defendant in a Canadian criminal trial is called) charged with most indictable offenses has the right to elect a jury trial and then in certain circumstances, re-elect to have a judge-only trial; and vice-versa: CC ss. 536, 536.1, 561, and 561.1. (Department of Justice link to applicable CC sections.) This is likely what happened–the accused elected a jury trial, then re-elected not to have one. But we don’t know and cannot presume anything based on the sparse facts available.

Just so you know, there are a few Canadian lawyers on the SDMB who can help sort out and explain Canadian legal matters. Give you the straight dope on them, if you will. :slight_smile:

Just to be clear, insanity and dimished responsibility are very different defences, and the elements for each are different and a successful defence leads to different result for each.

Well my point stands that “lock up all them fuckin crazies!!!” isn’t what the justice system is really well designed for.

New as in “about 200 years”

The court doesn’t prosecute in France, either. A judge is in charge of the inquiry, but it’s a different kind of judge than the ones sitting in trial courts. Besides, he doesn’t prosecute, he investigates on behalf of both the accusation and the defense (there’s also a prosecutor, but his role is very limited during the inquiries).

There’s no right protecting you from self incrimination in France and no particular right to remain silent, and you can be questioned during the trial (or speak more or less as and when you see fit, in fact, very different from an american trial), but you’re not allowed to testify if you’re accused (in a relatively famous trial, the accused spontaneously swearing he was telling the truth on the advice of his lawyer caused a significant incident). So, there’s no perjury possible if you’re the accused, and if you don’t want to incriminate yourself, you can simply lie. Ordinary witnesses, on the other hand, have no escape clause.

No, but she will try them, since french courts have juridiction for crimes commited by their citizens everywhere. So, you’re not scott free in your scenario if what you did was a crime in both countries.

Because as your earlier posts make clear, you know very little about law in the constituent countries that make up the UK. Probably something to do with the quality of at least one of the professors you (presumably) were taught by.