The difficulty of holding a second instance trial in criminal cases has always been a pain point for criminal defense lawyers. According to research data, the criminal second instance hearing rate of intermediate people's courts is less than 15%, and some even less than 7%. The second instance hearing rate of higher people's courts has slightly increased, reaching 25% to 33%. However, the death penalty and death sentence suspension cases that should be tried in court account for a large proportion of them. "And the vast majority of cases that are not tried in court will maintain the original judgment. This sense of loss that has been frustrated without showing the sword makes criminal defense lawyers both helpless and powerless, and also makes some lawyers shy away from criminal second instance cases.". Therefore, seeking a court hearing has become a phased goal of the second instance defense.

After a bitter experience, why is it so difficult to hold a second instance of a criminal case? The author believes that the reasons are not only the unclear legal provisions, but also the solidification of the judge's trial concept, as well as the objective difficulties, as well as the constraints of the judicial system.

1、 The Proposal and Failure of "Taking Trial as the Principle, and Non Trial as the Exception"

Since the promulgation of the Criminal Procedure Law of the People's Republic of China in 1979, it has undergone three amendments in 1996, 2012, and 2018. The supporting judicial interpretations have also been issued in 1996, 1998, 2012, and 2021. Among them, the Criminal Procedure Law of 2012 has made significant changes and progress, and the provisions for second instance court hearings have also been revised.

Article 187 of the Criminal Procedure Law of 1996 stipulates that "The people's court of second instance shall form a collegial panel to hear an appealed case. After reviewing the files, interrogating the defendant, hearing the opinions of other parties, defenders, and agents ad litem, the collegial panel may not hold a court session if the facts are clear. The people's court of second instance shall hold a court session to hear a case protested by the people's procuratorate."

In 2012, Article 223 of the Criminal Procedure Law was revised to read, "The people's court of second instance shall form a collegial panel to hear the following cases: (1) appeals where the defendant, private prosecutor, and their legal representatives raise objections to the facts and evidence identified in the first instance, which may affect the conviction and sentencing; (2) appeals where the defendant is sentenced to death; (3) cases protested by the People's Procuratorate; and (4) appeals where the defendant is sentenced to death Other cases that should be heard in court.

"If the people's court of second instance decides not to hold a court session, it shall interrogate the defendant and listen to the opinions of other parties, defenders, and agents ad litem." It can be seen that the revised provisions clarify the scope of the second instance hearing by way of enumeration, and are intended to limit the judge's discretion over whether to hold a hearing. They establish the basic principle of "taking a hearing as the principle and not holding a hearing as the exception" in legislation.

However, in the actual implementation process, due to different understandings of the legal provisions of "appeal cases where the defendant, private prosecutor, and their legal representatives raise objections to the facts and evidence determined in the first instance, which may affect the conviction and sentencing", judges have greater discretion over "affecting the conviction and sentencing", resulting in the customary "non hearing as the principle, and hearing as the exception" at the implementation level.

Regarding the understanding of "appealing cases where the facts and evidence identified in the first instance may affect conviction and sentencing", there is a view that only "formal review" is necessary, "As long as the defendant, private prosecutor, and their legal representatives raise an objection that may affect the conviction and sentencing, regardless of whether the objection is ultimately established or whether it ultimately affects the conviction and sentencing, a court hearing should be held. Even if the objection is clearly not established, in accordance with the spirit of legislation, a court hearing should also be held." [3] There can be no restrictive interpretation of this provision; At the same time, there is another view that a "substantive review" should be conducted, that is, if the parties raise objections to facts and evidence to the extent that they have an impact on conviction and sentencing, if the objections raised by the parties have no factual basis, and if the objections can be ruled out by interrogating the defendant and listening to the opinions of the defender and other parties, a court hearing may not be held. Judges usually adhere to the substantive review standard, believing that it is still necessary to conduct a substantive review of the defendant's reasons for appeal before deciding whether to hold a court session. However, lawyers usually adhere to the "formal review" standard, believing that as long as the defendant raises objections to the facts and evidence identified in the first instance, it may have an impact on the conviction and sentencing, and the second instance collegial panel should hold a court session in accordance with the law.

2、 Cause Analysis and System Traceability

In addition to the flexibility of the above legal provisions, the conservative judicial philosophy of judges, and the habit of following the previous trial methods, there are also some objective factors and constraints of the judicial system that can also limit the rate of second instance hearings.

After investigation by the public security organ, review and prosecution by the procuratorial organ, and prosecution by the court at first instance, most cases have no problems with the application of law, the determination of facts, the admissibility of evidence, and the range of sentencing. The second instance generally believes that only a few cases need to be revised or remanded for retrial. Even if there is a slight deviation in the sentencing scale in the first instance, but it is still within a reasonable range and discretion, the second instance will also maintain the res judicata of the first instance and will not easily revise the judgment.

The limitations of objective conditions such as large number of cases and small number of people are also important reasons for difficult court sessions. Intermediate courts have fewer posts of judges than grassroots courts, and they also have to hear cases of first instance that may be sentenced to life imprisonment or death penalty. Such cases have stricter procedural requirements and evidence review requirements, which are relatively more time-consuming and energy-intensive. The number of criminal cases has gradually increased, but the allocation of judges has not increased but decreased. The pressure of trial has led to the majority of cases not being heard in court. At the same time, it is also necessary to consider factors such as court scheduling, the transfer of forensic police, the relocation of the accused, and the coordination of the time for prosecutors and lawyers to appear in court. However, the current objective conditions such as the number of courtrooms in the court of second instance and the allocation of forensic police cannot match the broad range of court requirements.

The obstruction of the court trial system is also one of the reasons for the difficulty of the second trial. In the criminal second instance procedure, the power of the presiding judge is actually very limited, and the presiding judge may not have the right to decide whether to hold a trial. It is understood that when an intermediate people's court in Beijing conducts a trial of a case of second instance, it must first report it to the presiding judge for approval. After the presiding judge agrees to hold the trial, it can then be reported to the people's procuratorate at the same level for review. However, the procuratorate is both a public prosecution organ and a supervisory organ for litigation activities. Upon receiving the court's notice of review, it will question the court about the reasons and necessity for the hearing and agree to accept the review only after it believes that the reasons for the hearing are reasonable and legitimate. Similarly, in terms of whether to change the judgment of a case, the collegial panel has only the power to maintain the original judgment. According to the internal management regulations of the court, cases involving remand for retrial and change of judgment must first be discussed by the joint meeting of judges, and then submitted to the court and the president for approval. If there are differences of opinion, they must be submitted to the trial committee for deliberation. Some major or sensitive cases, and duty crime cases must also be reported to the higher court, the Political and Legal Commission, and the Discipline Inspection and Supervision Commission. Therefore, under the constraints of this management system, the hearing rate of the second instance will also be affected.

4. The evaluation of the court's completion rate index more or less affects the second instance hearing rate. The assessment of court performance indicators mainly includes the assessment of the semi-annual completion rate and the year-end completion rate. The completion of the completion rate indicators will affect the performance of judges and the evaluation of their courts in the court system. Therefore, if there are appeals at the end of the year, judges may choose not to hold court sessions for cases that may or may not hold court sessions in order to improve the completion rate.

5. When it comes to case retrial and remand, it also involves the control of remand and remand rates, the assumption of the subject of responsibility after the retrial, and the performance assessment and emotional maintenance of judges in lower courts.

3、 The Choice of Trial Cases in Second Instance

For what kind of cases will the second instance choose to hold a court session? Based on the summary of practical experience, I believe that the second instance will choose to hold a court hearing under the following circumstances:
"There are flaws in the first instance procedure, but the flaws are not significant. The second instance judge does not want to remand the case for retrial, and often chooses to hold a court session to remedy the procedural flaws in the first instance.". However, if procedural issues are serious, the second instance may directly remand the case for retrial.

"The circumstances of the sentencing of the case have changed after the judgment of the first instance, such as the defendant compensating for the losses of the victim and obtaining an understanding, the defendant returning all or most of the illegal income, the defendant voluntarily paying a large fine, and the defendant performing meritorious deeds after the first instance.".

"There are errors in determining the circumstances of a lighter or mitigated punishment in the first instance judgment, such as the failure to determine the circumstances of voluntary surrender or meritorious service, and the inappropriate determination of the principal and subordinate offenders.".

There are significant disputes in the application of the law, involving crimes and non crimes, and cases of this crime and that crime, such as whether it constitutes a crime of fraud (fraud and contract fraud are often the most controversial crimes between crime and non crime), whether it constitutes a crime of official embezzlement or a crime of misappropriation of funds, whether it constitutes a crime of organizing prostitution or a crime of assisting in organizing prostitution, and so on.
5. The emergence of new evidence closely related to conviction and sentencing during the second instance may change the factual determination of the first instance or have a significant impact on conviction and sentencing, such as the absence of evidence of criminal incidents, absence of evidence, etc.

"For sensitive cases with significant social impact and high degree of attention, major difficult and complex cases, as well as cases supervised by superior party and government organs and superior courts, the second instance often also chooses to hold a court session.".

4、 How to Strive for a Trial of Second Instance

First of all, after the intervention of the second instance, it is necessary to carefully study the file materials and the first instance judgment. If there are indeed errors in the application of law, unclear facts, insufficient evidence, or excessively heavy sentencing in the first instance judgment, it is necessary to provide sufficient defense opinions for the existing problems. Defense opinions should not be lengthy, delayed, or unclear in focus. They should be targeted directly at the issue, and focus on finding loopholes. Among them, problems in the trial procedure are often hard wounds. If possible, try to find a breakthrough in the first instance procedure and strive for a court session or remand for a retrial.

Secondly, it is necessary to effectively communicate with the presiding judge on the situation of the case, and strive to ensure that the presiding judge listens to the opinions of the defender in person, rather than simply submitting defense statements. If possible, strive for the collegial panel to collectively listen to the defenders' defense opinions. Because the Criminal Procedure Law stipulates that if there is no court hearing, the opinions of the defender should be heard, rather than just submitting written defense opinions. However, because the presiding judge is relatively busy and the time for face-to-face communication with the defender is relatively short, the defender must present prepared materials, clearly and clearly inform the presiding judge of the problems in the first instance judgment, and list the corresponding evidence. The judge will still pay attention to the case when facing a straightforward and full defense opinion from the defender.

Third, as mentioned earlier, when new evidence materials or witnesses appear to testify in court, the second instance may require a court session. If the defender discovers new evidence materials or most of the witnesses in the case are willing to testify in court, the defender should submit the application for witness appearance and evidence retrieval together with the application for court session, and request the people's procuratorate at the same level to listen to the opinions of the defender, the probability of the second instance hearing may be increased. Of course, this also requires the defender to exert subjective initiative to explore evidence.

5、 Conclusion

Some lawyer friends believe that representing a criminal case in second instance does not necessarily require a court session to achieve effectiveness. As long as the defense opinion is excellent enough, even a written trial can have the effect of being remanded for retrial or changing the sentence. Indeed, many excellent defenders have the effect of sending back for retrial or changing their sentences simply by submitting their defense statements and the judge's written hearing. However, the author believes that the outcome of a case is often beyond the control of the defender, and the only thing the defender can do is to promote the trial process step by step, do what he can, and strive for what he can win. To strive for a court hearing, there should at least be an opportunity for soldiers to shine their swords on the battlefield, as well as an opportunity for judges to understand the facts and evidence of the case more intuitively and dialectically. Even if the outcome of the case cannot be changed in the end, it is considered as not leaving any regrets and not paying any commissions.

References and Notes:

[1] "The Dilemma and Countermeasures of the Second Instance Trial of Criminal Cases", Ma Wenxing, December 30, 2019, Huizhou Intermediate People's Court (hzzy. gov.cn).
[2] "On December 20, 1996, the Interpretation of Several Issues Concerning the Implementation of the Criminal Procedure Law of the People's Republic of China (for Trial Implementation) was issued. On September 2, 1998, the Interpretation of the Supreme People's Court on Several Issues Concerning the Implementation of the Criminal Procedure Law of the People's Republic of China was issued. On December 20, 2012, the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China was issued.", On January 26, 2021, the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China was issued.
[3] Zhang Jun, "Training Materials for Judges in the New Criminal Procedure Law" (published in 2012)