The assessment that a defendant has a mental disability must be authenticated in order for it to qualify
as evidence in the trial. The authentication of forensic evidence, including mental health assessments,
has become an area of conflict in many trials amid criticism that judges lack expertise and the courage
to make an independent judgement when faced with conflicting opinions. Experts will normally only
be called to give evidence in court if the expert evidence is contested. Testimony before the court,
however, is normally limited to a brief summary of the key points. Defence counsel is not always given
permission to cross examine expert witnesses. There are plans for an evidence law which would
include a chapter on judicial assessments, including those for mental health.
There is no appeal procedure if the defence request for an authenticated mental health assessment
is turned down by the courts. In some cases, the defence will commission an assessment by an
independent assessment centre. The defence may be able to use such an assessment to try and
persuade the court to reconsider its decision, but the assessment has no formal probative value since
it cannot be authenticated.
Akmal Shaikh, a British citizen, was arrested in Urumqi in September 2007 for carrying 4 kilos
of heroin. He was convicted and sentenced to immediate execution by Urumqi Intermediate
Court in December 2007; his appeal to the Xinjiang Higher Court was turned down in August
2009 and his case was transferred to the Supreme People’s Court for review in October 2009.
Evidence submitted by British NGO, Reprieve, indicated that Mr Shaikh had a bipolar disorder
and Mr Shaikh’s lawyer recommended a mental health assessment; no mental health
assessment was ordered to be carried out by the Chinese courts. The SPC approved his death
sentence and, despite appeals at the highest level by the British government, Mr Shaikh was
executed on 29 December 2009.
Poverty and the Death Penalty
Many Chinese criminal defence lawyers are concerned at the disparity in the quality of legal assistance
between well-off defendants and the poorest. Where wealthy clients are able to hire a team of lawyers
to help at each stage of the case and offer compensation to victims, the poor can only hope that their
legal aid lawyer is highly motivated and will be willing to subsidise their time and expenses. Poor
persons caught up in the Chinese criminal justice system not only lack the funds to pay for an
experienced lawyer, but they also lack the social networks that can help access a lawyer. Low levels of
education and literacy leave many of the poor with little understanding of the law itself or how it
works in practice.
There is some limited evidence that judges are starting to take the offender’s socioeconomic situation
into account as they try to reach a sentencing decision. Of the four drug-related crimes which may
attract the death penalty, judges and scholars have raised most concerns with sentencing for drug
transportation. Although the amount of drug that was being transported has long been seen to be the
critical factor in sentencing someone to death penalty with immediate execution, factors, such as low
household income and incitement by traffickers, may be considered in discretionary mitigation.
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