American Bar Association Model Rule of Professional Conduct 8.2 (a) provides "A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge..."
A proposed amendment to the P.R.C. criminal code - Article 35 - criminalizes statements that "insult" or "defame" a judge after being told to stop. Such conduct would bring a contempt citation in the U.S. In In Re Little, 404 U.S. 553 (1972) the defendant represented himself at trial. In his summation he said that the court was biased and had prejudged the case and that he was a political prisoner.
The trial judge said that "the Court at this point informed the [petitioner] that he was in contempt as the Court felt that these remarks were very disrespectful and tended to subvert and prevent justice," and further recites that "the Court concludes on the foregoing facts that the conduct of the [petitioner] and the words spoken by him in the presence of the Court were contemptuous, that they reflected on the integrity of the Court and tended to subvert and prevent justice."
The Supreme Court reversed only because Little was not a lawyer and a certain latitude should therefore be allowed.
What is needed in China is a culture of vigorous advocacy and independence. The good news here is a petition by several hundred lawyers fearful of chilled advocacy.
Proposed Article 35's prohibitions of insult and defamation are not outlandish- though limiting language like that of RPC 8.2 (a) would be a good proposal to make. And the proposed punishment is harsh - a "fixed-term imprisonment of not more than three years, criminal detention, or public surveillance or be fined". Such prosecutorial and sentencing discretion carries a great risk of abuse. Needed too is the kind of procedural principle we have developed that requires a hearing before a different judge, notice of the charges, right to counsel, etc. as in Federal Rule of Criminal Procedure 42. - gwc
by Joshua Rosenzweig // Chinese University of Hong Kong
"Since Xi Jinping came to power in late 2012, one of the Chinese Communist Party’s main objectives has been to restore the credibility and authority of its judicial system. Though it might be argued that the best way to achieve this goal would be the promotion of judicial independence and genuine rule of law, indications are that the actual strategy may involve strengthening control over the judicial process and regulating the activities of the various actors therein. One of the main targets appears to be lawyers. Chinese lawyers enter the courtroom knowing that trials in their country are not conducted on a level playing field. In many cases, they find that the prosecutor is not their only adversary and that they are also faced with judges who ignore procedures, restrict the scope of debate, or limit the amount of time available to present defense arguments.*****
Legal Opinion on Article 35 of the Ninth (Draft) Amendment to the Criminal Law
If this amendment becomes law, one can well imagine what the impact will be on the mindset of defense lawyers. A defense lawyer who is servile and obsequious to a judge will inevitably not dare to fully express his or her defense opinions. The hidden consequence will inevitably be as we have already stated above: a restriction of defendants’ right to defend themselves, undermining of procedural justice, and an increase in the rate of wrongful conviction."
'via Blog this'