Separate case handling, as the name suggests, refers to the situation in criminal proceedings where, for cases involving multiple criminal suspects or defendants, the judicial authorities separate some parties from a joint crime case and prosecute and try them separately.
The legal provisions on separate trials were first clarified in 2021 by the Supreme People's Court in the Interpretation of the Criminal Procedure Law. The legislative purpose is to ensure the quality and efficiency of court hearings, but it is also emphasized that separate trials must not affect the exercise of litigation rights such as the parties' right to cross-examine evidence.
However, the provisions of legal texts are relatively idealized, while decisions on separation in judicial practice are often full of complex practical considerations. The decision of case handlers to handle cases separately during criminal proceedings may not be purely based on consideration of trial efficiency, but may be mixed with factors such as case-handling pressure, evidentiary limitations, or even case-handling strategy. In some circumstances, separation may become a means of affecting the right to defense and weakening the adversarial nature of proceedings.
Therefore, this article will provide an overview of the separation system, discuss problems that may arise in separation in judicial practice, and, based on case-handling experience, propose response strategies for defense lawyers.
It is hoped that this will provide valuable reference for fellow lawyers as well as for parties and their family members currently undergoing criminal proceedings.
I Author of this article: Attorney Shao Shiwei
1
Is separate trial unlawful? What are the relevant legal bases?
In earlier years, in many criminal cases, especially criminal cases with numerous defendants, the adversarial nature between the prosecution and the defense during court hearings was very strong. Multiple defense lawyers representing different defendants would form a "defense synergy" and jointly challenge the prosecution's evidentiary system, especially in procedural hearings such as those concerning the exclusion of illegally obtained evidence, which often placed enormous pressure on the court.
In 2014, the Supreme People's Procuratorate and the Ministry of Public Security issued the Guiding Opinions on Regulating the Application of "Separate Case Handling" in Criminal Cases. This document, for the first time, systematically regulated "separate case handling" (i.e., separation in practice) and is regarded as the prototype of the criminal case separation system. From a practical background perspective, the issuance of these provisions cannot be completely separated from the defense situation at the time and the united confrontation in court by numerous defense lawyers.
What truly brought separate trials into a clear institutional framework is Article 220 of the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China, which came into effect on March 1, 2021. This article, for the first time in the form of a judicial interpretation, confirms that people's courts may conduct separate trials of cases under specific circumstances:
Article 220: For joint crime or related crime cases prosecuted as one case, where the number of defendants is large and the case is complex, and the people's court, upon review, considers that separate trials are more conducive to ensuring the quality and efficiency of the court hearing, it may conduct separate trials. Separate trials must not affect the exercise of litigation rights such as the parties' right to cross-examine evidence.
Where a people's court, upon review of cases involving jointly committed crimes or related crimes that have been prosecuted separately, considers that consolidated trial is more conducive to ascertaining the facts of the case, safeguarding procedural rights, and accurately determining guilt and sentencing, it may consolidate the cases for trial.
This provision shows that the separate-trial system has its own preconditions for application: a large number of defendants and complex case circumstances. While the rationale for separate trial is to safeguard trial efficiency, it must not impair the parties' rights to cross-examine evidence and other cross-examination rights. In actual practice, however, an increasingly evident divergence is emerging between the effects of this system and its original purpose.
2
Substantive adverse effects that separate proceedings may produce in practice
1. Being used as an "improper strategy," thereby resulting in "conviction before trial" for subsequent defendants
In theory, the precondition for a public prosecution authority to transfer a case to a court must be that "the facts of the case are clear and the evidence is reliable and sufficient." In practice, however, matters are often not so simple, especially in the highly specialized cases handled primarily by Attorney Shao's team, such as those involving the new economy, Web3, and virtual assets. Based on the actual circumstances of our case communications, most case-handling personnel are often encountering the cases they handle for the first time, and their understanding of the business logic and of how the law should apply to new types of cases is insufficient. Even after a case is transferred to a court, many case-handling personnel do not in fact possess the professional capacity to review whether the facts of the case are clear and the evidence is reliable and sufficient.
At this point, separate prosecution may become a case-handling strategy: prosecuting some defendants with lesser status and role separately to the court first, and communicating with these defendants about applying the leniency system for pleading guilty and accepting punishment, hinting that suspended sentences or lenient treatment may be sought from the court. In order to obtain a certain outcome as early as possible and avoid prolonged detention, these defendants tend to plead guilty and accept punishment.
The problem, however, is that these guilty statements and final and binding documents formed as a result of separate prosecution are usually used in the subsequent trial of the jointly committed crime that was not separately prosecuted as the basis for accusing others, creating a de facto "pre-set characterization."
For subsequent defendants, the issue is then no longer "whether they are guilty upon trial," but "how to break through the narrative framework of the prior case." This essentially undermines the fairness of the trial and creates the adverse situation of "conviction before trial."
2. Severely weakening the right to defense and the right to cross-examine evidence, resulting in a situation where "there is no one left to confront"
After separate proceedings, defense counsel can usually only access case files directly related to the present case, and cannot access important evidence, statements, witness testimony, and the like that may be strongly connected to the present case. As a result, the public prosecution authority and the court possess a "god's-eye view," while the defense side's information is fragmented and stratified. This directly leads to the following: certain key facts, for lack of comparison and inability to verify, end up in a situation where "there is no one left to confront."
For example, in a case handled by Attorney Shao, the case file specifically included a statement by a party B who was handled in a separate case, accusing certain facts unfavorable to our client. When I verified these facts with my client A, A stated that A and B had a good relationship, and based on A's understanding of B, B could not have made such a statement, and B's statement also contained many unreasonable points. If the defendant in the separate trial does not appear in court, defense counsel has no means of questioning that defendant and verifying the facts. The transcript in the case file does not equal what B would actually state in court. Through the transcript alone, we cannot determine whether B was subjected to unlawful evidence collection or whether B's statement was truthful and voluntary.
In summary, we can see that the problems arising from the above separate trials make it difficult for defense counsel to grasp the facts of the entire case and to conduct an effective defense, undermining the completeness and effectiveness of the defense, weakening the adversarial and substantive nature of the trial, and also hindering the court's ascertainment of the truth of the entire case. This may lead to erroneous findings of fact; the de facto "conviction before trial" deprives defendants in the later case of their right to defense in a disguised manner, creates a presumption of guilt, and weakens judicial credibility.
3
How should we view the practice of trying defendants in separate proceedings?
As early as 1984, the Supreme People's Court and the Supreme People's Procuratorate noted the many drawbacks that separate trials may bring, and stated in the Answers to Several Questions Concerning the Specific Application of Law in the Current Handling of Organized Crime Cases:
III. Why must joint crime cases be tried in their entirety? In handling joint crime cases, especially organized crime cases, except that members who have absconded may be handled in separate proceedings, the facts of the entire case must be thoroughly ascertained, and then the co-defendants who should be held criminally responsible must be prosecuted in their entirety and sentenced in their entirety. Under no circumstances should there be haste to execute the ringleaders or principal offenders, or to split the case and handle it in separate proceedings, before the facts of the entire case have been ascertained. Doing so may not only result in inaccurate conviction and improper sentencing, but may also leave no evidence to verify matters after death, making it easy to omit the crimes of co-defendants, or even to omit offenders, and making it difficult to achieve the lawful goal of being severe and swift and catching all offenders in one net.
It can thus be seen that joint trial of co-defendants is the basic principle and separate trial is the exception. In an interview with a reporter from Southern Weekly [1], Yuan Changlun, a former senior judge of the Intermediate People's Court of Huaibei City, Anhui Province, also stated: "Consolidated trial is the principle, and separate trial is the exception. Separate trial is usually adopted out of consideration that, for example, parties to a joint crime case may be brought to justice at different times, and a joint trial may result in excessively prolonged detention; in order not to delay the case excessively, the method of separate trial will be adopted."
At the same time, he also stated, "Objectively speaking, in a case with multiple defendants, if the court first convicts and sentences some of the defendants and forms a judgment, this will have a negative impact on the cross-examination and in-court confrontation of evidence by the other defendants during the trial. This is because the concluded judgment will become a new basis, and there is a difference between written text and in-court testimony."
From his description, it can be seen that the original purpose of the separate trial system is in fact to better protect the lawful rights and interests of the parties, for example, to avoid some parties being detained for a long time. However, he also mentioned that separate trial in fact deprives the parties of their right to confront evidence, and for parties who are subsequently tried, it is difficult to achieve a fair trial.
For example, in some Web3 criminal cases handled by Lawyer Shao, the method of separate trial was still adopted in joint crime cases where all persons were released on bail and no one was detained. What is the reason for this? This inevitably invites speculation.
Relevant judicial personnel have also publicly expressed similar views.
In 2019, Wu Tianyi, a judge assistant at the Shanghai No. 2 Intermediate People's Court, wrote [2] that "using the testimony of co-defendants who plead guilty and accept punishment as the basis for finding that a defendant in a case where guilt and punishment are not admitted constitutes a joint crime carries the appearance of presumption of guilt. The results of judgments applying the guilty plea and punishment acceptance procedure carry the appearance of influencing the results of subsequent judgments."
4
Four major response paths that defense counsel can adopt in the face of "unlawful separate trials"
Based on practical experience, when a criminal case is unlawfully split into separate proceedings, defense lawyers may adopt the following response strategies:
1. File a written application for consolidated trial
Under Article 220, paragraph 2 of the Interpretation of the Criminal Procedure Law, "where, upon review, a people's court considers that, in a case involving a joint crime or related crimes that have been prosecuted separately, a consolidated trial is more conducive to ascertaining the facts of the case, safeguarding procedural rights, and accurately determining guilt and sentencing, it may conduct a consolidated trial." This provides a legal basis for a consolidated trial.
2. Apply for co-defendants to appear in court for confrontation
Under Article 269 of the Interpretation of the Criminal Procedure Law, "during trial, where the court considers it necessary, it may summon co-defendant(s) in the same case, or defendants in cases involving a joint crime or related crimes that are tried separately, to appear in court for confrontation." Accordingly, defense counsel may request the judge to require co-defendants whose cases have been handled separately to appear in court and be subject to cross-examination by the prosecution and defense.
3. Attend as an observer the trial of a related case that has been handled separately
As stated above, after a case is handled separately, the case file that defense counsel sees is often only a part of the whole. Defense counsel may of course apply to review the entire case file, but whether to grant permission is decided by the case-handling authority. If the case-handling authority does not agree, a compromise solution is to communicate with the judge in the related case and attend that trial as an observer, so as to obtain, as far as possible, related testimony, the logic of the accusations, and the content of evidence, thereby providing a fuller information basis for the defense.
4. Apply to the procuratorial authority for legal supervision
Procuratorates have a supervisory function. Under Article 8 of the Criminal Procedure Law: "People's procuratorates exercise legal supervision over criminal proceedings in accordance with law." Article 10, paragraph 2 of the Rules for Procuratorial Supervision of Administrative Litigation provides: "Where a people's procuratorate at a higher level considers that a decision of a people's procuratorate at a lower level is erroneous, it has the power to instruct the lower-level people's procuratorate to correct it, or to revoke or modify it in accordance with law." Therefore, where the case-handling authority has clearly handled the case in separate proceedings in violation of law, applying for legal supervision is also a lawful solution.
5
Concluding remarks
In cases with numerous defendants and numerous defense counsel, a consolidated trial means lengthy court proceedings, intense adversarial confrontation, and complex procedural issues. Therefore, in practice, some courts, in order to conclude cases quickly and improve their case-closing rate, may tend to try cases separately, breaking large cases into smaller ones and splitting a strong defense team into isolated individuals, thereby reducing the difficulty of controlling the trial.
However, the consequence is that defense counsel's right to defend is deprived, the defendants' right to cross-examine is sacrificed, and this may lead to different judgments in the same case and imbalanced sentencing.
For criminal defendants and their families, the ruling in a single case is enough to affect the course of their lives, and may even determine their social evaluation and future fate. Therefore, when applying the separate-trial system, judicial authorities should always return to the original purpose of the system's design: taking procedural fairness as the premise and the ascertainment of facts and accuracy of adjudication as the goal. Only in this way can the conclusions of judicial adjudication withstand review, and only in this way can their legitimacy and lawfulness be recognized by society and judicial credibility be maintained.
[1] Mother involved in organized crime; a judge in Nanyang applies to defend his mother https://mp.weixin.qq.com/s?__biz=Njk5MTE1&mid=2652656746&idx=1&sn=8b4ec17932958feee0b72903e3a015a9&poc_token=HEjWEmmjAf0L86fOV-jt1Opk9FODkTHQ0huKU9jC
[2] https://mp.weixin.qq.com/s/dettU5ZCEQ1jEsnHd9pZyA
