China Criminal Defense Manual - Developing a Defense for Trial

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DEVELOPING A DEFENSE FOR TRIAL

DEFENSE ISSUES FOR THE LAWYER IN THE CLIENT INTERVIEW

The following questions may provide ideas for how to utilize the information gathered during the client interview to build a defense.

  • Does the defendant have a codefendant or codefendants (someone charged with committing the same alleged crime as the defendant)?
    • If so, obtain as much information as you can about the co-defendant(s), including their previous criminal records.
    • Consider whether it would be favorable to the defendant to testify against the co-defendant(s) in exchange for a dismissal or mitigated sentence.
    • Be aware that the codefendant(s) may testify against the defendant.
    • Be aware that the codefendant(s) may tell authorities what the defendant tells him. Warn the defendant not to discuss the case with the codefendant(s) or anyone else, other than the lawyer and the investigators.
  • Did the police follow the proper legal procedures when the defendant was arrested and detained?
    • Was an arrest warrant or a detention warrant shown?
    • Was the defendant's family notified of his arrest and detention within 24 hours and also notified of the location of custody?
  • Did the defendant make a statement to the police?
    • Did the interrogation occur within 24 hours of the defendant's arrest?
    • Were there at least two interrogators present?
    • What was the primary substance of the defendant's statement?
    • Have coercion, duress, threats, torture or any form of cruel, inhumane or degrading treatment and punishment been inflicted on the defendant during the period of detention or interrogation? Consider making a petition if the statement was obtained illegally.
    • Did the defendant review and sign the interrogation record?
    • Was the statement oral or written, taped or videotaped? Arrange to obtain a copy.
    • Did the defendant write his own personal statement?
  • Did the police take any bodily fluids from the defendant?
    • Did the police take any of the defendant's bodily fluids, e.g. blood, breath, urine, or semen? If so, obtain a copy of the medical report.
    • Take the initiative to preserve the samples, and consider retesting them.
    • Did the police take any other items related to the crime?
    • Was material evidence collected? Was there a search warrant? Was a complete record made of the search? Was an inventory made listing the items seized?
  • What is the client's defense?
    • If there are witnesses who can attest that the defendant was not at the scene of the crime, get the names, addresses, and phone numbers of these witnesses. Have an investigator contact them immediately.
    • If the defendant claims that he acted in self-defense or acted to avert immediate danger and was injured as a result, take photos of his injuries right away. (CL Article 20, 21)
    • Find out if the prosecution's witnesses (including the victim) are credible. For example, do they have a criminal record? Do they have a history of poor relations with the defendant? Has any compensation been paid to the victim? If so, how much was paid, when was it paid, and who paid it? If the defendant claims that a third person committed the crime, find out as many details as possible, and have an investigator ascertain whether or not the defendant's claims are truthful.
  • Does the defendant need any examinations?
    • Does the defendant need a mental or physical examination? Is a specialist, such as a neurologist, required? Arrange for the appropriate examinations.
  • Does the defendant have any prior convictions?
    • Prior convictions can add a great deal of time to the defendant's sentence. Immediately investigate and make copies of the defendant's prior criminal record.
  • Is the defendant in custody?
    • Find out if the defendant is eligible to apply for bail pending trial. Counsel should obtain the necessary materials that will help the defendant obtain bail, including finding possible guarantors and property available for the security deposit.

REVIEWING THE DISCOVERY

  1. The right to review the discovery refers to the right of the defense counsel to consult the judicial documents and materials pertaining to the current case made or controlled by the governing authority. In China's criminal prosecution process, every litigious act carried out by a public security organ, People's Procuratorate or People's Court must be documented, including all the relevant evidence and procedural steps. The official records and files constitute the basis from which public security and judicial officers manage the case, and these are also important reference documents for the counsel to develop his client's defense. According to CPL Article 36, starting from the date on which the People's Procuratorate begins to examine the case for prosecution, the defense counsel may consult, extract and duplicate the judicial documents pertaining to the current case and the technical verification material; starting from the date on which the People's Court accepts the case, the defense counsel may, consult, extract and duplicate material of the facts relating to the current case's criminal charges. According to CPL Article 150, "the material of the facts of the crime accused in the current case" does not refer to all of the case files, but includes a "list of evidence, a list of witnesses and duplicates or photos of major evidence" which the People's Procuratorate has transferred to the court for trial. The People's Procuratorate independently decides which files to transfer.
  2. CPL Article 36 stipulates the defense counsel's right to review the discovery in the examination and prosecution stage. "The defense counsel may, from the date on which the People's Procuratorate begins to examine a case for prosecution, consult, extract and duplicate the judicial documents pertaining to the current case and the technical verification material." Obviously, the range of files that the defense counsel can review during the examination and prosecution stage is limited to "the judicial documents" and "the technical verification material." Article 319 of The Regulations on Criminal Proceedings Handled by the People's Procuratorate specifies the range of "the judicial documents": the procedural documents for legalizing filing a case, adopting compulsive measures and investigation measures, and initiating examination and prosecution, including the paper of decision for placing a case on file, detention warrant, paper of decision for approving an arrest, paper of decision for arrest, arrest warrant, search warrant, and letter of proposal for prosecution. "The technical verification material" refers to recorded evaluations and conclusions made by qualified experts regarding the suspect, items and other relevant materials used for evidence, based upon medico-legal expertise, psychiatric expertise, technical expertise on material evidence, etc. In the practice of defense, among the above documents, the counsel should first consult the letter of proposal for prosecution, because the letter is a conclusive file made by an investigation organ and provides reasons for the investigation organ to transfer the case to a prosecution organ. As the letter of proposal of prosecution reflects the investigation organ's primary alleged facts against the client, the lawyer should review it to get a general understanding of the legal details of the client's suspected offense.

The counsel should be aware of two points while reviewing the discovery. First, according to Provisional Stipulations Concerning the Criminal Defense Lawyer's Practice Guaranteed by the People's Procuratorate (Dec. 30, 2003), the public prosecution organizations shall grant, without delay, the defense lawyer's request for consulting, extracting and duplicating the files and the technical verification material pertaining to the current case. If the request cannot be granted on the day it is made, the lawyer shall be notified of the reasons, and the requested review shall be granted within three days, upon which the lawyer must be promptly notified. Second, according to Article 14 of Regulations Concerning Issues Arising in the Implementation of the Criminal Procedure Law, when the defense counsel consults, extracts and duplicates the judicial documents and the technical verification material pertaining to the current case, the organizations handling the case can only charge for the duplication costs and are forbidden to charge any other fees. The rates for duplications costs shall be uniform nationwide, after the Supreme People's Court and the Supreme People's Procuratorate report the rates to the national department in charge of pricing for checking and ratification.

INVESTIGATION TO COLLECT EVIDENCE

Legal Stipulations

Chinese law allows the criminal defender to:

  1. Review the judicial files and the technical verification material after the People's Procuratorate examines and initiates prosecution (CPL Article 36);
  2. Conduct independent investigation to verify the evidence gathered by public security organs and prosecution organizations (CPL Article 37);
  3. Evaluate the testimony of the expert witness (CPL Article 121);
  4. Independently collect a separate statement from witnesses and the victim (CPL Article 37).


The following suggestions may help you in the investigation of the relevant evidence:

  • Take Prompt Action
    • Begin the investigation as soon as possible;
    • If you delay investigating, you risk losing material evidence;
    • Witnesses can easily recall more recent events.


  • Guard against Risks
    • Conduct your investigation with a companion;
    • Get the signature of any person who provides evidence;
    • Tape-record the whole course of collecting evidence;
    • Refrain from investigating and collecting evidence during the investigation stage. The law specifies no such clear right to conduct such activities. In addition, the judge may question the validity of the evidence collected at this stage;
    • It is best to apply to a public security organ, People's Procuratorate or People's Court for collecting evidence.


  • Valuable Sources of Information
    • letter of proposal for prosecution
    • legal investigation
    • statements of the co-defendant(s)
    • client interview
    • witnesses
    • experts' conclusions


  • Visit the Scene of the Alleged Crime
    • If permitted and possible, visit the scene of the alleged crime as soon as possible;
    • Use sketches, charts, photos, videotapes, measurements, etc., to record evidence found at the scene;
    • Search for undiscovered evidence;
    • Confirm who witnesses are and write down how to contact them in the future;
    • Search for witnesses who have not been questioned by the police;


  • Witness Interview
    • In addition to the lawyer, at least one person shall be present for the witness interview. The All-China Lawyers' Association advises two or above;
    • Record the witness interview with videotapes or cassette tapes;
    • Is the witness capable of providing testimony? A mentally handicapped person, a minor who lacks the ability to distinguish right from wrong, or a person who cannot clearly and correctly express himself cannot act as a witness (CPL Article 48);
    • If possible, interview the prosecution's witnesses (CPL Article 37);
    • Meet the eyewitnesses;
    • Draw on your own personality when encountering a witness who may be reluctant to give evidence and persuade him to do so;
    • The interview should be conducted in a safe and comfortable environment;
    • Make a record of the witness' background and details of current employment.


  • Statements of the Witness and the Victim
    • Are there any videotape or cassette tape records of the statements made by the witness and the victim?
    • Which part of the statements did the police extract?
    • Did the witness and the victim themselves personally write their statements?
    • What motives do the witness and the victim have to provide testimony? Does the witness have any personal interests relating to the case?
    • Has the victim been injured? If so, has the victim provided detailed information relating to the degree of his injury?
    • What is the relationship between the victim and the defendant? The witness and the defendant? The witness and the victim?
    • Has the victim been compensated in any form? If so, when, how much and who paid the money?
    • What is the mental condition of the witness and the victim?
    • Is the witness' statement based upon the witness' and the victim's own firsthand observation or based upon hearsay?
    • Has the witness' and the victim's testimony been obtained in legal ways? Has the testimony been obtained through torture, coercion, inducement, deception or other illegal ways?
    • Is the witness' testimony consistent with the victim's testimony? If not, what are the contradictions? Are the inconsistencies helpful or harmful to the defense of the client?
    • Are the witness' and victim's testimonies consistent with the defendant's statement? Are they consistent with the co-defendant's statement? If not, what are the inconsistencies? Are the inconsistencies helpful or harmful to the defense of the client?


  • Material Evidence
    • How did the police obtain the material evidence?
    • Was the search warrant that the police used valid?
    • Is there a detailed list of all the seized articles? Do the listed articles match the material evidence gathered by the prosecution?
    • Is there any relevant material evidence?
    • Can more than one interpretation be applied to the evidence?
    • Is the collected evidence first-hand or second-hand evidence?
    • Is the evidence of a fragile or stable nature? If fragile, have proper steps been taken to preserve it?
    • Has the evidence undergone any changes due to the passage of time, changes in the environment or any other factors?
    • If evidence was obtained through photography or filming, were there at least two participants at work? Has the photographer or the videotape recorder made a complete record of the evidence?
    • Has the evidence been verified? Will the evidence used for the defense hold its ground at trial?


  • Documentary Evidence
    • Was the search warrant that the police used valid?
    • Is there a detailed list of all the seized documents? Are the listed documents consistent with the evidence gathered by the prosecution?
    • Is there relevant documentary evidence?
    • Are there different interpretations of these documents?
    • Are these documents genuine or fabricated?
    • Are the signatures and seals on the documents genuine and complete?
    • If the documentary evidence is a duplicate or photocopy, why has the original not been submitted as evidence? Have the duplicates or photocopies been made with at least two persons present? Does the person who duplicated or photocopied the documents have any interests related to the case? Are the signatures or seals genuine and valid?
    • Are the duplicates or photocopies entirely identical to the original?
    • Have the duplicates or photocopies been verified as genuine?
    • If a public security organ or a prosecution organ seized mail or telegraphs, were their procedures consistent with the provisions of CPL Article 111? Has the post office examined and delivered the items? Is there a possibility that the seized mail or telegraph has been fabricated, altered, or replaced?


  • Expert Evaluation
    • Has the expert obtained judicial permission to conduct the evaluation?
    • What evidence has the expert examined?
    • What are the expert's fields of expertise?
    • How long has he been considered an expert in his field?
    • What are the expert's qualifications? Has he been authorized and does he have the credentials to be an expert evaluator?
    • Is the expert equal to the work of his own field? Are the expert's methods and techniques in accordance with the relevant national or professional standards? Has the expert used up-to-date technology to conduct his evaluation? Does the evaluation require the expert to cover subjects beyond his area of expertise or beyond the technical and evaluation capacity of the judicial expert examination apparatus?
    • Are the materials that are the foundation for the expert's conclusions sufficient and authentic? Are the materials suitable for evaluation or assessment, or do the materials conflict with the evaluation requirements?
    • Consider whether there is a need to advise the defense expert to independently verify the evidence.
    • Does the client have any physical or mental injuries that need an expert evaluation and technical explanation? If so, apply for the court to provide expert evaluation on the client's physical health or mental state. Provide the expert with the client's relevant medical records and biographical data.


  • Witness' Character Traits and the Scene of the Alleged Crime
    • When reviewing an eyewitness testimony, focus on the following aspects listed below. An understanding of the witness' character traits will help the lawyer narrow the range of investigation and identify the strengths and weaknesses of the witness' testimony. The items listed below affect how the witness might have observed facts of the case.


Witness' Character Traits Surroundings of the Scene
gender lighting conditions
intelligence daytime or nighttime
memory capacity exact time during the day or night
educational background moonlight
employment history rain
speech impediment coldness
age heat
temperament number of people present
mental state duration of observation of the occurence
state of health realistic ability to see all the people present and their activities at the scene
alcoholic consumption criminal weapon
trauma caused by medicine or illegal substance natural plantlife
eyesight buildings
relationship with the victim automobiles
reletionship with the defendant traffic conditions
relationship with the co-defendant observation angle or position
motive bird's eye view
partiality towards the client, victim or codefendant upward view
bias toward the victim or witness
was threatened before, during or after the alleged crime


THEORY OF DEFENSE AND STORYTELLING METHODS

Introduction

During the course of investigation and preparation for trial, a defense counsel should gradually build and develop a theory of defense, as well as continually revising it. A theory of defense consists of three parts: the relevant law, facts of the crime and emotional factors. In the court, a defense counsel uses a theory of defense to tell the client's story. The storytelling is composed of three parts: the general theory of defense, several supporting sub-theories, and the oral presentation to the court. Varied tones of voice, proper rhythm and tempo in questioning, body language, communication with your eyes, and application of different rhetorical skills, these factors make for effective storytelling, creating an atmosphere that both keeps the audience in suspense and engaged and builds a positive environment for the argument of defense. It is in such an environment that the court will evaluate the evidence.


Execution:

  1. A defense lawyer should build a general theory of defense centered on the client's best interests and based upon the actual situation, which will help him evaluate what choices to make throughout the defense process.
  2. The counsel should allow the theory of defense to guide his focus during the investigation and trial preparation process. The counsel should dig into and expand upon the facts and evidence forming around the theory of defense. Nevertheless, the counsel should not become a "prisoner" to his theory of defense.


Work Form for Developing a Theory of Defense

The following questions may help a legal aid lawyer to build a complete and coherent theory of defense:

  1. What is your theory of defense? (e.g. innocence, alibi witness, misidentification)
  2. Why do you believe this is the best theory of defense?
  3. What is the relevant law? What are the elements of the offense? How will your theory of defense prove the client's innocence?
  4. What are the unalterable facts that you need to confront and explain in the theory of defense?
  5. What are the facts in favor of the client?
  6. What is the key emotional theme in the case?
  7. What emotional themes is the prosecutor most likely to use in his argument? How will you use your theory of defense and emotional theme to refute these emotional themes?
  8. Make a list of the prosecution witnesses with specific questions attached to their names. Briefly point out the questioning styles.
  9. Make a list of the defense witnesses, and under each of their names, write out how you plan to question them. Finally, briefly indicate the style of questioning.
  10. List your main desired objective when directly questioning the defendant. How will the defendant's testimony strengthen your theory of defense?
  11. What further investigation do you need to do to complete your theory of defense?
  12. Do you need to solve any problems with the evidence? Are these problems likely to strengthen or weaken your theory of defense? How will you explain the evidence that is inconsistent with your theory of defense?
  13. Make a brief, effective statement for your theory of defense.


Storytelling: Test Your Theory of Defense and Themes at Court

To defend your client effectively, the lawyer must understand how to tell a story to the court. The more convincing and touching the story is, the more persuasive the argument becomes to the judges, who ultimately decide the facts of the case. Every well-knit story needs a plot, and for a defense argument, a plot provides the best tool for explaining the facts of your theory of defense.


Why must the legal aid lawyer use storytelling methods in the court?

Storytelling allows the legal aid lawyer to set the stage, introduce the characters, create an atmosphere, and organize ideas into a carefully crafted narrative format, thereby impacting the way each judge perceives a given case. Without such a framework, judges will understand the evidence and testimony in accordance with the prosecutor's argument. Once the defense lawyer successful executes a framework, he can use the client's experiences to influence the judges' imagination, leading most judges to understand the evidence in the context of the client's past experiences.

More importantly, storytelling will cause judges to use both their hearts and minds in considering the defense's argument. "One who relies on reason" is more likely to change their judgment, because they often use the following thought pattern to reflect on and analyze a case: "My (the lawyer's) view is based on logic. Therefore, if you (the judge) reasonably point out any flaw in my thinking, I will consider changing my views." In contrast, "one who relies on his heart and emotions" will reflect on and analyze a case in a different way: "I am right, and you are wrong, so you must change your view." And these people will be your most powerful allies in the court.


Use Effective Language in Storytelling

The following suggestions may help you to decide what language to use or avoid in stating your theory of defense on behalf of the client.

  1. The language for storytelling and the language the lawyer usually uses have obvious differences. The lawyer should tell the story as if he is casually speaking with friends.
  2. Speak accurately. What you actually say should match what you intended to say.
  3. Translate legal terms or abstract concepts into clear, common and simple language.
  4. Use effective language.
    1. Avoid words or phrases with reserved meanings, for example, "I think," "I believe," "I will try to prove."
    2. Use active tense.
    3. Try your best to express yourself using nouns and verbs.
    4. Avoid unconscious hesitation or useless verb pauses.
    5. Use language that has the appropriate emotional and appealing elements.
  5. Use vivid language.
    1. Use concrete rather than abstract language.
    2. Use detailed and accurate rather than general and vague language.
    3. Create lively images with language:
      1. First visualize the images you wish to describe before describing them at court.
      2. The capacity to visualize details will increase your power of persuasion.
      3. Verbal images are better than subjectively using abstract, vague and general terms.
  6. There should be sentence variety, but short sentences are best. Written sentences are usually longer than oral sentences.
  7. Do not refer to your notes while speaking: this would eliminate all the advantages of storytelling.

Conclusion

To develop a theory of defense, the counsel should objectively evaluate the prosecution's case, and then, in accordance with applicable laws, structure a moving story based on the facts of the crime and emotions that will serve as a rebuttal. The theory of defense will influence the investigation, which witnesses will testify at trial, and what demonstrations will be held in court. Through telling a reasonable and convincing story, the lawyer can persuade the judges to find the client innocent, mitigate his sentence, or exempt him from criminal responsibility.


See China Criminal Defense Manual