Difference between revisions of "China Criminal Defense Manual - Developing a Defense for Trial"

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**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.
 
**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===
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==REVIEWING THE DISCOVERY==
  
 
#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.
 
#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.
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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.
 
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.
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==INVESTIGATION TO COLLECT EVIDENCE==
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==='''Legal Stipulations'''===
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Chinese law allows the criminal defender to:
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 +
#Review the judicial files and the technical verification material after the People's Procuratorate examines and initiates prosecution (CPL Article 36);
 +
#Conduct independent investigation to verify the evidence gathered by public security organs and prosecution organizations (CPL Article 37);
 +
#Evaluate the testimony of the expert witness (CPL Article 121);
 +
#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. 
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 +
*Guard against Risks
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**Conduct your investigation with a companion;
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**Get the signature of any person who provides evidence;
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**Tape-record the whole course of collecting evidence;
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**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.

Revision as of 16:38, 20 April 2010

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.