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.