Difference between revisions of "China Criminal Defense Manual - Pretrial Preparation"
From Criminal Defense Wiki
Jump to navigationJump to searchChrisromig (talk | contribs) |
Chrisromig (talk | contribs) |
||
| Line 50: | Line 50: | ||
###Avoid long, silent pauses when recording notes. | ###Avoid long, silent pauses when recording notes. | ||
| − | Cede some control to the client during the beginning portion of the interview. | + | |
| + | ''Cede some control to the client during the beginning portion of the interview.'' | ||
As mentioned, it is helpful to give control of the interview to the client at the beginning of the narrative segment of the interview. This allows the client to get his troubles "off his chest" by sharing it with you, the problem-solver, and most clients appreciate the opportunity to vent their frustrations, fears, anger, and anxieties. The only negative aspect of giving the client control is that he may tell you more than you need to know at this early stage. | As mentioned, it is helpful to give control of the interview to the client at the beginning of the narrative segment of the interview. This allows the client to get his troubles "off his chest" by sharing it with you, the problem-solver, and most clients appreciate the opportunity to vent their frustrations, fears, anger, and anxieties. The only negative aspect of giving the client control is that he may tell you more than you need to know at this early stage. | ||
| Line 56: | Line 57: | ||
After listening to the client's narrative, repeat it back to him. In this way, the client will know that you have been carefully listening and that you understood his narrative. | After listening to the client's narrative, repeat it back to him. In this way, the client will know that you have been carefully listening and that you understood his narrative. | ||
| − | In the client interview, what responsibilities does the legal aid lawyer have? | + | |
| + | '''In the client interview, what responsibilities does the legal aid lawyer have?''' | ||
When interviewing the client, the criminal defender must inform the client about what he can and cannot legally do to assist the client and must advise the client of his client's rights. | When interviewing the client, the criminal defender must inform the client about what he can and cannot legally do to assist the client and must advise the client of his client's rights. | ||
| Line 64: | Line 66: | ||
#Explain to the client that the criminal defender must do his best to provide the client with legal assistance, but that the lawyer cannot make deals with judicial personnel for the purpose of influencing the trial and judgment of the case. (Regulations on the Professional Ethics and Practicing Discipline of Lawyers, Article 18) | #Explain to the client that the criminal defender must do his best to provide the client with legal assistance, but that the lawyer cannot make deals with judicial personnel for the purpose of influencing the trial and judgment of the case. (Regulations on the Professional Ethics and Practicing Discipline of Lawyers, Article 18) | ||
#Inform the client that the lawyer shall not help the client conceal, destroy or falsify evidence or to tally his confession, and that the lawyer cannot intimidate or induce witnesses to modify their testimony or give false testimony or commit other acts to interfere with the proceedings of the judicial organs. (CPL Article 38) | #Inform the client that the lawyer shall not help the client conceal, destroy or falsify evidence or to tally his confession, and that the lawyer cannot intimidate or induce witnesses to modify their testimony or give false testimony or commit other acts to interfere with the proceedings of the judicial organs. (CPL Article 38) | ||
| + | #Inform the client that the lawyer shall not help the client conceal, destroy or falsify evidence or to tally his confession, and that the lawyer cannot intimidate or induce witnesses to modify their testimony or give false testimony or commit other acts to interfere with the proceedings of the judicial organs. (CPL Article 38) | ||
| + | #Advise the client of his rights: | ||
| + | |||
| + | ##The right to have a lawyer protect the client's lawful rights and interests. (CPL Articles 11, 32, 34, 36, 96; Lawyers Law Articles 26, 28) The lawyer will work his utmost to defend the client's innocence or mitigate the client's sentence. (Lawyers Law Articles 26, 28) | ||
| + | ##If a defendant has not entrusted anyone to be his defender due to financial difficulties or other reasons, the People's Court may designate a lawyer obligated to provide legal aid and serve as a defense lawyer. (CPL Article 34) | ||
| + | ##Where people of a minority nationality live in a concentrated community or where a number of nationalities live together in one area, court hearings shall be conducted in the spoken language commonly used in the locality, and judgments, notices and other documents shall be issued in the written language commonly used in the locality. (CPL Article 9) | ||
| + | ##The evidence that the prosecution can present to the People's Court is limited to 1) material and documentary evidence, 2) witness testimony, 3) statements of victims, 4) statements and exculpations of the accused, 5) expert evaluations, 6) records of inquests and examination, and 7) audio-visual materials. (CPL Article 42) | ||
| + | ##Defense lawyers may, with the consent of the witnesses or other units and individuals concerned, collect information pertaining to the current case from them and they may also apply to the People's Procuratorate or the People's Court to inform the witnesses to appear in court and give testimony. (CPL Article 37) | ||
| + | ##The client in custody and his legal representatives or near relatives shall have the right to apply for obtaining a guarantor pending trial. (CPL Article 52) | ||
| + | ##The client has the right to reject an unlawful search. If the client is not shown a search warrant before the search is to be conducted, then the search is unlawful. A search may be conducted without a search warrant if an emergency occurs at the time of arrest or detention. Any articles and documents discovered during an inquest or search that may be used to prove a criminal suspect's guilt or innocence may be seized, but articles and documents that are irrelevant to the case may not be seized. All seized articles and documents shall be carefully checked by the investigators jointly with the eyewitnesses and the holder of the articles; a detailed list shall be made and duplicated on the spot and shall be signed or sealed by the investigators, the eyewitnesses and the holder. One copy of the list shall be given to the holder, and the other copy shall be kept on file for reference. (CPL Articles 111-115) | ||
| + | ##Although the client must cooperate with the investigators and answer their questions truthfully, the client has the right to refuse to answer any questions irrelevant to the case. (CPL Article 93) | ||
| + | ##If there are errors or omissions in the written record of an interrogation, the client may make additions or corrections to it. When the criminal suspect acknowledges that the written record is without error, he shall sign it, and the interrogators shall also sign it. The client is also permitted to write a personal statement upon request. (CPL Article 95) | ||
| + | ##Judges, procurators and investigators must, in accordance with the legally prescribed process, collect various kinds of evidence that can prove the client's guilt or innocence and the gravity of the crime. It shall be strictly forbidden to extort confessions by torture and to collect evidence by threat, enticement, deceit or other unlawful means. (CPL Article 43) | ||
| + | ##Within 24 hours after a person has been detained, the client's family or work unit must be notified of the reasons for the client's detention and the location of custody, unless such notification would hinder the investigation or there is no way of notifying them. (CPL Articles 64, 71) | ||
| + | ##A public security organ shall interrogate the detainee within 24 hours after detention. If it is found that the client should not have been detained, he must be immediately released and issued a release certificate. (CPL Article 65) | ||
| + | |||
| + | |||
| + | '''Information to be obtained in initial client interview:''' | ||
| + | |||
| + | #Facts of the case relating to your client; | ||
| + | #Any witnesses or co-defendants who should be found; | ||
| + | #Any evidence of misconduct by the police or prosecutor that has infringed on the client's rights; | ||
| + | #Any evidence that can be preserved; | ||
| + | #Whether your client is capable of attending the trial and his mental state at the time of the alleged crime; | ||
| + | #Try your best to answer your client's most pressing questions; | ||
| + | #Try your best to meet your client's most urgent needs, for example, providing contact with his family members or employer, or providing him with medical or mental treatment. | ||
