China Criminal Defense Manual - Pretrial Preparation

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PRETRIAL PREPARATION

CLIENT INTERVIEW

Legal Stipulations

In the pretrial stage, Chinese law pertaining to the client interview allows the criminal defender to:

1. Meet with his client as of the date he or she is first interrogated by an investigating organ or as of the date on which compulsory measures are first taken. (CPL Article 34) Defense lawyers should present their lawyers' professional license, proof from a law firm and a letter of representation or legal aid letter, and request to meet with their client. This initial meeting should be arranged within 48 hours by the public security organ. Where a defense lawyer files a request for a meeting with a client in custody during the period of criminal investigation in a case regarding a crime of endangering national security or terrorist activities, the meeting shall be subject to the permission of the investigation authority. (CPL Article 39)
2. Limitations to Lawyer and Client Conversations:

Article 22 of the Norms for Lawyers Handling Criminal Cases, promulgated by the 8th Meeting of the Ninth All-China Lawyers Association Standing Council (August 27, 2017), defined the constraints for questions a lawyer may ask the suspect during the client interview, including:

1. Basic facts about the criminal suspect, including personal information (Norms 22(1));
2. Whether criminal suspect has committed or participated in the crime he has been accused of (Norms 22(2));
3. Whether the suspect has any objection to the facts investigated and the crime charged as determined in the prosecution opinion and indictment (Norms 22(3))；
4. The criminal suspect’s statement of innocence or pettiness of his crime (Norms 22(4));
5. Whether the criminal suspect or defendant has sentencing circumstances allowing for mitigation, commutation, or waiver of punishment, such as voluntary surrender, meritorious service,returning stolen goods, or making compensation (Norms 22(5));
6. Whether situations of criminal preparations, discuntinuation of the crime, or an inchoate offense apply to the criminal suspect or defendant (Norms 22(6));
7. Whether the case filing and jurisdiction are in compliance with the law (Norms 22(7));
8. Whether the legal procedures were complete or lawful when compulsive measures were taken against him (Norms 22(8));
9. Whether there are situations of illegal evidence gathering such as extortion of confessions by torture, as well as other situations in infringing on personal and procedural rights (Norms 22(9));
10. Circumstances of the criminal suspect or defendant's or their close relatives' property being sealed, seized, or frozen (Norms 22(10));
11. Whether the confessions and defenses collected by the investigating organ are the same as those said during the client meeting, whether there is any repetition, and the reason for any repetition (Norms 22(11));
12. Other facts necessary and relevant to the current case (Norms 22(12)).

The above list of stipulations directly addresses the practice of unreasonably limiting the content of lawyer-client interviews. The stipulations clearly enumerate the various content that lawyers are allowed to ask criminal suspects during interviews. The last subsection is a comprehensive provision allowing lawyers to discuss with defendants any other situations the lawyers might think are necessary in order to understand the situation.

The Purpose of the First Client Interview

The defense counsel should meet with the client as soon as possible in order to gather preliminary information for building an effective defense. In the first interview, the lawyer should inform the client of the legal procedures of his case and explain his role as the defense counsel. If possible, the counsel should meet with the client within 48 hours after the latter has been placed in custody.

Establishing the Lawyer-Client Relationship

The initial interview is the most important meeting that the defense counsel will have with the client. The first impression is lasting and is key in shaping the client’s judgment of the lawyer. Therefore, the lawyer’s primary objective in the initial interview is to establish an attorney-client relationship grounded on mutual confidence, trust and respect.

Listen to the client's story.

To be an effective interviewer and communicator, you must learn to use basic listening skills. Try to understand your client's goals and concerns. Tell your client that you are not there to judge him but are, in fact, trying to get him out of trouble using the most painless methods possible. Let the client know that he has control of the interview, for example:

1. "Let’s do this: why don’t you tell me first why you think the police detained you. I'll take a few notes and then ask you some questions. Then, we'll try to figure out what we can do to help you. Does that work for you?"
   1. Encourage the client to give a full narrative of what happened.
   2. If possible, have your client write down his version of what happened.
2. Listen and observe. By listening to others, you show your respect for them. Use body language that demonstrates you are listening and seeking to understand what he is saying.
   1. Do not fold your arms. Lean forward as he talks. To show him you're listening and to encourage him to share more, nod your head and say, "Uh huh," "I see," or "I understand." Echo back what the client said. Look directly at the client and make steady eye contact, indicating your interest and concern.
   2. Take brief notes to guide you in asking follow-up questions. Note taking also expresses your interest.
      1. Before taking notes, remember to ask if they mind and explain that you are only taking notes in order to remember the details.
      2. Avoid long, silent pauses when recording notes.

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.

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?

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.

1. Advise the client that it is the criminal defender’s responsibility to protect the suspect’s legal rights and to present, according to the facts and the law, materials and opinions proving the client’s innocence, the pettiness of the crime and the need for a mitigated punishment or exemption from criminal responsibility, thus safeguarding the lawful rights and interests of the client. (CPL Article 37)
2. Assure the client that what he says to the criminal defender will remain confidential. Article 38 of the Law of the People's Republic of China on Lawyers provides that a lawyer shall keep confidential the information that comes to his or her knowledge during legal practice and that the client or others do not want to divulge, unless the information is about a crime that the client or other persons is preparing to commit or are currently committing which endanger national security or public safety, or will seriously jeopardize the personal safety of others. Advise the client that he must not discuss the case with anyone other than the investigators and the defense lawyer.
3. Explain to the client that the criminal defender must do his best to provide the client with legal assistance, but that the lawyer cannot contact adjudicators, procurators, or arbitrators of the case in places other than their office, nor present gifts to the aforesaid personnel, nor trade with the law enforcement personnel undertaking to handle the case by means of making commitment, providing returns, or providing other convenience for the purpose of influencing the trial and judgment of the case. (Standards for Lawyers' Professional Ethics and Practice Disciplines Article 20)
4. 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 44)
5. Advise the client of his rights:
   1. The presumption of innocence—that the client is presumed innocent until judged guilty by a People’s Court according to law (CPL Article 12)
   2. The right to have a lawyer protect the client’s lawful rights and interests. (CPL Articles 11, 34, 36; Law of the People's Republic of China on Lawyers Articles 2, 28, 30, 31, 42, 46(1)) The lawyer will work his utmost to defend the client’s innocence or mitigate the client’s sentence. (Law of the People's Republic of China on Lawyers Article 31)
   3. If a defendant has not entrusted anyone to be his defender due to financial difficulties or other reasons, the client or his or her close relative may file an application with a legal aid agency. If the legal aid conditions are met, the legal aid agency shall designate a lawyer to defend him or her. If the suspect is blind, deaf, mute (Legal Aid Law of the People's Republic of China implemented 1 Jan 2022 stipulates “visually, hearing, and language impaired persons”), a juvenile, a defendant facing a sentence of indefinite imprisonment or the death penalty, or is a mentally ill person who has not completely lost the ability to recognize or control his/her behavior, the court, procuratorate, and public security organs must notify legal aid to appoint a lawyer for the suspect (CPL Articles 35 and 278). Article 25 of the Legal Aid Law also added the following 3 categories of people who should receive legal aid: defendants in death penalty review cases, defendants in trials in absentia, and defendants in any other criminal cases tried under the ordinary procedures (full legal aid coverage).
   4. 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)
   5. The evidence that the prosecution can present to the People’s Court is limited to 1) material evidence, 2) documentary evidence, 3) witness testimony, 4) statements of victims, 5) statements and exculpations of the accused, 6) expert opinions, 7) records of inquests, examinations, identification opinions, and investigative experiments and 8) audio-visual materials and electronic data. (CPL Article 50)
   6. 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. Defense lawyers may, with the permission of the People’s Procuratorate or the People’s Court, and the consent of victims, close relatives of victims and witnesses provided by victims, collect information pertaining to the current case from them. (CPL Article 43)
   7. 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 97)
   8. 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. (CPL Article 138) 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. (CPL Article 141) 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 Article 142)
   9. 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 120)
   10. 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 122)
   11. 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 52)
   12. Within 24 hours after a person has been detained, the client’s family must be notified of the client’s detention, unless it is a crime endangering national security or a terrorist activities crimes where notification would hinder the investigation, or there is no way of notifying them. (CPL Articles 85, 93)
   13. 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 86)
   14. If a criminal suspect or defendant has not appointed a defender, and a legal aid agency has not designated a lawyer to defend him or her, a duty lawyer shall provide the client with legal assistance. A people’s court, people’s procuratorate or jail shall inform the client of his or he right to a scheduled meeting with a duty lawyer, and facilitate the scheduled meeting between the client and a duty lawyer. (CPL Article 36)
   15. During the investigation, an already appointed defense lawyer may provide a criminal suspect or defendant withthe following legal assistance: represent them in complaints and accusations, apply for modification of compulsory measures, learn the charges and circumstances from the investigating organs and submit comments. (CPL Article 38)

Information to be obtained in initial client interview:

1. Facts of the case relating to your client;
2. Any witnesses or co-defendants who should be found;
3. Any evidence of misconduct by the police or prosecutor that has infringed on the client's rights;
4. Any evidence that can be preserved;
5. Whether your client is capable of attending the trial and his mental state at the time of the alleged crime;
6. Try your best to answer your client's most pressing questions;
7. 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.

Responsibilities of a duty lawyer in an initial client interview:

1. Ensure access to the criminal suspects or defendants: When given the case file of a criminal suspect of defendant, ask to meet with the defendant before signing the plea affidavit.
2. Preparation for interviews: Due to the short time frame that duty lawyers have to work within, preparation must be efficient, precise and accurate. With regard to the relevant issues arising in the interview, such as bail application and legal aid application, duty lawyers should prepare beforehand the questions to be addressed.
3. Interviews:
   1. Inform the client of who you are, what your role as duty lawyer consists of and address questions about confidentiality.
   2. Inform the accused of their rights, including the right to apply for legal aid, the right to be represented and the right to bail.
      1. Legal aid application: Ask if the clients plan to hire a private lawyer. If so, determine if they are eligible for legal aid and advise them on how to apply for one.
      2. Bail: Explain the general process. Inquire about the qualification for bail.
   3. Inquire about any immediate situations: 1) is the client in need of any psychiatric or physical medical assistance? 2) is there a history or current difficulties with alcohol or drug abuse of the client? 3) does the client need an interpreter (does he/she speak a minority language)? 4) does the client need accommodation for disability?
   4. Inquire about the basic facts of the case
4. Take clear and detailed notes to include in the case file: Since a duty lawyer is only on duty for certain days of the week and often rotates out of the case, the lawyer should ensure that the next duty lawyer to take up the case has access to original interview notes.

ASKING QUESTIONS

Open and Closed Questions:

Open-ended questions usually require a more detailed answer than "yes," "no," date or place.

Closed-ended questions can be answered simply with a "yes," "no" or a simple fact.

In general, you want to ask open-ended questions rather than closed-ended questions in your interviews, because the answers to these questions provide much more of the information that you want to know. Also, these questions invite the witness to converse with you instead of simply answering questions. By asking a general question that requires a narrative answer, you will also learn unexpected information.

Examples:

OPEN	CLOSED
Tell me about your family background?	Where were you born?
Could you describe one of the arguments you had with your husband?	Did your husband hit you?
Can you tell me about the first time you drank alcohol?	How old were you when you started drinking alcohol?

When to Use Closed Questions

When you need to obtain specific information such as birthdates or identification numbers, a witnesses' short response is fitting. You will also probably use more closed questions toward the end of the interview. Additionally, some witnesses may be confused by open-ended questions. In these situations, you will need to adapt your questioning to fit the witness's ability to answer questions. You may find it easier to get the information you need by asking the witness a series of very specific closed-ended questions.

Leading Questions

Leading questions will often elicit unreliable answers.

LEADING	REPHRASED
I'm sure you loved all of your children equally, didn't you?	When your children were small, how were they different from each other?
You never knew what Wang and his friends were up to, did you?	Tell me about your relationship with Wang before he was arrested.
Wang does not know how to read, does he?	What kind of student was Wang?

Follow-up and Probing Questions

The following are ways of eliciting more information from the witness when answering one of your open-ended, non-conclusive questions:

Nudging or encouragement: Verbal encouragement in the form of "uh huh" and "go on" will let the witness know that you are following and are interested in what he is saying, and that you do not wish to interrupt him.

Silence: You may choose to remain silent for a moment, signaling to the witness that you are waiting for him to elaborate, perhaps nodding and wearing an expectant look on your face.

Clarification: You can seek clarification from the witness in a number of ways that lets the witness know that you are interested in what he has said and that you want to make sure you correctly understand what he has said.

For example:

• Ask the witness to define his terms: "What do you mean by 'not very long'"?
• Ask the witness to provide a more thorough answer: "Tell me more about that," "What else happened that day?"
• Ask for missing details: "I don't understand. How did Xiao Wang get home from the hospital?"
• Ask for additional details: "What did you see Xiao Wang do when the fight started?"

"Why" Questions

It is usually a bad idea to ask people "why" questions about life events. "Why" questions often place blame and put a witness on the defensive. Many witnesses simply do not know the answer to why something happened and will invent a seemingly rational reason for their behavior when, in fact, they have no idea what really motivated them. Such answers then become facts that are not particularly helpful to the client.

Examples:

"WHY" QUESTIONS	REPHRASED
Why didn't you leave your husband?	Was there a time when you thought about leaving your husband?
Why did your husband hit you?	Can you tell me what happened between you and your husband that day?
Why do you think you married an alcoholic?	Tell me about your relationship with your husband.

Confrontation

Pursuing a direct line of questioning is usually not the most effective way of eliciting the witnesses' true account. Confronting the witness by pointing out all the contradictions in his account or inconsistencies with other witnesses' accounts can be a very serious mistake. For example, by asking direct questions about abuse, you may push the witness into a state of denial, which would make it difficult for him to disclose the actual situation afterwards.

Examples:

• Your nephew told me that you molested him when he was seven years old, is that true?
• You said that you quit drinking two years ago, but your wife told me that you were drunk this past weekend. Why did you lie?
• You're just pretending to read that. You cannot really read, can you?

Do Not Talk Too Much!

Inexperienced interviewers tend to talk too much. During the interview, you should aim to spend 80% of the time listening to the witness and 20% of the interview talking with the witness.

Listen Attentively

Listening intently requires discipline and practice. Listening, unlike hearing, is not automatic. Listening to a witness answer questions during an interview is entirely different from listening to friends chat. In social settings, you are able to multitask while listening to a friend; for example, while formulating a response, you might also be observing your surroundings or having an internal dialogue that has nothing to do with the other person. During an interview, however, you need to focus on listening to your witness with total concentration and must really pay attention to what they are saying, instead of formulating the next question, looking around the room, or figuring out how the witness' account fits into your theory of the case.

Listen with an Open Mind

Sometimes we only hear what we expect to hear, rather than what was actually said. If you have already reached certain conclusions about who your witness is and what he will say even before the interview, you will unconsciously filter out information that is not consistent with your preconceived ideas. If the witness belongs to a certain group, you might make assumptions about him based upon your own impressions of that group. You might assume that the witness is racist, ignorant, provincial or superstitious. Once you think you can predict what the witness will say, you will not carefully listen to him. You may also mistakenly form a negative opinion of the person's value as a witness. If the witness' information does not conform to your understanding of the situation, you might dismiss it as an aberration, thus forfeiting an opportunity to develop an important relationship with the witness, one that could result in testimony helpful to your client's case.

Become Comfortable with Contradictions

You should be aware of and keep track of any contradictions, but do not directly question the witness about these contradictions. Different people will often describe the same event very differently, and one person may even describe the same event differently with each telling. Contradictions may actually result from miscommunication. For example, a witness might tell you that she had never consumed alcoholic beverages, but later, she tells you how she once went out to drink beer. Although this might be inconsistent, you may discover that the witness thought that drinking alcohol only meant drinking hard liquor, not beer.

Double-Checking

Communication between any two people is a complicated process that can lead to both trivial and serious misunderstandings. During an interview, everyone communicates, receives and decodes information, and misunderstandings are liable to occur at every stage of the process. Since every piece of information is based on any previous information, any miscommunication that is not addressed will have long-term consequences.

It is essential that you, the interviewer, confirm that the witness understands your questions and that you understand his answers. In the following example, the interviewer is checking to see if he and the witness are discussing the same thing, because they each give different meanings to a word:

WITNESS	INTERVIEWER
My father used to beat me but treated Wang better.	Do you mean he didn't beat Wang?
Right, only me, with his fists. He didn't do that to Wang.	Do you mean he never hit Wang at all?
Oh, he would whip him, you know, with his belt.	You mean he would punish Wang by whipping him but not by punching him with his fists?
Yes.	Can you describe one time when you saw him whip Wang?

In this example, the witness has a specific meaning for the word "beat" (hitting using one's fists) that the interviewer needed to clarify.

Reflecting

Reflective dialogue, or mirroring, is the immediate repetition of part of the conversation, which allows what has just been said to be adjusted or confirmed.

WITNESS	INTERVIEWER
I never knew my father. Well, I kind of did, but that was later. I met him once with my cousin, and she said, that's your daddy.	You didn't grow up with your father?
Right, he never even saw me.	Who told you that your father never saw you as a baby?
My mama	But your family knew who he was.
Oh yes, they knew. Of course they knew. Only I didn't know.	You said you met him with your cousin?
Yes, once in Hefei.	Tell me about that.

CONCLUSION

Interviewing requires mutual communication. Although your goal is to gather information, you, the interviewer, are also unconsciously and consciously communicating a great deal of information to the witnesses through your words, your clothing, your body language and facial expressions, and the types of questions you ask. It is essential that you refrain from using judgmental or critical language, whether verbal or non-verbal.

While conducting interviews of your client's family members, keep in mind that you are asking witnesses to go through a painful process to help someone they may or may not want to help and are asking them to provide information that may think is irrelevant to the case. They have the right to provide or withhold private information. People are usually not willing to share their most traumatic memories and secrets without deriving some benefits for themselves. The benefit has to come through the interviewing process itself. You must convey to the client's family members your desire to help and seek to understand and sympathize with them. In this way, the interview process can be a mutually beneficial experience.

SIGNS INDICATING POSSIBLE MENTAL HANDICAP IN THE DEFENDANT

A mentally handicapped defendant poses unique challenges to his legal aid lawyer. Evidence of mental handicap can be used to prove that the client lacked the faculty for criminal intent or that he was not the principal offender in the criminal act, and it can further prove that the client has a physical or mental disability.

The legal aid lawyer should immediately seek out an expert's diagnosis if he suspects that the client suffers from any mental handicap. The following steps of trial preparation must be, without exception, based on expert diagnosis:

1. Understanding the prosecution's case;
2. Rebutting the prosecution's case;
3. Investigating the client's ability to act and his mental state at the time of the alleged crime

How should a legal aid lawyer judge whether or not a client has a mental handicap? While interviewing the client and family members, the lawyer should closely observe whether or not the client displays the following signs of mental handicap. The lawyer should further decide whether or not to call in an expert to evaluate the client's mental condition.

For Complete List of possible indicators see Identifying Mentally Handicapped Defendants

CONFLICT OF INTEREST

Introduction

Article 7 of Lawyers’ Practice Code of Conduct (Provisional) stipulates that a lawyer shall be honest, show due diligence, follow the facts and law, and protect the lawful rights and interests of their clients. Additionally, Article 50 provides that when a lawyer handles a matter in which he or she may have an interest, or has a conflict of interest with the client, he or she must not undertake that matter and shall voluntarily offer to withdraw. Article 51 lists the situations where lawyers and law firms must not establish or continue a client relationship with a party. This section discusses the principles to follow in case of conflict of interest and lists circumstances in which conflict of interest may possibly arise.

Representing the Opposing Parties at the Same Time

Article 39 of Law of the People's Republic of China on Lawyers specifies that one lawyer and one law firm shall not represent the two parties of one case at the same time, and shall not act as agent when there is a conflict of interest between the lawyer or his or her close relatives and the legal affairs he or she is handling. Violation of this provision shall result in the suspension of the offending lawyer’s license from three months to one year (LL Article 47). This is supplemented by Article 51 of Lawyers’ Practice Code of Conduct (Provisional） in similar wording.

The Lawyer Cannot Act as Guarantor

Article 57 of the Notice of the All-China Lawyers' Association on Issuing the Rules on the Handling of Criminal Cases by Lawyers prohibits the lawyer from acting as guarantor for his client when the client is eligible for bail pending trial. If a lawyer acted as guarantor, he would have personal interests relating to the case, leading to conflict of interest. To the same effect, CPL Article 69(1) provides that a guarantor must be a person not involved in the current case.

Can the same criminal defense lawyer or the same legal aid center represent more than one defendant in the same case?

Article 43 in the Supreme People’s Court’s Interpretations on the Application of the “Criminal Procedure Law of the P.R.C.” (2021) stipulates that one lawyer shall not represent more than two defendants or criminal suspects in the same case, or more than two defendants or criminal suspects in separate cases with the same facts. Likewise, Norms for Lawyers Handling Criminal Cases, All China Lawyers Association, 2017 Article 13 stipulates that one lawyer shall not represent two or more than two defendants or criminal suspects in the same case, or two or more than two defendants or criminal suspects in separate cases with the same facts. Such a situation would more than likely lead to a serious conflict of interest. When the defendants make charges against each other, the lawyer cannot be loyal to both clients at the same time, nor can he protect the privacy of either side. In addition, different lawyers from the same legal aid office shall not, in a single case, represent two or more than two defendants without the consent of the clients (Norms for Lawyers Handling Criminal Cases, Article 13). In such a situation, it is impossible to protect each defendant’s privacy and legal rights. Moreover, if the defendants’ defense lawyers belong to the same office, the defendants may doubt their individual lawyer’s dedication to their defense. Lastly, if colleagues from one legal office represent different defendants of the same case, these legal aid lawyers may be reluctant to accuse their colleagues’ clients. This will ultimately prevent lawyers from defending their clients with loyalty and devotion.

Maintaining Professional Independence

A legal aid lawyer shall not allow those who recommend or hire him, or those who hire him on behalf of another person, to interfere with or limit his professional judgment. He shall maintain his professional loyalty towards his client, not any other person. In the case of a juvenile defendant, his parents will, from time to time, ask for information regarding the juvenile’s words and actions. Under such circumstances, the lawyer shall keep in mind his duty to protect his client’s privacy, and his professional loyalty to the client shall not extend to the client’s parents. To avoid potential difficulties, the lawyer should explain these principles in detail to the client and his parents when the lawyer first takes the case.

Remaining Professionally Loyal to Former Clients

A legal aid lawyer shall not use the information he collected on behalf of a former client in a way that unfavorably influences the same client, except when such information has already been made public through legitimate channels or in particular cases where protecting the client’s privacy infringes upon the lawyer’s professional ethics.

Conclusion

Legal aid lawyers shall, as stipulated within legal parameters, remain loyal to their clients without condition. Once conditions arise that may threaten this professional loyalty, the lawyer shall avoid representing another defendant in the same case and any other person or organization whose interests conflict with that of the client.

BAIL

Introduction

Bail pending trial is a compulsory measure adopted by the public security organ, People’s Procuratorate and People’s Court who require that the criminal suspect provide a guarantor or deposit a security to guarantee that the suspect will not escape from either the case investigation or trial during the bail period and that he will appear as soon as summoned. Although personal freedoms are restricted when the suspect is out on bail, such restrictions are far less severe than the restrictions placed on those in custody. If the client is unlikely to try to escape trial or commit another crime during the bail period, and furthermore satisfies the other requirements for bail, the legal aid lawyer should apply for his client’s bail as soon as possible.

Under What Circumstances May a Client Apply for Bail Pending Trial?

The defendant may be granted bail under any of the following circumstances:

1. Possible sentence of public surveillance, criminal detention or supplementary punishments (CPL Article 67(1));
2. Possible sentence of fixed-term imprisonment or higher, and on condition that the public would not be endangered if the defendant is granted bail pending further investigation (CPL Article 67(2)); “Not constituting a danger to the society,” according to the legislator’s interpretations, principally means that the criminal suspect, or defendant, after he is granted bail, will not commit another crime, threaten the alleged victim, the witnesses or judicial officials, hinder the normal investigation and trial process by falsifying evidence or tallying confessions, or committing other acts that may endanger the public. The consideration of such dangers shall correspond with conditions for making an arrest.
3. When a suspect may warrant arrest but is suffering from serious illness and cannot take care of him or herself, or is pregnant or breastfeeding, and would not pose a threat to society if he or she is released on bail pending further investigation (CPL Article 67(3));
4. If a case involving a criminal suspect or defendant in custody has not been concluded upon expiry of the detention period, and therefore he or she needs to be released on bail pending further investigation. (CPL Article 67(4))

What methods exist for applying for bail pending trial?

CPL Article 68 provides for two ways to obtain bail pending trial: (1) through a guarantor; or (2) through a deposit in security (“guaranty money”).

1. Guarantor: Bail guaranteed by a person, who submits a letter to the proper authorities promising that the guaranteed person will not escape or obstruct the investigation, prosecution and trial and will appear whenever summoned. Granting of bail is based upon the character, reputation and credit of the guarantor, who must be willing to act as guarantor and must be approved by the applicable authority.

A guarantor shall meet the following conditions (CPL Article 69):

• Must not have any involvement in the current case;
• Able to perform a guarantor's duties;
• Is entitled to political rights and not subject to restrictions on personal freedoms;
• Has a fixed domicile and steady income.

1. Deposit in security (“guaranty money”): Under the bail system, the proper authorities have the criminal suspects or defendants deposit a security along with a written pledge promising not to evade investigation, prosecution and trial and promising to appear as soon as summoned during the course of bail. According to Article 92 of People’s Procuratorate’s Rules of Criminal Procedure, the suspects or defendants should deposit the security in the form of renminbi (RMB) with the minimum amount being 1,000 RMB. Juveniles can be ordered to deposit the security with the minimum amount being 500 RMB. The amount of the security shall be determined by the procuratorate, which will take into account how much of a threat the suspect or defendant poses to society, the nature and circumstances of the case, the financial situation of the suspect or defendant, and the severity of possible punishments. (CPL Article 72). The security deposit shall not be excessive.

What conditions must a guarantor satisfy? What happens if the guarantor fails to meet his obligations?

CPL Article 70 imposes the following obligations on a guarantor:

1. To supervise the guaranteed person in observing the provisions of CPL Article 71;
2. To immediately report to the executing organization when finding that the guaranteed person is likely to commit or has already committed an act in violation of CPL Article 71.

When the guaranteed person acts in violation of CPL Article 71, the guarantor shall be fined. When the failure constitutes a criminal offense, the guarantor shall, according to the law, be investigated for criminal liability. (CPL Article 70）

What conditions must a client satisfy in order to remain released on bail pending trial? What happens if the client fails to comply with the conditions of release?

CPL Article 71 provides the legal obligations that must be met by the criminal suspect or defendant on bail pending trial:

1. The defendant cannot leave his city or county of residence without the permission of the executing organ;
2. The defendant should report any change of address, employer and contact information to the executing organ within 24 hours of the change;
3. The defendant must be present in court when summoned;
4. The defendant cannot interfere with the witnesses giving testimony;
5. The defendant must not destroy or falsify evidence or tally confessions.

If the suspect or defendant being released upon bail pending trial violates the above provisions and has already made a security deposit, part or all of the security deposit shall be confiscated, and depending on the specific circumstances, he shall be ordered to write a recognizance of repentance, make another security deposit, provide a guarantor again, or be subject to residential surveillance or arrest. (CPL Article 71)

Regarding the determination to make an arrest due to breach of bail, the Supreme People’s Procuratorate provided further clarification and ruled that suspects who perform the following actions shall be arrested:

1. Attempting to commit suicide or escape (People’s Procuratorate’s Rules Art 101(2));
2. Destroying or falsifying evidence, giving false testimony, or interfering with witnesses sufficient to affect the normal conduct of investigation, review and prosecution; (People’s Procuratorate’s Rules Art 101(3));
3. Committing new criminal acts (People’s Procuratorate’s Rules Art 101(1));
4. Retaliating against victims, witnesses, appraisers, informants, or accusers. (People’s Procuratorate’s Rules Art 101(4))

What procedures must the criminal defender follow to apply for the client's release on bail pending trial?

1. Determine whether the client is eligible for bail: The lawyer should approach the authority handling the case without delay to find out what criminal charges are being held against the suspect or defendant, and then the lawyer should meet with his client. During the interview, he may make further inquiries into the case: the duration and reason for custody, the nature and circumstances of the criminal charges, the range of the possible sentencing, as well as information relating to the client’s conduct, state of health, income and family of the client. After the investigation, if the lawyer finds the client suitable for bail pending trial, he may submit, on his own initiative, an application for his client’s bail. If the client, the client’s legal agent or close relatives request that the lawyer apply for bail on behalf of the client, and furthermore, the lawyer finds the client qualified, the lawyer may either apply for his client’s bail in his own name or assist his client in applying directly to the authorities.
2. Decide on the form of the guarantee: When applying for bail pending trial, a lawyer shall try his best to use a guarantor. In legal aid cases, clients are often very poor and cannot afford to put down a security deposit. In addition, applying for bail with a guarantor is convenient and efficient and may avoid unnecessary trouble created by economic incentives. If it is not possible to get a guarantor, e.g. there is no suitable guarantor available, the lawyer shall advise the client in custody and his close family members on how to prepare a security deposit for bail. Note that Article 69(1) of the CPL provides that a guarantor cannot be a person involved in the current case, including the lawyer.
3. Submit the written application for bail pending trial to the organization handling the case: In the investigation stage, the application shall be submitted to the public security organ or the People’s Procuratorate undertaking investigation of the case. During the examination and prosecution stage, the application shall be made to the People’s Procuratorate in charge of examination and prosecution. After the case is transferred for trial, the application shall be made to the People’s Court.

The lawyer's written application shall include the following main elements:

• the lawyer's name and the name of his law firm or legal aid institution;
• the applicant's name and the place of custody;
• the client's physical condition;
• the facts and reasons supporting bail, including information regarding the client's qualifications for bail pending trial and any related legal grounds.

If the bail is to be guaranteed by property, the source and reliability of the security deposit shall be specified. Next, the organization to which the application is submitted shall be specified. The end of the application shall include the seal of the legal aid institution or law firm, the signature of the lawyer and the date of application. The written application shall be submitted with identification proof for both the guaranteed and the guarantor (or security deposit “guaranty money”).

1. Examination and approval for bail pending trial: After receiving the written application for bail, the relevant authority shall examine the application and reply within seven days. For applications that are rejected, the lawyer may request a review of the decision or apply to a higher authority for re-examination.

What is the lawyer's duty after the application for bail pending trial is approved?

After the application is approved, the lawyer must:

1. Direct the defendant on how to abide by CPL Article 71;
2. Explain to the defendant the importance of abiding by these provisions and the consequences of violating them;
3. Explain to the guarantor the legal consequences for the guarantor if the defendant violates the provisions;
4. Ask the relevant authorities to lift the bail pending trial when either the statutory time limit for bail has expired or upon discovery of new circumstances requiring bail to be lifted.

Under what circumstances can bail pending trial be lifted, terminated or altered?

According to CPL Article 79, the public security organ, People’s Procuratorate and People’s Court shall promptly terminate the bail pending trial period upon the expiration of the bail pending trial period or upon discovery of circumstances that clear the suspect of criminal liability. The authorities must terminate the bail period upon closure of the case. The expiration of the statutory time limit is an important requirement for lifting of bail. The criminal suspect, his legal agent, close relatives, lawyer or other defenders have the right to request the above organizations to lift the bail if the bail has exceeded the statutory time limit. CPL Article 79 stipulates that the period for release upon bail pending trial granted by the People’s Court, People’s Procuratorate and public security organs must not exceed 12 months.

The alteration of bail refers to bail being changed to arrest or residential surveillance, as a result of the violation of certain legal provisions during the bail period. In litigation practice, circumstances leading to alteration of bail mainly consist of the following:

1. Evidence indicating that the defendant’s behavior may lead to a punishment greater than the previous set term of imprisonment;
2. Evidence that bail is not adequate to prevent the person from posing a danger to society;
3. Evidence that the suspect on bail should have been arrested but was approved for bail due to serious illness, and at present, the illness has been cured;
4. Once the legally prescribed time period for the nursing or recovery period has concluded for a female, who should have been arrested but was approved for bail in order to breastfeed her baby or to recover from an abortion procedure;
5. If the guarantor demands to retract his letter of guarantee and be relieved of his legal obligations.

According to CPL Article 71, if the bailed suspect violates the relevant regulations, the relevant authorities may alter the compulsory measures. After alteration, the original bail period will expire. The public security organ, People’s Procuratorate or People’s Court shall, at the same time, refund or confiscate the security deposit. If the original bail had a guarantor, the guarantor shall be notified that he is relieved of his legal obligations.

Conclusion

If a client meets the applicable conditions for bail, the criminal defender should make every effort to secure the client's bail as early as possible. Although the right to bail pending trial is often overlooked in China, more frequent applications will insure that more eligible defendants can avoid unnecessary detainment pending trial. The right to bail is a right that, if exercised, can greatly enhance the criminal defender's ability to prepare and present an effective defense at trial.

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See China Criminal Defense Manual