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 after the initial interrogation or from the day on which compulsory measures are adopted against the client (CPL Article 96). This initial meeting should be arranged within 48 hours by the public security organ. If the client is suspected of organizing, leading or participating in organized crime, terrorist acts or complex crimes involving more than two people such as smuggling, narcotics crimes, graft and bribery, the meeting should be arranged within five days. (Regulation Concerning Questions Arising in the Implementation of the Criminal Procedure Law, Article 11)
  2. Limitations to Lawyer and Client Conversations:

Provisional Stipulations Concerning the Criminal Defense Lawyer's Practice Guaranteed by the People's Procuratorate (approved by the Supreme People's Procuratorate on Dec. 30, 2003), draws from the provisions on the client interview in Rules on Lawyers Handling Criminal Cases to define, for the first time in judicial interpretation, the constraints for questions directed to the suspect in the client interview, including:

  1. basic facts about the criminal suspect;
  2. whether criminal suspect has committed or participated in the crime he has been accused of;
  3. the criminal suspect's statements relating to the facts and circumstances of the case;
  4. the criminal suspect's statement of innocence or pettiness of his crime;
  5. whether the legal procedures were complete or lawful when compulsive measures were taken against him;
  6. whether his personal rights and litigious rights were infringed upon when compulsory measures were taken against him;
  7. other facts necessary and relevant to the current case.

The above stipulations aim to counter formerly unreasonable limits on lawyer and client conversations and seek to specify the items of fact that the lawyer is entitled to obtain from the criminal suspect during the client interview. At the same time, the last provision, as a general clause, permits the lawyer to speak with the client about any other facts that the lawyer deems necessary.


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 arrested 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.