China Criminal Defense Manual - Developing a Defense for Trial

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DEVELOPING A DEFENSE FOR TRIAL

Introduction

In the process of developing a theory of defense, a defense counsel shall decide whether it is possible to exonerate the client from guilt. If so, the lawyer shall further consider how to prove the innocence of the client at trial. The following are possible defenses for exonerating a defendant from criminal liability under the Chinese legal framework and applicable circumstances to raise such defenses.

Burden of Proof on the Prosecution

Remember that your client is entitled to the right of being innocent until proven guilty. No person shall be found guilty without being judged as such by a People’s Court according to law. (CPL Article 12) It is the prosecution’s duty to prove that the client is guilty of the charges against him. It means the prosecution must prove that the facts are clear and the evidence is sufficient.


Has the prosecution already borne the burden of proof?


Before forming other defenses, the counsel should critically scrutinize the bill of prosecution to confirm whether the alleged crime has really occurred or not. If it has occurred, further consider whether the prosecution has presented evidence sufficient enough to support the charge. Consider whether another charge (a lighter charge) fits better with the case evidence. The following are necessary questions for your consideration:

•What are the elements of the accused offense? For example:

   Self-driven act: Did the client act from his own free will? What evidence has the prosecution presented to prove that the client acted of his own accord?
   State of mind: Under what state of mind would the client’s act constitute a crime (for example: intentionality, negligence)? Is the crime a strict liability crime (The prosecutor has no burden to present evidence concerning the defendant’s intent)? What evidence has the procuratorate presented to prove that the client in his actions had the requisite criminal intent, had specific knowledge or skill necessary for committing the act, or was criminally negligent?
   Cause and effect: Did the client’s act result in the ultimate injury?
   Direct cause: Were the client’s actions far enough from the charged crime that he should not be subject to any legal responsibility?
   Legal obligation: In this situation, does the law stipulate that the client must act in specific ways to exercise his distinctive legal obligation?

• What laws define the elements of a crime? Are these laws contradictory with each other?

• Should the prosecutor have charged the client with a lighter offense?

• How much evidence must be presented in order to sufficiently meet all the required elements of the accused crime? What are the elements of the crime that the client should have been charged with, but was not?

• Does the evidence presented meet the evidence requirements for all the elements of the alleged offense? What are the legal stipulations regarding evidence for elements of the accused crime? What evidence supports the prosecution’s case? What evidence is not consistent the prosecution’s argument?

• If the prosecutor cannot present sufficient evidence to support the charged offense or even support a lighter offense, the defense counsel shall point out the insufficiency of evidence to the court and request that the court either judge the client as innocent or dismiss the charges.


Does the defendant’s act constitute a crime?

Another important consideration is whether or not the defendant’s act constitutes a crime. Article 13 of The Criminal Law defines what constitutes a ‘crime’: “if the circumstances are obviously minor and the harm done is not serious, the act shall not be considered a crime.” Moreover, Article 16 of The Criminal Law stipulates: “An act is not a crime if it objectively results in harmful consequences due to irresistible or unforeseeable causes rather than intent or negligence.” If the defendant’s situation fits Article 13 or 16, the defense counsel should request that the court declare the innocence of the defendant, as the court has no right to convict him for a nonexistent offense. (CPL Article 16(1))


Has the statutory time limit for criminal prosecution expired?

If the statutory time limit for criminal prosecution has expired, the defense counsel shall raise a defense upon this expiration based on the relevant laws. CPL Article 16(2) stipulates: “In any of the following circumstances, no criminal responsibility shall be investigated; if investigation has already been undertaken, the case shall be dismissed, or prosecution shall not be initiated, or the handling shall be terminated, or innocence shall be declared...if the limitation period for criminal prosecution has expired.”


Article 87 of the Criminal Law stipulates crimes not to be prosecuted if the following periods have elapsed:

1. Five years, when the maximum punishment prescribed is fixed-term imprisonment of less than five years; 2. 10 years, when the maximum punishment prescribed is fixed-term imprisonment of not less than five years but less than 10 years; 3. 15 years, when the maximum punishment prescribed is fixed-term imprisonment of not less than 10 years; and 4. 20 years, when the maximum punishment prescribed is life imprisonment or death penalty. If after 20 years it is considered necessary to prosecute a crime, the matter shall be submitted to the Supreme People’s Procuratorate for examination and approval.

No limitation on the period for prosecution shall be imposed with respect to a criminal who escapes from investigation or trial after a People’s Procuratorate, public security organ, or national security organ files the case or a People’s Court accepts the case. No limitation on the period for prosecution shall be imposed with respect to a case that should have been but is not filed by a People’s Court, People’s Procuratorate or public security organ after the victim brings a charge within the period for prosecution. (Article 88 of the Criminal Law) The limitation period for prosecution shall be counted from the date the crime is committed; if the criminal act is of a continual or continuous nature, it shall be counted from the date the criminal act is terminated. If further crime is committed during a limitation period for prosecution, the limitation period for prosecution of the former crime shall be counted from the date the new crime is committed. (Article 89 of the Criminal Law)

Is it possible to make an affirmative defense if the facts of the crime cannot be denied?

In an affirmative defense, the counsel does not deny the elements of the alleged offense but still attempts to prove the innocence of the defendant. Such a defense requires the counsel to present sufficient evidence, including witness testimony or material evidence. Even if the lawyer does not deny that the defendant committed the alleged acts, the defense will try to prove that the acts were justified or provide another legal defense for negating the defendant’s criminal liability.

Can the defense lawyer prove the innocence of the defendant?

This is one type of affirmative defense and aims to prove that the defendant did not commit the crime, i.e. that the defendant could not possibly have committed the alleged offense. The two most common methods of proving the defendant innocent are: proving the defendant’s alibi and using the material evidence to prove that the alleged offense could not have happened. In employing the first strategy, the criminal defense lawyer can provide credible evidence, such as the testimony of a witness at the scene to prove an alibi; if adopting the second strategy, the legal aid lawyer can cite credible evidence demonstrating the weaknesses of the material evidence against the defendant, and explain how these limitations or weaknesses exclude the possibility of the alleged offense. For example, suppose the defendant was accused of stabbing the victim with the right hand, and the evidence provided by the prosecutor indeed indicates that the victim was stabbed by an assailant who used his right hand. In such circumstances, if the criminal defense lawyer can provide credible evidence to prove that the defendant’s right hand was previously injured and that he could not have used it at the time that the crime was committed; this demonstrates that the defendant could not have committed the alleged offense.

Can the defense lawyer justify the crime committed by the defendant?

Justifying the crime for the defendant is another type of affirmative defense wherein the defendant does not deny the alleged offense, but argues that he should not bear legal responsibility for it. The theory of defense for the defendant will take the form of “I did, but ...” arguing that the defendant committed the alleged offense for justified causes that are socially accepted or that conform to moral principles.

      1. Statutory Excuses that Exclude Transgression: Justifiable Defense and Averting Danger in an Emergency

         CL Article 20 offers this definition of “justifiable defense”: “an act that a person commits to stop an unlawful infringement in order to prevent the interests of the State and the public, or his own or other person’s rights of person or property or other rights from being infringed upon by the on- going infringement, thus harming the perpetrator, is justifiable defense, and he shall not bear criminal responsibility.” As stated, the defendant need not bear criminal responsibility. If, however, a person’s act obviously exceeds the limits of necessity and causes serious damage, he will bear criminal responsibility; however, he shall receive a mitigated punishment or be exempted from punishment. CL Article 20 stipulates: “If a person’s act of justifiable defense obviously exceeds the limits of necessity and causes serious damage, he shall bear criminal responsibility; however, he shall be given a mitigated punishment, or be exempted from punishment. If a person acts in defense against an on-going assault, murder, robbery, rape, kidnapping or any other crime of violence that seriously endangers his personal safety, thus causing injury or death to the perpetrator of the unlawful act, it is not undue defense, and he shall not bear criminal responsibility.”
       2. Legally Prescribed Excuses for Mitigation:
         
         
          Mental Disorder: CL Article 18 stipulates, “If a mental patient causes harmful consequences at a time when he is unable to recognize or control his own conduct, upon verification and confirmation through legal procedure, he shall not bear criminal responsibility [for these consequences].” If the defendant has indeed lost the ability to recognize or control his own conduct, the defense lawyer must provide evidence for this mental disorder. If the prosecutor can prove the defendant is mentally in good order, the defendant shall bear criminal responsibility.
          Lighter Responsibility: CL Article 18 also stipulates, “If a mental patient who has not completely lost the ability of recognizing or controlling his own conduct commits a crime, he shall bear criminal responsibility; however, he may be given a lighter or mitigated punishment.” Even if it is impossible to prove that the defendant could not recognize or control his conduct at the time of the offense, the defense lawyer can still cite evidences to prove the mental disorder of the defendant (for example, the defense lawyer might argues that the defendant was unable to form the intent required to commit the alleged crime), and thus seek a mitigated punishment for the defendant.
          Minor Offender: In representing juvenile offenders, the defense lawyer emphasizes that the defendant should not bear criminal responsibility because of his or her age. CL Article 17 specifies age 16 as the lower limit for bearing criminal responsibility. However, if the defendant is 14 years old but not yet 16 years old, he or she could bear criminal responsibility for committing crimes of intentional homicide, intentional infliction of bodily harm which has resulted in a serious injury to or death of another person, rape, robbery, drug trafficking, arson, explosion, or adding or releasing hazardous substances. Additionally, if the defendant has reached the age of 12, he or she could bear criminal liability for crimes of intentional homicide, or intentional infliction of bodily harm causing death of the person or, by resorting to especially cruel means, causing severe injury and disability to the person, and involves flagrant circumstances, and is prosecuted upon approval by the Supreme People’s Procuratorate. Therefore, the legal aid lawyer can represent as “children” persons under the age of 12 and persons between 12 and 16 who have committed only minor crimes. If the defendant is 12 or older and has committed serious crimes but has a “mental and intelligent age” that is far below his real age in years, the legal aid lawyer can argue under the defense of infancy. The legal aid lawyer can argue, for example, that the defendant is mentally retarded and is similar to an infant or younger child in his mental development and intelligence.
         3. Other Excuses of Defense:
         Battered Women Syndrome: Although some courts do not recognize “Battered Women Syndrome” as a criminal defense, it can be considered secondary evidence for other defenses such as self-defense, defense from being coerced, etc. Because “Battered Women Syndrome” affects a person’s behavior, an expert needs to be retained to testify and explain her act in this context. Some courts allow using expert testimony about “Battered Women Syndrome” to prove the defendant did not have the requisite intent for committing the alleged crime.
         Being under Coercion or Duress: If the defendant was forced or coerced to participate in a crime, the legal aid lawyer can argue the defense of being forced or coerced. CL Article 28 stipulates, “Anyone who is coerced to participate in a crime shall be given a mitigated punishment or be exempted from punishment in the light of the circumstances of the crime he commits.” When many defendants are involved in a case and any one of them may have been coerced by the other defendants, the defense lawyer often employs this kind of defense.
         Criminal Act of Necessity: When the defendant committed some crimes to avoid more serious damage, the defense of necessity can be adopted. CL Article 21 regulates, “If a person is compelled to commit an act in an emergency to avert an immediate anger to the interests of the State or the public, or his own or another person’s rights of the person, property or other rights, thus causing damage, he shall not bear criminal responsibility. If the act committed by a person in an emergency to avert danger exceeds the limits of necessity and causes undue damage, he shall bear criminal responsibility; however, he shall be given a mitigated punishment or be exempted from punishment.” Similar to the stipulations concerning justifiable defense, if the defendant’s act exceeds the limits of necessity and causes undue damage, he shall bear criminal responsibility; however, he shall be given a mitigated punishment or be exempted from punishment. This stipulation (CL Article 21), however, does not apply to a person who is charged with special responsibility in his post or profession.
        Misunderstanding of Law/Facts: In this type of defense, the criminal defense lawyer argues that the defendant had no knowledge that his act constituted a crime at all. In the defense of misunderstanding the law, the criminal defense lawyer must prove that first, the defendant can be found guilty of the alleged crime only if he deliberately broke the law, and second, that the defendant did not know the law at the time of the offense. In the defense of misunderstanding facts, the criminal defense lawyer must prove that first, the defendant misunderstood the true circumstances at the time of the offense; second, if he understood them, he would not have committed the crime; third, there were understandable reasons for this misunderstanding.
        Being Instigated or Misled by Government: When the government has instigated or misled the defendant to commit a crime, the criminal defense lawyer can consider using two types of defenses. In the “instigated by the government” defense, the defense lawyer must prove that government officials instigated the defendant to commit the crime, and that the defendant would not have otherwise committed the crime. In the “misled by the government” defense, the criminal defense lawyer must prove that first, government officials told the defendant that the alleged crime was legal; second, the defendant committed the crime only because he believed this; and third, there were understandable reasons for the defendant’s credulousness. The defense lawyer then argues that the defendant should therefore not be held criminally responsible. In this type of defense, the defense lawyer focuses on the government officials’ acts rather than on the defendant’s thoughts and on whether the defendant had the motive to commit the crime. Even if the case concerns a crime usually considered under the “strict responsibility principle” (i.e. even if the crime is one of “strict responsibility” under the law), this type of defense can still be employed.
  
        Criminal Act with Sincere Intent: “Sincerity” refers to very sincere ideas or beliefs, or is used to describe somebody lacking in evil or malicious intent. The defense of “crimes with sincere intent” usually applies to crimes of tax or financial fraud for which the defendant’s intent needs to be verified. Deliberate fraud or forgery cannot be considered “sincere.” If, however, the criminal defense lawyer can prove the defendant possessed all sincerity in his act, it can be inferred that the defendant did not have fraudulent intent as alleged by the prosecutor.


Did the defendant complete the crime?

Although being only at a certain stage of the crime (e.g. an intermediate stage) cannot count as evidence that proves the defendant’s innocence, it can lessen the defendant’s punishment in the court’s final sentencing and even result in the defendant being exempted from punishment. Thus, the legal aid lawyer must carefully research the defendant’s acts to determine whether the following circumstances exist so as to request a mitigated punishment or exemption from punishment.

        Crime Preparation: CL Article 22 defines “crime preparation” as “the preparation of the instruments or the creation of the conditions for a crime.” If the crime is still in the stages of preparation, the defendant may be given a mitigated punishment or be exempted from punishment.
        Attempted Crime: CL Article 23 defines “attempted crime” as “a case where an offender has already started to commit a crime but is prevented from completing it for reasons independent of his will.” An offender who attempts to commit a crime may be given a mitigated punishment or exempted from punishment.
        Crime Discontinued: CL Article 24 defines “a crime discontinued” as “a case where, in the course of committing a crime, the offender voluntarily discontinues the crime or voluntarily and effectively prevents the consequences of the crime from occurring.” If the defendant discontinues the crime and does not cause any damage, he can be exempted from punishment; even if the defendant has caused some damage, he can still be given a mitigated punishment.

Is there anyone who should take more responsibility than the client for the alleged offense?

Does the defendant have any other co-defendants? If so, the defense lawyer must investigate the concrete role of every co-defendant to determine the actual role of the client. The lawyer needs to pay particular attention to joint crimes (CL Article 25: “A joint crime refers to an intentional crime committed by two or more persons jointly.”) and criminal groups (CL Article 26: “A criminal group refers to a relatively stable criminal organization formed by three or more persons for the purpose of committing crimes jointly.”):

Was your client the ringleader in the course of the crime? Did your client organize, plot, or direct/lead the criminal group or other co-defendants? Was your client playing an important role in the course of joint crimes? Was your client a ringleader (CL Article 97) or principle actor? CL Article 26 states that the organizer and principal leader of a criminal group shall be punished on the basis of all the crimes that the criminal group has committed. CL Article 26 further states that any principal criminal not included in Paragraph 3 shall be punished on the basis of all the crimes that he participates in or that he organizes or directs.

Did your client instigate others to commit a crime? CL Article 29 regulates, “anyone who instigates another to commit a crime shall be punished according to the role he plays in a joint crime. Anyone who instigates a person under the age of 18 to commit a crime shall be given a heavier punishment. If the instigated person has not committed the instigated crime, the instigator may be given a lighter or mitigated punishment.”

Did your client play a secondary role in the course of the preparation and commission of the crime?

CL Article 27 states: “An accomplice refers to any person who plays a secondary or auxiliary role in a joint crime. An accomplice shall be given a lighter or mitigated punishment or be exempted from punishment.”

CL Article 29 states: “If the instigated person has not committed the instigated crime, the instigator may be given a lighter or mitigated punishment.”

Is your client eligible for a lighter or mitigated punishment?

The court can be allowed to give the defendant a mitigated punishment or exempt him from punishment under some circumstances according to law. CL Article 63 regulates, “In cases where the circumstances of a crime call for a mitigated punishment under the provisions of this Law, the criminal shall be sentenced to a punishment less than the prescribed punishment.” The following regulations of CL are concerned with a mitigated punishment:

Article 17: If a person who has reached the age of 14 but not the age of 18 commits a crime, he shall be given a lighter or mitigated punishment.

Article 18: If a mental patient who has not completely lost the ability of recognizing or controlling his own conduct commits a crime, he shall bear criminal responsibility; however, he may be given a lighter or mitigated punishment.

Article 19: Any deaf-mute or blind person who commits a crime may be given a lighter or mitigated punishment or be exempted from punishment.

Article 20: If a person’s act of justifiable defense obviously exceeds the limits of necessity and causes serious damage, he shall bear criminal responsibility; however, he shall be given a mitigated punishment or be exempted from punishment.

Article 21: If the act committed by a person in an emergency to avert danger exceeds the limits of necessity and causes undue damage, he shall bear criminal responsibility; however, he shall be given a mitigated punishment or be exempted from punishment.

Article 22: An offender who prepares for a crime, in comparison with one who completes the crime, may be given a lighter or mitigated punishment or be exempted from punishment.

Article 23: An offender who attempts to commit a crime, in comparison with one who completes the crime, may be given a lighter or mitigated punishment.

Article 24: An offender who discontinues a crime shall, if no damage is caused, be exempted from punishment or, if any damage is caused, be given a mitigated punishment.

Article 27: An accomplice shall be given a lighter or mitigated punishment or be exempted from punishment.

Article 28: Anyone who is coerced to participate in a crime shall be given a mitigated punishment or be exempted from punishment in the light of the circumstances of the crime he commits.

Article 29: If the instigated person has not committed the instigated crime, the instigator may be given a lighter or mitigated punishment.

Article 67: Voluntary surrender refers to the act of voluntarily giving oneself up to police and truthfully confessing one’s crime after one has committed it. Any criminal who voluntarily surrenders may be given a lighter or mitigated punishment. Offenders whose crimes are relatively minor may be exempted from punishment.

Article 68: Any criminal who performs such meritorious services as exposing an offence committed by another that is verified through investigation, or producing important clues for solving other cases may be given a lighter or mitigated punishment. Any criminal who performs major meritorious services may be given a mitigated punishment or be exempted from punishment. Any criminal who not only voluntarily surrenders after committing the crime but also performs major meritorious services shall be given a mitigated punishment or be exempted from punishment.

Can the lawyer still seek a mitigated punishment for the client if there are no statutory specifications about mitigation? Yes, CL Article 63 states, “In cases where the circumstances of a crime call for a mitigated punishment under the provisions of this Law, the criminal shall be sentenced to a punishment less than the prescribed punishment. In cases where the circumstances of a crime do not warrant a mitigated punishment under the provisions of this Law, however, in the light of the special circumstances of the case, and upon verification and approval of the Supreme People’s Court, the criminal may still be sentenced to a punishment less than the prescribed punishment.” Although the regulation does not specify a mitigated punishment, the defense lawyer can still obtain a mitigated punishment for his client by presenting convincing and persuasive evidence.

The following are some points of evidence that may help in obtaining a mitigated punishment:

1. The defendant does not have long-term criminal record.

2. The defendant has expressed sincere remorse and self-examination for having participated in the crime.

3. The defendant has compensated the victim for all his or her losses.

4. The defendant is still a minor and also wants to continue schooling; his school also allows him to continue enrollment.

5. The defendant needs to take care of elderly and young household members.

6. The defendant is mentally retarded and cannot sensibly make judgments, and is thus easily taken advantage of by others.

7. The defendant had a difficult childhood (for example, he was ill-treated at home) that has affected his long-term personal development.

8. The defendant has had to overcome great hardships that have tested his limits and abilities as a person (for instance, domestic violence, drug- addiction).

9. The defendant has good work experience or educational background, or has made significant contributions to society.

10. Any other mitigating circumstances about the defendant. The defense lawyer should think of any means to describe the defendant as pitiable and condonable.

In order to discover these points of evidence for a mitigated punishment, the defense lawyer must win the trust of the client, his family members, and other important persons in his life (such as his teacher or boss). The evidence for a mitigated punishment must form an important part of the theory of defense. When presenting the evidence for mitigated punishment in court, the defense lawyer does not need to conceal his own feelings. The defense lawyer’s objective is for the court to see his client’s more humane side and thereby to give him the opportunity for reform.

Conclusion

In the course of developing the theory of defense, the lawyer needs to carefully consider whether the prosecutor bears the burden of proof. Furthermore, after the conclusion of the investigation, the defense lawyer can judge whether the client’s act constitutes a crime, whether there is any possibility that the client has a reasonable and legitimate defense, whether the client has actually completed the crime, whether the client is only an accessory, and whether there is evidence supporting mitigated punishment. Only after the analysis of the above questions can the defense lawyer present a complete, persuasive theory of defense in court.

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 or detained? (CPL Art85)
    • Was an arrest warrant or a detention warrant shown?
    • Was the defendant's family notified of his arrest and detention within 24 hours?
  • Did the defendant make a statement to the police?
    • Did the interrogation occur within 24 hours of the defendant’s detention or arrest? (CPL Art 86)
    • Were there at least two interrogators present? (CPL Art 118)
    • 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.
    • Was the interrogation recorded in its entirety? Audio recording or videotaping is mandatory in crimes punishable by life imprisonment or capital punishment, or in an otherwise major criminal case. (CPL Art 123)
    • Did the defendant review and sign the interrogation record? (CPL Art 122)
    • 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 40 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 case file materials pertaining to the current case. According to Article 186, after reviewing a case submitted for prosecution, the people’s courts shall decide to commence court sessions to try the case if the indictment contains clear facts of the crime charged.
  1. According to Article 54 of an Interpretation on the Application of the "Criminal Procedure Law of the PRC", Supreme People’s Court (2021), the defense counsel shall be provided recordings of interrogations of witnesses upon request. 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.

While reviewing the discovery, counsel should be aware that, according to Article 49 of The People's Procuratorate Rules of Criminal Procedure (2019), 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. In addition, the defense lawyer can copy the case file materials by photocopying, photographing, scanning, burning, etc., and the people’s procuratorate shall not charge a fee.

INVESTIGATION TO COLLECT EVIDENCE

Legal Stipulations

Chinese law allows the criminal defender to:

  1. Review the judicial files after the People’s Procuratorate examines and initiates prosecution (CPL Article 40);
  2. Conduct independent investigation to verify the evidence gathered by public security organs and prosecution organizations (CPL Article 41);
  3. Evaluate the testimony of the expert witness (CPL Article 148);
  4. Independently collect a separate statement from witnesses and the victim(CPL Article 43).


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.


  • Valuable Sources of Information
    • letter of proposal for prosecution
    • legal investigation
    • statements of the co-defendant(s)
    • client interview
    • witnesses
    • experts' conclusions


  • Visit the Scene of the Alleged Crime
    • If permitted and possible, visit the scene of the alleged crime as soon as possible;
    • Use sketches, charts, photos, videotapes, measurements, etc., to record evidence found at the scene;
    • Search for undiscovered evidence;
    • Confirm who witnesses are and write down how to contact them in the future;
    • Search for witnesses who have not been questioned by the police;


  • Witness Interview
    • In addition to the lawyer, at least one person shall be present for the witness interview. The All-China Lawyers' Association advises two or above;
    • Record the witness interview with videotapes or cassette tapes;
    • Is the witness capable of providing testimony? Anyone who, because of a physical or mental handicap or because they are too young, cannot distinguish right from wrong or express themselves correctly cannot be a witness (CPL Article 62);
    • If possible, interview the prosecution’s witnesses (CPL Article 41);
    • Meet the eyewitnesses;
    • Draw on your own personality when encountering a witness who may be reluctant to give evidence and persuade him to do so;
    • The interview should be conducted in a safe and comfortable environment;
    • Make a record of the witness’ background and details of current employment.
    • If the witness is unwilling to be interviewed, apply to the People’s Procuratorate or People’s Court to arrange to obtain related evidence. (Norms of Lawyers Handling Criminal Cases Art 38)


  • Statements of the Witness and the Victim
    • Are there any videotape or cassette tape records of the statements made by the witness and the victim?
    • Which part of the statements did the police extract?
    • Did the witness and the victim themselves personally write their statements?
    • What motives do the witness and the victim have to provide testimony? Does the witness have any personal interests relating to the case?
    • Has the victim been injured? If so, has the victim provided detailed information relating to the degree of his injury?
    • What is the relationship between the victim and the defendant? The witness and the defendant? The witness and the victim?
    • Has the victim been compensated in any form? If so, when, how much and who paid the money?
    • What is the mental condition of the witness and the victim?
    • Is the witness' statement based upon the witness' and the victim's own firsthand observation or based upon hearsay?
    • Has the witness' and the victim's testimony been obtained in legal ways? Has the testimony been obtained through torture, coercion, inducement, deception or other illegal ways?
    • Is the witness' testimony consistent with the victim's testimony? If not, what are the contradictions? Are the inconsistencies helpful or harmful to the defense of the client?
    • Are the witness' and victim's testimonies consistent with the defendant's statement? Are they consistent with the co-defendant's statement? If not, what are the inconsistencies? Are the inconsistencies helpful or harmful to the defense of the client?


  • Material Evidence
    • How did the police obtain the material evidence?
    • Was the search warrant that the police used valid?
    • Is there a detailed list of all the seized articles? Do the listed articles match the material evidence gathered by the prosecution? (CPL Art 141)
    • Is there any relevant material evidence?
    • Can more than one interpretation be applied to the evidence?
    • Is the collected evidence first-hand or second-hand evidence?
    • Is the evidence of a fragile or stable nature? If fragile, have proper steps been taken to preserve it?
    • Has the evidence undergone any changes due to the passage of time, changes in the environment or any other factors?
    • If evidence was obtained through photography or filming, were there at least two participants at work? Has the photographer or the videotape recorder made a complete record of the evidence?
    • Has the evidence been verified? Will the evidence used for the defense hold its ground at trial?


  • Documentary Evidence
    • Was the search warrant that the police used valid?
    • Is there a detailed list of all the seized documents? Are the listed documents consistent with the evidence gathered by the prosecution?
    • Is there relevant documentary evidence?
    • Are there different interpretations of these documents?
    • Are these documents genuine or fabricated?
    • Are the signatures and seals on the documents genuine and complete?
    • Is the evidence original? Duplicates are permitted only if the original is inaccessible or in the hands of authorities. (Provisions on the Procedures for Handling Criminal Cases by Public Security Organs (2020 Revised Edition) Art 64) If the documentary evidence is a duplicate or photocopy, why has the original not been submitted as evidence?
    • Have the duplicates or photocopies been made with at least two persons present? (Interpretation on the Application of the "Criminal Procedure Law of the PRC", Supreme People’s Court (2021), Art. 82) Does the person who duplicated or photocopied the documents have any interests related to the case? Are the signatures or seals genuine and valid?
    • Are the duplicates or photocopies entirely identical to the original? o Have the duplicates or photocopies been verified as genuine?
    • If a public security organ or a prosecution organ seized mail or telegraphs, were their procedures consistent with the provisions of CPL Article 143? Has the post office examined and delivered the items? Is there a possibility that the seized mail or telegraph has been fabricated, altered, or replaced?
  • Expert Evaluation
    • Did the investigation organ notify the client of the opinions of the expert verification which will be used as evidence in his case? (CPL Art 148)
    • Has the expert obtained judicial permission to conduct the evaluation?
    • What evidence has the expert examined?
    • What are the expert's fields of expertise?
    • How long has he been considered an expert in his field?
    • What are the expert's qualifications? Has he been authorized and does he have the credentials to be an expert evaluator?
    • Is the expert equal to the work of his own field? Are the expert’s methods and techniques in accordance with the relevant national or professional standards? Has the expert used up-to-date technology to conduct his evaluation? Does the evaluation require the expert to cover subjects beyond his area of expertise or beyond the technical and evaluation capacity of the judicial expert examination apparatus?
    • Are the materials that are the foundation for the expert's conclusions sufficient and authentic? Are the materials suitable for evaluation or assessment, or do the materials conflict with the evaluation requirements?
    • Consider whether there is a need to advise the defense expert to independently verify the evidence, and whether you need to apply to the court to have the defense expert testify in court regarding the appraisal opinion of the prosecution’s expert (CPL Art. 197)
    • Does the client have any physical or mental injuries that need an expert evaluation and technical explanation? If so, apply for the court to provide expert evaluation on the client's physical health or mental state. Provide the expert with the client's relevant medical records and biographical data.


  • Witness' Character Traits and the Scene of the Alleged Crime
    • When reviewing an eyewitness testimony, focus on the following aspects listed below. An understanding of the witness' character traits will help the lawyer narrow the range of investigation and identify the strengths and weaknesses of the witness' testimony. The items listed below affect how the witness might have observed facts of the case.


Witness' Character Traits Surroundings of the Scene
gender lighting conditions
intelligence daytime or nighttime
memory capacity exact time during the day or night
educational background moonlight
employment history rain
language fog
speech impediment coldness
age heat
temperament number of people present
mental state duration of observation of the occurence
state of health realistic ability to see all the people present and their activities at the scene
alcoholic consumption criminal weapon
trauma caused by medicine or illegal substance natural plantlife
eyesight buildings
hearing automobiles
reletionship with the victim traffic conditions
relationship with the defendant observation angle or position
relationship with the co-defendant bird's eye view
motive upward view
partiality towards the client, victim or codefendant
bias toward the victim or witness
was threatened before, during or after the alleged crime

THEORY OF DEFENSE AND STORYTELLING METHODS

Introduction

During the course of investigation and preparation for trial, a defense counsel should gradually build and develop a theory of defense, as well as continually revising it. A theory of defense consists of three parts: the relevant law, facts of the crime and emotional factors. In the court, a defense counsel uses a theory of defense to tell the client’s story. The storytelling is composed of three parts: the general theory of defense, several supporting sub-theories, and the oral presentation to the court. Varied tones of voice, proper rhythm and tempo in questioning, body language, communication with your eyes, and application of different rhetorical skills, these factors make for effective storytelling, creating an atmosphere that both keeps the audience in suspense and engaged and builds a positive environment for the argument of defense. It is in such an environment that the court will evaluate the evidence.


Execution:

  1. A defense lawyer should build a general theory of defense centered on the client’s best interests and based upon the actual situation, which will help him evaluate what choices to make throughout the defense process.
  2. The counsel should allow the theory of defense to guide his focus during the investigation and trial preparation process. The counsel should dig into and expand upon the facts and evidence forming around the theory of defense. Nevertheless, the counsel should not become a “prisoner” to his theory of defense.


Work Form for Developing a Theory of Defense

The following questions may help a legal aid lawyer to build a complete and coherent theory of defense:

  1. What is your theory of defense? (e.g. innocence, alibi witness, misidentification)
  2. Why do you believe this is the best theory of defense?
  3. What is the relevant law? What are the elements of the offense? How will your theory of defense prove the client's innocence?
  4. What are the unalterable facts that you need to confront and explain in the theory of defense?
  5. What are the facts in favor of the client?
  6. What is the key emotional theme in the case?
  7. What emotional themes is the prosecutor most likely to use in his argument? How will you use your theory of defense and emotional theme to refute these emotional themes?
  8. Make a list of the prosecution witnesses with specific questions attached to their names. Briefly point out the questioning styles.
  9. Make a list of the defense witnesses, and under each of their names, write out how you plan to question them. Finally, briefly indicate the style of questioning.
  10. List your main desired objective when directly questioning the defendant. How will the defendant's testimony strengthen your theory of defense?
  11. What further investigation do you need to do to complete your theory of defense?
  12. Do you need to solve any problems with the evidence? Are these problems likely to strengthen or weaken your theory of defense? How will you explain the evidence that is inconsistent with your theory of defense?
  13. Make a brief, effective statement for your theory of defense.


Storytelling: Test Your Theory of Defense and Themes at Court

To defend your client effectively, the lawyer must understand how to tell a story to the court. The more convincing and touching the story is, the more persuasive the argument becomes to the judges, who ultimately decide the facts of the case. Every well-knit story needs a plot, and for a defense argument, a plot provides the best tool for explaining the facts of your theory of defense.

Why must the legal aid lawyer use storytelling methods in the court?

Storytelling allows the legal aid lawyer to set the stage, introduce the characters, create an atmosphere, and organize ideas into a carefully crafted narrative format, thereby impacting the way each judge perceives a given case. Without such a framework, judges will understand the evidence and testimony in accordance with the prosecutor’s argument. Once the defense lawyer successful executes a framework, he can use the client’s experiences to influence the judges’ imagination, leading most judges to understand the evidence in the context of the client’s past experiences.

More importantly, storytelling will cause judges to use both their hearts and minds in considering the defense’s argument. “One who relies on reason” is more likely to change their judgment, because they often use the following thought pattern to reflect on and analyze a case: “My (the lawyer’s) view is based on logic. Therefore, if you (the judge) reasonably point out any flaw in my thinking, I will consider changing my views.” In contrast, “one who relies on his heart and emotions” will reflect on and analyze a case in a different way: “I am right, and you are wrong, so you must change your view.” And these people will be your most powerful allies in the court.


Use Effective Language in Storytelling

The following suggestions may help you to decide what language to use or avoid in stating your theory of defense on behalf of the client.

  1. The language for storytelling and the language the lawyer usually uses have obvious differences. The lawyer should tell the story as if he is casually speaking with friends.
  2. Speak accurately. What you actually say should match what you intended to say.
  3. Translate legal terms or abstract concepts into clear, common and simple language.
  4. Use effective language.
    1. Avoid words or phrases with reserved meanings, for example, "I think," "I believe," "I will try to prove."
    2. Use active tense.
    3. Try your best to express yourself using nouns and verbs.
    4. Avoid unconscious hesitation or useless verb pauses.
    5. Use language that has the appropriate emotional and appealing elements.
  5. Use vivid language.
    1. Use concrete rather than abstract language.
    2. Use detailed and accurate rather than general and vague language.
    3. Create lively images with language:
      1. First visualize the images you wish to describe before describing them at court.
      2. The capacity to visualize details will increase your power of persuasion.
      3. Verbal images are better than subjectively using abstract, vague and general terms.
  6. There should be sentence variety, but short sentences are best. Written sentences are usually longer than oral sentences.
  7. Do not refer to your notes while speaking: this would eliminate all the advantages of storytelling.

Conclusion

To develop a theory of defense, the counsel should objectively evaluate the prosecution‘s case, and then, in accordance with applicable laws, structure a moving story based on the facts of the crime and emotions that will serve as a rebuttal. The theory of defense will influence the investigation, which witnesses will testify at trial, and what demonstrations will be held in court. Through telling a reasonable and convincing story, the lawyer can persuade the judges to find the client innocent, mitigate his sentence, or exempt him from criminal responsibility.


See China Criminal Defense Manual