Difference between revisions of "China Criminal Defense Manual - Pretrial Preparation"

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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.
 
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.
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=='''SIGNS INDICATING POSSIBLE MENTAL HANDICAP IN THE DEFENDANT'''==
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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.
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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: 
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#Understanding the prosecution's case;
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#Rebutting the prosecution's case;
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#Investigating the client's ability to act and his mental state at the time of the alleged crime
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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. 
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[[File:LIST OF SIGNS INDICATING POSSIBLE MENTAL HANDICAP IN THE DEFENDANT]]
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=='''CONFLICT OF INTEREST'''==
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==='''Introduction'''===
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Article 5, Chapter Two of the section "Principles for Professional Ethics of Lawyers" in Regulations on the Professional Ethics and Practicing Discipline of Lawyers, stipulates that the counsel shall be honest and responsible, making every effort to safeguard the client's legal rights.  To fully perform his duties, the counsel shall be loyal to his client and to the client's interests.  This section discusses the principles to follow in case of conflict of interest and lists circumstances in which conflict of interest may possibly arise. 
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==='''Representing the Opposing Parties at the Same Time'''===
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Article 44, Chapter Seven in Lawyers' Law specifies that one lawyer and one law firm shall not represent the two parties of one case at the same time.  But this provision shall not take effect in remote areas with only one law firm.  Violation of this provision shall result in the suspension of the offending lawyer's license from three months to one year.
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==='''The Lawyer Cannot Act as Guarantor'''===
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The Provisional Regulations on Lawyers in Participating in Criminal Proceedings issued by the All-China Lawyers' Association 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.
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==='''Can the same criminal defense lawyer or the same legal aid center represent more than one defendant in the same case?'''===
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Article 35 in Interpretations on Problems Arising from Implementation of Criminal Procedure Law of the P.R.C.  stipulates that in a complicated case, one lawyer shall not represent two or more defendants at the same time.  Such a situation would more than likely lead to a serious conflict of interest.  When the two 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 defendants (more than two) with conflicting interests.  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.   
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==='''Maintaining Professional Independence'''===
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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. 
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==='''Remaining Professionally Loyal to Former Clients'''===
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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. 
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==='''Conclusion'''===
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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. 
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=='''BAIL'''==
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==='''Introduction'''===
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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.
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==='''Under What Circumstances May a Client Apply for Bail Pending Trial?'''=== 
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''' The defendant may be granted bail under any of the following circumstances:'''
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#Possible sentence of public surveillance, criminal detention or supplementary punishments (CPL Article 51(1));
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#Possible sentence of fixed-term imprisonment at least, and on condition that the public would not be endangered if the defendant is granted bail pending trial or is placed under residential surveillance (CPL Article 51(2));
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''"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.''
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#When a suspect may warrant arrest but is suffering from serious illness (CPL Article 60);
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#When a suspect that may warrant arrest is pregnant or breast-feeding her own baby (CPL Article 60);
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#If a case involving a criminal suspect or defendant in custody cannot be closed within the time limit stipulated by law for keeping the criminal suspect or defendant under custody for the purposes of investigation, conducting examination before prosecution, or for the procedure of first or second instance, and thus further investigation, verification and handling are needed, the criminal suspect or defendant may be allowed to obtain a guarantor pending trial or be subjected to residential surveillance. (CPL Article 74);
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#Cases in which the procuratorial organ and the public security organ lack sufficient evidence to arrest a criminal suspect who has been detained and require further investigation. (CPL Article 69-Jennifer-this clause does not seem to match up with the text)  If the suspect meets the conditions for applying for bail, according to the law, he may be granted bail pending trial;
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#When a suspect who is not eligible for arrest holds a valid passport or exit document and there is concern that the suspect will leave China to evade investigation, the Procuratorate can place the person on bail pending trial without the lawyer having to apply for bail (Article 37, paragraph 7 of the Rules of Criminal Proceedings of the People's Procuratorates); 
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#When the Procuratorate does not approve the request for arrest or decides not to prosecute, requiring the case to be reviewed once more, public security organs can place the suspect on bail pending trial without the lawyer having to apply for bail (Article 63, paragraphs 5 and 7 of the Rules on the Procedures for Public Security Organs in Handling Criminal Cases).

Revision as of 15:14, 20 April 2010

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