Difference between revisions of "China Criminal Defense Manual - Special Considerations in Juvenile Cases"

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#Take some time to establish rapport with your child client.  Let the client know that you care about what he thinks and what happens to him.
 
#Take some time to establish rapport with your child client.  Let the client know that you care about what he thinks and what happens to him.
 
 
#Keep your client informed.  Children sometimes have a very different perception of time than adults do and what may not seem like a long time to an adult can seem to be a very long time to a child.  Depending on the child, you may have to spend considerably more time communicating with him in person than you would with an adult client who is facing the same charges.
 
#Keep your client informed.  Children sometimes have a very different perception of time than adults do and what may not seem like a long time to an adult can seem to be a very long time to a child.  Depending on the child, you may have to spend considerably more time communicating with him in person than you would with an adult client who is facing the same charges.
 
  
 
  
 
  
 
 
#Try to ask about one main idea in each question or to get the client to tell you about one main idea in each answer that he gives you.
 
#Try to ask about one main idea in each question or to get the client to tell you about one main idea in each answer that he gives you.
 
 
#Avoid using negatives.
 
#Avoid using negatives.
 
 
#Avoid using legal words.  Be sure to explain legal terms in simple words and phrases that the child can understand.
 
#Avoid using legal words.  Be sure to explain legal terms in simple words and phrases that the child can understand.
 
 
#Listen carefully for possible miscommunications.  If the child's answers are inconsistent or do not make sense, you need to determine whether there is a problem with how you phrased the question, whether you assumed that the child has knowledge that he does not have, or whether the child is interpreting the question literally.   
 
#Listen carefully for possible miscommunications.  If the child's answers are inconsistent or do not make sense, you need to determine whether there is a problem with how you phrased the question, whether you assumed that the child has knowledge that he does not have, or whether the child is interpreting the question literally.   
 
 
#Make sure that you and the child give the same meanings to words.  If you are not sure, ask the child what he means when he uses a word in a way that makes the word's meaning unclear.
 
#Make sure that you and the child give the same meanings to words.  If you are not sure, ask the child what he means when he uses a word in a way that makes the word's meaning unclear.
 
 
#Avoid asking the child about abstract concepts and asking the child questions of belief.
 
#Avoid asking the child about abstract concepts and asking the child questions of belief.
 
 
#Let the client tell you his story in his own words.  Ask simple follow-up questions to make sure that you understand the child's meaning.
 
#Let the client tell you his story in his own words.  Ask simple follow-up questions to make sure that you understand the child's meaning.
 
 
#Encourage the child to tell the truth, even if it means that he implicates co-defendants.  Children can be very loyal to their friends even when their friends do not deserve it and may be reluctant to discuss a co-defendant's role in a crime.  Gently advise the child that the co-defendant friend will probably not be as loyal to the child.  Also, remind the child that he must tell the truth and that telling the truth may enable him to seek a mitigated punishment such as suspended sentence.
 
#Encourage the child to tell the truth, even if it means that he implicates co-defendants.  Children can be very loyal to their friends even when their friends do not deserve it and may be reluctant to discuss a co-defendant's role in a crime.  Gently advise the child that the co-defendant friend will probably not be as loyal to the child.  Also, remind the child that he must tell the truth and that telling the truth may enable him to seek a mitigated punishment such as suspended sentence.
 
 
#Remind the child that he must not discuss the case with anyone except you and the authorities.  This includes speaking about the case with his family members, potential witnesses, friends and co-defendants.
 
#Remind the child that he must not discuss the case with anyone except you and the authorities.  This includes speaking about the case with his family members, potential witnesses, friends and co-defendants.
  
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#Legal conditions:  
 
#Legal conditions:  
 
 
##The defendant must have received a sentence of criminal detention or of fixed-term imprisonment of not more than three years,
 
##The defendant must have received a sentence of criminal detention or of fixed-term imprisonment of not more than three years,
 
##The defendant must demonstrate his repentance.
 
##The defendant must demonstrate his repentance.
 
##Applying a suspended sentence will not result in further harm to society.
 
##Applying a suspended sentence will not result in further harm to society.
 
#Conditions pertaining to the defendant:
 
#Conditions pertaining to the defendant:
 
 
##The delinquent minor must be a first-time and causal offender in order to obtain a suspension of his sentence.   
 
##The delinquent minor must be a first-time and causal offender in order to obtain a suspension of his sentence.   
 
##The delinquent minor has either committed a crime that is not serious in nature and consequence, or has committed a crime that is serious in nature and consequence but was only an accessory or played a secondary or supplemental role in the crime.
 
##The delinquent minor has either committed a crime that is not serious in nature and consequence, or has committed a crime that is serious in nature and consequence but was only an accessory or played a secondary or supplemental role in the crime.
 
 
The delinquent minor must acknowledge, admit, and repent his crime in an honest and frank manner.  Suspensions of sentences will not be granted to those minors who refuse to admit their crimes after committing them.
 
The delinquent minor must acknowledge, admit, and repent his crime in an honest and frank manner.  Suspensions of sentences will not be granted to those minors who refuse to admit their crimes after committing them.
 
 
#Family conditions:
 
#Family conditions:
 
 
##The parents of the minor must have the capabilities and provide the conditions to educate and discipline the minor.
 
##The parents of the minor must have the capabilities and provide the conditions to educate and discipline the minor.
 
 
#Social conditions:
 
#Social conditions:
 
 
##According to CL Article 76, a criminal for whom a sentence suspension has been pronounced is to be observed by the public security organ during his probation period, in coordination with his unit (danwei).  Thus, besides the three types of conditions mentioned above, another condition for sentence suspension is that a school or unit will accept the delinquent minor as a student/member.
 
##According to CL Article 76, a criminal for whom a sentence suspension has been pronounced is to be observed by the public security organ during his probation period, in coordination with his unit (danwei).  Thus, besides the three types of conditions mentioned above, another condition for sentence suspension is that a school or unit will accept the delinquent minor as a student/member.
  
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*The school where the defendant was enrolled at the time of the crime may attempt to persuade the defendant to leave the school on the grounds that his presence is damaging to the school's reputation, or that "it is difficult to manage" the defendant.
 
*The school where the defendant was enrolled at the time of the crime may attempt to persuade the defendant to leave the school on the grounds that his presence is damaging to the school's reputation, or that "it is difficult to manage" the defendant.
 
 
*If the student does not agree to leave, he will likely be expelled from the school.
 
*If the student does not agree to leave, he will likely be expelled from the school.
 
 
*The school may threaten the student or his legal representatives with entering negative records or reports in their personal files in order to get the student to voluntarily leave the school.   
 
*The school may threaten the student or his legal representatives with entering negative records or reports in their personal files in order to get the student to voluntarily leave the school.   
 
 
*The schools may use other methods to push the minor students out of the school.
 
*The schools may use other methods to push the minor students out of the school.
  
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*The defense lawyer can inform the client and his legal guardian of Article 44 of the Law on Prevention of Juvenile Delinquency of the People's Republic of China, which states that a minor who is a defendant in a criminal case cannot have his status as a student revoked before the ruling of the people's court takes effect.  The lawyer should emphasize that the defendant has the right to get an education, and that continued education is especially important for a student with a criminal record.  Again, student status is a very important condition for the people's court to grant a suspension of sentence.  Thus, if the school tries to persuade the student to leave, this should be refused firmly; if the student is expelled, the school should be sued for violation of law.
 
*The defense lawyer can inform the client and his legal guardian of Article 44 of the Law on Prevention of Juvenile Delinquency of the People's Republic of China, which states that a minor who is a defendant in a criminal case cannot have his status as a student revoked before the ruling of the people's court takes effect.  The lawyer should emphasize that the defendant has the right to get an education, and that continued education is especially important for a student with a criminal record.  Again, student status is a very important condition for the people's court to grant a suspension of sentence.  Thus, if the school tries to persuade the student to leave, this should be refused firmly; if the student is expelled, the school should be sued for violation of law.
 
 
*A defense lawyer should use this provision to actively coordinate with relevant authorities and to do his utmost to safeguard the minor defendant's legitimate rights and interests under the law.  The lawyer should pay special attention to these issues; they are in fact an indispensable part of preparing a defense in a case, besides being a necessary condition for getting a suspension of sentence for the client.
 
*A defense lawyer should use this provision to actively coordinate with relevant authorities and to do his utmost to safeguard the minor defendant's legitimate rights and interests under the law.  The lawyer should pay special attention to these issues; they are in fact an indispensable part of preparing a defense in a case, besides being a necessary condition for getting a suspension of sentence for the client.
  

Revision as of 09:07, 16 April 2010