Lawyer Defence in the Pre-Trial Proceedings

Xiong Qiuhong

In criminal procedure, the right to defense of the person on criminal charge is one of his procedural rights going all through the proceedings, which is mainly reflected as a proposition and demonstration of the materials and causes in favor of the person on criminal charge based on the facts and pursuant to law and. In substantiality, it is to rebut the criminal charge and present the materials and opinions which demonstrate that the person on criminal charge is innocent or the crime is minor and his criminal liability should be mitigated or he should be exempted from such liability. In procedure, it is to claim for the lawful procedural rights with which the person on criminal charge is endowed in order that the person on criminal charge will not be treated unfairly or offended inappropriately. The general function of the defense right may be concluded as the protection of the lawful rights of the person on criminal charge. The purpose of the participation of the defense lawyer is to assist the person on criminal charge to exercise his defense right, “The base of the defense right is that the suspect or the defendant himself has the right to defense. This is the foundation on which the defense right of the entrusted defender comes out.”1 On the other hand, though the defense lawyer participates in the litigation because of his special relationship with the person on criminal charge, in principle, his activities are not limited by the will of the person on criminal charge, he works with his own experience, knowledge and according to his own judgment and evaluation. The law endows the defense lawyer with many important rights which can be exercised independently without any expressed or implied consent of the person on criminal charge, which are called “invested rights”, i.e., the rights derived by the defense lawyer from his own status, such as the right to communication and meeting with the detained person on criminal charge, the right to reference to the file, the right to debate, the right to presentation at the site, the right to cross-examination, the right to application for investigation on the evidence, the right to objection, etc.2 Therefore, from the point of the internal relationship between the co-exercisers of the defense

 Associate Professor of Institute of Law, Chinese Academy of Social Sciences. 1 ［Japan］“Criminal Defense in Japan”, translated by Liu Mingxiang, available in Take the Lawyers’ Route with Chinese Characteristics, Law Press China, 1997 ed., p.90. 2 See Chen Pusheng, Criminal Procedure Law Practice (supplementary ed.), Taiwan Haitian Printing Factory Limited, 1981ed., from p. 78, ; Lin Shantian, Criminal Procedure Law, from p. 111.

1 function – the person on criminal charge and the defense lawyer, the status of the defense lawyer has a nature of independence. Furthermore, in modern society featured by the rule of law, lawyers are regarded as an independent class or autonomous social force, “The participation of defense lawyers brings a new force – independent social force – to the criminal procedural structure traditionally composed of state officials and individuals.”3 The relationship between the defense lawyer and the three state authorities, i.e., the public security authority, the procuratorate and the court, is reflected as a mutually restrictive relationship in procedural function, and this external relationship is on the premise of the independent status of the defense lawyer. Consequently, a defense lawyer is defined as a participant in the proceedings with independent status in the criminal procedure.4 The aforementioned basic definition of the function of the defense right and the procedural status of the defense lawyer will not be deferent because of the division of the pre-trial and trial proceedings. However, in current Chinese criminal procedure theory, legislation and practice, it is true that the status and function of lawyers in the pre-trial proceedings are arguable and are topics for further discussions. This article is titled with “Lawyer Defense in the Pre- Trial Proceedings”, which firstly presents the author’s basic view on this issue, i.e., the author takes the view that the status of the lawyer in the pre-trial proceedings is still a defender, not a common participant in litigation or a legal counsel; his function is still defense, not simply to provide legal consultation or handle limited matters under entrustment, nor merely be engaged in some activities of “representation in litigation”. Of course, the author does not deny the difference between the lawyer defenses in the pre-trial proceedings and during the trial in terms of particulars and methods, on the contrary, the author conceives that the fair deference of the pre-trial proceedings and the trial proceedings in purpose, position, structure, etc. results in the deferent characteristics of pre-trial defense and the defense in trial proceedings. We should pay attention to these characteristics for the reason that it necessitates a rather deep recognition of the systematic background on which defense lawyers play roles to make them effectively conduct his defense throughout the entire criminal proceedings (including the pre-trial proceedings). In this article, the author will start from the issue of the status and function of defense lawyers in the pre-trial proceedings to attempt to proceed with a comparatively deep analysis on the characteristics of the lawyer defense in the pre-trial proceedings, and further, to present opinions and suggestions on how to enhance lawyer defense in the pre-trial proceedings in China so as to further high-light the issue of the lawyer defense during the pre-trial proceedings.

3 See Xiong Qiuhong, Criminal Defense, Law Press China, 1998 ed., p.163. 4 Ibid., from p.157.

2 Status and Function of a Lawyer in the Pre-Trial Proceedings

In China, the pre-trial proceedings are composed of the independent investigation proceedings and the independent examination for prosecution proceedings. The Criminal Procedure Law provides various rules for the defense right in the investigation proceedings and the examination for prosecution proceedings.

The defense rights of the suspect during the investigation proceedings mainly include: A. After the criminal suspect is interrogated by the investigation authority for the first time or from the day on which compulsory measures are imposed upon him, he may engage a lawyer to provide him with legal advice. If the case involves state secrets, the criminal suspect shall have to obtain the approval of the Procuratorate authority for his engaging a lawyer. B. The lawyer’s rights in the investigation proceedings mainly include: (a) The lawyer may provide legal advice to the criminal suspect, represent the suspect to file petitions or to lodge complaints. After the suspect is arrested, the engaged lawyer may apply for bail for the suspect. (b) The lawyer has the right to enquire about the suspected crime for the suspect. (c) The lawyer may meet with the detained suspect and ask the criminal suspect about the case. When the lawyer meets with the criminal suspect in custody, the investigation authority may, in light of the seriousness of the crime and where it deems necessary, send its staff member to be present at the meeting. If a case involves state secrets, before the lawyer meets with the criminal suspect, it shall have to obtain the approval of the investigation authority. (d) When the investigation authority adopts the compulsory measures exceeding the time limit prescribed by law, the lawyer or the other defender entrusted by the criminal suspect has a right to demand cancellation of the compulsory measures or taking different compulsory measures according to law. Further interpretations of some of the particular issues therein are given in the Rules of Several Issues Regarding the Implementation of the Criminal Procedure Law Made by the Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, Ministry of National Security, Ministry of Justice, the Legislative Affairs Commission of the Standing Committee of the National People's Congress of the People's Republic of China (Rules of Six Authorities), including: (a) “a case involves state secrets” refers to the case that its circumstances or its nature involves state secrets, and a case cannot be regarded as a case involving state secrets just because relevant materials and opinions on handling issues during the investigation process

3 are necessary for confidentiality; (b) The criminal suspect may engage a lawyer by himself or may have his relatives represent him to conduct such engagement; (c) When the lawyer requests for meeting the criminal suspect, such arrangement should be made within 48 hours, or within 5 days if the lawyer requests for meeting the criminal suspect in a serious and complicated case in which two or more individuals have jointly committed such crimes as forming, leading or taking part in organizations in the nature of criminal syndicate, or forming, leading or participating in a terrorist organization, or smuggling, or drug dealing, or embezzlement and bribery, etc.

In the proceedings of examination for prosecution, the defense right owned by the criminal suspect obviously expends to an extent broader than in the investigation proceedings. It mainly includes: (a) The law clearly defines the lawyer’s status as a defender, and the defenders other than lawyers are allowed to take part in the proceedings. Article 33 of the Criminal Procedure Law provides that the Procuratorate shall, within three days from the date of receiving the file record of a case transferred for examination before prosecution, inform the criminal suspect that he has the right to entrust persons as his defenders. (b) The restriction measure that the investigation authority may send its staff member to be present at the meeting with the criminal suspect is cancelled, the communication right is clearly provided, and the right to the knowledge of the materials relating to the case is added. Article 36 of the Criminal Procedure Law provides that defense lawyers may, from the date on which the Procuratorate begins to examine a case for prosecution, consult, extract and duplicate the judicial documents pertaining to the current case and the technical verification material, and may meet and correspond with the criminal suspect in custody. (c) The right to investigation and obtaining evidence of the defense lawyer is cleared. Article 37 of the Criminal Procedure Law provides that defense lawyers may, with the consent of the witnesses or other relevant units and individuals concerned, collect information pertaining to the current case from them and they may also apply to the Procuratorate for collection and obtaining of the evidence. With permission of the Procuratorate and with the consent of the victim, his near relatives or the witnesses provided by the victim, defense lawyers may collect information pertaining to the current case from them. (d) A new rule is provided that the Procuratorate shall give an ear to the defender’s opinions. Article 139 of the Criminal Procedure Law provides that when examining a case, the Procuratorate shall interrogate the criminal suspect and heed the opinions of the victim and of the persons entrusted by the criminal suspect and the victim.

4 When mentioning the lawyer in the pre-trial proceedings, Articles 96 and 33 of the Criminal Procedure Law use deferent wording. Article 96 of the Criminal Procedure Law provides that after the criminal suspect is interrogated by an investigation authority for the first time or from the day on which compulsory measures are adopted against him, he may appoint a “lawyer” to provide him with legal advice and to file petitions and complaints on his behalf while Article 33 of the Criminal Procedure Law provides that a criminal suspect in a case of public prosecution shall have the right to entrust persons as his “defenders” from the date on which the case is transferred for examination before prosecution. A defendant in a case of private prosecution shall have the right to entrust persons as his “defenders” at any time. The difference of wording in the statutory provisions, in addition that lawyers are endowed with rather limited procedural rights during the investigation proceedings, brings about debates in academic field whether the procedural status of a lawyer in the investigation proceedings is a common participant in litigation or a defender.

Some scholars hold that the basis for participation of the lawyer in the investigation is his acceptance of the entrustment of the criminal suspect, he should act according to the authorization of the criminal suspect under the restriction of the will of the criminal suspect, the genuine defense at the investigation stage does not exist, therefore the lawyer does not enjoy the independent procedural status of a defender but is just a common participant in litigation, which may be called a legal counsel.

The author holds that the main reason behind the above view is that the concept of “criminal defense” is viewed in a narrow meaning. The phrase “辩护” (defense), in Chinese, has its original meaning that the utilization of the method of “辩” (debate) is to fulfill the aim of “ 护 ” (fending). In criminal litigation, the connotation of defense is usually limited to the substantial defense and the procedural defense is ignored. As a general saying goes, the so-called defense means “the procedural activities where a person on criminal charge and his defender, to protect the lawful rights of the person on criminal charge, rebut the criminal charge in terms of facts and law, present the evidence and causes favoring the person on criminal charge to demonstrate that the person on criminal charge is innocent or the crime is minor and his criminal liability should be mitigated or he should be exempted from such liability.”5 Of course, the “fact” herein may be interpreted to include “facts in procedural law” and the “law” herein may also be interpreted to cover “procedural

5 A New Theory of Criminal Procedural Law, editor-in-chief, Zhang Zhonglin, China Renmin University Press, 1993 ed., p.196.

5 law”. Nevertheless, the fact is that, since we regard the Marxist law of unity of opposites as the most important, even the sole theoretical basis for the foundation of defense system, and further, the significance of the unity of opposites of criminal charge and defense is interpreted only from the stand that the judge will “be lightened when he heeds to both sides”, the active role of defense system in finding out the substantial facts of cases is regarded as the most important embodiment of its procedural value, accordingly, when mentioning the word “defense”, its substantial contents are often high-lighted and the procedural factors are not covered in it. In addition, the word “辩” (debate) in Chinese is interpreted as “to debate, rebut” and, from this understanding, the typical “defense” only happens at the stage of trial, the participation of lawyers in the pre-trial proceedings mainly for purpose of preparation for the genuine “defense”. The legal consultation, representation to file petitions and complaints, investigation and acquirement of the evidence, reference to files and other activities conducted by lawyers in the pre-trial proceedings do not have the nature of typical “defense”, what’s more, the lawyer does not confront with his opposite side face to face in the pre-trial proceedings. To understand the phrase “辩护” (defense) in its narrow meaning, it is easy to draw a conclusion that “the lawyer is not a defender in the pre-trial proceedings”. This is the fundamental reason why the issue of lawyer’s status and roles in the pre-trial proceedings is confused in academic field and functional departments.6

If we briefly study the concept of “criminal defense” from the point of historical development, we will get a comparatively clear picture of the defender status of the lawyer in the pre-trial proceedings. In criminal litigation, defense, defense right and defense function are three interrelated concepts. From the angle of historical development, defense (to plead and rebut against the criminal charge) firstly existed in the criminal proceedings as an activity or a conduct. It is an outcome under certain historical conditions that the law clearly recognizes it as a right, which is an important symbol of the democratization of the criminal judicial system. The defense as a kind of procedural function gradually going to independence and autonomy is resulted from the constant intention and expansion of the defense right of the person on criminal charge.

Criminal procedure is a judicial activity emerged with the criminal phenomenon and

6 It is necessary to explain that the law defines the lawyer at the stage of examination for prosecution as “defender” and the law further prescribes that the Procuratorate shall heed opinions of the defender during its examination of the case. “Heeding opinions” means that the lawyer has a chance to conduct a “defense in narrow meaning”, therefore there is no debate in the issue of lawyer’s status at this stage.

6 its aim is to investigate crimes, to punish crimes, and the person under investigation inevitably pleads against and rebuts the criminal charge in order to have the criminal punishment mitigated or have him exempted therefrom, therefore defense phenomenon have existed from ancient times. However, under deferent historical circumstances, this phenomenon have faced deferent attitude. For instance, in the feudalist interrogatory litigation, the person on criminal charge fell into an object of the litigation and he had no procedural right at all. The confession of the person on criminal charge was deemed as the most powerful evidence, “the king of evidence”. In order to obtain the confession from the person on criminal charge, it even sacrificed the person on criminal charge in cruel interrogation with torture. Not only the pleading and rebutting of the person on criminal charge were not respected but also it was very frequent that the person on criminal charge was sent to savage torture for this. In recent and modern history, in criminal procedure, defense of the person on criminal charge is protected as a right and the person on criminal charge is encouraged to express his own opinions, allegations and requirements. Besides the person on criminal charge defends by himself, the law permits the person on criminal charge to entrust a defender to defend for him and even provides free defense lawyers for the person on criminal charge and the defense right of the person on criminal charge has been intensified and expanded constantly. The expansion of the defense right is obviously symbolized with constant increase of the procedural rights (such as the right to meeting, the right to presentation at site, the right to application for investigation and acquirement of evidence). Hence the concept of criminal defense has virtually undergone an evolving progress from simple substantial defense to the co-existence of substantial defense and procedural defense and then the appearance of a gradual over-development tendency of procedural defense.

We can clearly see this change that the criminal defense has experienced in the “Theory of Procedural Function”. “Theory of Procedural Function” believes that there are three basic functions in the criminal procedure, i.e., prosecution, defense and trial. The prosecution function refers to bringing a lawsuit to the court and supporting the criminal charge and demanding to affix the criminal liability that the defendant should bear for his criminal conduct. This function is exercised by the state prosecutor or the victim. The defense function exists as the other side of the prosecution function, which refers to presentation and demonstration of the materials and causes in favor of the defendant according to facts and law in order to protect the lawful rights of the defendant. This function is exercised by the defendant and his defender. The trial

7 function refers to determination through trial whether the defendant has committed the crime as charged and whether he should undertake the criminal punishment or what kind of criminal punishment he should bear. This function is exercised by the court. These three basic functions, i.e., prosecution, defense and trial, interosculate, interact and interdependent, which forms the main contents of the activities of in the criminal procedure. “Theory of Procedural Function” is based on the theory of trial centralization, which believes that the investigation is the necessary preparation for the public prosecution and it is impossible to determine whether the prosecution should be conducted without investigation. Therefore, in a broad meaning, the investigation can be viewed as a performance of prosecution function, the criminal suspect and his defender accordingly perform a function of defense during the investigation. The differentiation of these three procedural functions of prosecution, defense and trial as well as the principles of separation of prosecution and trial, balance of prosecution and defense, which are used to ensure such differentiation, have become the basic requirements of the modern criminal procedure.

From the angle of differentiation of the criminal procedural functions, all activities of the lawyer in the criminal litigation are subject to a nature of exercising defense right and performing a defense function. It is true in trial proceedings and there is no exception in the pre-trial proceedings. At the investigation stage, the lawyer’s representation to file petitions and complaints, to fulfill the pre-trial bailing, his meeting, his enquiry with the investigation authority about the case, etc. are for the purpose of exercising the defense function. The English word “defense” can be translated into Chinese as “defence” or “defend”. If the prosecution function is viewed aggressive, the defense function is defensive. All activities of the lawyer in the criminal procedure (including his meeting, presentation at site, acquirement of evidence, objection and so on in the pre-trial proceedings) can all be viewed as a defense against the aggression from the prosecuting side. To understand the role of the lawyer in the pre-trial proceedings based on the performance of the defense function, it would not be hard to conclude that the status of the lawyer in the pre-trial proceedings is still a defender.

As a defender in the pre-trial proceedings, the role of the lawyer is to protect the lawful rights of the criminal suspect. This role can be fulfilled by different methods, for instance, to directly offer legal help to the criminal suspect or to ensure that the lawful rights of the criminal suspect have not been offended by means of supervision

8 of the criminal investigation activities of the special authorities. The defense activities in the pre-trial proceedings may play a role in assistance with criminal investigation undergoing correctly, or may have positive effects in promotion of the state law system. However, in general, protection of the lawful rights of the criminal suspect is the starting point and also the end of defense activities of the lawyer in the pre-trial proceedings.

Characteristics of the Lawyer Defense in the Pre-Trial Proceedings

The lawyer defense in the pre-trial proceedings has the same nature of that in the trial proceedings and both have the nature of defense against the criminal investigation activities conducted by the prosecution authority. Nevertheless, as a result of the difference of the pre-trial proceedings and the trial proceedings in purpose, position, structure and other aspects, lawyer defense in the pre-trial proceedings and that in the trial proceedings have different characteristics. The characteristics of the lawyer defense in the pre-trial proceedings may be concluded as follows:

A. The Right to Defense is Limited

Investigation of crimes and protection of human rights are the duel-purpose of the criminal procedure. In the pre-trial proceedings, the function of the criminal procedure to investigate crimes draws more attention. Though the person on criminal charge is regarded as a procedural subject, in fact, he is not at the same level at all stages of the litigation. Generally speaking, the person on criminal charge simultaneously has both positive and passive legal statuses in the criminal procedure. The so-called positive legal status means that the person on criminal charge basing himself on the procedural rights endowed with by criminal procedure law, participates in the litigation actively and, with the assistance of the defender, does all his best to defend himself against the aggression from the prosecuting side. The so-called passive legal status means that the person on criminal charge is in a passive position to accept the investigation of the prosecutor and the trial of the court. The person on criminal charge sometimes becomes the conduct object to bear the procedural conducts of the judicial police, Procuratorate or the court, for example, becomes the target person against whom the criminal investigation authority adopts arrest, detention or search. These compulsory measures usually are adopted against the will of the person on criminal charge, which also restrict his freedom. However, it does not affect the

9 existence of the nature of the person on criminal charge being a procedural subject. The positive and passive legal statuses of the person on criminal charge are not unalterable at all stages of the proceedings. In general, the person on criminal charge is in a position with more passive nature in pre-trial proceedings while more positive in trial proceedings. Compared with the trial proceedings, the defense right of the person on criminal charge is rather limited in the pre-trial proceedings, for instance, the scope of reference to files set for lawyer is far limited than at the trial stage, there are more restrictions with the lawyer’s right to meeting, communication or presentation at site, etc.

B. Preparations and Independence of the Defense

From the point of the relationship of trial proceedings with the pre-trial proceedings, the pre-trial proceedings has a function of preparation for the trial and, accordingly, the defense in pre-trial proceedings has a nature of preparation for the defense in court. Article 14 of the International Covenant on Civil and Political Rights says that the person on criminal charge is entitled to the guarantee “To have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing”. In the pre-trial proceedings, the exercise of lawyer’s rights to meeting, acquirement of evidence, reference to the file and other rights have the function of preparation for the defense in court. However, the defense in the pre-trial proceedings is not limited to the preparation for the defense in court, fulfillment of the function of the defense in pre-trial proceedings has its own independent value. The traditional theory of criminal procedure is guided with the theory of trial centralization and the pre-trial proceedings are viewed as preparatory proceedings of the trial proceedings. With the development of the criminal procedure system, the important position of the pre-trial proceedings in the criminal procedure is more and more recognized. In the pre-trial proceedings, a determination will be made to prosecute or not to prosecute the criminal suspect and, in terms of the significance to the criminal suspect, the two different procedural consequences cannot be mentioned in the same breath. The defense of the defense lawyer in the pre-trial proceedings plays a role in setting the criminal suspect free from litigation as soon as possible should he meet the conditions that he should not be prosecuted. This is similar to the defense in trial proceedings in some way and embodies the independence of the lawyer defense in the pre-trial proceedings.

10 C. Structural Restriction on the Defense

Procedural structure is a basic concept in the theory of criminal procedure. Defense function plays its role in a particular frame structure. For instance, in the procedural model where the parties dominate the trial or where the judge dominates the trial, the defense function will obviously play its role in different scopes. To view the pre-trial proceedings and the trial proceedings in the structure of the procedural process, it may be seen that the two have apparent differences in procedural structure. The procedural structure of trial procedure may roughly be called a isosceles triangle structure, a mechanism participated in by the prosecution, defense and judgment, which has a typical form of litigation and this procedural structure as well as the implementation of rules of open trial, direct words, etc. going with it favors the fulfillment of the function of lawyer defense. In comparison, though the procedural structure of the pre- trial proceedings has a tendency to the typical form of litigation (main reflected in judicial control of the court over the major investigations and the stronger nature of confrontation in the method of examination for prosecution, etc.), the pre-trial proceedings, in comparison with the trial proceedings, still in some way takes the form of linear structure in which the prosecution and defense confront each other. In this linear structure, the person on criminal charge mainly claims for his rights from the prosecutor other than the judge, which inevitably restricts the exercise of defense effectively. There’s a metaphor in which the relationship of prosecutor and the person on criminal charge in criminal procedure is compared to that of a hunter and fox. What if the fox claims from the hunter, the result is self-evident. What’s more, in principle pre-trial proceedings are not open, which further restricts function of defense.

D. Importance of the Procedural Defense

With the development of criminal defense system, the procedural defense becomes more and more important in criminal procedure. Of course, this does not mean that it denies the substantial defense. Comparatively speaking, if the role of the substantial defense is much obvious in trial proceedings, it is fair to say that the procedural defense has its special significance in pre-trial proceedings. Since it is general principal that the pre-trial is not open, the possibility that the rights of the person on criminal charge are offended in this process becomes stronger in comparison with the trial proceedings. To reduce the offense of the criminal suspect and incarnate the spirit

11 of the principle that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law, Article 9 of the UN International Covenant on Civil and Political Rights provides that “It shall not be the general rule that persons awaiting trial shall be detained in custody, … Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.” According to this rule, it is a principal to adopt bail in pre-trial proceedings while adoption of detention is exceptional. Therefore, one of the main roles that the lawyer should play in the pre- trial proceedings is to legalize the bail for the arrested person and to assist him to object to the unlawful detention. In cases where the person on criminal charge is detained, the exercise of lawyer’s rights to meeting, presentation at site, etc. is good for breach the closeness of the pre-trial proceedings to prevent the investigation authority from arbitrarily violating the rights of the person on criminal charge. In comparison with the trial proceedings, lots of investigation measures are involved in the pre-trial proceedings and the adoption of such measures greatly threatens the rights of the criminal suspect. The involvement of lawyers favors the supervision of the investigation authority in its handling cases strictly according to the stated procedure so as to prevent the rights of the criminal suspect from inappropriate offense of the investigation authority. On the other hand, the involvement of lawyers is good for ensuring comprehensiveness and objectiveness of the evidence collected by the investigation authority and is helpful to the investigation authority and the trial authority to handle cases correctly. The above clearly states the importance of the procedural defense in the pre-trial proceedings.

Lawyer Defense in the Pre-Trial Proceedings in China

As stated above, the lawyer defense in pre-trial proceedings and that in trial proceedings have their respective features. In the pre-trial proceedings, the following factors affect the fulfillment of the function of lawyer defense effectively: firstly, quantity of the defense rights; secondly, the specific anchor point of the pre-trial proceedings in the procedure regime; thirdly, structure design of the pre-trial proceedings; and fourthly, perfection degree of the compulsory measures. To study the lawyer defense in the pre-trial proceedings in China in the aforesaid four aspects, it is fair to say that the defense in pre-trial proceedings in China at present is less developed and that the significance of the participation of lawyers in pre-trial

12 proceedings in form is much greater than in substantiality so that some lawyers ask whether the lawyer defense exists in pre-trial proceedings in China. Let’s analyze the lawyer defense in pre-trial proceedings in China as follows:

A. Contents of the Right to Defense

The amended 1996 Criminal Procedure Law of China advanced the participation of lawyers in the criminal litigation from the trial stage to the investigation stage, and it further provides particulars of the rights enjoyed by lawyers in the pre-trial proceedings and, in general, the protection of defense right of the criminal suspect is enhanced. The “Rules of Legal Aid” issued in 2003 advanced the acquirement of legal aid of a poor person on criminal charge from trial stage to the investigation stage. However, there is still a fair gap between the current provisions in law and the international standards of criminal defense as well as the rules of defense rights in some countries where the rule of law is developed. It’s mainly reflected in the following: the specific protection of the defense right of the criminal suspect in the pre-trial proceedings is not adequate, for example, there’s no specific rule to oblige the investigator to inform the criminal suspect of his right to acquirement of the help from lawyers; rules of the legal aid are too elastic so that it is rather difficult for the criminal suspect actually to enjoy this right; the law does not exclude the evidence obtained by the investigator by means of offending defense right of the criminal suspect. Rights of the defense lawyer are rather restricted in the investigation proceedings, for instance, the lawyer cannot communicate with the criminal suspect, his meeting with the criminal suspect will be under supervision of the investigator at site, he has no right to be present at site when the investigator conducts investigation, no right to investigate or to obtain evidence, no right to refer to the file, etc. The defense lawyer has no right to present at site in proceedings of examination for prosecution; the scope of file for reference by defense lawyers is limited only to several litigation paper and technical examination materials which are teased by lawyers as “Five Paper” (i.e., Decision on Detention, Decision on Arrest, Opinions on Transferal to Examination for Prosecution, Indictment, Examination Paper). In sum, defense right in pre-trial proceedings is too narrow.

B. Specific Status of the Pre-Trial Proceedings in Procedure Regime

The criminal procedure in China pursues a theory of procedural stages and

13 investigation, examination for prosecution, trial and execution are viewed as four paratactic stages. In practice, these four stages roughly form an “assembly line” and different subjects conduct their actions against the person on criminal charge at respective stages. In this respect, the procedural activities at a former stage have a nature of preparation for the stage to come up. The participation of lawyers in pre-trial proceedings is basically defined as a preparation for the defense at trial. Despite the provision of the Criminal Procedure Law that investigation and examination for prosecution are proceedings independent from each other, such independence seems just in one-way direction, which mainly means “tripartite balance of powers” of the investigation authority, the prosecution authority and the trial authority. The defense right in pre-trial proceedings is limited to such an extent that “it does not jeopardize the investigation rights against the crime”. The defense right is weakened so that the function of its independence is nearly lost and the defense side is completely incapable of talking to the criminal investigation authorities. In the theory of criminal procedure and legislation, though the pre-trial proceedings in China has both features of preparation and independence, they are twisted somehow in the practical design and application so that the preparation and independence (especially the latter one) seem virtually meaningful only to the investigation side while the procedural significance of defense function seems ignored.

C. Procedural Structure of the Pre-Trial Proceedings

The procedural structure of the pre-trial proceedings in China is a rather typical linear structure. It is mainly reflected in the following: the court as a judgment side does not participate in the pre-trial proceedings and lacks effective judicial control over the major investigation conducts of the investigation authority. Though the arrest conduct of the investigation authority may be controlled in some way by the Procuratorate by means of its approval of the arrest, such control cannot be carried out in the case where the Procuratorate is empowered to conduct investigation. In such case, detention, search, distress or other investigation measures are adopted at its discretion, which lacks restriction of a special authority. The “administrative” nature of the investigation proceedings is obvious and the investigation authority, when concludes its investigation, makes its own decision to transfer the case for pre-prosecution examination or to withdraw the case and does not need to heed opinions of the defense lawyer. The examination for prosecution adopts the methods of examination and interrogation, the defense lawyer is incapable of adequate defense for the criminal

14 suspect as to the issue whether the prosecution should be raised. Linear procedural structure confines greatly the ability of the defense lawyer in negotiation with the investigation side. Since there is no third party to give an ear to the defense opinions of lawyers, even if the law has endowed the lawyer with adequate defense right, it is very hard for us to expect that it functions effectively.

D. Compulsory Measures

The fulfillment of the lawyer’s defense function has a close relationship with a series of system designs in the pre-trial proceedings and the degree of perfection of compulsory measures is one of such important issues. The Criminal Procedure Law of China provides five compulsory measures to restrict the freedom of the person on criminal charge, i.e., arrest, detention, compulsory summons, bail and residential surveillance and they can be roughly classified into two categories: detaining compulsory measure or non-detaining compulsory measure. In implementation of these measures, it is a rule to adopt the detaining measure while adoption of the non- detaining measure is exceptional and bail is not regarded as a right the criminal suspect should have. In practice, the lawyer’s application for bail is frequently not approved by the investigation authority. This is natural. As shown in the practice in some countries where the rule of law is developed, one of the main tasks of the lawyer in the pre-trial proceedings is to legalize the bail for the criminal suspect. However, in China, due to the restriction of the system of compulsory measures, the lawyer cannot focus his defense activities on bail for the criminal suspect. Regarding the other measures other than the arrest, since the adoption of them lacks the strict procedural restriction, the investigation authority enjoys a rather big power in discretion, which restrains the lawyer from conducting his procedural defense.

It’s hard for lawyers to defense and this is one of the prominent issues existing in criminal procedure in China. If the problem exists that it is hard for lawyers to defense at the trial stage, it is fair to say it is “extremely harder” to defend in pre-trial proceedings. It is necessary to improve the relevant systematic environment to tighten up the lawyer defense in pre-trail proceedings, for instance, the defense right of the person on criminal charge should be expanded, the right to presentation at site should be endowed with to lawyers, some restrictions on the right to meeting and acquirement of evidence should be cancelled; the position of the pre-trial proceedings in the entire procedure should be rectified, the point of view of defense side should be

15 introduced in respect of preparation and independence; the procedural structure of the pre-trial proceedings should be readjusted and its “procedural” nature should be increased in order that the defense opinions of the lawyer can draw much more attention as it should be; it should be changed that detention is generally adopted while the bail is adopted as an exception in order that the lawyer plays much active role in helping the criminal suspect and setting him free from detention.

During a long period, in Chinese academic field and practice, there are two kinds of misunderstanding of the lawyer’s defense function in pre-trial proceedings, one of which is that the role played by the lawyer in the pre-trial proceedings is mainly to prepare for the defense in court and the role played by the lawyer in helping the innocent criminal suspect to get free from litigation as soon as possible is ignored, and the other one is that particular stress is laid on the lawyer’s substantial defense while the role of procedural defense in the pre-trial proceedings is ignored. These epistemological mistakes have an impact on the legislation and practice of the criminal defense in China.

The defense lawyer plays a particular role in the pre-trial proceedings and the fulfillment of this role depends on the consummation of legislation and renovation of views as well. It is believable that, with the development of the rule of law in our country, defense right in the pre-trial proceedings will be further expanded, the systematic environment for fulfilling the defense function will be further improved, law enforcement staff will have their awareness of protection of human rights heightened and the transition of lawyer defense in pre-trial proceedings from formal defense to substantial defense will inevitably be fulfilled.

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