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
function – the person on criminal charge and the defense lawyer, the status of the
 Associate
Professor of Institute of Law, Chinese Academy of Social Sciences.
［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
1
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
4
See Xiong Qiuhong, Criminal Defense, Law Press China, 1998 ed., p.163.
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 law”. Nevertheless, the fact is that,
5
A New Theory of Criminal Procedural Law, editor-in-chief, Zhang Zhonglin, China Renmin University Press,
1993 ed., p.196.
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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
function refers to determination through trial whether the defendant has committed
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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
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
8
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
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
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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.
C. Structural Restriction on the Defense
Procedural structure is a basic concept in the theory of criminal procedure. Defense
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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
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
11
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
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:
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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
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
13
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
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.
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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
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.
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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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