The Attorney's Presence Rights During Interrogating Suspects

The revised "Code of Criminal Procedure" set a counsel could provide legal assistance, agency complaints, charges to the suspect being questioned for the first time or after the date of compulsory measures , but counsels rarely have access to investigative procedures, defense material even more difficult than amendment in acquisition, criminal defense show the trend of shrinking. Counsels unable to fully defend if they can't intervene timely and access to defense material in the investigation stage. In this paper, author used analysis methods and comparative methods. From the origin, theoretical foundation of the attorney's presence rights analysis. Comparing the scope of rights, the right to limit and other aspects in foreign. Noted necessity, significance and obstacle of this system, particularly the problems will encounter in practice. On the basis of analysis and reference, author propose some preliminary ideas of the attorney's presence rights during interrogating suspects.A total of six parts of this article, more than 30,000 words.In the first part of this paper, author compare of the meaning of the attorney's presence rights, then draw the rights is in narrow sense in this paper, then inspect a brief examination of the relevant cases.In the second part of this paper, the author from theoretical foundations of the rights, pointed out that the suspect naturally in a weak state, the questioning lack of fairness, their self-defense effect is weak. The attorney's presence rights can effectively change the inequality. At the same time, this part used the theory of checks and balances, human rights theory demonstrated that the attorney's presence rights to be able to form an effective external oversight, further protection of human rights.In the third part of this paper, the author from the rights in the United States, Britain, Germany, France, Italy, Russia, in law and in practice. Horizontal comparison of the rights, describes the relevant provisions of international institutions and international trends.In the fourth part of this paper, the author elaborate from the necessity of the rights, analysis the phenomenon: the investigation is closed, supervision is imperfect, confrontational power is exile, reflecting the necessity of the rights. The attorney's presence rights be able to alter One-way relationships between both sides involved, alter the construction of litigation, alter the mind of"Confession is the king of evidence", alter the color of ex officio, reduction of legal internal conflicts.In the fifth part of this paper, the author analysis the obstacle of the attorney's presence rights, including investigating organ rely the confession, the attitude of the investigating organ, the quality and quantity of attorneys, refute objections of the rights.In the sixth part of this paper, the author put forward concrete ideas, including the premise, scope, rights and obligations of lawyers, the corresponding obligations of investigating authorities and supporting systems.