Criminal Investigation And Acquiring Evidence Empirical Research

It is difficult for lawyers to do criminal defenses to meet the parties,to consult the files and to make investigation or discovery has been the truth without dispute. As a result,many lawyers think that it makes no difference whether the current lawyer defenses system exists,which only be a decoration in the court. In fact,it is of great significance to protect legal interests of the suspects and defendants in order to balance between prosecutors and defendants while the lawyers exercise fully the rights for investigation and discovery. The papers make a concrete analysis on the lawyers' investigation and discovery in three aspects and advance a thought about how to perfect lawyers' right for investigation and discovery.In the first part of the papers,from two cases the writer proposed a problem that the lawyers have difficulty with investigation and discovery in the current criminal procedure. The first case is that lawyer is refused when investigation. The second one is that a lawyer was sent into prison prosecuted of prejudice to testify. Through the two real cases the writer proposed several ideas like that defenses lawyer should be vested with criminal immunity and to protect the lawyers' right for investigation and discovery on the system.In the second part of the papers,the writer makes a deep analysis about the lawyers' right for investigation and discovery. First of all,it analyze the jurisprudence basis of the lawyers' right including three aspects. The first is the value of "presumption of innocence" which requires the lawyers' right for investigation and discovery .The second is value of human rights protection. So it is so crucial to protect the legal interests of the suspects and defendants for lawyers vested with the right for investigation and discovery. The last is the value of procedural justice,which requires the equal litigation forces between prosecutors and defendants;Secondly,he writers analyze the necessity to give the lawyers the right for investigation and discovery,which contains help to discover the substantive truth,to help lawyers carry on defenses and acting smoothly and help to improve the efficiency of the proceedings;Thirdly,the writer analyzes concrete rules about the lawyers' rights for investigation and discovery in the legislation of our country and also examines the problems about the lawyers' right. The main problems in the legislation are the following: the lawyers have no rights for investigation and discovery in the investigation period; defenses lawyers' rights for investigation and discovery is bound by victims,their relatives,witness and the prosecution. So it is hard for lawyers to obtain the evidence. Criminal Law section306 prescribe lawyers destroy and fake evidence and prejudice to testify which make the lawyers hesitate to obtain the evidence and too worried to investigate deeply. Besides the rules of the current law about the lawyers' rights for meeting the parties is not beneficial for the right to obtain evidence. The main problems about the judicial practice exist. For example,the regulations for restriction by the judicial on system is not helpful for the realization of the lawyers' right. Several investigators in the judicial office execute their power out of law,which also restrict the realization of the lawyers' right for investigation and discovery. The main problems about social environment are that people generally lack of knowledge about the nature and functions of the lawyers. Under such circumstance,lawyers can not fulfill his jobs successfully; At last,the writer analyzes the deep reasons of many problems mentioned above from two aspects including the influence of traditional thought about p resumption of guilt and inherent problems in the bar.In the third part of the papers,the writer proposed the reform suggestions on how to perfect the lawyers' right for investigation and discovery in the criminal procedure in our country, which are explained as the following parts: First,many restrict regulations to the defenses lawyers' right for investigation and discovery should be abolished. Second, Criminal Law section 306 should also be abolished so as to entitle the lawyers immunity to criminal liability. Third,in the investigation period the lawyer has the right to investigate and obtain evidence. Fourth,the right for application of investigation and discovery should be perfected. Fifth, we should build the relevant mechanism which contains the system on witness forced to the courtdiscovery system,perfecting meeting clients system and strengthen self-control management of the bar. When it comes to the system design,the writer also considers fully the special situation in our country and the current judicial status to make the measures more practicable.