Defense Counsel Investigation And Evidence Collection Practices Research

The right of investigation and evidence collection of defense lawyers on the pre-trial phase was not regulated in the1979Code of Criminal Procedure, and the1996Code of Criminal Procedure stipulated that the defense lawyer was entitled the right of investigation and evidence collection from the date on which the case being transferred for examination before prosecution. The revised Code of Criminal Procedure in2012endowed defense lawyer with a wider right of investigation and evidence collection, and advanced the right of defense lawyer’s investigation and evidence collection to the stage of investigation. Apparently, the provisions of the right to defense lawyer’s investigation and evidence collection in the Code of Criminal Procedure varies greatly, which is an obvious progress. However, what on earth is the implementation of the defense lawyer’s investigation and evidence collection that stipulated in the Code of Criminal Procedure?Through distributing the questionnaire to the criminal defense lawyers of nine cities nationwide, it is shows that:Firstly, defense lawyers’enthusiasm for investigation and evidence collection is low in our country. There are both subjective and objective reasons for that low enthusiasm, subjective reason mainly lies in defense lawyers unwilling to investigate and collect evidence in order to avoid trouble; while as for objective reasons, there are great resistance from the outside and high risks in the process of investigation and evidence collection, besides, it is difficult for them to retrieve useful evidence, whereas the few obtained evidence always hard to be adopted as the basis of decision by the judge.Secondly, the ratio of the defense lawyers choosing "investigation and evidence collection on their own" is comparatively low. The main methods for the defense lawyers’investigation and evidence collection are:"consulting, extracting and copying archival materials","application procuratorate, court investigation and evidence collection","meeting" and "applying for the people’s court to inform the witness to testify".Thirdly, the investigation and evidence collection of defense lawyers’on their own is hard and of high risk as well. The main evidence form of investigation and evidence collection of defense lawyers’themselves in China is remark evidence. The main objects of the investigation are criminal suspects and people on the defendants’side and its relative units. And the investigation objects’cooperation with defense lawyers’ investigation and evidence collection is far from being ideal, while the useful evidence that obtained by the defense lawyers is very limited. Defense lawyers’own investigation and evidence collection encountered numerous obstacles, some of them were of limited investigative capacity.Fourthly, it is very difficult for defense lawyers to apply for a judicial investigation and evidence collection. The main categories of defense lawyers’investigation and evidence collection are transcripts and evidence such as documentary evidence, testimony of witnesses, inspection, examination, identification and investigative experiments. But the support obtained from the judiciary is not high. Besides, applying for the court to summon the witnesses to appear in court is also very difficult. The evidence obtained in the investigation and evidence collection is very limited.Fifthly, though the situation of defense lawyers’meeting suspects and defendants in the investigation stage has improved, there are still many problems. In some cities, this problem has been virtually non-existent, but on the whole, the meeting problem is still a serious problem, and in some cities this problem still stands out. The meeting difficulty existed in the stage of investigation.Sixthly, the right of reading records for defense lawyers has improved a lot. In most cases defense lawyers can successfully consult, extract, and copy of the materials of the case file, but there still exists parts of difficult situation of reading records.Seventhly, the defense lawyers are filled with expectations of the positive effects of the Code of Criminal Procedure in investigation and evidence collection, but not very optimistic about its promotion effect in that process. Lawyers generally worried about the practical force of the relevant provisions of the Code of Criminal Procedure, they think there will be all kinds of difficulties of the investigation and evidence collection in the phase of investigation. Still, lawyers have many expectations on the defense lawyers ’investigation and evidence collection practices. As for the present situation of defense lawyers’ investigation and evidence collection practices and its problems, we should effectively guarantee and regulate the defense lawyer’s right of investigation and evidence collection from many aspects. Strengthen the effectiveness of the defense lawyers’ investigation and evidence collection, perfect the adopting standards and procedures of defense lawyers’ retrieving evidence in court trial, put punishments on the acts of disrupting defense lawyers’ investigation and evidence collection. Besides, strengthen the investigative organs, judicial and administrative departments and the Bar Association guarantee the right of defense lawyers’ investigation and evidence collection. Improve the ability of defense lawyers’ investigation and evidence collection, and allow defense lawyers hired private detectives to investigate and collect evidence in legislation. Standardize the defense lawyers’ behavior of investigation and evidence collection, promote lawyers’ practicing cultivation. Lawyer perjury should be kept but with caution use, make improvements in the entity specification, judicial determination and prosecution procedures. Give full play of the disciplinary system in the role of regulating the behavior of lawyers’ investigation and evidence collection.