An Empirical Research On Defense Service By Attorneys

The defense system is an important component in the criminal justice system.The effective defense realization reflects the level of a country rule by law and thehuman rights condition, decides the lawsuit progress and the result, is the importantsymbol of the criminal procedure democratization and the scientific. Throughempirical study, selecting the X county as the geographical scope of the investigation,judges, lawyers as the main object of the investigation, combined with the courtverdict from2002to2011, strive to reflect the real situation of the defense service byattorneys, and the way to get defense resources and the probability of the adoption ofthe attorneys’ opinions. By this way to find out the problems to realize the effectivedefense, and try to advance an approach to realize the effective defense.This article is divided into four parts, about30,000characters.The first part is the analysis of the situation that the number of the defendantswho got the assistance of lawyers, the way to get the assistance of lawyers, and thetypes of cases in which lawyers play a role, as well as the reason for these. In thescope of the research, as the decade2002-2011, the number of the defendants who gotcounsel help is1505, accounting for33.55%of the total number of defendants; thenumber of defendants who got lawyers’ help is1421, accounting for31.68%. In thetotal number of the defendants who got lawyers’ help, the number of defendants gotdefense by commission is1084, accounting for76.28percent of the defendants toobtain attorneys service; the number of defendant who got attorneys service byappointted is313, accounting for22.03%. In the commissioned by the defense,80percent of the attorneys produced a written defense statement to the court, theappointted defense, only20%of attorneys produced a written defense statement to thecourt. For type of the cases, the proportion is different in different cases, the ratio is18.36%in the crimes against public security,46.51%in the crime to socialist marketeconomic order,47.27%in the violation of civil rights and the democratic rights,31.37%in the crime against property,27.11%in the crime impede the management ofsocial order,71.09%for the corruption and bribery,86.67%for the dereliction of duty.Besides, in different stages the proportion of the attorneys involving is different, themajority of attorneys involve in the investigation stage of criminal proceedings. The research reflects the realization of the effective defense between ideal and reality, theproportion that attorneys participated in the criminal proceeding is generally low, theeconomic factors that directly hinders the implementation of an effective defense,compared to civil cases, criminal cases, lower prices, to appoint a defensenon-existent, can not play its due role, lawyers, lack of criminal cases, agents, and thegeneral reluctance of agents in criminal cases, the lack of a specialized, high-qualitylawyers.The second part of the defense access to resources analysis. According to theresults of the survey, in the past decade,49case to the court of defenders providesevidence, of all have defenders with4.1%of the total number of cases. Examine Suelevel and the trial stage for which lawyer evidence is less. In the investigation phase,lawyer met with the criminal suspect with the most difficult, examination andprosecution and the trial stage relatively easy. Although lawyers will be100%reading,but by the time and the influence of the lawyer to its own reason, typically read, can’tput forward concrete proposals. The objective environment restricted the exercise ofthe right to a lawyer forensics, attorney professional lack of social public widelyrecognized, the lawyer subjective negative attitude, no investigation organ refuses toor limit the lawyer to meet the relief program, reality concept neglected lawyer gradeexamination papers,for the lawyer,it is very difficult to obtain effective defenseresources.The third part of the defense opinions adopted analysis. Lawyer reflects,investigation phase of the proposed a guarantor pending trial opinion is difficult to beadopted, and for other compulsory measures defends the idea, procuratorial organs aregenerally "cold treatment". Examine Sue level, lawyers don’t torture is a petition orcharges, the procuratorate in review after the initiative to listen to the views of thedefender. The trial stage, a lawyer from the facts and evidence, the general conviction,sentencing four Angle to defend, the judgment made clear adopted in591pieces,accounting for49.41%of all cases; Part of the adoption, to was not adopted reasonsexplained the242pieces of, accounted for20.23%; Made it clear that shall not acceptthe reason to adopt any explained with183pieces,15.3%, another15.05%of the caseshall not accept and did not say the reason will not be adopted. In the investigationphase lawyer for criminal suspects to provide a meaningful and help, examine Suelevel a lawyer opinion lack of dynamics, the trial stage a lawyer opinions adopted isinsufficient, the production of clerical criminal lack of unified standards. The fourth part of the paper realize effective defense approach. In view of theabove three aspects existing problems, the author proposed the improvement in roadrespectively. In guarantee in his defence lawyer, to improve the defense lawyer ofincome, strengthening the personal rights and interests protection measures, give fullplay to the role of lawyers, strengthen the defense lawyer training, in the defenselawyer formed between the communication and cooperation mechanism, constructionto become a professional, high-quality defense lawyer team, implement the appointeddefense system, improve the appointed defense lawyer defense scale. In order toensure a lawyer on the issue of access to resources, the author thinks that only bychanging the investigators, prosecutors and the judge to the lawyer’s attitude,gradually change the social public to the lawyer’s attitude, lawyers to get moreevidence cooperation; Refused to meet the increase of relief program; Relax the scopeof the lawyer read, use modern digital equipment convenient lawyer reading;Gradually establish the witness to appear in court system compulsory. In order toensure a lawyer opinion to be adopted, the paper puts forward a mechanism toincrease the probability of adoption of defense opinion in investigation phase,adjusting the relationship of the accused and the defendant, from contrary tocooperative; Perfecting the relationship of the prosecutor and the judge, and ensuringthe judicial independence; Improving trial method, separating the conviction from thesentencing phase; standarding the form of documents, enhancing the reasoning of thejudgments.