An Emperical Study On The Implemantation Of Defense Lawyers’ Right To Investigate And Obtain Evidence

Obtain sufficient defense resources, is one of the prerequisite for lawyers to provide effective defense. The right to investigate and obtain evidence is an important way for defense lawyer to obtain resources. And it plays an important role for lawyers to provide effective defense, promote the defendant equality, achieve sustained justice. So the legitimate rights of accused people can be guaranteed. Although the revised Code of Criminal Procedure endowed defense lawyer with a wider right of investigation and evidence collection, in the practice the problem about investigation of defense lawyer has not been fundamentally improved. On the basis of empirical research this paper summarizes the problems about lawyers’ investigation and evidence collection, analyzes the cause of the problem, and put forward the corresponding perfecting suggestion.In this paper, the text is divided into four parts besides the introduction. In total it has twenty thousand words.The first part is the summary of the right to investigate and obtain evidence. From the content point of view, the lawyer’s right to investigate and obtain evidence include the right by own investigation, the right of application for investigation and the right about relief. The lawyer’s right of investigation has property of independence and right. The lawyer is not subject to the constraints of the accused person and can exercise the right of investigation independently. But the lawyer’s right can not force to obtain evidence. It plays an important role to promote the defendant equal confrontation, ensure the procedure justice, realize effective defense with the right to investigate and obtain evidence be given to lawyers.The second part discusses the current situation of lawyers to investigate and obtain evidence and the existing problems. We can see through the questionnaire survey data, that lawyers’ enthusiasm for investigation and evidence collection is low. Consulting case files and meeting are still the main way to obtain the defense resources. Lawyers delayed in forensics because of many reasons. Lawyers worry about that they will be given criminal sanctions; the evidence they got would not have been adopted. Lawyers face many problems in practice of investigation. Such as lawyers cannot obtain evidence in the phase of investigation. The investigation and evidence collection of lawyers on their own is hard. It is very difficult to apply for a judicial investigation and evidence collection, Relief is difficult when the rights were be violated. At last there are still shortcomings from the security of related rights.The third part analyzes the causes of problems in investigation from four aspects, such as judicial system, legislative level the idea of lawsuit and professional quality. In terms of the judicial system litigation structure with Chinese characteristics and the judicial organs internal assessment mechanism intensified the conflict of interest between the judiciary staff and lawyers. In the legislation there are more restrictions and less protection about lawyers investigation. The judiciary staff affect by the traditional "blow thinking’1 and do not face up to lawyers’ guarantee function to litigation justice. Lawyers always can’t be equal treatment. People do not form a correct understanding about the position and the value of lawyers. The lawyer’s professional qualities and professional moral are factors affecting its investigation.The fourth part is putting forward a sound proposal, according to the problems existed in the practice on lawyer’s investigation. Firstly, promote the reform of judicial independence to ensure the neutrality ofjudes; and reform quantitative appraisal mechanism injudicial organs. Secondly, explicit that lawyers have the right of investigation in investigation phase; promote realization of the right by own investigation and the right of application for investigation; improve the procedures about relief of the right; ensure exercise of rights when lawyer want to consulte case files and meet. Thirdly, promote the transformation of the idea of lawsuit with judicial staff and the public. Fourhly, improve the ability of lawyers’ investigate and obtain evidence; standardize lawyers’ behavior of investigate and obtain evidence.