On Procedural Defense In Pretrial Procedure

The lawyer’s defense is the beacon of the criminal procedure which give theguidance and hope to the criminal suspect. The new “Criminal Procedural Law”codifies the assurance of human rights, and this reveals the respect for human rights,and at the same time send the signals of giving the criminal suspects more rights. Inthe process of criminal procedure, the criminal suspects cannot realize the effectivedefense because of various aspects of the restrictions. Thus, the lawyers become veryimportant. The article35of “Criminal Procedural Law” defines the responsibility oflawyers as protecting the litigation rights and other legitimate rights and interests.This embodies that the responsibility of the lawyers in the process of criminalprocedure has been increased and explains that their function has been widelyacknowledged. The degree of the process of defense relates directly to the realizationof the criminal suspects’ rights and interests. The Criminal Pretrial Process is thecrucial part of the Criminal Procedure, and in this process, there is no neutral chiefjudge. Thus, there is more procedural defense than entity defense in this stage, andthe defense determines directly the success of the Criminal Procedure.The Pretrial procedure the preparatory stage of the trial, and it includes the stageof investigation and the stage of review and prosecution. The procedural defense inthis process should be understood from the broad perspective, and it refers to thelawyers take the procedural law as basis, put forward the procedural application andsolve the procedural disputes in the process of Criminal Procedure in order to protectand realize the procedural defense. This kind of procedural defense is different fromtraditional procedural defense which includes the dispute of legality and theprocedural application. The pretrial procedural defense has its own characteristicswhich different from the defense in the first trial procedure. The characteristics of thepretrial procedural defense are real-time, constitutional, urgent, preventative andprocedural. At the same time, the procedural defense in the pretrial stage has the greatvalue of protecting the litigious rights of the criminal suspects, realizing the legalinterest of criminal suspects, strengthen the lawsuit construction of pretrial procedure, safeguarding the judicial justice and ensuring the smoothness of the CriminalProcedure and save the judicial resources.There are two main content of the procedural defense in the pretrial procedure:the realization of the procedural application and the resolution of the proceduraldispute.The realization of the procedural application mainly refers to the realization ofthe substantive and procedural rights and interests of the criminal suspects in thepretrial procedure according to the provisions of the procedural law. The basis of theprocedural application is the procedural rights of criminal suspects given by theprocedural law instead of the illegal activities of judicial office, and this is theprocedural defense in the broad sense. The procedural application mainly includesfour aspects: the first is giving legal opinion on compulsory measures, this part ismainly for protecting the suspects from the unnecessary violation; the second is theapplication of the change of compulsory measures, and this part mainly deals with thetypes, the statement of facts and the remedy problem of the compulsory measures; thethird is the application for the termination of the compulsory measures, and this partmainly deals with the reason, the statement of facts and the remedy problem of theapplication of terminating the compulsory measures; the fourth is the investigation ofthe necessity of custody, and this part mainly deals with the meanings, theparticipation of the lawyers in the process of investigating the necessity of custody,the reason of the application of the investigating the necessity of custody.The settlement of procedural justice mainly refers to the defense for excludingthe illegal evidence in the pretrial procedure, and this is the core problem of thetraditional procedural defense in the narrow sense as well. The illegal evidence is akind of “cancer” in the process of the Criminal Procedure, and it should be excludedas early as possible in order to protect the purity and justice of the procedure. Theprocedural defense of excluding the illegal evidence in the pretrial procedure has a lotof meanings. It can help to prevent the illegal activity of organs of investigation,safeguard the rights and interests of criminal suspects, prevent the prejudgment ofjudges, guarantee the probity of judiciary, and make it easy to investigate the casefacts. This has the characteristics quite different from the exclusion of the illegal evidence in the trial stage which lacks the neutral judge, and the supervisor andsupervisee has the direct interest relationship. In the pretrial procedure of criminalcases, the lawyers have two ranges of the application for excluding the illegalevidences: one is the evidence obtained by extorting confessions, the other is theevidence obtained by other illegal methods. However, this two ranges cannot satisfiesthe lawyers, it is necessary to enlarge the range of the application for excluding theillegal evidences properly. According to the law, the procuratorial organ bears theresponsibility of proving the illegal evidences, and the lawyers should provide clueswhile presenting the illegal evidences. The submitting of the clues is very important,therefore, the lawyers should investigate positively and provide strong evidence clew.Where there is right, there is protection. One of the most important responsibilities oflawyers is to rescue when the application of excluding the illegal evidence is refusedin pretrial procedure.It is very important to the whole criminal procedure that lawyers protect theprocedural right, safeguard the procedural and entity interests of the suspects in thephase before adjudgement according procedural laws. Though the laws becomingmore perfect and the lawyers are more hardworking than before, the defense in thisphase faces severe challenges institutionally and conceptually. If want to embody thefunction of procedural defense in pretrial phase to the largest degree, we should breakthe constraint of traditional concept and set up the corresponding safeguardmechanism institutionally, then the procedural defense of lawyers can be played to thelargest degree.