Theory Of Effective Defense

Effective defense for maintaining the procedural rights of criminal suspects or ordefendants, promoting Judicial justice and preventing the happening of erroneous cases is of great significance.Effective defense gets a mature development in United States, Britain and other countries.In our country at present, the development of the criminal defense system mainly stays in the level of protection of criminal suspects, defendants and lawyers' defense right,but the study of effective defense lawyers relatively less.In judicial practice, the lawyer who don't fulfil his defense duty actively is common.Some lawyers'especially legal aid lawyers'defense quality is worrying.Therefore,in order to improve the defense quality of lawyers and urged lawyers to fulfil their defense duty actively , on the basis of clarifying two problems of the connotation and evaluation standards of effective defense,systematically analyzing the present situation of the effective defense in the investigation, examination and prosecution, the trial stage is conducive to analyze the cause of the lack of effectiveness in criminal defense in our country and find the reformationary path to realize effective defense.Full text is divided into four parts .Except preface and conclusion, Full text is about thirty-three thousand words:The first part is the summary of effective defense.According to the article: the effective defence in our country is that the qualified lawyer fulfils his defense duty actively to maximize the legitimate interests of the criminal suspect or defendant on the premise of abide by the law.The realization of effective defense and fully protecting the rights of defense is that the former is the ultimate goal of the latter and the latter is the indispensable external condition of the former.Evaluation standards of effective defense in China include three aspects of the contents:Firstly,whether the lawyer masters legal knowledge,service skill and experience required of criminal defense. Secondly,whether the lawyer fulfils his defense duty actively,so as to maximize the legitimate interests of the criminal suspect or defendant.Thirdly, whether the lawyer defenses in accordance with the law. Effective defense is the essential prerequisite for the realization of human rights protection, the basic requirement of the defendant balance, the basic guarantee of judicial justice.The second part is about the practice situations of lawyers' effective defense in the investigation stage .According to the article: at this stage, the progress of lawyers' effective defense includes two aspects of the contents. Firstly,the lawyer actively contributes to the sentencing plot of criminal suspects in reduction punishment. Secondly, the lawyer makes the petition or complaint actively for the illegal behavior in collecting evidence of investigative organization.The problems of lawyers' effective defense include two aspects of the contents.Firstly,some lawyers delaying in meeting with suspects result in that the defense right of the suspects become formalistic .Secondly, some lawyers delay in striving for the custody measures applied in criminal suspects .After approval of arrest, some lawyers even don't submit application of reviewing arrest necessity. The problems of defense rights in guarantee reflect in: Firstly, the rate of lawyer participating in defense in investigation stage is low. It damages the basic premise of effective defense.Secondly, the difficulty in meeting with suspect in bribery cases makes it hard for lawyers to carry out effective defense.The third part is about the practice situations of lawyers' effective defense in the prosecution stage.According to the article:at this stage, the progress of lawyers' effective defense includes three aspects of the contents. Firstly,the lawyer verifies evidence actively to the criminal suspect in the process of meeting.Secondly, the lawyer collects evidences actively which affect the sentencing in case.Thirdly, the lawyers combat together in sensitive cases.The problems of lawyers' effective defense include four aspects of the contents.Firstly,some lawyers aren't active in collecting evidences which affect the conviction of case.Secondly, the professional ability of lawyers in forming the defense ideas after reading the case file is insufficient. Thirdly, some lawyers don't consultate with suspects of the defense ideas adequately in the process of meeting.Fourthly,some lawyers is lack of effective communication with prosecutors.The fourth part is about the practice situations of lawyers' effective defense in the trial stage.According to the article: at this stage, the progress of lawyers' effective defense includes four aspects of the contents.Firstly,some lawyers actively present the written opinions of expert auxiliary on the expert opinion.Secondly,some lawyers actively quote authoritative legal opinions or instructional cases to enhance effect of debate.Thirdly,some lawyers pay attention to combining the legitimacy and authenticity of evidence.Fourthly,some lawyers combine innocence defense and sentencing defense in the course of the trial.The problems of lawyers' effective defense include three aspects of the contents. Firstly,some lawyers make the trial cross-examined become formalization . Secondly,some lawyers don't get the key points of debate and without confrontation with prosecutor.Thirdly, some lawyers make competitive performance in the process of the trial.The problems of defense rights in guarantee reflect in: Firstly, some judges prevent lawyers from expressing their defense opinions in the course of the trial.Secondly,the quality of cross-examination to lawyer is affected by the witnesses not to appear in court.The fifth part is about the reformationary path to realize effective defense.According to the article,criminal defense which lacks of effectiveness in our countryattributes tothe following severalaspects.Firstly,some lawyers' insufficient specialty literacy lead to they are not competent for criminal defense.Secondly,the professional risk of criminal defense for lawyers is too high and disciplinary system at presentis not perfect. So some lawyers usually don't fulfil their defense duty actively.Thirdly,some judges lack of neutrality and legal professional community has not yet formed.So the lawyers' defense rights are easy to be violated.The implementation mechanism of effective defense in our country includethe following severalaspects.Firstly, it is important to improve the lawyer's specialty literacy for the realization of criminal defense subject eligibility . Secondly, perfecting the system of key witnesses to appear in court to testify and giving lawyers relief ways of the right applying for investigation and obtaining evidences can give sufficient resources to defend for lawyers to realize effective defense .Thirdly, lawyers should master reading skills ,form clear and effective defense ideas, and negotiate with the criminal suspect or defendant in time to correct the original defense ideas.Fourthly, cultivating the legal professional community , perfecting the communication mechanism between lawyers and prosecutors in pretrial stage and perfecting the communication mechanism between lawyers and judges in trial stage can Increase of each other's identity between law and the judicial personnel to realize effective defense.Fifthly, we should improve the system of disciplinary punishment to punish for lawyers for their undutiful defense behavior .we should establish national query system on lawyer information and lawyers' integrity network to open to the public.Sixthly, we should establish a big data analysis system on lawyer defense and perfect the training mechanism of lawyers to build effective defense mechanisms for effective defense of criminal lawyers in our country.