The Invalid Defense Remedy Procedure In America And Its Enlightenment To China

The 6th Amendment of the United States Constitution stipulates explicitly that the defendant has the right to be helped by a lawyer.In early stage,the interpretation of this stipulation is the pure lawyer help and,with the development of modern criminalproceedings,the early interpretation transfers into an effective lawyer defense for the consideration of defense quality.Since there is an effective defense,there is also an ineffective one,which is because of improper interference from government or court,incompetence of lawyer or interest conflict and so on.The United States has established an Ineffective Defense System through judicial precedents.Ineffective Defense System refers to right remedies in criminal proceedings for the reason of causing an adverse outcome based on a “action defect”.In the United States,the defendant can get relief through the appeals pre-trial motion,direct appeal or indirect review process these three ways,firstly the defendant filed an application for an invalid defense,then proved that he suffered an invalid defense and bore the negative results for this,finally court will review the application,if the application is approved,the original judgment will be quashed or remand for retrial.The establishment of remedy procedure for the ineffective defense provides the opportunity for the defendant,whose right to defense was attacked by a lawyer,it purpose is not to punish lawyers,but to ensure that the defendant obtains a fair trial.It has a positive significance on safeguarding the right to defense of the defendant,improving the defense quality of lawyers and making sure the trial is fair.However,it is difficult for the court to recognize ineffective defenses in general because the review rules are too high,and the burden of proof is too heavy.There is no remedy procedure about ineffective defense in China's present stage,through the introductions and analyses of American remedy procedure for the ineffective defense and from the perspective of strengthening the safeguard of defendant's right to defense and improving China's current criminal defense,we could use American remedy procedure for the ineffective defense for reference and set up China's ineffective defense system.China's current criminal defense rate is low,and when it comes to the establishment of ineffective defense system in China,it is necessary to consider the special national situation,which,on the one hand,will not dampen the enthusiasm of lawyers to defend,and on the other hand,can protect the defendant's defense rights.The defendant can appeal directly or initiate a trial supervisory procedure in the case of an ineffective defense.The defendant bears the proof of being suffered an ineffective defense,and the defense lawyer bears the proof that the act did not cause adverse results.The court can establish a hearing procedure at the time of the examination to give the opportunity of providing evidence and debating both sides and finally confirm whether there is an act of ineffective defense for the purpose of ensuring the justice of the trial outcome.