Research Of Counsel's Presence Right During Investigation And Interrogation

The right of counsel's presence means that the defense lawyer has the right to be present during the investigation and interrogation,providing legal advice to the criminal suspect,and to challenge the illegal acts occurring during the interrogation.The countries of Common Law system and Civil Law system have different stipulations on the right of counsel's presence.Judicial concept,criminal defense system of our country and the right of counsel's presence under the influence of the traditional investigation mode is vacant for a long time in our country.However,it never stopped exploring in both theory and practice.After two years of trial experience,the lenient system was formally established after the revision under Criminal Procedure Law in 2018.The establishment of the system of Lenient indicates that the Criminal Procedure Law of our country has put forward higher requirements for the protection of human rights of suspects and defendants before trial and the protection of the rights of lawyers.However,as a key link of the formation of the chain of evidence,the investigation and interrogation stage has not been given enough attention,leading to lawyers in the confession and punishment lenient investigation procedure can not fully play its role.As a result,lawyers can not fully play their role in the investigation procedure of pleading guilty and punishing lenient cases,thus the signing of closing statement of guilty confession turns into a formality,which becomes the legal coat of glorifying the illegal means of obtaining evidence,such as confessions deceit,confession inducement and so on.At present,the measures to ensure the voluntary,legality and authenticity of criminal suspects undefined confession and punishment in lenient cases of pleading guilty is the system of synchronous audio-video recording.But,due to the defects,this system is seriously dysfunctional when it is used without other measures,and can not guarantee the suspects voluntary,authenticity and legality of confession and punishment.The system of synchronous audio-video recording,the right of silence,and the right of counsel's presence together constitute a powerful weapon to defend the legitimate rights and interests of criminal suspects in the course of investigation and interrogation.But the right of silence is contrary to the basic requirements of the Criminal procedure Law in our country.As a result,it is necessary to establish the right of counsel's presence to supplement the system of synchronous audio-video recording.In the Lenient system,the lawyer can play a better role with counsel's presence right to know the case in advance,making up for the defects of the audio-visual system and fully guarantee the voluntary and legitimacy of the criminal suspect in the admission of guilty plea,which will achieve the original intention better.Throughout the current judicial environment in China,the respect and protection of human rights in Constitution,the improvement of the duty counsel system,the rich experience provided by pilot areas and relevant legislation have all provided the possibility for the establishment of counsel's presence right in our country.Therefore,the right of counsel's presence should be established in the leniency system of pleading guilty.