An Empirical Inquiry
Chapter 7: The construction of the defence case
The right to a fair trial is now widely accepted as a basic human right by the international community. In this context, fair trial rests upon the principle of ‘equality of arms’ which requires states to permit those accused of crime to defend themselves with the assistance of a lawyer of their own choosing or, where the individual is indigent, to have the state provide such assistance free of charge. As part and parcel of this right, accused persons and their lawyer must be accorded adequate time and facilities to prepare for their defence. Fairness at trial requires fairness at the pre-trial stage. Without adequate pre-trial preparation by the defence lawyer the trial will be a mere formality. In China, legal assistance for those charged with criminal offences is covered by Article 32, 1996 CPL which provides: In addition to exercising the right to defend himself, a criminal suspect or a defendant may entrust one or two persons as his defenders. The following persons may be entrusted as defenders: (1) lawyers; (2) persons recommended by a public organization or the unit to which the criminal suspect or the defendant belongs; and (3) guardians or relatives and friends of the criminal suspect or the defendant. Persons who are under criminal punishment or whose personal freedom is deprived of or restricted according to law shall not serve as defenders. The value of providing legal advice to criminal suspects may be thought to be too obvious to require explanation but it is critically...
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