An Empirical Inquiry
Chapter 12: The defence at trial observed (2)
The primary focus in this chapter is on trials in which the defendant or his or her family retained a lawyer. We look at the general strategies adopted by these retained lawyers and the extent to which they engaged in pro-active lawyering. We also examine the important issue of confession evidence and, in particular, how the system responds to allegations that the defendant’s confession was not reliable because of torture or some other improper behaviour on the part of investigating authorities. Confession evidence deserves this focused scrutiny because, as a matter of generality, it is the foundation-stone of the prosecution case in China and because it is, in and of itself, a test of the whole system and its willingness to comply with minimum standards of human rights. RETAINED LAWYERS E-IL-L-01 [Defence Lawyer]: [In the Intermediate Court] we will see if there is any possibility of collecting evidence. But in general, the court is rushing through the procedures because of the time limits. Therefore, in most cases, I don’t have enough time to read the files. E-IL-L-02 [Defence Lawyer]: According to the law, prosecutors should gather evidence proving the defendant’s guilt or innocence. However, in practice, it is quite difficult for us to find prosecution evidence proving the defendant’s lesser offence or anything advantageous to the defendant. At most, it may include some evidence to show the statutory circumstances (for leniency or severity) of the defendant’s act. Although research evidence from China1 is equivocal, it might be expected that lawyers...
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