introduction

 

Effective defense refers to the defense conducted dutifully for the suspect or defendant to obtain the most favorable result against the accusation. It is reflected in every aspect of criminal proceedings. Currently, with the reform of the criminal litigation system, many criminal proceedings pose new challenges to the effective defense of criminal defense lawyers. Among them, as one of the important supporting measures to promote the materialization of court trials, the system of pre court meetings is also increasingly applied in practice, and the phenomenon of "large pre court meetings, small court proceedings" in some major cases is also increasingly prominent. Therefore, how to effectively defend in pre-trial meetings has increasingly become a problem that criminal defense lawyers attach great importance to.

 

1、 The system of pretrial meeting and its functional evolution in china

 

The current pretrial meeting system in China has mainly experienced three stages: its initial establishment in 2012, the introduction of pre-trial meeting procedures in 2018, and the improvement of judicial interpretation of the Criminal Procedure Law in 2021. In these three stages, its functions continue to expand and improve.

 

（1） Initial stage in 2012

 

The second paragraph of Article 182 of China's Criminal Procedure Law, which was revised in 2012, provides for pre-trial meetings for the first time. According to regulations, a pretrial meeting refers to "before a court session, the judges can convene the public prosecutor, parties, defenders, and litigation agents to understand the situation and listen to opinions on issues related to the trial, such as withdrawal, list of witnesses appearing in court, and exclusion of illegal evidence.".

 

This provision is further elaborated in Articles 183 and 184 of the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China adopted by the Judicial Committee of the Supreme People's Court in December of the same year. Article 183 clearly stipulates that the circumstances under which a pre court meeting is called are: 1. An application for the exclusion of illegal evidence; 2. There are many evidential materials and the case is significant and complex; 3. Significant social impact or other situations requiring a pre court meeting. Article 184 clarifies the matters to be discussed at the pre-trial meeting as follows: 1. Whether there is any objection to the jurisdiction of the case; 2. Whether to apply for the withdrawal of relevant personnel; Whether to apply for obtaining evidentiary materials collected by public security organs and people's procuratorates but not transferred with the case to prove the defendant's innocence or minor crime; 4. Whether to provide new evidence; 5. Whether there is any objection to the list of witnesses, experts, and persons with specialized knowledge appearing in court; 6. Whether to apply for excluding illegal evidence; 7. Whether to apply for a closed hearing, etc; At the same time, it is also stipulated that the judicial personnel can inquire whether the prosecution and the defense have any objections to the evidence materials, and should focus on investigating the evidence with objections during the court trial; If there is no objection, the proof and cross-examination during the court trial can be simplified. "If the victim or his legal representative or near relatives file an incidental civil lawsuit, mediation may be conducted.".

 

It can be seen that in the initial stage, the main functions of the pre-trial meeting are: 1. Solving procedural issues that may interrupt the trial, such as avoidance, jurisdictional objections, closed hearings, obtaining evidence, determining who will appear in court, and excluding illegal evidence; 2. Asking the opinions of the prosecution and the defense on the evidence materials to determine whether to simplify the relevant procedures of the court trial; Mediation of incidental civil litigation.

 

（2） The introduction stage of pre court meeting procedures in 2018

 

In 2018, the Supreme People's Court issued the "Procedures for the People's Courts to Handle Pre court Meetings in Criminal Cases (Trial Implementation)" to implement the "Opinions on Promoting the Reform of the Trial Centered Criminal Procedure System" (hereinafter referred to as the "Reform Opinions") and "Provisions on Strictly Excluding Illegal Evidence from Handling Criminal Cases", which systematically stipulates the initiation of pre court meetings Discussion items and corresponding handling. Compared to the pre court meeting system in 2012, adjustments have been made in the following aspects: 1. In terms of the initiation of pre court meetings, both the people's court and the prosecution and defense can apply for the initiation, and those that meet the requirements for excluding illegal evidence should be initiated; In terms of the scope of application of the pre court meeting, it is stipulated that in addition to a large amount of evidence, complex cases, and significant social impact, it also includes the application of the pre court meeting to cases where the prosecution and defense have significant disputes over factual evidence; 3. Matters to be discussed in the pre-trial meeting: In addition to discussing procedural issues that may interrupt the trial, such as jurisdiction, withdrawal, and exclusion of illegal evidence, as well as incidental civil litigation mediation, the "pre-trial evidence display" proposed in the "Opinions on Reform" and the public prosecution review provisions proposed in the "Implementation Opinions on Comprehensively Promoting the Reform of the Trial Centered Criminal Procedure System" proposed by the Supreme People's Court are first discussed in the pre-trial meeting. In addition, there has been an increase in the number of court applications and dispute focus sorting for investigators.

 

It can be seen that the functions of pre-trial meetings have been expanded on the original basis: evidence display, public prosecution review, and sorting out the focus of disputes.

 

（3） The Perfection Stage of the Interpretation of the New Criminal Procedure Law in 2021

 

Articles 130, 131, and 226-233 of the interpretation of the new Criminal Procedure Law of 2021 clarify the scope of application of pre-trial meetings, the initiation of pre-trial meetings, matters to be discussed, and the handling of matters to be discussed. Compared to previous pre-trial meetings, there are the following changes: 1. The scope of application of pre-trial meetings: In addition to the four categories of cases where there is a large amount of evidence, the circumstances of the case are significant and complex, the social impact is significant, and the prosecution and defense are highly controversial in factual evidence, a flexible provision has been added for other situations where pre-trial meetings need to be held; 2. Matters discussed at the pre court meeting: additions or modifications have been made to the previous basis. (1) The provision on whether to apply for obtaining evidentiary materials is revised to "Whether to apply for collecting and obtaining evidentiary materials that prove the innocence or minor guilt of the defendant;" (2) The category of personnel appearing in court is expanded to include investigators and other personnel who can appear in court. (3) Added the possibility for investigators, investigators, or other personnel to participate in discussions on the exclusion of illegal evidence; "The People's Procuratorate may withdraw relevant evidence, and if there is no new reason for the withdrawal, it shall not be presented during the court trial."; The parties, their defenders, and agents ad litem may withdraw their application for excluding illegal evidence. "After withdrawing the application, no further application for exclusion may be filed without new clues or materials.". (4) "Is there any objection to the ownership of the property involved in the case and the handling suggestions of the People's Procuratorate?" Accordingly, the function of the pre court meeting has been further expanded and discussions on the handling of the property involved have been added.

 

It can be seen that the current system of pretrial meetings in China mainly includes the initiation, scope of application, matters to be discussed, and their handling. The main functions of the pre court meeting are: to solve procedural issues such as whether to withdraw or not, public hearings, and other procedural issues that may interrupt the trial; Exclusion of illegal evidence; Evidence display; Asking the opinions of the prosecution and the defense on the evidentiary materials; Public prosecution review; Sorting out the focus of disputes; Streamlining and mediation. Obviously, the function of pretrial meetings in China has experienced a transition and evolution from initially only resolving controversial procedural issues to evidence display, public prosecution review, and the collation of dispute focus to achieve the purpose of simplifying court proceedings, as well as resolving substantive issues such as incidental civil litigation through mediation.

 

At present, both academic and practical circles have quite a controversy about the pretrial meeting system in China. For example, Professor Xiong Qiuhong believes that pre-trial meetings should only resolve controversial procedural issues and should not involve substantive issues, otherwise weakening the court trial. In June 2021, I conducted a questionnaire survey on dozens of criminal defense lawyers from a criminal defense committee of the Beijing Lawyers Association. According to statistics, after the implementation of the judicial interpretation of the new Criminal Procedure Law in 2021, 17 criminal defense lawyers participated in pre court meetings, and only 3 lawyers believed that the pre court meeting system was flawed. Some people believe that the form of conducting a pre court meeting is greater than the substance, that is, the pre court meeting is only a temporary and casual event that has no substantive impact on the handling of cases; Some believe that pre-trial meetings should not be cross-examined, but should either be cancelled or the substantive content included in the trial. In my opinion, as a pre-trial meeting system based on the division of complexity and simplicity of cases and aimed at achieving a focus on court trials, the procedural issues that may interrupt the court trial, as well as the questioning of the opinions of the prosecution and defense parties on the case, and the determination of the focus of disputes in the court trial, are included in its discussion and resolution, which is conducive to placing the focus of the court trial on controversial issues, taking into account the efficiency and fair value of the litigation process, and not only will not weaken the court trial, It strengthens the substantive role of court hearings. Obviously, although there is room for improvement in China's court hearing system, its current content and functional positioning are appropriate.

 

2、 The significance of pre-trial meetings for effective defense by lawyers

 

The function of the pre-trial meeting determines its important significance for the effective defense of criminal defense lawyers, mainly manifested in:

 

Pre court meetings are an important part of pre court defense.

 

The traditional focus of criminal defense is courtroom defense, which involves defending the existence and severity of a crime from the perspectives of facts, evidence, and legal application. However, with the reform of China's criminal litigation system, the focus of criminal defense has shifted forward, and the importance of pre-trial defense cannot be ignored. For example, in the pre-trial stage of investigation or prosecution review, if criminal defense lawyers can apply for obtaining favorable evidence, provide defense opinions, or seek lenient treatment for the parties by pleading guilty, they can help the parties remove, change the mandatory measures of custody, and may even obtain favorable results such as withdrawal of the case and non prosecution, thereby safeguarding the legitimate rights and interests of the parties to a greater extent.

 

Pre court meetings are an important part of pre court defense. According to Article 22 of the "Pre court Meeting Rules", Article 229 and Article 233 of the Interpretation of the New Criminal Procedure Law, the results of the pre court meeting not only have an impact on the complexity or smoothness of the court proceedings, but also have a substantive impact on the outcome of the case. For example, according to regulations, if the criminal defense lawyer can make the court realize that the facts of the case are clearly unclear and the evidence is insufficient during the pre-trial meeting, the court will recommend that the procuratorate withdraw the prosecution; As another example, according to regulations, if the prosecution and the defense reach an agreement on evidence, case facts, etc. during the pre-trial meeting, the court will no longer handle the case if the defense retracts during the court trial without justified reasons. It can be seen that in the pre-trial meeting, the criminal defense lawyer may not only strive for the defendant's procedural rights to a fair trial or even withdraw the beneficial effect of the prosecution, but also may bring adverse consequences to the defendant due to improper handling in the pre-trial meeting.

 

There is a large amount of defense space in the pre-trial meeting.

 

From a legislative perspective, first of all, criminal defense lawyers can resolve procedural issues such as jurisdictional disputes, withdrawal, and whether to conduct a public trial that are conducive to the defendant's obtaining a fair trial through pre court meetings, and can also affect substantive issues such as the existence of the defendant's crime and the severity of the sentence by eliminating illegal evidence, applying for collection, and obtaining new evidence; Secondly, pretrial meetings can reveal evidence and factual issues through evidence display and questioning the opinions of the prosecution and defense parties on the case. If the evidence is indeed insufficient and the facts are clearly wrong, it can facilitate the withdrawal of the prosecution by the procuratorate; Thirdly, through pre court meetings, criminal defense lawyers can fully communicate and exchange with judges and prosecutors on the facts of the case and the application of the law; Fourth, by sorting out the focus of disputes, criminal defense lawyers can adjust their defense strategies in a timely manner; Fifth, mediation of incidental civil actions can be conducted through pre court meetings; Sixth, it is possible to communicate the ownership of the property involved and the handling suggestions of the People's Procuratorate. It can be seen that it involves a wide range and has a great impact.

 

From the judicial perspective, the application of pretrial meetings is becoming increasingly widespread and their role is becoming increasingly important. As mentioned earlier, through relevant research on criminal defense lawyers in Beijing, it is shown that since the implementation of the interpretation of the new Criminal Procedure Law, 17 of the 27 criminal defense lawyers who participated in court trials have participated in pre court meetings, with a high convening rate of 63%; The criminal cases involved in holding pre court meetings include: criminal activities, non smoking, fraud, extortion, drug crimes, etc; Regarding the initiation of the pre-trial meeting, 12 lawyers actively applied for the initiation, and 10 successfully applied, with a success rate of 83%. The main reasons for applying are: excluding illegal evidence, and the case is difficult and significant. The pre-trial meeting attended by seven lawyers was initiated by the judge on his own initiative, mainly for cases with significant circumstances, significant social impact, multiple defendants, and significant disputes between the prosecution and the defense over evidence and facts. The main issues discussed in the pre-trial meeting are: excluding illegal evidence, applying for the appearance of witnesses in court, obtaining new evidence, cross-examination, summarizing the focus of controversy, and pre-trial communication on the existence or severity of the crime. When discussing the significance of pre-trial meetings, most lawyers affirm them, and even some lawyers believe that their significance is greater than that of court hearings. Research shows that in judicial practice, pre court meetings are increasingly valued and applied more widely. The phenomenon of "large pre court meetings and small court proceedings" in some major cases at present is also sufficient to confirm this point.

 

Obviously, the legislative width of the pretrial meeting system and the breadth of its judicial application determine the large space for defense in this link.

 

3、 How to effectively defend through pre-trial meetings

 

The overall principle for criminal defense lawyers to effectively defend in pre court meetings is to closely focus on the issues of pre court meetings based on a deep understanding and mastery of relevant laws and regulations. This is embodied in three aspects: the initiation of the pre court meeting, the preparation for the pre court meeting, and the participation in the pre court meeting.

 

1. Start of pre court meeting: Be familiar with the rules of pre court meeting and actively apply

 

As mentioned earlier, the pre-trial meeting is easy for the defendant to obtain a fair and beneficial treatment. Here, as a criminal defense lawyer, it is necessary to deeply understand and master China's regulations on the pretrial meeting system, master the conditions for applying for the initiation of the pretrial meeting, submit corresponding application materials, and actively promote the convening of the pretrial meeting.

 

Preparation before the pre-trial meeting: attach great importance to, exhaust facts, laws, and relevant theories, and fully prepare

 

Defense lawyers should attach importance to the pre court meeting, and fully prepare for the pre court meeting based on the contents of the pre court meeting, exhausting the facts of the case, laws, and relevant theories. It mainly includes the following contents:

 

(1) According to the charges and main criminal facts charged in the indictment, organize the case evidence and applicable laws, analyze the evidence and laws, and collect relevant laws and regulations, criminal policies, similar cases, and relevant theories;

 

(2) Meet and fully communicate with the defendant before the pre-trial meeting;

 

(3) If applying for excluding illegal evidence, it is necessary to list the items and clues; If the People's Procuratorate still has investigators, investigators, or other personnel participating in the pre-trial meeting during the process of explaining the legality of evidence collection, the defense lawyer needs to prepare corresponding questions and response outlines;

 

(4) If it is necessary to apply for collecting and obtaining evidentiary materials that prove the innocence or minor guilt of the defendant, a list of evidentiary materials shall be prepared, and the documents for applying for evidentiary materials shall be prepared in advance;

 

(5) If applying for jurisdiction objection, withdrawal, or non public hearing, prepare a jurisdiction objection application, withdrawal application, and non public hearing application;

 

(6) Collect and master the relevant legal provisions, criminal policies, and similar cases of the accusation in response to the judge's inquiry about the case's opinions, and develop a communication plan to communicate the existence and severity of the crime;

 

(7) For mediation of incidental civil litigation, understand relevant claims and legal provisions of incidental civil litigation, and prepare mediation plans;

 

(8) Prepare relevant factual and legal basis for handling objections to the property involved.

 

3. In the pre court meeting: closely follow the discussion topic, have a sound basis, and have a good communication and interaction

 

The pre-trial meeting is a formal part of the tripartite consultation between the prosecution and the defense. In order to obtain efficient and beneficial results, criminal defense lawyers should closely follow the discussion topic, have a sound basis, and engage in benign communication and interaction. Mainly reflected in:

 

(1) In the process of eliminating illegal evidence, we focus on the identification of illegal evidence. For example, according to China's relevant regulations on the exclusion of illegal evidence, distinguish the exclusion conditions for verbal evidence and other types of evidence, propose relevant proofs and clues for illegal evidence, and improve the success rate of exclusion.

 

(2) In the process of presenting evidence or asking for opinions on evidence materials (note: a judge will organize cross-examination), it is necessary to note that the focus on the prosecution's evidence is: to focus on the objectivity, legality, relevance, and exclusiveness of the evidence, and to elaborate the specific content and reasons of the objection; Attention should also be paid to whether the documented evidence meets the standards of authenticity and sufficiency; The focus for criminal defense lawyers to submit evidence is whether the purpose and content of the evidence are beneficial to the defendant, and whether the source is legitimate.

 

(3) In the process of sorting out the focus of disputes: fully grasp the facts of the case and the application of law, and then sort out whether it is the real focus of disputes in the case.

 

(4) The communication link between the innocence of a crime and the severity of a crime: fully communicate with evidence, laws, criminal policies, theories, and similar cases.

 

In short, as a criminal defense lawyer, in the pretrial meeting process, giving full play to the functions of the pretrial meeting, taking facts as the basis, taking the law as the criterion, in order to protect the legitimate rights and interests of the defendant, and fully exercising the defense function, is an effective defense.

 

(This article is translated by software translator for reference only.)