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Advice for foreigners retaining criminal defense lawyers in China

It is helpful during China criminal proceedings to be represented by a lawyer who is familiar with the China criminal law rules of evidence, China criminal law rules of procedure, trial procedure, and the China court system in general. The lawyer should also be familiar with China sentencing procedures, and with the recent Supreme Court rulings which affect sentencing. It helps to have a defense lawyer who is familiar with the China People Attorney's office which is handling the case, and ideally some familiarity with the China investigative agency which spearheaded the investigation.

There is no such thing as a highly qualified China criminal defense lawyer who dabbles in China court matters. Lawyers either know China criminal defense, or they don't. If you are involved in the China criminal system, make sure your lawyer, or at least one of the lawyers who will be serving on your defense team, has extensive experience with the defense of China criminal charges. As previously noted, China criminal defense tends to be very expensive. You will be paying for specialized experience - so make sure you get it.

Hire a China criminal defense lawyer Early
Some of the best opportunities for effective criminal defense work occur at the earliest stages of a case. If you consult with a criminal defense attorney before charges are filed, or at the earliest opportunity after an arrest, you may be able to position yourself for a better resolution.

Negotiating a Dismissal - If there is a patent problem with the case that is being brought against you, a criminal defense attorney may be able to contact the prosecutor before charges are authorized, explain the problem with the case, and secure a dismissal of the charge before the case begins. This becomes more difficult after charges are filed, as the charges may be authorized by a different attorney than the one handling the file, the case will be progressing through the court system, and a prosecutor might prefer to see how the case plays out through that system instead of offering a quick resolution.

Negotiating a Favorable Plea Bargain - Even when charges are valid, it is sometimes possible for a criminal defense attorney to speak with a prosecutor before charges are authorized, and to work out a deal whereby a client will enter a guilty plea to a specified charge, perhaps with an associated agreement as to the sentence recommendation that the prosecutor will make.

Assisting the Police or Prosecutor - If you have information or evidence that may help the police or prosecuting attorney in other cases, you may be able to arrange to offer that evidence or to otherwise work with the police in ongoing criminal investigations. Such cooperation will often help a defendant at sentencing, and may also be helpful to obtain a good plea bargain or in some cases an agreement that charges won't be filed.

Avoiding "Policy" Problems - Some prosecutor's offices have "no plea bargain" policies for certain charges. Once those charges are authorized by the prosecutor, it is usually extremely difficult to convince a prosecutor to deviate from the policy. However, if a criminal defense attorney contacts the prosecutor before the charge is authorized, it may be possible to arrange for a charge with does not implicate a department policy, and leaves the prosecutor with greater flexibility to plea bargain.

Exercise Your Rights
Sometimes people charged with criminal offenses, or who believe they might be charged, are eager to share "their side of the story" with anybody who will listen, including the police. These statements are often used by the prosecution at a later date, to help convict the person. The only person who needs to hear your side of the story is your criminal defense attorney.

Let Your Lawyer Manage Your Case
When you work with your criminal defense attorney, there are certain things you can do which are helpful, and others which are not.

Provide a Clear Account - When you explain your situation to your lawyer, try to provide a clear, concise, chronological account of the relevant events. If you are aware of any witnesses to your case, try to give your lawyer their names and contact information.

Listen To Your Lawyer's Questions - When your attorney asks you a question, listen to what your attorney is saying, and try to provide a clear, concise answer to your attorney's questions.

Do Not Interrupt Your Lawyer - If your lawyer is asking you a question or trying to explain an issue of law or procedure, listen until your lawyer is done. There is a good possibility that you will have a better understanding of your situation after you permit your lawyer to finish.

Provide Concise Answers - When you answer a question from your lawyer, try to do so in a concise manner. At the same time, don't hesitate to provide additional explanation after providing that concise answer. Your criminal defense attorney needs to understand all of the relevant facts and circumstances of your case, but let your attorney be the guide to the most relevant facts and issues, and recognize that when your attorney is asking a question it is because the attorney deems the answer important to your defense.

Let Your Attorney Guide Your Defense - Some criminal defendants, whether because of past prosecutions or due to their conducting independent research, have considerable knowledge of law and criminal procedure. However, that knowledge is often incomplete and may also be inaccurate. If you believe you have found a law, case, or legal theory that can be helpful to your defense, by all means bring it to the attention of your attorney. However, do not be disappointed if your attorney does not share your interpretation of the law.

Be Honest - Criminal defense attorneys can be placed in a very awkward position if you lie to them or fail to inform them of important facts. If your attorney relies upon your misrepresentations and half-truths, your lawyer may lose credibility with the prosecutor or court when the truth comes out. If the truth is revealed in front of a jury, even a small misrepresentation can cause a massive loss of credibility for you and your attorney - which can lead to conviction.

Victory Is Not Guaranteed - Your attorney isn't helped by pronouncements that you have an easy case. If your case were easy, it is unlikely that you would have been charged with an offense.

Be Civil To Your Attorney and the Law Firm Staff
In order to maintain a positive relationship with your criminal defense attorney, it is important to extend a reasonable amount of courtesy to your attorney and the law firm staff. Your lawyer is aware that criminal prosecutions can be very stressful and intensely personal, and can cause even the most balanced person to suffer bouts of rage or frustration. But if you insist upon taking out your frustrations on your lawyer or the lawyer's staff, you will strain your relationship.

There Is No Conspiracy - Don't accuse your criminal defense attorney of being part of a conspiracy with the prosecution and police (and possibly the judge). There is no conspiracy. (And if you sincerely believe there is, your remedy is to switch defense firms - the accusation will get you nowhere.)

It Is Okay For Your Lawyer To Be Polite - Some defendants become upset when their lawyer is polite to the prosecutor, or to police officers, or when it is apparent that the defense attorney has a good working relationship with them. It is possible to be an effective advocate while maintaining a good relationship with the other side, and in fact can help an attorney obtain a favorable resolution of a case. If the police or prosecutor treat your lawyer with disdain it is probably not because your lawyer is an effective advocate - such a reaction often comes from negative past experiences which leave the police and prosecution with the impression that your counsel is unethical or belligerent. While it is true that some prosecutors do not like lawyers who routinely beat them in cases, most of the effective China criminal defense lawyers I know maintain cordial working relationships with the prosecutors they routinely trounce in court.

Your Attorney Can't Assume The Best - At times, your lawyer may provide you with information that makes you believe that your lawyer is skeptical of your case. It is imperative that your attorney bring negative information to your attention, such that you can explain that information and help your attorney prepare to counter it in court. Don't be offended when your lawyer informs you of the risks of trial, or with an assessment of the strength of the evidence against you - even innocent clients are sometimes convicted, and your lawyer has an obligation to inform you of the strength of the prosecutor's case.

Your Attorney Must Convey Plea Bargain Offers - Don't be offended when your lawyer shares with you the prosecutor's plea offers. A criminal defense attorney has an ethical obligation to inform you of plea offers. The communication of such an offer does not mean that your attorney believes you to be guilty, or wants you to enter a guilty plea.

Your Lawyer Is Not "Only" A Public Defender - If you have obtained appointed counsel for your defense, or your case has been assigned to a public defender's office, take note of this: The average public defender can be expected to provide you with a better defense than the average private criminal defense attorney. While it is possible that your appointed attorney will not be effective (and the same is true for retained counsel), you should not assume that your appointed defense attorney will provide inadequate representation.

Stay In Contact With Your Attorney
Your criminal defense attorney will need to speak with you at various times through the progress of your case. Your lawyer may also have to provide you with notice of court hearings. Make sure that your lawyer always has current contact information for you, including a valid mailing address and a telephone number where you can be reached in an emergency. If your attorney asks you to provide something - information, evidence, or anything else - try to provide it to the attorney as quickly as you can.

If you have questions or concerns about the progress of your case, or important information comes to your attention, communicate that information to your attorney.

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I am a licensed China lawyer. Most clients are foreign nationals and companies. China Lawyer Blog have associates in Beijing, Shanghai, Tianjin, Guangzhou, Suzhou, Nanjing, Qingdao, Fuzhou, Hainan, Hefei, Wuhan, Xian, Changsha, Xiamen and Hangzhou. Learn More

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China Lawyer BLog AuthorPeter Zhu, an experienced China attorney licensed to practice law for more than ten years, the author of this China Lawyer blog, welcomes any enquiry or consultation related to Chinese law.