How to Effectively Communicate for Applying for Bail Pending Trial Before Request for Arrest is Made

Introduction

Before the request for arrest is made, how to effectively present defense arguments and apply for bail pending trial is the key task of the lawyer's work at this stage. The basic work for applying for bail pending trial involves obtaining information from the suspect and the public security authorities. Based on professional experience, a preliminary analysis of the case's nature is conducted.

The defense lawyer needs to be familiar with the comprehensive assessment of the considerations for whether to continue detaining the suspect or defendant, including but not limited to the criminal facts suspected by the suspect or defendant, their subjective malignancy, remorseful behavior, physical condition, the progress of the case, the possible penalties, and the risk of re-harming society. Additionally, to clarify which factors may also affect the granting of bail, the lawyer should use evidence and defense arguments to facilitate the granting of bail.

01 Key Points for Writing an Application for Release on Bail

Advocating for bail pending trial requires the preparation of the document first, that is, drafting the "Application for Bail Pending Trial" in advance. The purpose of writing this application is to secure bail pending trial. The core lies in proving that taking the measure of bail pending trial is sufficient to prevent the occurrence of social danger. The specific writing points can be analyzed from the perspective of case facts as follows:

The document should focus on the basic facts of the case, the nature of the actions, and the circumstances.

For cases where the criminal facts are relatively clear and the evidence of the crime is relatively sufficient, it is relatively easy to obtain bail pending trial. The phrase "the criminal facts are relatively clear and the evidence of the crime is relatively sufficient" can be understood as basically meeting the standards for transferring cases to the review and prosecution stage, that is, "facts are clear, evidence is solid and sufficient". For cases with questionable evidence, it is also relatively easy to strive for bail pending trial during the investigation stage. This is because it can prevent wrongful detention and allow for further investigation during the period of bail pending trial.

2 Analyze the subjective malignancy of the suspect

Suspects with less subjective malignancy are more likely to be granted bail pending trial. Cases should adhere to legal principles while also taking into account moral considerations. Analyzing the subjective malignancy of the suspect cannot be done without analyzing the motive for the crime. If the suspect's subjective intention is understandable or is driven by objective circumstances, the lawyer should state this.

3 Analyze the possible sentencing circumstances of the suspect and the potential penalties that may be imposed.

Combining the meetings, communication with the police regarding the case details, and the basic work of defense, the lawyer describes the possible legal mitigating or reducing sentencing circumstances and discretionary mitigating factors for the suspect based on the current evidence, and analyzes the possible penalties for the case. If the sentencing is relatively lenient, it is easier to strive for bail pending trial, such as cases that may be sentenced to probation, detention, or independent application of additional penalties.

4. Confirm the suspect's attitude of admitting guilt

The suspect can demonstrate their good attitude of repentance by providing truthful confessions. They can also prove their good attitude of repentance by taking actions to mitigate or recover the damaged legal interests. For cases with a complete chain of criminal evidence, a suspect with a good attitude of repentance is more likely to be granted bail pending trial. However, if the suspect's confessions are inconsistent or their attitude of repentance is poor, it will increase the difficulty of obtaining bail pending trial during the investigation stage.

5. Analyze whether the suspect is suitable for detention

If the suspect suffers from a serious illness, is unable to take care of himself/herself, is pregnant or is breastfeeding a baby, and if taking bail does not pose a social danger, it is more likely to be possible to grant bail.

6. It has been confirmed that granting bail to the suspect can prevent the emergence of social danger.

The social danger is not only the risk of reoffending, but also takes into account whether the suspect may interfere with the litigation activities during the period of bail pending trial, whether they may engage in activities related to the crime involved (such as colluding), whether it will cause instability in social relations (the bail decision may have adverse effects on national security, public safety, and social order), whether it will affect the social outcome of the case, and so on. Therefore, lawyers should focus on proving that if a bail decision is made for the suspect, the aforementioned situations will not occur, in order to eliminate the concerns of the judicial authorities.

7. Emphasize the presentation of character evidence

Character evidence refers to the evidence that can prove a person's long-term and consistent behavior and mental state; it is usually provided by the suspect's workplace, village committee, etc. The factors influencing the granting of bail pending trial, apart from the aforementioned considerations, also include the suspect's consistent behavior. Therefore, lawyers should attach importance to actively collecting and submitting the character evidence of the suspect.

02 The time point for applying for bail pending trial

Apart from simple criminal cases, in general cases, if the suspect is subject to criminal detention measures shortly after the arrest, the probability of the lawyer successfully applying for bail is relatively low. The maximum duration of criminal detention is 30 days. In most cases, to ensure that the investigation work before the application for arrest is carried out comprehensively and thoroughly and to increase the probability of successful approval of the arrest, the criminal detention period will be exhausted. Therefore, the appropriate time for the lawyer to submit the "Application for Bail" and "Defense Opinion" is when the criminal detention has lasted for more than 20 days, because at this point, there is a tendency to determine whether it is necessary to apply for the approval of arrest. Submitting the defense opinion and the application for bail at this time is more likely to be accepted by the lawyer.

03 Familiarize with the mechanism for the procuratorate to intervene in major cases in advance

In major, difficult and complex cases, the intervention mechanism will be activated in advance to ensure that the initial investigation direction is correct, lay a solid foundation for the subsequent criminal charges, and prevent any deviation in the investigation direction. The early intervention mechanism can facilitate comprehensive questioning of the suspect, victim and witness. For cases that are intervened in advance during the investigation stage, the defense opinions proposed by lawyers and the applications for bail pending trial become more difficult, and special attention needs to be paid.