Communication Skills During the Review and Approval of Arrest Warrants

Preface

If the case is referred for review and approval of arrest, the lawyer must seize the brief yet crucial window of opportunity during the review and approval stage of arrest to strive for the adoption of the lawyer's opinions. If the evidence of the crime is questionable, the lawyer should aim for a situation where the case is not arrested despite the questionable evidence; if the evidence of the crime is indeed sufficient, the lawyer should explain that there is no necessity for detention and recommend a decision of not arresting. Given that the evidence review is more rigorous during the review and approval stage of arrest, once arrest is approved, it will be much more difficult to change the criminal coercive measures subsequently. Therefore, the lawyer must seize this defense window period.

1. Understand the working pace of the prosecutor

During the review and approval stage of arrest, it is necessary to communicate effectively with the prosecutors. First of all, one needs to understand the working schedule of the prosecutors. During the review and approval stage of arrest, the prosecutor's review period is only seven natural days. Excluding Saturdays and Sundays, the actual effective working time for the prosecutor is only five days. Within these five days, the prosecutor not only has to review the case files, but also has to conduct interrogations at the detention center, write an analysis report of the case, and make a decision; for major, difficult, and complex cases, their opinions also need to be submitted to the Prosecution Committee for discussion or held (not to arrest) hearings, etc.

Only by understanding the working rhythm of the prosecutor can young lawyers accurately grasp the time points of their work and effectively carry out their defense work. For example, it is suggested that the lawyer submit the written defense opinion to the prosecutor around the third day after the case is accepted by the procuratorate, because at this time the prosecutor is likely to have completed the review of the case files and the interrogation, and has a relatively clear understanding of the case; if the case is particularly special, holding a hearing will be beneficial for obtaining a non-arrest decision. The lawyer should submit the application for holding a hearing to the prosecutor as early as possible so that the prosecutor can arrange the hearing within the limited 7-day period; otherwise, if the application is submitted too late, the prosecutor will not have enough time to organize the hearing.

II. Contents of Communication with the Prosecutor

(1) Understand the prevailing opinions on the nature of the case and the recommended sentencing.

During the stage of reviewing for arrest approval, it is important to pay attention to communication with the prosecutor. At this stage, due to the possibility of an expanded scope of subsequent investigation and adjustments to the subsequent investigation direction, the substantive opinions on the nature and sentencing of the case generally do not come to light. However, lawyers can obtain an understanding of the tendency of the case's determination through communication. The tendency of opinion mainly includes the basic facts of the case as determined after the review, whether the current chain of evidence proving the suspect's guilt is complete, and the proposed subsequent investigation direction, etc.

Given that the proposal for the early intervention investigation mechanism can influence the direction of the investigation, it is beneficial for lawyers to understand the possible investigation directions of the case in the future. This helps in predicting the possible course of the case and also facilitates the assessment of the difficulty of defense in the subsequent stages of the case.

(2) Submitting defense arguments and application for non-booking

During the period of reviewing the arrest, lawyers are required to submit written defense opinions and non-arrest applications to the prosecutor. When handling cases, lawyers need to distinguish whether the case falls under the category of relatively not arresting, questionable not arresting, or absolutely not arresting. Due to the different types of non-arrest, the focus of writing defense opinions and application letters is also different, and the subsequent handling results will be completely different.

1. Cases of non-capture

"Relative non-arrest" refers to the situation where, after excluding illegal evidence and correcting any flawed evidence (if there is any), the relevant facts are clear, and the evidence provides solid and sufficient proof that the suspect is guilty. However, based on the suspect's circumstances, no detention measures need to be taken. In simple terms, the suspect is guilty but does not need to be detained.

In cases where no arrest is necessary, the application for not arresting the suspect should place more emphasis on informing the prosecutor that there is no need to take any detention measures against the suspect, and that releasing them on bail is sufficient to prevent any social danger.

For cases where no arrest is necessary, the public security authorities will continue the investigation after the decision not to arrest is made by the procuratorial organ; within one year of the period of release on bail, the case will be transferred to the procuratorial organ for review and prosecution.

2. Cases of Not Making an Arrest Due to Doubts

Suspect not arrest, which means not arresting a suspect due to insufficient evidence, can be understood as the prosecutor, based on the current evidence, believes that the suspect's criminal facts are unclear, the evidence is not yet solid and sufficient, or it is impossible to form a complete chain of evidence to prove the suspect's guilt, or there are contradictory pieces of evidence that cannot be ruled out. According to the principle of "presumption of innocence in case of doubt", the prosecutor tends to believe that the case is an innocent case.

In cases where a decision not to prosecute is in question, the application for not prosecuting should place more emphasis on informing the prosecutor that the facts of the crime are unclear, the evidence is not yet conclusive and sufficient, and is consistent with the defense of innocence.

For cases where a suspect is not arrested despite doubts, the public security authorities will continue the investigation after the decision not to arrest is made by the procuratorial organ. If there are new pieces of evidence that, together with the existing evidence, form a complete chain of evidence to prove that the suspect is guilty, the public security authorities can once again request the procuratorial organ to approve the arrest. If there are no new pieces of evidence, the case will be withdrawn.

3. Cases of Absolute Non-Capture

Absolutely not to prosecute, which is a case of no crime. Given that in judicial practice, after making the decision not to prosecute, the type of non-prosecution will not be further informed to the suspect. Therefore, this type of case will not be elaborated on any further.

(3) Submit relevant evidence or clues

During the review and approval stage of arrest, lawyers are required to submit relevant evidence or clues to the prosecutor. In addition, lawyers should pay attention to collecting evidence regarding the suspect's character. For example, in a fraud case involving a co-conspirator, the client was a grassroots employee, had a doctoral degree, resigned from a university and joined a "start-up team", with the original intention of trying to make another attempt at success in middle age. However, unexpectedly, he got involved in a fraud gang disguised as a start-up; when he discovered the possibility of illegal behavior in his official duties, he attempted to stop the joint crime, but failed; in order to obtain the so-called "salary" and ensure basic living, he侥幸 continued to "work" in the fraud gang； shortly after his entry into the company， the entire case was uncovered. To explain to the prosecutor that this suspect met the conditions for bail pending trial， the lawyer submitted a statement from the original university where the suspect worked. This statement confirmed that the suspect was a Party member and had worked at the university for over ten years， with a consistently good work performance. The defense opinion， combined with this character evidence， led to a decision not to arrest， while other suspects with the same role as this client in this case were all granted arrest approval. It can be seen that this character evidence played a crucial role in successfully obtaining bail pending trial.

(4) Facilitating the fulfillment of the conditions for bail pending trial

If the suspect does not meet the requirements for bail pending trial at the moment, the lawyer can, in accordance with the regulations, propose new conditions to meet the requirements for bail pending trial. For example, in cases involving victims, before the application for approval of arrest is submitted, the suspect does not meet the conditions for bail pending trial; however, during the review stage of the arrest approval, if the suspect is helped to make active compensation, apologize to the victim, obtain the victim's forgiveness, and reach a criminal reconciliation agreement, the newly reached criminal reconciliation will be conducive to being used as one of the reasons for the non-approval of arrest during the review stage of the arrest approval.

(5) Request to hold a hearing

In order to strive for a relative non-prosecution, lawyers can apply for a hearing at this stage. The content of this work refers to that after submitting the defense opinions, evidence (clues) of mitigating the crime, and the non-prosecution application, lawyers apply for a hearing to facilitate the prosecutor in evaluating the possible case handling results and social effects if non-custodial measures are taken. The purpose is to promote the case to receive a decision of relative non-prosecution.