Key points for communication with lawyers after the stage of review and approval for arrest
Cases that are not prosecuted are classified as cases of doubtful prosecution and cases of relative non-prosecution. The types of non-prosecution here are the expressions used habitually by the procuratorial organs. If it is a case of doubtful prosecution, the case will be returned to the public security authorities for further handling. After the case is returned to the public security authorities, there will be two directions of handling for the case. Some cases, due to objective reasons, the evidence cannot be further collected or the case is actually innocent, the public security authorities will make a decision to withdraw the case. For another type of case, the case may undergo subsequent supplementary investigation and be re-submitted for review and approval of arrest. Based on the above circumstances, lawyers need to communicate clearly with the suspect.
01 The tasks that lawyers need to undertake for suspects who have been approved for arrest
(1) Immediate Meeting
For cases where an arrest warrant has been approved, lawyers should immediately meet with the suspect. Before the procuratorial organ makes a decision to approve the arrest, the suspect will always have some hope for not being arrested; once the public security authorities go to the detention center and read out the decision of approval for arrest to the suspect, he will be extremely eager to meet the lawyer as soon as possible. Therefore, at this time, lawyers should seize the timing and promptly meet with the suspect; explain to the suspect the considerations of the procuratorial organ in making the decision to approve the arrest, inspire the suspect to recall the favorable evidence (or evidence clues) in his favor, interpret the subsequent criminal litigation procedures, and analyze and adjust the subsequent defense plan.
(2) Effectively carry out emotional soothing work
While interpreting the decision of approval for arrest and providing professional advice to the suspect, the lawyer also needs to pay attention to soothing the suspect's negative emotions. Based on the analysis of the future defense plan, the lawyer should be able to give the suspect hope for freedom and encourage them not to give up the defense.
02 The work that lawyers need to undertake for suspects in cases where no arrest is made
In this scenario, the main focus of the lawyer's work is to communicate about subsequent defense matters and manage the reasonable expectations of the suspect and their family regarding the case. The lawyer should inform the suspect and their family that non-prosecution means that the prosecution has reviewed the case and determined that the suspect is guilty, but no detention measures will be taken. The criminal litigation process of the case will still proceed forward, and the parties need to abide by the relevant regulations of bail pending trial.
(1) The duty of informing the defendant
Informing the requirements for bail pending trial
If a lawyer helps a suspect obtain bail pending trial, the first step is to inform the suspect and their family of the requirements for bail and the legal consequences of violating them. Although when the public security authorities handle the procedures for bail pending trial for the suspect, they will inform the suspect and their family of the behavioral requirements during the bail period; and when the procuratorial organs make the decision not to prosecute, they will also inform the suspect of the behavioral requirements during the bail period, the defense lawyer still needs to emphasize to the suspect the behavioral norms during the bail period and the legal consequences of violating the bail, that is, the possibility of being re-imposed detention measures.
2. Informing the legal consequences of violating the requirements of bail pending trial
The suspect has trust in the defense lawyer and is more willing to listen to the lawyer's advice and warnings. In practice, there have been cases where some suspects, due to incomplete understanding of the requirements for bail pending trial, ended up violating the relevant regulations and being re-detained. If the lawyer fails to fulfill the aforementioned notification obligation properly, and as a result, the subsequent suspect violates the regulations of bail pending trial and is re-detained, it can be said that the lawyer's work has not been done to the best of their ability to some extent.
3. Inform the suspect of the investigation period set by the judicial authorities
During the investigation stage of the public security authorities, the review and prosecution stage of the procuratorate, and the trial stage of the court, all three authorities can re-process the bail application procedures for the suspect. This will result in the trial period of the bail application cases being longer than that of the cases where the suspect is in custody. The judicial authorities should inform the suspect and their family members about the practical operation of the bail application procedures, so as to enable the suspect and their family members to have a reasonable estimation of the trial period of the judicial authorities.
(2) Eliminate Misunderstandings
In order to achieve better case handling results, in addition to the accumulation of previous case handling experience, criminal defense lawyers should learn to appropriately manage the reasonable expectations of family members, suspects and defendants regarding the outcome of the case. For instance, defense lawyers should pay attention to correcting the three common misunderstandings held by the public.
1. Bail pending trial is not applicable to everyone.
According to Article 67 of the Criminal Procedure Law, the following types of criminal suspects or defendants can be granted bail pending trial: (1) Those who may be sentenced to criminal detention, imprisonment, or be subject to additional penalties independently; (2) Those who may be sentenced to imprisonment or a higher term of punishment, and taking bail pending trial will not lead to social danger; (3) Those who suffer from serious illnesses, are unable to care for themselves, are pregnant, or are breastfeeding their infants; taking bail pending trial will not lead to social danger; (4) The term of detention has expired, but the case has not been concluded yet, and bail pending trial is necessary. ……” Furthermore, in light of the "sufficiently preventable occurrence of social danger" standard stipulated in the "Regulations on Certain Issues Concerning Bail Pending Trial", it is clear that not all suspects in all cases may meet the conditions for bail pending trial. Family members insisting on evaluating the effectiveness of the lawyer's work solely based on whether bail can be granted is neither realistic nor scientific.
2. Bail pending trial does not guarantee a perfect outcome.
According to Article 71 of the Criminal Procedure Law, "If a suspect or defendant violates the regulations of bail pending trial and needs to be arrested, they can be detained in advance." Therefore, the understanding that family members or the suspect have that the case is over and the suspect has regained their freedom after being released on bail is incorrect. The defense lawyer should correct this mistaken understanding of the suspect and their family.
Surety release is a type of compulsory measure. It merely means that no detention measures have been taken, but the subsequent investigation, review and prosecution, as well as the trial of the case, will all follow the criminal litigation procedures. The suspect under surety release shall not evade investigation, prosecution and trial, and must provide a guarantor or pay a deposit, and issue a guarantee letter, promising to report to the police immediately upon summons.
3. Bail pending trial does not equate to being granted probation.
Being released on bail before trial does not necessarily mean that a suspended sentence will be imposed. According to Article 72 of the Criminal Law of our country, for criminals sentenced to detention or imprisonment of less than three years, if they meet the requirements stipulated in the first four items of Article 72, the court may declare a suspended sentence. Lawyers should inform the suspect and their family that being released on bail is not equivalent to being sentenced to a suspended sentence. The public often mistakenly believes that being released on bail is equivalent to indicating that the court will later impose a suspended sentence.
In practice, this situation may occur for various reasons. For instance, new criminal facts may be discovered during subsequent investigation. Or there may be differences in the determination and understanding of case facts and judgments by the public security, procuratorial, and judicial authorities. Or factors related to the balance and uniformity of sentencing for all the defendants in the case may also lead to the suspect who was released on bail before the trial being sentenced to actual imprisonment.
Therefore, explaining to the suspect and their family that being granted bail pending trial does not mean receiving a suspended sentence can help them recognize the defense work already carried out by the defense lawyer. Only in this way can the case handling achieve good results.
