Scenario-based Analysis: The 7-Day Review of Arrest Warrant and the Art of Communicating with Prosecutors

Within 7 days after the review and approval of the arrest, the lawyer should communicate with the prosecutor to understand the prosecutor's inclination on the case's classification and sentencing, write a legal opinion letter for the non-arrest application based on the distinction of non-arrest types, submit evidence or clues favorable to the suspect, help the suspect create conditions to meet the requirements of bail pending trial, and hold a hearing to apply for a relative non-arrest application. Based on the aforementioned key tasks of the lawyer, this article intends to specifically analyze the art of communication between the lawyer and the prosecutor from the three major scenarios of communication during this stage.

01 Scene One: Communication of Non-Criminal Legal Advice

During the investigation and review of the arrest approval stage, based on the case information already obtained, the lawyer makes a comprehensive judgment that the suspect's actions do not constitute a crime. Then, they must promptly communicate with the prosecutor to express the opinion of not guilty defense, in order to persuade the prosecutor to make a decision not to issue an arrest warrant. In this scenario, it is recommended that young lawyers follow the following steps to carry out the communication work.

The evidence is sorted out and the legal basis is explained, but it is necessary to anticipate the possible questioning directions of the prosecutor and prepare for responses. Especially when there is ambiguity in the boundary of technical determination, such as disputes over the nature of cyber-attack behaviors, similar precedents and expert opinions from the industry can be cited.

Preparations before communication

The crucial preparatory work before communication involves, based on the meetings and communications with the police, drafting a legal opinion that does not constitute a criminal offense. This legal opinion mainly elaborates on the fact that the current evidence chain is not closed, or there are contradictory pieces of evidence, and after eliminating the contradictory evidence, the existing evidence cannot form an evidence chain to prove that the suspect is guilty, or there is evidence confirming that the suspect did not commit the crime, or according to the current laws and judicial interpretations, the suspect's behavior does not constitute a criminal offense, etc. At the same time, in the annex of the legal opinion, supplementary evidence (or evidence clues) favorable to the suspect, case retrieval reports, authoritative interpretations of laws or judicial interpretations, and expert argumentation opinions (if necessary) are provided to enhance the persuasiveness.

2. Communication with the prosecutor after mailing the legal opinion letter

After sending the legal opinion letter, the lawyer should follow up with phone contacts with the prosecutor to strive for face-to-face communication with the prosecutor. The advantage of sending it first is that it allows the prosecutor to have an understanding of the lawyer's overall opinion and specific basis before communicating with the lawyer, facilitating the persuasion of the prosecutor to determine that the suspect does not commit a crime at the moment. The core work of communication is to explain to the prosecutor the key points of the legal opinion and main evidence that do not constitute a crime, emphasizing the parts of the evidence that are questionable, contradictory evidence, or evidence that can prove that the suspect did not commit the criminal act. The specific form of communication with the prosecutor is face-to-face communication, which is the best, as it is easier to accurately understand the prosecutor's thinking on the nature of the case and their tendencies; if only phone communication with the prosecutor is possible, the core opinions should be stated concisely and clearly, and the feedback from the prosecutor should be listened to. During the communication process, emotional expressions should be avoided. The lawyer and the prosecutor are not opposed to each other; they are from different perspectives of the prosecution and defense to restore the facts, and from the evidence and legal reasoning dimensions to determine the legal facts, ensuring the correct application of the law and the realization of procedural justice.

3 Communicate with prosecutors from the perspective of case handling risks

Apart from expressing their objections, lawyers can also communicate with prosecutors from the perspective of case handling risks. No prosecutor is willing to make a wrong decision. However, due to the influence of the prosecution's thinking mode, it is difficult for prosecutors to break away from their inherent prosecution thinking mode and to actively discover the points that are favorable to the suspect in the case. The opinions of lawyers often can remind prosecutors to pay attention to the missing evidence links or contradictions in the evidence, etc. If through communication, the prosecutor realizes that if they take the risk of making an approval for arrest decision on the case, there may be subsequent risks of wrongful cases, then the prosecutor will, based on the principle of presumption of innocence in doubt, tend to make a non-approval decision for the suspect at this stage.

After communicating the case details, be sure to empathize with the prosecutor.

After communicating the case details with the prosecutor, one should express gratitude for the prosecutor's patient listening and communication. Generally, prosecutors handle a much larger volume of cases on average than lawyers. Therefore, it is suggested that young lawyers show understanding towards the hard work of prosecutors.

Thank the prosecutor for reviewing the lawyer's opinion and hope that the prosecutor will adopt the lawyer's suggestion.

Scene 2: (Relatively) Communication on Non-Capture Applications

Preparations before communication

In this situation, through preliminary work, professional experience, and in combination with the suspect's confession, the lawyer has determined that the criminal facts involved in the case are clear, the evidence chain is complete, and there are no contradictory pieces of evidence. However, if the suspect is granted bail pending trial, there will be no social danger. Based on this judgment, the lawyer should draft a (relative) non-arrest application legal opinion and evidence or evidence clues indicating that the suspect is not guilty, focusing on explaining the reasons and basis for not arresting the suspect and avoiding social danger. It is recommended that the legal opinion be submitted before the prosecutor conducts the interrogation.

After the prosecutor's interrogation, the defense lawyer for not pursuing an arrest will supplement the legal opinion and conduct communication either by phone or in person.

After the prosecutor's interrogation, the lawyer should promptly meet with the suspect to understand the direction and key points of the prosecutor's questioning during the interrogation, in order to determine the prosecutor's inclination towards the case. Special attention should be paid to the factors that might influence the prosecutor and lead to a decision to approve the arrest of the suspect. To further convince the prosecutor, the lawyer can write a supplementary opinion on not initiating an arrest and communicate with the prosecutor by phone or in person.

Communicating with the prosecutor: Firstly, one can express gratitude to the prosecutor for their diligent review of the case files and the questioning process, so that the prosecutor is willing to listen to the subsequent opinions of the lawyer. Secondly, the lawyer should extract the key points from the legal opinion for the application of not to prosecute, emphasizing that the suspect meets the conditions for not being prosecuted, and that taking bail instead of detention will not pose a social danger. For example, in cases of first-time offenders or repeat offenders, the lawyer should pay attention to collecting evidence of the suspect's character, proving that the suspect has always behaved well and only made a mistake or lacked legal knowledge, so as to convince the prosecutor that taking bail measures for the suspect will not cause social danger. Finally, after expressing the lawyer's opinion, one should inquire about the prosecutor's attitude and pay attention to the feedback from the prosecutor. Sometimes, the prosecutor may suggest that the lawyer provide further supporting evidence to confirm that taking bail measures will not cause social danger.

Notes for post-case communication

After communicating the lawyer's opinions on the case, one should also express to the prosecutor the following: If the suspect is decided (relatively) not to be arrested, the possible conditions such as the provided guarantor or the amount of bail, in order to inform the prosecutor that the suspect meets the requirements for implementing the bail pending trial measure, thereby encouraging the prosecutor to adopt the lawyer's opinion against arrest.

Finally, please once again thank the prosecutor for reviewing the lawyer's opinion and expressing the hope that the lawyer's opinion will be adopted.

Scene 3: Communication during the hearing for not pursuing arrest application

Preparations before communication

In some difficult and complex cases, lawyers may apply for holding a hearing in order to convince the prosecutor that allowing the suspect to be released on bail will not pose a social threat. This approach enables the prosecutor to make a comprehensive judgment based on all the opinions and social stability factors, thereby facilitating the prosecutor's decision not to prosecute.

The basic work of a lawyer is to draft the application for not initiating an arrest hearing and submit it. The application focuses on emphasizing that there is evidence to prove that the decision not to approve the arrest can be made, the social stability risks are relatively low, and there are reasons for the necessity of holding the not-arrest hearing; the aim is to eliminate the concerns of the prosecutor regarding the decision not to approve the arrest through holding the hearing.

2. Key points of communication with the prosecutor

In this scenario, the lawyer needs to emphasize that the suspect meets the conditions for bail pending trial, and that bail pending trial will not hinder the progress of the trial; if there is a victim, the victim (if any) agrees in the criminal settlement agreement that the prosecution will make a decision not to prosecute the suspect; making a decision not to prosecute the suspect will not trigger public dissatisfaction; in short, the lawyer needs to convince the prosecutor that the decision not to prosecute can achieve the unity of the case handling effect and the social effect.

Finally, do not forget to express gratitude to the prosecutor for his patient work, and hope to adopt the lawyer's opinion who requested the hearing.