The Duty to Investigate

 

Contents

Setting the Stage:
[1] Issue
[2] Hypothetical Facts
[3] Key Questions
Preliminary Legal Analysis:
[1] Under U.S. Law
[2] Under Chinese Law
Expert Comments:
[1] Stephen Gillers, Professor, New York University School of Law
[2] Charles Stillman, Partner, Ballard Spahr LLP
[3] Li Jing, Professor of China University of Political Science and Law
[4] Qian Lieyang, Partner of Beijing Tianda Law Firm
[5] Xu Shenjian, Professor of China University of Political Science and Law


SETTING THE STAGE

Issue:

When does a lawyer have a duty to investigate facts that may be helpful to a client’s defense? In what circumstances would a lawyer be subject to discipline for failing to investigate the facts of the case? What risks should a lawyer keep in mind when conducting a factual investigation on behalf of a client?

Hypothetical Facts:[1]

Defendant “Jones” was arrested and indicted along with three other co-defendants. The prosecution alleged that Jones participated in a series of five robberies that took place inNew York City duringa relatively brief period of time. Defendant Jones’ father retained lawyer Liu as the defense lawyer for Jones.

When Liu read through the government’s indictment and case file, he learned that in response to police interrogation, Jones had confessed to participating in all five of the robberies. But when Liu later interviewed Jones in jail, Jones said this was not entirely true. While Jones admitted to some of the crimes, he stated that he was not at all involved in either of the first two robberies. In particular, Jones claimed that he was working in Los Angeles on the days when the first two crimes were committed, and would have had no way to travel back to be a part of either of those crimes.

Liu followed up with several questions. Why did Jones confess to crimes of which he was not guilty? Did the police beat Jones up? And did Jones ever tell his alibi to the police? To this, Jones said that the police questioned him at length and did not allow him to sleep. They also promised lenient treatment if Jones confessed. Scared, exhausted, and nervous, he told the police that he did everything and said nothing about the alibi.

Going further, Liu asked: did Jones have evidence to support his alibi? Were there any work records or other evidence of his presence in Los Angeles? As he did only informal work and was paid in cash, Jones said that he had no employment records, and neither did he have other documents to prove he was there. But Jones said that there were several people who know he was there. His wife was with him the entire time, and there were many villagers from his hometown who worked with him. Jones suggested that Liu speak to Jones’ father, as he knew several of the villagers and could likely find people to testify in support of Jones' alibi.

Key Questions:

1.       Does Lawyer Liu have an obligation to investigate his client’s alibi defense? If so, what is the basis of that obligation? If not, why is the obligation not included within the obligation to protecting the lawful interests of the client (Chinese law) or the obligation to zealously represent the interests of the client (U.S. law)?

2.       Does that duty exist even if the client already confessed to the police? Does that duty exist if the client confesses to his lawyer, or if the lawyer believes his client is guilty?

3.       If the lawyer does not investigate his client’s alibi, what impact will it have on the lawyer? What impact will it have on the client?

4.       If the lawyer does choose to investigate, how would you recommend he go about doing so?

5.       In conducting a factual investigation, how should a lawyer protect himself from allegations of subornation of perjury and obstruction of justice?


PRELIMINARY ANALYSIS UNDER U.S. LAW

Duties of Competence and Diligence

In the United States, the conduct of criminal defense lawyers is regulated by the United States Constitution and the cases interpreting it and the relevant provisions of the ethical codes for lawyers. We will begin with the American Bar Association’s (“ABA”) Model Rules of Professional Conduct.

The ABA rules speak to this issue in two general provisions.[2] First, Rule 1.1 (“Competence”) provides, “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The comments to this provision further clarify that “Competent handling of a particular matter includes inquiry into and analysis of the factual … elements of the problem,” that is, a duty to investigate.[3]

Second, Rule 1.3 (“Diligence”) states, “A lawyer shall act with reasonable diligence and promptness in representing a client.” As described by the comments, diligence means that neither “opposition, obstruction or personal inconvenience” should stop a lawyer from pursuing the objectives of their representation, and to this end, a lawyer should “take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor.”[4] Together, rule 1.1 defines the basic shape of the duty to investigate, and 1.3 emphasizes the strength and scope of this obligation.

The Defense Lawyers’ Duty to Investigate

The Criminal Justice Section of the ABA has also issued specific standards for defense lawyers, which directly address a lawyer’s duty to investigate: [5]

Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to defense counsel of facts constituting guilt or the accused’s stated desire to plead guilty.[6]

At least three components of this standard warrant attention. First, the duty to investigate requires counsel to “explore all avenues leading to facts relevant to the … case ….; ” second, counsel should investigate information possessed by the government; and, third, this duty is not affected by a defendant’s admission to certain facts, even those constituting the defendant’s guilt.

Ineffective Assistance of Counsel

The issue of whether a defense lawyer adequately fulfilled the duty to investigate most frequently arises in the context of an ineffective assistance of counsel claim after a conviction. The United States Constitution guarantees every individual accused of a crime with the “effective assistance of counsel.” A lawyer’s representation may be found ineffective if it falls below an “objective standard of reasonableness” determined in reference to “prevailing professional norms” such as those articulated by the ABA discussed above.[7] On this basis, a defendant can challenge his conviction on appeal or through a collateral attack by demonstrating that he did not receive the level of assistance of counsel guaranteed by the Constitution.

Many ineffective assistance cases have addressed the defense attorney’s duty to investigate. While the cases turn on specific facts, we note some general observations. First, the court may find that a lawyer did not act reasonably when the lawyer failed to conduct any investigation at all. For instance, in Bryant v. Scott, the defendant – accused of committing armed robberies in Texas – told his attorney that there were alibi witnesses who could testify that he was actually in California at the time of the robberies.[8] In the intervening 72 hours before trial, the attorney did absolutely nothing to find or speak with the witnesses. The court found that the lawyer’s conduct fell below the standard of what a reasonably competent attorney should do.

Second, where the client requested the attorney to investigate something and the investigation would not be very burdensome, courts tend to view the failure to investigate as a violation of the lawyer’s duty to investigate.[9] This duty of diligence requires more than a half-hearted effort. For example, in Avery v. Prelesnik, the defendant’s brother informed the defense attorney’s investigator about several potential alibi witnesses.[10] The investigator merely left his business card with the defendant’s brother but neither the investigator nor the attorney made any other effort to contact the witnesses. The court found the attorney’s behavior to be deficient, stating that he should have at least sought the witnesses’ phone numbers and attempted to contact them.

An attorney is not obligated to investigate every possible lead regardless of the likelihood it will bear fruit. An attorney may make “strategic choices” about how to design and conduct a defense, including the investigation. In many instances, the results of a preliminary investigation may support a reasonable professional judgment that further investigation is not warranted. “In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.”[11] However, the courts have drawn some lines as to what will not constitute a strategic decision justifying a failure to investigate. For instance, an attorney’s total failure to investigate is rarely justified as a strategic decision because at least some investigation is necessary to determine what the best strategy will be.

In addition, an attorney’s belief that the defendant is guilty will not absolve him of the duty to investigate.[12] This duty persists even where the defendant has confessed to the crime. In a case where defendant had signed three written statements confessing to involvement in a murder, the court still held that the attorney’s failure to attempt to contact the only eyewitness or to interview the police offers who took the witness’s statements constituted deficient performance.[13]

Result

Accordingly, in the hypothetical case presented here, even though Jones had confessed to the robberies during police interrogation, his attorney, Liu, still had a duty to investigate. An American court would likely find that Liu’s failure to make any effort to contact the potential alibi witnesses, especially after being provided with their contact information, was unreasonable and inadequate. As stated, an attorney is entitled to make strategic decisions about what defense to pursue or not pursue. However, a court is likely to conclude that by not even contacting the witnesses, the attorney was not in a position to make the strategic decision of how best to proceed.

If the defendant prevails on an ineffective assistance of counsel claim – establishing both the inadequacy of the attorney’s performance and the prejudicial effect of this deficiency – the court will generally overturn or set aside the conviction and order a new trial.

As for the lawyer, as described in the above hypothetical, the possible consequences include disciplinary action for violating the ethical rules, reputational damage, and potentially a malpractice claim by the defendant.

Preliminary Analysis under P.R.C. Law

The Right/Duty to Investigate

                Under Chinese law, criminal defense investigation is regulated by several different statutes and bar association rules. These include two statutes, the PRC Criminal Procedure Law and PRC Lawyers Law, and various disciplinary rules, including the practice code and the rules of punishment for misconduct issued by the All-China Lawyers Association (ACLA), as well as additional rules publicized by local bar associations. The rules and standards relevant to this issue are set out as follows.

Statutes and Rules

Article 39 of the PRC Criminal Procedure Law (CPL) states:

Where a defender believes that the public security organ or people’s procuratorate has gathered exculpatory evidence in the investigation phase that shows the suspect or defendant is not guilty or that the offense was minor, and has not submitted it, the defender has the right to apply to the people’s procuratorate or people’s court obtain that evidence.[14]

CPL Article 40 states:

Where a defender has gathered evidence showing that the criminal suspect was not at the scene of the crime, has not reached the age of criminal liability, or is not liable at law by reason of mental incompetence, the defender shall promptly inform the public security organ and people's procuratorate.

And Article 41 states:

Defense lawyers may collect evidence from witnesses, relevant organizations, and other individuals, with that party’s consent. Defense lawyers may also apply to the procuratorate or the court to obtain evidence, and they may also apply to the court to compel a witness to appear in court to testify. Furthermore, with the authorization of the procuratorate or the court, defense lawyers may contact victims and their close family, and with that party’s consent the lawyer may collect evidence relevant to the case.

And Article 42 states:

Defense lawyers, and all other persons, shall not help criminal suspects or defendants conceal, destroy, or fabricate evidence, or collude with a criminal suspect or defendant to make confessions consistent, and must not intimidate or induce witnesses to give false testimony or take any other acts to interfere with the proceedings of judicial organs.

Article 31 of the PRC Lawyers Law provides:

A lawyer serving as a defender shall, with basis in fact and law, raise any materials and arguments that demonstrate the defendant’s innocence or guilt to a lower degree of crime or else demonstrate the presence of any factors that mitigate or exempt the defendant from criminal punishment, in order to safeguard the lawful rights and interests of the criminal suspect or defendant.

According to Article 6 of the Lawyers Practice Code of Conduct issued by the ACLA:

A lawyer shall act with honesty, diligence, and responsibility in all his duties, and shall, with basis in fact and law, protect his client’s lawful rights and interests, protect the correct implementation of law, and protect fairness and justice in society.

And Article 35 states:

A lawyer shall make full use of his knowledge and expertise, in accordance with law and the terms and scope of any representation agreement, to protect his client’s lawful interests.

Article 11(6) of the Lawyers Association Rules for Punishment of Members' Misconduct (Draft) issued by the ACLA provides:

Any of the following acts will subject a member to disciplinary punishment including a warning, circulation of a criticism notice or public censure by the provincial (autonomous regional or municipality) lawyers association: (6) without legitimate reason, failure to provide legal advice and refusal to defend or act on the clients behalf, which includes: lax investigation of the case, delay in collecting evidence and applying for its preservation; not obeying times for court hours; delay in filing an application for enforcement, delay in exercise of the right to cancel and the right to appeal, delay in application for approval, registration, alteration, disclosure, filing, public disclosure, etc., as these cause damage to a client’s case.

The Significance of the Right/Duty to Investigate

The defense lawyers’ right to investigate has real significance. In modern criminal prosecutions, the final verdict may well turn on evidence secured by the defense attorney’s careful investigation. The right to investigate provides a distinct avenue for the defense counsel to advocate for their client and counter the evidence presented by the prosecution. Providing the court with evidence discovered by investigation helps a lawyer persuade the court to rule in favor of their client. In this way, the right to investigate is a prerequisite for effective defense. A defense attorney should make full use of this right by carefully reading the indictment and case files, meeting with the client, questioning witnesses, looking for third parties with key information about the case, seeking expertise, examining the crime scene, and checking if any evidence is missing. These are important steps to ensure that the client receives an adequate defense.

It is precisely because of the significance of the right that the laws above provide ample protection for the lawyers’ right to investigate. Collectively, the laws require that state entities respect a lawyers’ right to investigate and refrain from interfering with or inappropriately influencing a lawyer’s investigation. Chinese law also places an affirmative duty to investigate on lawyers. In working diligently and responsibly, Chinese lawyers should fulfill their duty to the client by proactively investigating the case in order to protect the lawful interests of the client. That said, the provisions in the PRC Criminal Procedure Law do focus more on authorizing lawyers to investigate the case rather than on the affirmative duty to do so. Thus, there is no punishment in the Criminal Procedure Law against lawyers who fail to adequately search for evidence. Moreover, the criminal procedure and penal codes restrict lawyers’ investigations to those related to an ongoing prosecution. The most stringent constraint on lawyer’s right to investigate is Article 42 (PRC Criminal Procedure Law) and Article 306 (PRC Criminal Law) on the crime of lawyer’s perjury: “Defense lawyers … shall not help criminal suspects or defendants conceal, destroy, or fabricate evidence, or collude with a criminal suspect or defendant to make confessions consistent, and must not intimidate or induce witnesses to give false testimony or take any other acts to interfere with the proceedings of judicial organs.” In particular, the criminal stipulation in Article 306, often labeled “Big Stick 306” among Chinese lawyers, presents what is sometimes referred to as a “Sword of Damocles” hanging over Chinese legal practitioners when they consider whether to investigate. If they fail to investigate, they are not fulfilling their duty. If their investigation yields evidence that contradicts the police and prosecution dossier, they may find themselves accused of violating Article 306.

Result

In the hypothetical case cited above, Lawyer Liu has a duty to his client Jones to diligently and responsibly represent Jones’s interests. Liu also has a duty to the court to ensure that the facts of the case are accurate. Even though the criminal defendant has confessed to the police, based on Chinese law and ethical codes, the attorney should investigate, verify, and inform the court of any evidence that may lead to his client’s acquittal or a lower sentence. After all, lawyers are not only representatives of their clients; they are also participants in the adjudicative process in criminal trials. Lawyers have a duty to the court to ensure that the factual information about the case is accurate. In this case, if Liu did not investigate the leads provided by his client, he would not be acting diligently and responsibly as a representative for his client, and he would not be performing his duty to the court. As Liu was aware of Jones’s alibi, if he failed to investigate the alibi for fear of being charged with inducing perjury, despite the knowledge that such evidence may have helped his client’s case, Liu would be liable for disciplinary punishment. Although Chinese law does not explicitly stipulate punishment for disciplinary violations, Liu could be liable for a warning, circulation of a criticism notice, or public censure under the provisions of Lawyers Association Rules for Punishment of Members' Misconduct. He may be subject to administrative punishment ordered by judicial authorities as well.

While it is certain that lawyers should perform their duty to investigate, a practical difficulty does discourage some lawyers from acting on their duty. The provision on the crime of lawyer’s perjury in the Criminal Law and the Criminal Procedure Law has been used to dissuade lawyers from investigating. Under considerable pressure, Chinese lawyers face a hard choice of whether to investigate. Since 1997, many lawyers have been subject to the crime of lawyer’s perjury. High profile cases include the case of the defense attorney Li Zhuang (during Chongqing’s crackdown on organized crime) in 2009-2011 and the case of “four Beihai attorneys” in 2011-2013.  On the other hand, we are not aware of any cases where lawyers have been disciplined for failing to investigate. Thus, the current practical incentives may reward inaction and deter factual investigations, particularly, those that rely upon witness statements.

One potential solution to this dilemma is for Chinese criminal defense lawyers to take special care in conducting factual investigations. Reliance upon documentary evidence may be less risky than reliance upon witness statements. Where witnesses must be used, there may be strategies defense lawyers may use to minimize risk. For example, when witnesses contradict earlier statements given to the police by themselves or others, special care should be taken to ensure that, in addition to the attorney, other reliable witnesses are present to testify that the lawyer did not pressure or offer inducements to the witness in exchange for testimony or a statement. Furthermore, electronically recording the complete interview might also be helpful in protecting the attorney and the witness.


EXPERT COMMENTS

Stephen Gillers

1. Liu certainly does have an obligation to investigate the alibi defense. This duty comes from several sources. The professional conduct rules for lawyers require competence. Competence requires the level of “thoroughness and preparation reasonably necessary for the representation.”  Proof against charges for two of the robberies can lead to a better outcome for Jones—either via a sentence after trial or a plea offer. Another source of Liu’s duty is the civil law, which requires lawyers to exercise that degree of care, skill, and judgment as exercised by lawyers in the licensing jurisdiction. That standard, too, requires investigation. The Sixth Amendment guarantee of the effective assistance of counsel is not, strictly speaking, a source of Liu’s legal duty to Jones. It is rather a right the Constitution guarantees Jones. Liu, in other words, cannot be sued or disciplined for violation of the Sixth Amendment. But Jones can seek to have a conviction overturned if his representation was constitutionally ineffective. Nonetheless, in deciding whether Liu has satisfied his obligations under the duty of competence and the civil law, we would look to cases defining effective representation. 

2. The duty to investigate the alibi defense (and other defenses) exists even if the client has confessed to the police and even if he has confessed to Liu. Sometimes, clients admit facts that are not true. They may be confused. They may be protecting someone else. The police may have misconstrued the alleged confession, not necessarily intentionally. The confession may be untrustworthy for other reasons. The duty to investigate is present even if Liu believes Jones is guilty. Liu is not the judge of the client’s guilt. The judge or jury is or will be. Liu’s belief, even if reasonable, may be wrong. Of course, the nature of the required investigation will be guided by what Jones tells Liu. Jones may provide so many details confirming his confession to Liu that Liu can reasonably conclude that the investigation need not be as thorough as it would be if Jones’s confession was vague or internally contradictory or if Jones denied the truth of the confession he gave the police.

3. A failure to investigate as appropriate can lead to an erroneous conviction, which an investigation might have avoided. If the failure is serious enough, if it rises to the level of ineffective assistance, a conviction may be overturned and a new trial ordered. But this can take many years. Furthermore, for Jones to prevail on an ineffectiveness claim he must prove not only that his lawyer’s behavior was professionally unreasonable, but also that without the lawyer’s failure, there is a reasonable probability that the result of the trial would have been different. In theory, ineffectiveness can also result in discipline for Liu, but this almost never happens.

4. Liu should talk to whomever Jones identifies as being able to support his alibi defense or able to identify others who can do so. Preferably, Liu will do this in person and take copious notes. If the witnesses support the alibi defense, he should ask them to sign an affidavit so stating. This will make it harder for them to change their stories. Liu should collect any documentary evidence he can find supporting the defense. If there is a trial, Liu should decide whether it makes tactical sense to call these people as witnesses.

5. Liu may be able to record his conversations with witnesses. Some jurisdictions require the witness’s consent to a recording. Others do not. Liu can also bring a colleague to the interviews, someone who can take notes, which Liu might not be able to do as fully if he is conducting the interview at the same time. Liu should preface his interviews by emphasizing that he wants the witness to provide his or her best recollection, not to guess, and to say “I don’t know” when the witness does not know.

One other thing bears mention. Even if Liu believes that Jones is guilty of three or even all of the robberies, even if the interviews with alibi witnesses do not provide contrary information, Liu must still consider whether the government will be able to prove guilt beyond a reasonable doubt. So long as he stays within the rules of evidence and legal ethics, so long as he does not introduce evidence he knows is false (even if believes it might be), he can ask the jury or judge to acquit Jones. He can do this even if Liu “knows” that Jones “did it.” The state has the burden of proof. Liu may, and where tactically warranted must, challenge the state’s proof as not sufficiently credible. He may argue that the state has failed to prove guilt beyond a reasonable doubt. He may cross-examine the state’s witnesses to the extent allowed by the rules of evidence regardless of what he believes or knows about the accuracy of their testimony. If Liu concludes that Jones falsely confessed to two of the robberies and introduces alibi evidence in support of that conclusion, he may use the very same proof in argument to cast doubt on the truth of the confessions to the three crimes he knows Jones did commit.


Charles Stillman

The representation of the criminally accused is perhaps the most significant responsibility of a lawyer. Liberty, reputation and financial security can all be at risk in a criminal case. With such grave consequences, what can the accused expect from his or her lawyer, and what do the rules provide? A combination of the 6th Amendment to the United States Constitution and Article 6 of the People's Republic of China Lawyers Law read something like this:

A person accused of a crime is entitled to “the Assistance of Counsel for his defense” and such counsel “shall act with . . . diligence and . . . with basis in fact and law protect his client's lawful rights . . . .”

That sounds pretty good, but what does it mean in real life? What can our hypothetical Mr. Jones expect from Attorney Liu? And assuming that this was Liu's first criminal case (not a good decision to hire a novice for a significant criminal case), what should he do to assist Jones and balance that awesome responsibility with the threat of being prosecuted himself for doing his job. The fact that Jones “confessed” does not end the inquiry. Indeed, it would be easy to say: “since you admit participating in three of the robberies, even if you have an alibi for two of them it's a waste of time to track down the alibi because you're still going to prison.” That is unacceptable and unprofessional. There is no need to think about whether investigating the alibi is zealous or simply protecting the client's rights. There is an ethical and a moral obligation to try and determine whether the alibi holds up.

It doesn't matter whether the client confessed to the police coerced confessions are all too frequent an occurrence in criminal justice system. The client's confession to the lawyer is inconsistent with the potential alibi, which must be investigated. At the time of a guilty plea, I have been asked and heard Judges ask defense lawyers: “is there any reason I should not accept this plea?” No responsible lawyer should say “yes” unless that alibi was investigated. Furthermore, the lawyer's belief in the client's guilt is not relevant. The lawyer is neither judge nor jury. The lawyer is an advocate plain and simple. I doubt whether failing to investigate in the circumstances here will have some negative effect on the lawyer—such as a disciplinary proceeding. The decision not to investigate could be deemed a so-called “strategic choice” which would eliminate liability for the wrong decision. However, if the client did plead guilty or went to trial, the lawyer's failure to investigate the alibi could—although doubtful under the facts here, i.e. a confession—give rise to a claim of “ineffective assistance of counsel.”

How to do the job? “Big Stick 306,” or what is apparently referred to as the “Sword of Damocles” does not appear per se in the United States. However, Article 42 of the PRC Criminal Procedure Law, which apparently sharpens the sword, does have a corollary in the U.S. justice system. 18 U.S.C. § 1512 (2008). Article 42 provides:

Defense lawyers . . . [in representing their clients] shall not . . . conceal, destroy or fabricate evidence . . . and must not intimidate or induce witnesses to give false testimony or . . . interfere with the proceedings of judicial organs.

What I understand is that the authorities in China have used these provisions and others to charge lawyers for criminal activities based on their efforts to conduct a thorough investigation of relevant issues in the client's case. How does this differ from the U.S.? Title 18 of the United States Code, Section 1512, provides a panoply of potential crimes arising from conduct which could include the investigation of even an alibi defense by a lawyer in a criminal case, such as: ”tampering with witnesses”; “obstruction of court proceedings”; or more generally, “the attempt to influence the due administration of justice.” The difference between the two criminal justice systems appears to be in the aggressiveness of the prosecutors and perhaps the definition of what is allowable conduct in a vigorous investigation by defense counsel. Thus, whether in China or the U.S. there are some sound rules to follow:

        Don't interview anyone without a witness! Indeed, if the person interviewed has useful evidence and later recants, you will want to be able to prove what was said in the interview and refute any claim that you obstructed justice.

        Recording conversations can be helpful in documenting what is said, but if what is said is not helpful, that could prove to be a problem down the line. Consider whether there is an obligation to disclose to the prosecutor a statement that is unfavorable to the client?

        Be mindful that the person being interviewed can have their own agenda. They could be cooperating with the prosecution and seeking to gain favor by developing evidence against the lawyer. Indeed, the witness could be secretly recording the conversation with the lawyer for delivery to the prosecutor. 

At the end of the day, Mr. Jones and his father have put their faith and trust in Attorney Liu. Mr. Jones freedom depends on the efforts made by Liu. Having accepted the responsibility, he is obliged to do everything in his power to effectively and lawfully represent his client while at the same/time adhering to the highest ethical standards. Those standards should not deter him from being a zealous advocate.


 Li Jing, Professor of China University of Political Science and Law

The value of criminal defense investigation is to search for relevant facts and secure evidence.  For example, alibi evidence—which challenges the story told by the prosecutors—is of real significance in that a final verdict may depend on an alibi. Any country with a rational criminal justice system cannot do without investigating alibi evidence. Indeed, in civil law countries such as Germany, both lawyers and prosecutors have the obligation to collect evidence that may lead to acquittal or a lesser sentence for the defendant. As a legal professional and practicing lawyer, Lawyer Liu should perform his duty to investigate, not only because he is obliged and licensed to investigate, but also because his investigation is important to the protection of defendant’s rights and lawyer’s dignity as well as fairness and morality in the justice system.

Lawyers do not simply take orders from their clients. They have an independent identity and distinct role in the judicial system, the hallmark of which is independent analysis and proactive representation. For this reason, a defendant’s confession does not determine lawyer’s opinion of the case. In their professional experience and judgment, a lawyer may doubt whether such a confession is sincere or the product of coercion. In this way, a defense lawyer should find ways to help his client rather beyond simply obeying his client’s orders. If a lawyer does not intend to perform his duty to his client or he is incompetent to do so, disciplinary rules should be created to give this person negative evaluations; in such a case, he will have failed to perform his job as an effective litigator and as his client’s legal representative. Hence, if the lawyer fails to investigate, he is mainly doing a disservice to himself, not to the client. As a consequence, the lawyers are expected to take a more active role in investigation. Furthermore, Article 306 of the PRC Criminal Law should be done away with. Lawyers should be punished only if evidence is sufficient to prove they were involved in forgery or alteration of evidence and the resulting evidence only existed because of the lawyer’s action. In other cases, lawyers should be allowed enough leeway to conduct investigations by eliminating the threat of criminal punishment. If these steps were taken, lawyers would be able to more effectively defend their clients, leading to fewer wrongful conviction cases and encouraging the prosecutors to revisit cases, ultimately securing a brighter future for China’s turn towards rule of law.


Qian Lieyang, Partner of Beijing Tianda Law Firm

What is investigation to a criminal defense lawyer? Should it be considered a right, a power, or a duty? From what I understand, it relies on a sense of responsibility on the lawyer’s part.  

First, in the current legal environment, treating investigation as responsibility is more appropriate than treating it as a right or duty provided by law. Chinese laws does not stipulate an affirmative right for criminal defense lawyers to investigate.

Second, an experienced criminal defense attorney makes a decision on whether to investigate in accordance with his sense of responsibility and his defense skills. He will weigh the pros and cons of the investigation and use his judgment to decide whether to investigate.  A decision on investigation reflects the level of professional skill and due diligence of the lawyer.

Third, to determine whether the lawyer has a sense of responsibly when he fails to investigate, we would want to know:

1) whether there are compelling reasons to suggest that an investigation would be unnecessary; and

2) whether the lawyer would face reasonable difficulty in carrying out the investigation.

We should apply these standards when determining whether the lawyer has acted in due diligence.

Hence, a lawyer’s professional responsibility to investigate should be measured in terms of his sense of responsibility rather than strict legal standards.


 

Xu Shenjian, Professor of China University of Political Science and Law

According to the Decision of the CPC Central Committee on Major Issues Pertaining to Comprehensively Promoting the Rule of Law, China wants to promote procedural reform in the court system, intending that the court should be a critical platform for fact-finding, evidence identification, effective defense and fair judgment.  In 2015, courts at various levels implemented pilot programs in line with these reform goals. In 2016, the central political-legal committee will have begun to research how to carry out procedural reform in collaboration with different political-legal institutions. To ensure fair and just adjudication, people should receive adequate defense, witnesses should testify in court, and lawyers should be able to investigate to prevent the scenario where various legal actors are present at the court as a mere formality. Only when defense lawyers can perform thorough investigation and grasp the details of the case will they be able to present and cross-examine evidence as well as debate with the prosecutors.  The judge should hear both sides before judging, extract truth from the disputing facts and prevent wrongful conviction cases.  According to the PRC Criminal Procedural Law and Lawyer’s Law, lawyer’s right to investigate is fundamental to criminal defense, which is protected by law. However, China has yet to amend its law and judicial interpretations to make it conform to the procedural reform goals of its adjudication system. Hopefully, the research done by the central political-legal committee this year will include reform measures protecting lawyers’ rights to investigate, enabling the judicial system to function more effectively and preventing wrongful conviction cases.  In our opinion, reform towards more protection of lawyers’ right to investigate is very important.

 

 


NOTES & CITATIONS

[1] These facts are hypothetical but are inspired by two actual cases, one in the United States and one in China. In Bryant v. Scott, the defendant – accused of committing armed robberies in Texas – told his attorney that there were alibi witnesses who could testify that he was actually in California at the time of the robberies yet the attorney did not contact or speak with the witnesses. 28 F.3d 1411 (5th Cir. 1994). The court vacated the defendant’s conviction and life sentence on the ground that the lawyer violated the defendant’s right to the effective assistance of counsel.  In the case of the robbery prosecution of Mo Shuiping, Attorney Huang Zhenghong did contact the alibi witnesses identified by his client. However, according to the prosecution, Attorney Huang induced the witnesses to provide false alibi testimony to the court. Attorney Huang and the witnesses were convicted of perjury and suborning perjury, respectively. WANG Shinan (王世楠) and CHEN Jian (陈剑), Cong Bianhuren Dao Beigaoren (从辩护人到被告人), [Procuratorial Daily 检察日报] (Feb. 19, 2009), available at http://newspaper.jcrb.com/html/2009-02/19/content_11633.htm.

[2] Model Rules of Prof’l Conduct (2013).

[3] Id. Cmt. 5.

[4] From comment 1: “A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. […]” Model Rules of Prof’l Conduct 1.3, Cmt. 1 (2013).

[5] ABA Standards for Criminal Justice: Prosecution and Defense Function (1993). Although the ABA Standards for Criminal Justice are not binding law, they have had a deep influence on jurists determining the obligations on lawyers. Martin Marcus, The Making of the ABA Criminal Justice Standards: Forty Years of Excellence, 23 Crim. Just. (2009), but see Bobby v. Van Hook, 558 U.S. 4 (2009) (repudiating the Sixth Circuit for treating the ABA Standards as “inexorable commands” rather than “only guides”).

[6] ABA Standards for Criminal Justice, Rule 4-4.1(a) (1993).

[7] Strickland v. Washington, 466 U.S. 668, 687-88 (1984). For a judgment to be set aside, the error must also be prejudicial; it must have an effect on the outcome of the case. Id. at 691.

[8] See supra, note 1.

[9] See, e.g., Couch v. Booker, 632 F.3d 241 (6th Cir. 2011) (finding ineffective assistance after counsel did not obtain fire department report that client said would show the deceased victim had a preexisting heart condition).

[10] 548 F.3d 434 (6th Cir. 2008).

[11] Strickland v. Washington, supra note 7.

[12] See Raygoza v. Hulick, 474 F.3d 958, 964 (7th Cir. 2007) (“Perhaps [the attorney] had formed an opinion about [the defendant’s] guilt in his own mind and thought that an alibi would be futile.”)

[13] Soffar v. Dretke, 368 F.3d 441, 473–74 (5th Cir. 2004).

[14] Translations for the P.R.C. Criminal Procedure Law made with reference to the online resource, China Law Translate, available at chinalawtranslate.com/criminal-procedure-law/.

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