There are many articles available on procedural defense, most of which focus on specific operational techniques rather than delving into the underlying principles. In my view, when it comes to procedural defense, there are several fundamental issues that need to be clarified—otherwise, they could significantly undermine the effectiveness of the defense strategy.

I. Procedural defense is ubiquitous, accompanying the entire process of advocacy work.

Many people, including myself in my younger years, once thought that procedural defense was insignificant—or at best, only relevant during court proceedings. But then, in the years when the exclusionary rule for illegally obtained evidence was just beginning to gain traction, procedural defense surged in prominence. Unfortunately, most people again ended up equating procedural defense solely with the exclusion of illegal evidence.

However, procedural defense is clearly much more than just the exclusion of illegal evidence. Since the Criminal Procedure Law meticulously outlines the legal procedures, each and every step along the way holds significance for protecting rights—and can therefore be used strategically in a defense. In fact, procedural defense begins right from the moment a lawyer accepts the case and has their first meeting with the client.

For example, Article 39 of the Criminal Procedure Law clearly outlines the right of defense lawyers to meet with their clients, stipulating that such meetings must be arranged within 48 hours. However, in practice, there are numerous instances where lawyers’ access is unlawfully restricted—for instance, by refusing to schedule meetings with suspects or defendants placed under residential surveillance, demanding approval from investigative authorities when representing cases involving alleged bribery offenses, or indirectly obstructing meetings under flimsy pretexts like "equipment malfunction" or "unit-led interrogation." In these situations, the very first step of a lawyer’s defense—conducting an in-person meeting with the client—faces immediate hurdles. To address this, defense attorneys must, as mandated by law, persistently advocate for their clients’ rights by verbally explaining the situation, reporting it to senior management or relevant departments, or lodging formal complaints with the appropriate authorities. This proactive approach can rightly be seen as the initial step in what is known as procedural defense.

Starting from the initial meeting, defense advocacy will be integrated throughout the entire process. During the investigation phase, defense attorneys have the right to inquire about the case details from investigators and request that the investigative authorities disclose the timing and agency responsible for applying for an arrest, as well as the expected end date of the investigation. They can also apply to meet and discuss the arrest review process with prosecutors (who typically handle both arrest and prosecution under the "Prosecution-Arrest Integration" reform) and request the procuratorate to assess whether continued detention remains necessary. In the prosecution review stage, defense lawyers are entitled to access case files, exchange views and perspectives with the prosecutor, follow up on case progress, and even request the retrieval of additional evidence. Finally, during the trial phase, defense attorneys can raise objections to recusal or jurisdiction in court, apply to gather further evidence, call witnesses to testify, request re-examinations, and insist on a legal evaluation of the evidence and arguments presented by the defense—among other actions.

This clearly demonstrates that procedural defense is pervasive and runs throughout the entire process. Defense attorneys must strictly adhere to legal provisions to safeguard both their own procedural rights and those of their clients.

II. Procedural defense is the necessary foundation for substantive defense.

Sometimes, lawyers may hesitate to raise procedural issues out of a reluctance to clash with the public prosecution, judicial, and law enforcement authorities—thinking it’s better not to bring them up since, in the end, the case will hinge on the merits of the substantive defense. But does that mean procedural defense is unnecessary? Of course not, I’d argue.

For instance, as mentioned earlier, when detention centers illegally restrict lawyers' access to their clients, if lawyers don’t actively fight for it, even the most basic right to meet with their clients cannot be guaranteed. How, then, can lawyers properly gather case details from their clients or establish effective communication? Especially during the investigation phase, clients urgently need guidance on the specific charges they’re facing and clear explanations of the criminal procedure. Yet, if the right to meet is denied, clients may not even realize they have the fundamental right to review and approve the official interrogation records before signing them. In such circumstances, if the investigation concludes prematurely—without addressing these critical issues—it could directly undermine the legality and authenticity of the evidence collected, ultimately jeopardizing the client’s ability to mount a robust defense later on.

For instance, if the witness testimony presented by the prosecution was obtained by the investigating authority through illegal means such as enticement or coercion—and yet this very testimony plays a critical role in establishing the facts of the crime—what room would there be for meaningful defense if the defense attorney fails to request the witness’s appearance in court, or if the court denies the request, and the evidence is nonetheless admitted?

Therefore, procedure is the cornerstone of substantive justice, and procedural fairness is the foundation that ensures true justice. Without proper procedural safeguards, due process cannot be upheld, rendering substantive justice "water without a source"—a situation where even the "fruit of a poisonous tree" may emerge.

3. Procedural defense must have the right objectives.

That said, while procedural justice is indeed crucial, lawyers must first and foremost clarify what the fundamental goal of their defense truly is. In essence, procedural justice serves as a strategic tool for advocacy, but it shouldn’t be the lawyer’s ultimate aim—after all, the real, substantive outcome remains the ultimate objective.

What must especially be avoided is pursuing procedures for the sake of procedure itself—losing sight entirely of the purpose and value behind procedural advocacy. Instead, fixating unnecessarily on minor, irrelevant procedural flaws only serves to waste time without ever influencing the outcome of the case. Above all, we must never forget that asserting procedural rights is ultimately about laying a solid foundation for effectively defending the substantive merits of the case.

For instance, once the illegal restrictions on meetings are resolved, lawyers should immediately meet with their clients to gather essential information. There’s no need to continue seeking explanations from the investigating authorities or their superiors about ongoing violations of meeting procedures and obstructions to lawyers' rights—instead, they should proactively and sincerely discuss the case details with their clients, actively exploring opportunities that could benefit the client (such as applying for a change in coercive measures). Only then will the other party be receptive, ultimately contributing positively to the substantive progress of the case.

For instance, as the centerpiece of procedural defense, the exclusion of illegally obtained evidence can be absolutely critical. Successfully eliminating such evidence through this process is often seen as a significant victory for the defense. However, it’s important to consider whether the excluded evidence actually carries any meaningful weight in determining the conviction and sentencing. Take, for example, a case involving grievous bodily harm: even if the act and its consequences are already clearly established—supported by corroborating evidence like confessions, victim statements, witness testimonies, and expert opinions—the mere exclusion of a confession regarding the incident’s cause, perhaps reinforcing the idea that the victim may have been partially at fault, might have only a negligible impact on the final sentence. In such cases, it’s unlikely that the exclusion would lead to a lighter penalty—certainly not one below three years. Instead, it might be far more effective to channel those efforts toward securing the victim’s forgiveness or reconciliation. Similarly, in high-profile bribery cases involving substantial sums—say, over 2.5 million yuan—if there are more than ten separate instances of bribery, successfully excluding confessions related to just two of them (reducing the total amount from 2.5 million to 2 million) still wouldn’t significantly alter the overall sentencing landscape. In these situations, it could be far more advantageous to engage constructively with prosecutors and judges, leveraging the issue of illegal evidence gathering itself to negotiate better sentencing outcomes.

Therefore, procedural defense is not the ultimate goal but rather a tool to support substantive defense. As illustrated earlier, ensuring the right to meet with clients aims to gain early insight into the case and facilitate communication with the investigating authorities. Similarly, raising objections to illegally obtained evidence can serve as a solid basis for negotiations between the lawyer and the prosecution or the court. When procedural defense effectively strengthens the overall case strategy, lawyers should remain steadfast and vigorously uphold these procedures. However, if procedural defense itself yields limited impact, lawyers are perfectly justified in holding their ground—or even using it as leverage in plea bargain negotiations.

In summary, defense attorneys should focus on the overall effectiveness of the case, skillfully employing procedural strategies while carefully balancing between vigorous defense and strategic compromise. As the saying goes, "Never lose sight of your original purpose"—this is precisely the essence of the "big-picture defense" I advocate.