The theory of effective defense originated in the United States and serves as a universal benchmark for assessing the minimum standard of criminal legal services. Only by ensuring effective defense can we systematically guarantee the realization of equal justice, curb the abuse of public power against human rights, prevent wrongful convictions in substance, and uphold the proper application of the law. In our introductory article, "Discussing Effective Defense from the Perspective of Comprehensive Advocacy," we highlighted the distinction between comprehensive advocacy and effective defense, emphasizing that "effective defense is an essential duty—basic, straightforward legal representation confined strictly to courtroom proceedings and thorough advocacy within the judicial setting." In this article, I will explore effective defense from a practical standpoint, focusing on three key areas: meticulous pre-trial preparation, competent courtroom advocacy, and specific defense standards tailored for capital cases.

I. Comprehensive Pre-Trial Preparation

Thorough preparation for a case is the foundation of an effective defense. Legal advocacy is by no means an impromptu performance—rather, it relies heavily on extensive investigation into the facts of the case, as well as a deep understanding of the prosecution’s evidence and arguments. No matter how experienced a lawyer may be, without adequate preparation, they cannot present compelling defense arguments or secure a lighter sentence for the defendant.

Comprehensive pre-trial preparation should at least include the following aspects:

(1) Timely and Comprehensive Meetings

The right of the parties to meet with their lawyers is particularly crucial among all litigation rights, especially for criminal suspects and defendants who are in custody. Lawyers serve not only as their sole link to the outside world but also help strengthen their trust in the fairness of the judicial process during these meetings.

To quickly grasp the facts of the case, gather valuable evidentiary leads, and understand the client’s perspectives on the matter, lawyers should meet promptly with the suspect or defendant as soon as they accept the case. In first-instance cases, the number of meetings typically should not be fewer than three. The first meeting can take place either before or after reviewing the case files—each approach has its own advantages and drawbacks. Meeting before reviewing the files helps avoid preconceived notions, allowing the lawyer to refine their understanding based on the client’s explanations and identify key线索 before diving into the documents. On the other hand, meeting after reviewing the files can boost efficiency, enabling a more focused and in-depth discussion of the case details and the client’s views. The second meeting should ideally occur within a few days before the trial begins, giving the lawyer an opportunity to assess whether the client has any new demands or updated viewpoints. This is also the time to finalize the defense strategy and outline specific arguments, ensuring alignment between the lawyer and the client on critical aspects such as the facts of the case and the overall defense approach. Additionally, this meeting helps the client become familiar with the courtroom procedures. The third meeting should be scheduled after the first-instance verdict is delivered, serving as a follow-up session to gauge the client’s reaction to the ruling—whether they intend to appeal, for instance. For cases that are particularly complex, involving extensive investigations, substantial fact-checking, and frequent exchanges of opinions, it may be necessary to arrange additional meetings before the trial, maintaining continuous communication with the client to address all relevant issues effectively.

In addition to the required number of meetings, a thorough consultation also demands effective communication in each session—ensuring a clear understanding of the case facts, providing detailed explanations on legal applications, and patiently outlining defense strategies. The goal is to achieve mutual agreement between both parties regarding the direction and tactics of the defense. Furthermore, it’s essential to prepare meeting minutes, documenting all facts, leads, opinions, and requests shared by the client. For guidance on the content of these consultations, refer to the relevant guidelines outlined in Section 3 of the "Rules for Lawyers Handling Criminal Cases," formulated by the All China Lawyers Association.

(II) Thorough and Careful Grading

In China's criminal proceedings, case files primarily consist of documentary materials prepared by investigative authorities to establish the suspect or defendant's alleged involvement in a crime, with the intent of pursuing their criminal responsibility. These files sometimes also include evidence gathered independently by the prosecution during its own investigations. Against the backdrop of significant restrictions on defense attorneys' ability to gather evidence through investigation, reviewing these case files becomes the most critical method for lawyers to access crucial information about the case. Not only do these files help defense attorneys identify unfavorable evidence held by the prosecution against the defendant, but they also provide valuable clues to uncovering evidence that could benefit the accused. Only by thoroughly examining the case files before trial can defense attorneys effectively challenge the evidence presented by the prosecution during the courtroom proceedings—otherwise, cross-examination at trial risks becoming mere procedural formality.

When copying case files, lawyers should ensure the accuracy and completeness of the documents—even materials initially deemed irrelevant should be duplicated for thorough examination, as you might unexpectedly uncover their critical significance later on. During the review process, lawyers should carefully read through all case documents in alignment with the charges outlined in the indictment (or prosecution opinion) and the facts supporting them, identifying the core issues at hand. It’s also essential to prepare a detailed record of the review, systematically documenting evidence that could benefit the client. For complex cases involving extensive documentation, relying solely on memory can make it difficult to locate specific information quickly; thus, creating a comprehensive review log becomes even more crucial. For detailed guidance on effective case file review techniques, refer to Chapter 21 of this column, titled "How Criminal Defense Lawyers Should Review Case Files."

In most cases, lawyers can only make sentencing arguments based on the facts of the case. By reviewing the case files, attorneys can grasp the fundamental details and identify various statutory and discretionary factors that may lead to a lighter or reduced sentence. Generally speaking, statutory sentencing factors tend to receive serious attention from the court and can significantly influence the final sentencing decision. For instance, the general part of the Criminal Law outlines several key circumstances under which penalties can be mitigated, reduced, or even waived—such as crimes committed by minors, individuals with mental health issues, deaf-mute or blind offenders, acts of legitimate defense, emergency self-defense, preparatory offenses, attempted offenses, abandoned offenses, secondary offenders, coerced accomplices, voluntary surrender, and meritorious service. Meanwhile, the specific part of the Criminal Law lists even more detailed scenarios where lighter, reduced, or exempted punishments may apply. However, these critical sentencing factors sometimes slip unnoticed by the prosecution. If the lawyer fails to uncover them during the review of case materials or investigative efforts, they might never come to light in court. On the other hand, discretionary sentencing factors are those not yet explicitly defined by law or judicial interpretations. In such cases, courts enjoy considerable latitude in deciding whether to consider these factors—and if so, how leniently to apply them when determining the final sentence. Based on practical experience in criminal justice, common discretionary factors that may warrant a lighter sentence include: truthfully confessing to the crime, voluntarily pleading guilty, returning stolen goods or compensating victims, actively offering reparations to victims, obtaining forgiveness from the victim or their close relatives, when the victim bears significant fault or contributed to escalating the conflict, when the defendant’s immediate family members assist in apprehending the accused, when the defendant has consistently maintained a good behavioral record, when the defendant is classified as an occasional offender or acted impulsively in the heat of the moment, or when there is a strong public appeal for the court to impose a lighter punishment.

Additionally, according to the Criminal Procedure Law, starting from the date the case is transferred for review and prosecution, lawyers are permitted to verify relevant evidence with the suspect or defendant. This means that not only defense attorneys have the right to access case files, but suspects and defendants themselves also gain this right. Lawyers should, based on their own review of the documents, present evidence materials—especially those containing specialized or technical details, or items requiring identification and verification—to the defendant during meetings. The defendant can then confirm, distinguish, or provide explanations, enabling the lawyer to more accurately understand the content and nature of the case files.

(III) Timely and Effective Investigation

Based on the specific details of the case, after meeting with the client and reviewing the case files, if evidence is found to be missing or contradictory, it is essential to conduct a necessary, timely, and effective investigation to gather additional evidence. "Necessary" means ensuring that the evidence being sought will genuinely help establish the facts of the case and play a meaningful role in determining whether charges are valid or influencing decisions related to sentencing—potentially leading to lighter penalties. "Timely" emphasizes the urgency of initiating the investigation as soon as possible, ideally within the shortest feasible timeframe, to prevent witnesses from going out of contact or evidence from being altered or lost. "Effective" underscores the importance of adhering strictly to legally prescribed procedures and formats during the investigation, ensuring that the resulting evidence meets the required standards of relevance and admissibility. If investigators encounter difficulties in conducting the inquiry independently, they should formally request, via a written application, that the People’s Court initiate an official investigation in accordance with the law.

The objects of evidence gathering in legal investigations broadly correspond to the types of evidence outlined in litigation law; for specific details, refer to Chapter 22 of this column, "Can Evidence Be Gathered in Criminal Cases?" This article focuses on three key aspects that are particularly important in practice.

First, conduct investigations of witnesses. Examining witnesses can help verify the accuracy of known facts, uncover new information, or reveal valuable leads. To ensure an effective defense, after being retained, defense attorneys should identify all potential witnesses by meeting with the client, reviewing case files, and gathering insights from close family members or the client’s workplace. Once identified, promptly interview those witnesses who can be located. The questioning must involve at least two lawyers present, and the session should be documented objectively and truthfully in writing— a record that must later be verified and signed by the witness himself. The investigation transcript should clearly state the names of the investigator, the person being questioned, and the recorder, along with the date and location of the interview. Additionally, the transcript must include a formal introduction identifying the lawyer conducting the interview, a summary of the witness’s basic background, the lawyer’s specific requests regarding the witness’s testimony, and a clear warning about the legal consequences of providing false testimony or concealing evidence. Finally, for any witnesses expected to testify in court, the defense team should promptly file a request with the court, which will then notify the witness to appear as scheduled.

Second, obtain physical and documentary evidence. For any physical or documentary evidence held by the parties involved, their relatives, or witnesses, it should be promptly collected and submitted to the court. When gathering and submitting such evidence, make sure to clearly indicate the source of the evidence as well as the name of the person who extracted it. If the evidence needs to be obtained from relevant departments—such as market regulation, land resources, construction, health authorities, archives management, banks, or other institutions—be sure to bring the necessary documentation and visit these offices directly to request the materials. When collecting physical or documentary evidence, prioritize obtaining the original documents whenever possible. If the original cannot be retrieved, ensure that you provide adequate proof—such as photographs, video recordings, or official certification from the relevant department confirming that the copy matches the original. In cases where obtaining the original is particularly challenging, treat the evidence as a critical lead and persistently and vigorously pursue a formal court request for effective evidence collection.

Third, investigations should focus on the defendant themselves. When determining the appropriate sentence range, lawyers must consider not only the social harm caused by the defendant’s criminal behavior but also the defendant’s personal risk of reoffending. Therefore, a criminal defense attorney’s investigation should go beyond merely examining the crime itself—it should also delve into the defendant’s background and circumstances. This includes gathering evidence that challenges the prosecution’s claims about the defendant’s dangerousness, as well as collecting proof that either demonstrates the defendant poses little to no risk or, at the very least, a significantly lower level of danger compared to what the prosecution alleges. Depending on the specifics of the case, attorneys may need to conduct thorough pre-trial social investigations of the defendant, gathering critical information such as the reasons behind the offense, prior criminal history, everyday behavior, societal perception, family dynamics, and educational background. In capital cases, investigating evidence related to the defendant’s potential for dangerousness becomes even more crucial. On the other hand, for cases where the defendant might face alternatives like probation or suspended sentences, attorneys can proactively request investigative agencies, prosecutors, or courts—at various stages of the legal process—to commission community correction organizations to conduct social surveys and assessments of the defendant, in line with the "Opinions on Several Issues Regarding the Standardization of Sentencing Procedures" issued jointly by the Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, Ministry of Justice, and Ministry of State Security.

(4) Scientifically Rigorous and Prudent Expert Assessment

With the increasing specialization of societal roles, advancements in science and technology, and the extensive use of technology in criminal investigations, defense lawyers in judicial practice are now confronted with numerous specialized and technical issues—and often have to grapple with complex, hard-to-understand expert opinions. In many cases, these specialized, technical questions and forensic conclusions not only influence sentencing decisions for clients but can even determine whether a crime is established in the first place. To address these intricate professional and technical matters, defense attorneys should seek guidance from experts. Moreover, in line with China’s current judicial appraisal system, lawyers have several options: they can, when necessary, request judicial or re-examination; alternatively, they may independently commission assessments through reputable private institutions. Additionally, they can call upon expert witnesses to testify in court. For a deeper look at the critical challenges currently facing judicial appraisal practices, readers are encouraged to turn to Chapter 27 of this column, titled "Judicial Appraisal Rule Reform: Which Path Lies Ahead?" The following discussion will primarily examine one aspect of China’s judicial appraisal system from a comparative legal perspective.

Whether in civil law countries or common law countries, there are several universally recognized values embedded within their forensic systems. At their core, the differences between the expert witness model and the judicial appraisal model lie primarily in their practical utility rather than fundamental ideological distinctions—meaning the two approaches are not inherently opposed but instead converge toward the same goal through different paths. Both the pure expert witness model and the judicial appraisal model, however, come with inherent systemic challenges that are difficult to overcome. In practice, both the common law and civil law traditions have independently addressed these challenges by drawing on and integrating each other’s strengths. For instance, common law countries like the United States and the United Kingdom have recently strengthened controls and oversight over appraisal procedures to tackle the inefficiencies often associated with the expert witness system. Meanwhile, civil law jurisdictions such as Germany and France have empowered both prosecution and defense parties with certain appraisal rights, enabling them to actively participate in the appraisal process. These reform efforts have, to varying degrees, mitigated the drawbacks traditionally linked to conventional appraisal models. Similarly, China took a pioneering step during its 1996 criminal procedure reform by introducing elements of the adversarial mechanism from the common law tradition—while still preserving the original civil law-based inquisitorial framework. This approach emphasized cross-examination between the prosecution and defense during court hearings. Building on this foundation, the 2012 amendment to China’s Criminal Procedure Law further refined the system by allowing defense attorneys to request the court to summon experts with specialized knowledge to appear and provide opinions on the appraisal conclusions made by official appraisers. Under this revised framework, if a defense lawyer has doubts about an appraisal opinion, they can fully leverage their legal rights to ask the court to call in an expert witness favorable to their client, thereby challenging the prosecution’s appraisal findings effectively.

(5) A Defense Strategy Based on Thorough Consultation

Based on a thorough investigation and a careful review of relevant laws, defense attorneys should develop a range of viable defense strategies and, after consulting with their clients, finalize the most appropriate approach along with a tailored defense strategy. In judicial practice, due to insufficient legal knowledge or lack of access to critical information, the vast majority of defendants are unable to independently determine the direction of their defense and often rely on professional lawyers for guidance. Therefore, defense attorneys must engage in open and constructive communication with their clients, objectively analyze the case details, and present a variety of alternative defense options. When necessary, attorneys may, in accordance with the Criminal Procedure Law’s provision allowing them to "verify evidence with the suspect or defendant," share copies of case files—and even evidence gathered through their own investigations—with the defendant. This allows lawyers to hear the defendant’s perspective on materials that may be particularly technical or require confirmation, thereby addressing any gaps in the attorney’s understanding of certain key pieces of evidence. If a client’s views diverge significantly from the factual realities of the case, potentially leading to an unfavorable outcome, the lawyer should patiently and firmly advocate for the client’s best interests. In cases where a proposed course of action is clearly unlawful or violates professional ethical standards, the attorney may, after providing a clear explanation, resolutely decline to proceed. However, if, despite this explanation, a small number of clients stubbornly persist in their original stance and remain unwilling to compromise, the lawyer retains the right to voluntarily withdraw from the representation altogether.

(6) Active Participation in Pre-Trial Conferences

To enhance courtroom efficiency and ensure the smooth conduct of trials, Article 182 of China’s Criminal Procedure Law stipulates: "Before the trial begins, presiding judges may convene prosecutors, parties involved, defense attorneys, and litigation agents to discuss issues related to the trial—such as recusal motions, the list of witnesses expected to appear in court, and the exclusion of illegally obtained evidence—gather relevant information, and listen to everyone’s opinions." In 2017, the Supreme People’s Court also issued the *Procedures for Pre-Trial Conferences in Criminal Cases by People’s Courts (Trial Implementation)*, which serves as one of the "three key procedures" aimed at advancing criminal justice reform centered on trials. This document further refines and implements the pre-trial conference system outlined in the Criminal Procedure Law. The establishment and gradual refinement of the pre-trial conference system have created more opportunities for defense lawyers to mount effective defenses. Defense attorneys are encouraged to actively participate in these pre-trial meetings—or even proactively suggest to the judge, via written submissions, that a pre-trial conference be held. By addressing procedural issues that could spark intense disputes between the prosecution and defense, or those requiring the court’s early attention, such matters can be resolved through dialogue and negotiation before the trial officially commences. This approach helps secure the court’s maximum understanding and support. Perhaps most importantly, engaging in pre-trial conferences fosters meaningful communication and builds trust with the judge. It prevents last-minute requests—such as motions for recusal, applications to call witnesses, or challenges to exclude evidence—from catching the court off guard, thereby avoiding situations where the court is forced to make critical decisions without adequate preparation. Such scenarios could disrupt the smooth progression of the trial and even undermine the court’s ability to fairly evaluate the case, ultimately leading to the rejection of legitimate defense arguments.

(To be continued)......