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Discussing Effective Defense from the Perspective of Strategic Advocacy
Zhao Yunheng | Written by
Welcome, friends from the legal community, to Dacheng Criminal Law Committee's online live lecture series. This is a multi-part series featuring contributions from many esteemed colleagues across our firm. The secretariat has entrusted me with delivering the first session—so feel free to join the conversation if time permits!
Today we’re discussing effective defense—specifically from the perspective of "big-picture advocacy." At its core, this is primarily a methodological and mindset issue, focusing on broader principles rather than detailed, step-by-step defense strategies or techniques.
Why choose this topic? Recently, swimmer Sun—a figure who has drawn considerable attention—was penalized, and a well-known actress faced consequences for tax evasion. These cases highlight critical thinking issues in handling situations. Indeed, the ability to think strategically often matters more than mere experience or technical skills. Take, for instance, the rape case involving Li and four others: the vastly different outcomes were shaped by the parents' contrasting mindsets, as well as the distinct approaches taken by their lawyers.
I. Grand Defense vs. Effective Defense
During the pandemic, there have been numerous cases involving the crime of endangering public safety through dangerous methods—specifically, when confirmed or suspected pneumonia patients fail to comply with management protocols, potentially leading to the spread of the virus. If you were the defense attorney, how would you approach crafting your defense strategy?
I think we should consider at least three key aspects. First, from a criminal law perspective, we need to clarify what constitutes a "confirmed case," a "suspected case," and a "pathogen carrier" under the law: A. What are the underlying medical criteria, and do they align with national regulations? As of March 4, the National Health Commission had already released the seventh edition of its diagnosis and treatment guidelines, and each version has introduced changes and refinements to the diagnostic and treatment standards for confirmed and suspected cases. For instance, initially, confirmatory testing relied solely on rapid antigen kits to determine positivity—but later, CT imaging was added as an additional diagnostic tool. Yet more recently, the CT method was removed altogether. Meanwhile, local authorities have also been adjusting the number of confirmed cases based on their own criteria. So, which standard should actually be applied? And does this particular set of guidelines qualify as a legally recognized benchmark in criminal law? B. Moreover, while having clear diagnostic criteria is essential, determining whether a case is classified as suspected or confirmed ultimately depends on individual hospitals’ assessments and judgments. But is this process—both the application of the criteria and the hospital’s analytical decision-making—properly conducted? Specifically, what kind of judicial qualifications do these hospitals possess? Do they even have the authority—or the expertise—to conduct formal forensic evaluations? C. Finally, how can we prove the actual consequences of infection caused by suspected cases? For example, if the infected individual didn’t only interact with one person, or if the incubation period turned out to be unusually long, how can we rule out other potential transmission routes and eliminate all alternative explanations, ensuring that our conclusion points unequivocally to the suspected case as the sole source of infection? In other words, is there a need for a formal judicial assessment—similar to how injury assessments or psychiatric evaluations of criminal responsibility are conducted? This question not only tests your attention to various news reports during the pandemic but also your ability to critically analyze complex legal and medical issues.
Second, you need to examine the varying regulations across different regions, paying close attention to response levels and specific prevention measures in place. Additionally, consider how public spaces are defined differently depending on the area. Review recent cases from various locales, gather relevant information, and compare them systematically. For instance, how were retired officials at the department-level who resisted pandemic control measures handled? Have there been swift judicial rulings on such cases? Look into the guiding cases recently published by the Supreme People’s Court and the Supreme People’s Procuratorate—what exactly were the circumstances in those cases? How was subjective intent and objective behavior determined? And does it necessarily require that the individual has already caused actual transmission of pneumonia? Finally, how were the sentences ultimately handed down? This exercise will test your ability to apply fundamental defense strategies effectively.
Finally, when it comes to penalties, shouldn’t we consider both the objective need to control the epidemic and the public’s widespread anxieties? After all, this balance will influence the effectiveness of the trial and the quality of the defense. If the individual has indeed engaged in behavior that caused public panic, they should acknowledge their mistake and willingly accept appropriate punishment—but this doesn’t necessarily mean criminal charges. In many cases, resolving the issue within the framework of administrative law is entirely sufficient; there’s no immediate need for criminal prosecution. This reflects your ability to assess the bigger picture.
What is an effective defense? If a lawyer has already accomplished the three key elements mentioned earlier—and, of course, gone even further—it can be considered an effective defense. After all, when a lawyer fulfills their duties diligently, leaving no stone unturned in terms of both strategy and execution, that’s precisely what constitutes an effective defense. That’s why some refer to it as a "diligent defense"—one where the lawyer acts in strict accordance with professional standards, actively influences the outcome of the case, and ultimately secures favorable results for their client.
If the key tasks outlined above are not properly executed, it means the lawyer has failed to fulfill their professional duties—resulting in an ineffective defense. An ineffective defense occurs when a lawyer fails to perform the essential tasks expected of them, either by violating ethical standards or simply lacking the necessary expertise. Even if the lawyer makes a sincere effort, an ineffective defense still arises when a guilty defendant is wrongly portrayed as innocent, or when a genuinely innocent person ends up being convicted due to inadequate representation. This kind of substandard legal service directly harms the client’s legitimate interests. For instance, failing to identify mitigating circumstances like voluntary surrender, overlooking critical issues such as invalid expert opinions, or neglecting to align the defense strategy with the client’s own understanding of the facts—all of these fall short of meeting the basic expectations of effective legal representation.
However, even if the defense counsel has done everything they should, will the court necessarily adopt their arguments and act accordingly? Not necessarily. But this doesn’t undermine the validity of effective defense, because effective defense isn’t about achieving a favorable outcome—it’s about ensuring that the legal process is fair and thorough, something we simply can’t control. Some scholars and lawyers have openly claimed that effective defense is nothing more than “effective outcome defense,” perhaps out of fear that their approach won’t be widely recognized. They even go so far as to label it as “Chinese-style” or uniquely “Chinese.” Yet, this is wishful thinking at best—and dangerously irresponsible at worst, as it could mislead future generations of legal professionals. Such a perspective is deeply misleading: without a positive verdict, the lawyer’s efforts are automatically dismissed! Who would then bother seriously preparing a defense or honing their expertise? Instead, everyone might end up relying on personal connections—after all, as long as the final result is good, what does it matter how the case was handled?
But results achieved without a proper process aren’t real outcomes—they may merely be temporary victories bought outright, easily overturned at any moment for various reasons, and potentially even leading to additional charges! Even when a verdict turns out favorable, if the lawyer successfully argued for a lighter sentence but the court ultimately acquitted the defendant, the desired outcome was indeed secured—but does that still count as effective legal representation? Is it creditable to the lawyer? In such cases, the real credit must go to the judge, which means the defense, in essence, remains ineffective.
Failing to fulfill your duty is an ineffective defense, and even when you do your best, focusing solely on minor details while losing sight of the core arguments—or forgetting what your original point was—still constitutes an ineffective defense. No need to elaborate further.
So, what is "big defense"? It’s about adopting a broader perspective, thinking more expansively, and taking a higher vantage point—stepping back from the specifics of the case to examine the underlying issues and anticipate future developments. It means looking beyond the law itself to consider criminal policy, as well as the broader legal environment at both the national and local levels. Only then can you tailor your approach precisely to the situation, employing a comprehensive strategy that leaves no stone unturned—leveraging every lawful avenue available—to vigorously defend your client, address the case’s deeper-rooted problems at their core, and ultimately safeguard your client’s rights and interests to the fullest extent possible.
In the previous example, defending against the crime of endangering public safety by dangerous methods was still considered a relatively standard approach. Now, let’s look at another case: Li Yuehua, a grassroots traditional Chinese medicine practitioner from Wuhan, who treated numerous patients during the pandemic despite lacking proper medical qualifications. Authorities deemed his practice illegal, potentially exposing him to both administrative and criminal liability. If charges are formally filed, judges would likely follow the letter of the law and rule him guilty—though they may be innocent in their interpretation of the legal framework. However, laws ultimately reflect human values and societal norms. When mounting a defense, shouldn’t we take into account his legitimate undergraduate degree in traditional Chinese medicine and its relevance to his medical practice? Shouldn’t we also consider the tangible therapeutic outcomes he achieved, as well as his significant contributions to combating the epidemic? Moreover, we should weigh his modest financial gains from treating patients against any allegations of illicit profit-making—and factor in broader public sentiment, including certain scientific uncertainties that remain unresolved. By doing so, we can effectively argue that his actions did not pose a "social hazard."
A lawyer who excels at memorizing statutes and delivering eloquent speeches doesn’t necessarily shine in court. And even if you’re formidable in the courtroom, it doesn’t guarantee that you’ll ultimately win the case or successfully safeguard your client’s legal interests. We’ve seen instances of lawyers who had the potential to be truly outstanding, yet due to flawed thinking patterns, ended up fading away after just one high-profile case—disappearing completely from the scene afterward. The Li某某 case provides several such examples.
In short, based on this practical example, achieving effective advocacy isn’t just about mastering the relevant legal statutes and understanding judicial interpretations—it requires adopting a much broader perspective. True "big advocacy" goes beyond mere, rigidly focused effective defense; it involves not only diligent representation within the courtroom but also extends its reach beyond court walls.
To summarize the first part: effective defense is a fundamental duty that must be fulfilled—a defense strictly within the bounds of the law. In contrast, "grand defense" represents an advanced version of effective defense, demanding not only higher-level strategic thinking and broader perspectives but also more sophisticated methods compared to conventional effective defense.
II. The Mindset of Grand Advocacy
Whether a person is exceptional depends on their mindset. Your mindset shapes your career—and ultimately, your entire life. No matter how talented you are or how hard you strive, if your thinking is flawed, everything falls apart. Take the swimmer mentioned earlier: even if you’re naturally gifted at swimming and can outpace others by leaps and bounds, if you remain trapped in your own self-centered world, ignoring the rules and dismissing the expertise of international judges, you’ll inevitably lose your place on the global stage—leaving yourself without a single pool to call your own.
A lawyer who excels at memorizing statutes and delivering eloquent speeches doesn’t necessarily shine in court. And even if you’re formidable in the courtroom, it doesn’t guarantee that you’ll ultimately win the case or successfully safeguard your client’s legal interests. We’ve seen instances of lawyers who had the potential to be truly outstanding, yet due to flawed thinking patterns, ended up fading away after just one high-profile case—disappearing completely from the scene afterward. The Li某某 case provides several such examples.
So, mindset and methodology are akin to "Dao" and "Shu"—with "Dao" being more crucial. Once the thinking behind criminal defense is clearly articulated, it gains significant methodological value. From there, drawing on and mastering the specific operational techniques—what we call "Shu"—becomes much easier.
(1) The Most Fundamental Thinking Skill – Comprehensive Professional Competence
Only by consistently studying criminal law, gaining hands-on experience with criminal cases, and actively engaging in discussions within the criminal legal community can you truly master the art of criminal defense and become a specialized criminal defense attorney. A "jack-of-all-trades" lawyer, however, fails to recognize that criminal defense requires a fundamentally different mindset compared to civil representation or non-litigation civil work. Such attorneys end up juggling a chaotic mix of cases—perhaps handling a divorce trial one morning, an intentional homicide hearing the same afternoon, and even jumping into a New Third Board-related matter the next day. Without clear external branding or internal focus, they inevitably suffer from cognitive confusion, unable to deliver the precision and depth required in their practice.
The confusion in thinking patterns manifests itself in numerous aspects of non-litigation, civil proceedings, and criminal litigation—including, but not limited to: whether the focus should be on defense with negotiation playing a secondary role, or on complete reliance on negotiation; whether the parties involved in the defense are equal legal entities, or if one party holds a legally dominant position; whether the burden of proof lies with the plaintiff or is reversed; and whether the evidentiary standard requires merely a preponderance of evidence, or demands that all reasonable doubt be eliminated.
For instance, this confusion may first become apparent in the very first stage of a case—case acceptance. As we’ve discussed repeatedly, communication with clients requires a different approach: civil cases should primarily focus on an "away game" strategy, while criminal cases should emphasize an "home game" approach. Additionally, time-based billing and contingency fee arrangements are generally more suitable for civil cases than for criminal ones, and so forth.
Confusion in thinking can also manifest in the choice of defense strategies. I’ve noticed that lawyers who don’t typically handle criminal cases—and occasionally step in as a temporary fix—often rely on personal connections and resources instead of pursuing legitimate, systematic approaches. Why? Because they believe that even basic needs, like arranging a meeting with their client, can’t be addressed through normal channels. After all, they don’t even know where the special investigation team is based! Faced with such obstacles, the only option left is to turn to someone they know—but even that often fails to deliver results. Conversely, professional criminal defense lawyers naturally know how to navigate these challenges efficiently. For instance, in a case from Shaoxing, several days had passed since the incident occurred, yet the family had already hired a lawyer. Unfortunately, this lawyer was completely clueless about the detainee’s location, the investigating authority, or even the alleged charges—leaving them utterly stuck. All they could do was ask for help from intermediaries—but even that didn’t lead to any resolution. When we arrived on the scene, however, a single call to the local 110 emergency hotline instantly resolved everything—quickly and smoothly. What explains this stark contrast? At its core, it stems from the fact that local lawyers are still approaching criminal defense using civil and commercial legal mindsets rather than adopting the specialized skills required for criminal law. This highlights the critical need for lawyers to fully embrace and master the unique demands of criminal defense practice.
At the same time, the specialization of criminal defense requires not only mastering legal expertise in criminal law but also gaining insights from other fields of knowledge, as well as cultivating life experience and practical common sense. While legal experts may excel at clarifying doubts within their specific areas of expertise, it is only highly specialized lawyers who possess the comprehensive, real-world skills needed to assess situations adeptly, navigate complex scenarios with finesse, and ultimately secure victory in court—leveraging both their extensive experience and diverse knowledge. In this sense, while lawyers in certain countries can even rise to become presidents, legal scholars are typically limited to serving as advisory experts on more routine, administrative matters for the nation.
A. Stay promptly informed about criminal policies and relevant knowledge.
Professionalism isn’t merely about expertise in theoretical knowledge and legal statutes—it’s about possessing a comprehensive system of knowledge coupled with the ability to apply it effectively. While having a strong foundation in legal expertise is essential, it still falls short of truly exceptional advocacy skills. Beyond mastering textbook knowledge and legal principles, lawyers must cultivate the habit of staying informed about criminal policies and relevant current affairs, including major policy shifts in critical areas announced by central authorities, as well as speeches delivered by leaders from various regulatory bodies. After all, criminal policy serves as the guiding spiritual framework for criminal justice activities, often influencing legislative changes and shaping judicial interpretations. In some cases, lawyers’ practical understanding and application of criminal policy can even precede the issuance of formal judicial interpretations—meaning that a case doesn’t necessarily require specific judicial guidelines before a verdict can be reached. For instance, during recent financial reforms in sectors like securities and insurance, while clear criminal policies were already in place, certain applicable judicial interpretations had yet to be published. Yet, in high-profile cases involving individuals such as Xu Xiang, courts first established landmark rulings on charges like "manipulating the securities market using information advantages," only later formalizing the corresponding judicial interpretations a year later.
Criminal policy isn’t always just reflected in official documents or leaders' speeches—it can also be scattered across other sources, including news reports. For instance, cases involving intellectual property crimes are expected to rise significantly, as this is explicitly addressed in the trade agreement with the United States. Moreover, the criteria for identifying and prosecuting intellectual property violations have undergone major changes. While it’s still too early to gauge exactly how many new criminal cases this will generate, or what impact it might have on corporate criminal compliance programs, we’ll likely see clearer trends over the next six months to a year. Therefore, it’s crucial to stay informed about both domestic and international developments—and to carefully consider how these issues might intersect with criminal defense strategies.
Criminal policy also shapes the present and future of our criminal defense practice. For instance, amid the ongoing anti-corruption efforts, jurisdiction over official misconduct cases has been reformed—yet the Supervisory Commission isn’t a judicial body, meaning lawyers can no longer intervene in the investigative process. This clearly highlights just how challenging it has become to defend individuals accused of official crimes. Meanwhile, for ordinary criminal cases, policy now places greater emphasis on holding officials accountable for wrongful convictions throughout their careers. As a result, lawyers must carefully distinguish whether any complaints about procedural violations or miscarriages of justice should be directed at specific individuals—or, instead, at the investigating authorities themselves. Finally, in pilot programs focusing on plea-bargaining cases, the policy actively encourages negotiation. This creates an ideal environment for attorneys to confidently explore and pursue plea deals as a strategic approach to resolving cases.
B. Gain expertise in other areas of law
Many cases involve the intersection of criminal, civil, and administrative law, requiring criminal defense lawyers to have a moderate understanding of knowledge from other legal fields—such as the fundamental theories of intellectual property, the criteria for identifying trade secrets; the processes involved in securities listings and secondary-market transactions; the various models of internet-based finance; fund management company structures; and even the evolving rules governing evidence in civil litigation, among other areas. Without this broader legal expertise beyond criminal law, lawyers may struggle to engage effectively in courtroom debates—and outside of court, they might find it challenging to identify key strategic opportunities or secure valuable external support for their defense.
Here, "understanding" doesn’t mean being thoroughly familiar or highly proficient. When dealing with cross-disciplinary or multi-specialty cases, the best approach is to seek external support from other experts, creating a professional team aligned in the same direction. This helps avoid situations where, due to limited knowledge of other fields, your defense might be compromised while fighting alone.
Some specialized knowledge closely tied to the law is also crucial—it often proves invaluable in supporting our defense, including insights into psychology, computer science, networking, and even expertise on social media platforms like WeChat. A few days ago, I came across a case where cyber police detained a man for uploading obscene videos. In reality, however, the man was simply trying to free up space on his phone by storing the files securely in his own cloud account, intending to watch them later—there was no intention to distribute or share the content publicly. Yet strangely enough, the number of views on his account had already surpassed 50, easily meeting the threshold for prosecution. So, who exactly was watching? While the cyber police didn’t consider basic internet common sense, as defense attorneys, we must ask: Could it be that the viewers were the very same cyber officers reviewing the content during their internal checks—content that ordinary citizens would never have access to?
You need to understand both the auction market and the underlying knowledge—because some of China's most reputable auction houses frequently sell counterfeit items, sometimes even using them as a method for money laundering—yet all within the bounds of current auction regulations. If you’re unaware of these well-known "secrets," you might easily assume that the antique paintings and calligraphy involved in such cases are genuinely priceless. For instance, in a bribery case I handled involving a Beijing bureau chief, the paintings purchased through Poly Auction on behalf of the defendant turned out to be fakes: a Zhang Daqian piece was listed at 1 million yuan, and a Xu Beihong work was also quoted at 1 million yuan—when, in reality, the authentic market value of these pieces would have been over ten times higher. After sharing this crucial background information with the prosecutor, I explained clearly that the artworks were fake and worth no more than a few hundred yuan—let alone the exorbitant price of two million. As a result, the prosecutor initiated an expert appraisal process and ultimately accepted our defense argument.
C. Continuously observe and accumulate in life, drawing on societal knowledge.
Criminal defense lawyers should keep their eyes on all fronts and ears open to every direction, cultivating ample life and social experience in everyday life to foster broad perspectives and strong comprehension skills.
For instance, in court we often say, "According to common sense, it should be this way." But what exactly is "common sense"? Simply put, it’s based on experience—divided into professional expertise and everyday observations. In the past, lie detectors were frequently used in criminal cases to conduct psychological tests. However, treating the results of these tests as definitive expert opinions could lead to wrongful convictions, potentially sending innocent people to their deaths. That’s because the technology and methodology behind these devices were developed by a select group of individuals who relied on their own limited understanding—and their underlying principle was essentially, "If you’ve done nothing wrong, you’ve got nothing to fear." Experts administering the test would interpret heightened heart rates as clear indicators of deception, strictly following this flawed logic. Yet in reality, most people naturally feel anxious at the mere thought of being questioned by authorities or even invited for a casual coffee chat. The more someone tries to reassure investigators that they’re telling the truth, the more panicked and flustered they become. Cases like Du Peiwu in Yunnan, and the one I handled involving Chang Linfeng, both serve as stark examples of how reliance on lie detector tests can lead to grave miscarriages of justice.
From a personal perspective, one’s life experiences can significantly shape their perception and judgment of situations. For instance, someone with no experience in romantic relationships or marriage might find it challenging to accurately assess whether "emotional breakdown" truly exists in a divorce case they’re handling or representing. Take the 2013 rape case involving Li Moumou and others—during the trial, some individuals, relying on their own limited knowledge, questioned how the driver could have possibly seen the passenger on the backseat physically assaulting someone. They argued that the driver must have given false testimony, perhaps coerced under torture. Yet, anyone who has driven before knows perfectly well that drivers can easily see what’s happening behind them using rearview mirrors—and even adjust those mirrors for an even wider view—without needing to constantly turn around while driving. Similarly, consider the 2006 Peng Yu case in Nanjing. The judge, drawing from everyday life experience, concluded that if someone helps an elderly stranger who has just fallen down on the street, that person must be the one who initially knocked the elder over. After all, why else would they bother assisting? In essence, individuals who remain disconnected from the world around them—or lack sufficient life experience—are unlikely to grasp common-sense reasoning that aligns with societal logic.
Nowadays, many cases from major cities are being assigned to remote locations in other provinces or municipalities for trial. However, due to differences in regional culture, economic development levels, the pace of technological advancement, and even the overall quality of local residents, judges—even though they have a similar grasp of legal statutes—often hold vastly different perspectives on common sense and practical reasoning when applying the law. For instance, some areas have never handled corporate crime cases before. Drawing from their own professional experience, some judges believe that a collective decision-making process via meetings is essential to establish the "corporate will." Meanwhile, others fail to distinguish clearly between the actual controller of a company and its legal representative, mistakenly labeling both as senior executives responsible for corporate offenses. Additionally, some prosecutors view gift-giving amounts exceeding 1,000 to 2,000 yuan during weddings or funerals as excessive, categorizing them outside the bounds of customary social exchanges—since in their region, such gifts typically max out at just a few hundred yuan. As a result, transferring cases to distant jurisdictions often leads to misunderstandings stemming from divergent cultural contexts, which can significantly undermine the fairness of judicial decisions. For lawyers, the key lies in identifying these underlying discrepancies in "common sense" between the two regions, enabling them to gather evidence and present their arguments in a way that directly addresses these cultural and legal nuances.
(II) The Most Easily Confused Mindset—The Defender vs. the Legal Professional
Legal professionals include legal scholars and experts, prosecutors, judges, and lawyers, as well as government legal advisors and corporate in-house counsel. As for defense attorneys—well, they are simply lawyers who accept appointments in individual cases to safeguard their clients' legitimate rights and interests.
Normally, when lawyers are not handling a specific case, they, as legal professionals, are free to express themselves within the bounds of the law—whether through writing articles, delivering speeches, advocating for democracy, fairness, and justice, or pursuing the noble ideals of the rule of law. This is both the right and responsibility of every legal professional, reflecting the core beliefs and aspirations they should uphold. However, once a lawyer steps into the role of defending a client in a particular case, they must always keep in mind that their primary duty is to safeguard and maximize the client’s legitimate interests. In such situations, it’s crucial for lawyers to avoid imposing their own personal ideals or values onto the defense strategy—whether intentionally or unintentionally exploiting the client as a tool to advance their own agenda. I’ve encountered several cases where this issue arose. While I can’t go into specific details here, the pattern typically involves former lawyers who, without even meeting the suspect, fully grasping the facts of the case, or engaging in meaningful communication with law enforcement authorities, immediately jump to publicizing accusations against the investigating department. By doing so, they inadvertently complicate what could have been a straightforward case, leaving the client trapped in prison, forced to "cooperate" under duress—and ultimately driving them to seek a new attorney. In essence, different roles demand distinct professional ethics. Only by clearly distinguishing between one’s general legal practice and their responsibilities in individual cases can effective advocacy truly be achieved.
(III) The Most Tricky Mindset to Navigate—Conflict and Compromise
Some people prefer to fight relentlessly, taking every case to the bitter end and insisting on a "no-win" defense—arguing for innocence no matter what. Others lean toward outright compromise, rarely mounting a defense of innocence; instead, as soon as they step into the role of defense counsel, their focus shifts to persuading clients to plead guilty—often aiming simply for a favorable attitude in court. Then there’s yet another approach: some choose silent resistance in court, opting not to speak up while secretly leveraging personal connections and resources behind the scenes. As the saying goes, "Litigation is all about relationships." But when it comes to delivering a professional, robust defense, these individuals either can’t—or simply refuse to—do it. At the heart of all these approaches lies a fundamental issue of mindset.
A. Why do you stubbornly insist on "innocence" at all costs?
Some lawyers go to extreme lengths to cater to their clients’ perspectives—often to the point of losing sight of ethical boundaries. Many clients genuinely believe they’re innocent; if you suggest they’re guilty, they’ll simply stop working with you. Others excel at exploiting procedural loopholes to highlight perceived flaws in how investigative agencies handle cases, using technicalities as a substitute for substantive legal arguments—a strategy that’s relatively easy and straightforward to pull off. Still others mistakenly equate effective defense solely with outright opposition—assuming that opposing means arguing for acquittal. Yet they fail to realize that even arguing for a reduced sentence is, in fact, a form of confrontation—and more often than not, this type of defense can be far more challenging than pursuing an outright acquittal.
The investigative department is like the builders—constructing the case; we defense lawyers, on the other hand, are more like demolition experts. Building a structure is far more challenging and complex than tearing it down. Once the house is completed, you might encounter all sorts of issues: wiring problems, leaks, or even unsightly peeling wall paint. But let’s face it—most cases hold up, and the "house" remains standing. After all, just because there are minor flaws doesn’t mean the entire structure no longer exists. I often see my colleagues relentlessly questioning the validity of forensic evidence like handwriting and seal analyses in court. Yet, in reality, the defendant themselves has already admitted in court that the disputed handwriting was indeed forged—and the rest of the evidence further supports this conclusion. In such cases, whether the forensic analysis itself contains minor imperfections becomes irrelevant.
While procedures are certainly important and can be rigorously applied, they must always rest on a solid foundation of accurate judgment regarding the facts and evidence. After all, the basic facts are like the house’s foundation, and crucial evidence serves as its main beams. If the foundation isn’t properly laid—or if the fundamental facts are mistaken—a single or two misplaced stones, strategically removed by the lawyer, could cause the entire structure to collapse. But even if the foundation is sound, if the key beams are crooked, unstable, or improperly secured, just a gentle nudge from the lawyer could send the whole building tumbling down.
In the rape case involving Li Moumou and others, many people believed there were flaws in the public security authorities' investigation process, as well as issues with the victim’s profession and her behavior during the incident—leading them to argue for the defendant’s innocence. After stepping in, I asked my client just two key questions: On the way to the hotel, did the victim ever express a desire to get out of the car, only to be denied and even physically assaulted? And once you arrived at the hotel room, did the victim remove her own clothes, or did several of you forcibly take them off? After hearing his answers—and confirming they aligned with the evidence presented in the case—I realized there was no fundamental problem with the case. The foundation and structural integrity of the case were solid beyond doubt. So, I advised him to plead guilty. Ultimately, he received a suspended sentence. Meanwhile, those who focused their defense on the victim’s identity—questioning whether she was a “hostess,” pointing out whether she’d been drunk that night, or even suggesting she might have tried to extort money afterward—missed the real issue entirely. By fixating on irrelevant details instead of addressing the core facts, they ended up missing the mark altogether. No matter how persistently they clung to these red herrings, it ultimately harmed only the defendant themselves.
B. Why do you prefer compromising without principles?
Some blindly trust the quality of case handling by judicial authorities, believing that "there are no wrongful convictions under heaven"—so they end up pleading for leniency instead. Others simply can’t be bothered to put in the effort, finding it far easier to plead guilty through compromise than to fight for innocence. And then there are those with limited experience, who fail to grasp the dialectical nature of the world or realize that peace is earned through struggle. They mistakenly think that by making concessions, reaching out to influential figures, and trying once more, they can somehow reverse flawed procedures and rectify unjust accusations. But how many among the prosecuting agencies actually take the initiative to conduct self-inspections, identify their own mistakes, and openly admit them?
Under compromise, even investigators and the investigating authorities can’t find a way forward—so they turn to intermediaries or simply wait passively. If meetings are denied, they rely on connections or patiently await further notice. When access to simultaneous audio-video recordings is blocked, witnesses aren’t summoned to court, and evidence favorable to the defendant remains inaccessible, they remain silent—no longer resisting at all. These behaviors stem from a mindset among those who fail to grasp the true meaning of defense. After all, the very purpose of establishing the legal counsel system is to empower us to challenge and defend—not just for the sake of the accused, but to help judicial bodies correct mistakes and uphold the integrity of the law. Some people worry that standing firm against prosecutors or judges might risk alienating them. But based on my experience, when advocacy is conducted professionally and communication remains respectful and equal, many prosecutors and judges actually welcome such confrontations—they see it as an opportunity to consider cases from multiple perspectives. Even if the confrontation escalates to the point of filing complaints or creating strained dynamics between parties, these officials may not necessarily view it negatively. In fact, they might embrace your resistance as a chance to break free from external interference and assert their own independent judgment in handling the case. Ultimately, this issue boils down to a fundamental shift in how we approach advocacy—one that prioritizes principled, constructive opposition over mere compliance.
In a society driven by personal relationships, when someone faces trouble, their first instinct is to turn to people for help. In a rule-of-law society, however, the natural response is to seek legal protection and assert one’s rights according to the law. During the transitional phase, these two approaches often overlap. Yet today, some lawyers—still influenced by this mindset—immediately think of "finding connections" as their first step in handling cases. In reality, this reflects the influence of judicial brokers, a phenomenon entirely unrelated to the core principles of the legal profession. As such, it no longer falls within the scope of professional discussions about lawyering.
C. Is it about confrontation or compromise, after all?
Confrontation is fundamental—it’s the very essence of defense; compromise, on the other hand, is a skill, representing knowing when to back off after a battle has been fought. Even in cases involving guilty pleas and plea bargains, this principle should remain intact: balance confrontation with measured compromise, downplaying serious charges while addressing minor ones more leniently. Of course, mastering the right balance between these two approaches depends on factors such as the case’s impact, the intensity of the confrontation, and how each party responds. This issue has been discussed extensively elsewhere, so I won’t elaborate further here.
III. Effective Defense Strategies from a Broad Advocacy Perspective
A comprehensive defense can employ a wide range of methods—as long as they stay within legal and regulatory boundaries, any approach is permissible.
(1) Defining the Defense Objective
The defense objective is a question that defense lawyers must carefully consider—and one that clients inevitably focus on, as it directly influences the choice of defense strategies and approaches. As I quote Teacher Zhai Jian: "If you’re wronged, plead your innocence; if you’re innocent, appeal for mercy." The fundamental principle here is to avoid both rigidity and unfounded speculation.
A. Entity-level objectives are predicated on professional judgment.
Without professional expertise, one might end up being overly ambitious in pursuing defense goals, mistaking unrealistic ideals for achievable objectives—especially when confronted with the eager expectations of clients and their families. For instance, if it’s clear that criminal charges are valid and no mitigating factors apply, and the statutory penalty happens to be five years or more, there’s no need to set a goal of securing an acquittal or even probation.
When setting objectives, it’s wise to prepare multiple contingency plans—upper, middle, and lower—ensuring you’re ready to either secure a solid baseline or make a strong push toward your ultimate goal. In the case of Li et al., the five individuals accused of rape, after determining that acquittal was virtually impossible, I reviewed nearly three decades of gang-rape cases in Beijing. Notably, none of the previous cases resulted in probation—even when the defendants were minors. This stark reality underscores just how challenging it is to achieve probation as a sentencing outcome. Ultimately, I advised my client to aim for at least a five-year sentence, which would allow us to seal their criminal record under the Juvenile Protection Law, ensuring no long-term impact on future education or employment opportunities. At the same time, I emphasized the importance of striving for a more favorable outcome—ideally, a 3-to-4-year prison term. I also made it clear that while probation remains a possibility, we must exhaust every possible strategy, both soft and hard, to pursue this ultimate goal. However, I stressed that the chances of securing probation are slim, perhaps only around 1% to 2%, so we shouldn’t pin too much hope on it.
Due to various complex reasons, when pursuing a substantive, actionable goal isn’t feasible, defense lawyers and their clients can instead set procedural objectives. First, this helps lay a solid foundation for appeals; second, it reflects the determination to "die with clarity and integrity, leaving no stain on one’s name." I’ve personally witnessed cases such as the rape trial of a county CPPCC vice chairman in Nanyang, Henan, as well as the intentional homicide case involving a vice chairman of the regional CPPCC. In both instances, the plaintiffs’ primary focus was on achieving procedural justice—rather than being fixated on the ultimate substantive outcome. After all, securing procedural fairness ensures that future generations can judge fairly, while also sparing the family from public shame—a key psychological goal for the当事人 involved.
When setting goals, it’s also important to consider maximizing the client’s overall interests—both in their professional life and personal well-being—rather than focusing solely on achieving "clean records." For instance, take someone running a small business: while they may technically be innocent, sticking to the current procedural norms could drag on for as long as two years. By then, their tiny factory might already have collapsed, their newborn child might not even recognize them anymore, and their elderly mother—who may already be unwell—could find herself without proper care. In contrast, opting for a plea bargain and securing early release on bail—even if it means taking the simplified procedure—could mean returning home within just a few months, preventing the devastating consequences of family breakdown or even ruin. Is that unfair? Of course it is. But as lawyers, our role is to help clients navigate these tough decisions, guiding them toward a goal that aligns with their unique life circumstances. When dealing with multiple charges—or even a single charge involving several factual complexities—the process becomes more nuanced. In such cases, one effective strategy might be to aim for dropping the most serious charges altogether.
The "upper," "middle," and "lower" approaches mentioned earlier are all relative. The "lower" approach simply means trying your best, even if it’s like treating a dead horse as if it were still alive. The "middle" approach involves settling for basic acceptance and moderate satisfaction. Meanwhile, the "upper" approach represents a delightful surprise—a true embodiment of your highest aspirations. Whichever path you choose, it ultimately requires the individual’s full understanding and cooperation, ensuring everyone moves in unison. It’s crucial not to start down the road of admitting guilt and accepting punishment only to abruptly change course halfway through—or worse, secretly file a complaint against the court behind the scenes. Equally problematic is when someone firmly agrees upfront to reject guilt entirely and fully trusts their defense counsel, yet secretly tries to pursue a dual strategy by reaching out to friends or family members to negotiate directly with investigators, thereby undermining the painstaking efforts of the defense altogether.
B. Sticking to your goals is victory.
Once you’ve set your goal, don’t give up—no matter what. Keep going, keep pushing, and keep persevering! Some clients grow impatient: "Look, the detention turned into an arrest, the prosecution opinion became an actual indictment, yet the court keeps delaying the verdict—and now they’ve even postponed the trial again! Why isn’t your legal work producing results?" Others, after the first-instance judgment is handed down, simply can’t hold on any longer and consider giving up altogether. They’re tired of the harsh conditions in the detention center and eager to move straight into prison, figuring they’ll file a petition later when things calm down. But here’s what I tell them: Don’t lose hope. I’ll stand by you—for free—and help you keep fighting. Remember, if you choose not to appeal, it’s as good as admitting guilt. Without an appeal, you’ll forfeit even the chance to lodge a post-conviction petition later on. And believe me, countless cases have turned around precisely because the defendants refused to surrender. Take, for instance, the recent case from December 31, 2019, when I was still in Beijing—and finally secured a not-guilty verdict that only came through the second trial. Similarly, the turning point in the Chang Linfeng case, as well as in the Tian Yulin case, occurred during the second appeal. Even in November 2019, a female entrepreneur from Liaoning Province saw her original 12-year prison sentence reduced to just 2 years—all thanks to the second trial. But does this mean you should throw in the towel once the second appeal is over and the final judgment takes effect? Not at all. In my experience, you must keep fighting, and fight even harder with a thorough appeal process. Just look at the Jiangsu Zhenjiang organized-crime case I handled—it took years of relentless appeals before the defendants were finally able to shed their “black label” and clear their names.
C. In special cases, prioritize procedural justice.
Due to various complex reasons, when pursuing a substantive, actionable goal isn’t feasible, defense lawyers and their clients can instead set procedural objectives. First, this helps lay a solid foundation for appeals; second, it reflects the determination to "die with clarity and integrity, leaving no stain on one’s name." I’ve personally witnessed cases like the rape trial of a county CPPCC vice chairman in Nanyang, Henan, as well as the intentional homicide case involving a vice chairman of the regional CPPCC. In both instances, the plaintiffs’ primary focus was on achieving procedural justice—rather than being fixated on the ultimate substantive outcome. After all, securing procedural fairness ensures that future generations can judge fairly, while also sparing the family from public shame—a key psychological goal for the当事人 involved.
(II) Selection of Defense Strategies
This is still about methodology, not specific defense techniques.
A. Choose out-of-court resolution, or in-court confrontation?
In the interplay between confrontation and compromise, the first step is to carefully analyze the underlying factors behind the case, identifying the root causes that led to its occurrence. Only then can you address the issue effectively—tackling the problem at its source to ensure long-term solutions. If you merely focus on the specifics of the case itself—such as whether the facts constitute a crime, or even get bogged down in procedural violations—you risk perpetuating the conflict indefinitely. Under certain constraints, law enforcement and judicial authorities may resort to "creative solutions," like maximizing the extension of investigative deadlines at each stage or expanding the list of charges being pursued. That’s why it’s crucial not to stick rigidly to courtroom-style defense strategies. Instead, you should zero in on the broader systemic issues at play. For instance, in cases stemming from government-led redevelopment projects gone awry, environmental disasters, or shareholder disputes—even those involving government acquisitions of private-sector shares—lawyers can leverage the "Six Stabilities" and "Six Guarantees" policies. By bringing these challenges to the attention of local Party committees and governments, businesses can advocate for measures that allow ongoing operations to continue uninterrupted during investigations. At the same time, collaborating with authorities to resolve related issues like land expropriation, pollution, or equity disputes often paves the way for a swift and natural resolution. When public opinion becomes a driving force behind a case, it’s essential to align with popular sentiment, calm the uproar, and ultimately work toward a "reversal" of public perception. By presenting the truth with sincerity and empathy, you can build trust and understanding, laying a solid foundation for resolving the case. As for common intellectual property disputes between companies—especially those involving trade secret infringements—these often arise when cooperation breaks down or when there are unresolved conflicts over profit-sharing. In such situations, lawyers can step in to facilitate constructive dialogue between the parties. Once both sides reach an agreement, the dispute naturally dissipates. Finally, some cases stem from deep-seated personal tensions between business owners and their top executives, where escalating conflicts lead one party to seek legal action—often with the ultimate goal of sending the other into prison. Yet, these kinds of disputes can frequently be resolved through non-litigious approaches, avoiding unnecessary courtroom battles altogether.
B. Choosing a not-guilty plea or a defense for reduced charges?
As previously discussed, if there’s an issue with either the foundation or the main beam, you should consider mounting a not-guilty defense. Sometimes, even when the foundation is sound but the beam has problems—or when external factors are particularly strong—you can still opt for a not-guilty plea as your lightest strategic move, using it as leverage to initiate negotiations. Otherwise, attempting to plead guilty and seek leniency might simply become impossible, as the other party may refuse to even give you that chance. For instance, mounting a defense based on excluding illegally obtained evidence is a common approach that often leads to more favorable sentencing outcomes.
C. Should you choose procedural defense, or substantive defense?
Judicial authorities generally aren’t afraid of substantive defenses, but they do worry about procedural issues. This is because substantive arguments are harder to evaluate—everyone has their own perspective, and judges might even issue rulings without thoroughly reviewing the case files, making it even more challenging to file appeals later on. On the other hand, procedural matters are clear-cut: there’s a fixed standard to determine whether something is right or wrong, which naturally raises accountability concerns. Yet, in order to secure convictions on substance, investigative agencies often end up compromising on procedure. For instance, they may over- or under-document key details in official records, or even resort to coercive tactics like torture, threats, inducements, or deception to extract false confessions or fabricated testimonies. In forensic examinations, they sometimes start with preconceived conclusions, tailoring their analysis to align with predetermined outcomes—sometimes skipping essential steps altogether. They may also fail to gather evidence favorable to the defendant, or deliberately conceal such evidence altogether. Meanwhile, courts might overlook crucial evidence, introduce irrelevant materials, or illegally admit evidence that lacks proper evidentiary standing. In such situations, it may be prudent to prioritize procedural defense strategies as a strategic approach—taking a "roundabout route" to ultimately achieve an effective integration of procedural and substantive arguments. Of course, when no significant procedural flaws are present, the focus should instead shift squarely to substantive defense tactics.
D. Should we focus on the big picture while letting go of minor details, or try to handle everything thoroughly?
Most of the time, you need to assess the situation carefully and think about what else can be done beyond seeking legal advice—such as returning stolen goods, compensating the victim, reaching out to the on-duty supervisor for guidance, or even addressing the issue publicly through media attention. When taking these actions, though, it’s important to exercise discretion and know when to stop before things go too far.
(III) Precision Defense
Before everyone adopted this concept of refined management, leaders from the Supreme Court had previously criticized the legal community for failing to identify procedural irregularities in DNA testing during death penalty review cases—cases where no defense attorney was involved.
A. All strategies must rely on meticulous defense for implementation.
B. The refined defense is easier said than done—it requires significant effort and dedication.
For a simple example, in bribery cases, determining whether the difference between the purchase and sale price of a property constitutes a legitimate discount or an illegal favor requires on-site inspections, consultation with experts, and even a thorough property valuation. Similarly, in other cases involving substantial financial matters—such as crimes related to unexplained wealth, illegal business operations, tax evasion, or illegal fundraising—meticulous calculations are essential, often requiring investigators to gather evidence firsthand. In organized crime cases, when charges allege that defendants have wielded significant influence in a particular region or industry, establishing illegal control, and even harming innocent civilians—what then? Lawyers must undertake painstaking investigative work: delving into industry practices, conducting field visits to neighborhoods and villages, and compiling comprehensive documentation to refute the allegations and demonstrate their inaccuracies.
If cases are handled superficially and closed quickly simply because of low fees, the quality of defense can suffer dramatically—leaving behind only short-term gains while sacrificing long-term professional growth. It’s better to take fewer cases but ensure each one is meticulously crafted into a high-quality outcome. By embracing this meticulous, boutique-style approach, we can gradually cultivate a positive cycle of excellence and sustained success.
C. A meticulous defense requires questioning everything.
From verbal evidence such as confessions, testimonies, and victim statements, to expert opinions, documentary evidence, electronic data, audio and video recordings—essentially any type of evidence that can be subjectively interpreted, manipulated, or altered by human intervention—we must approach it all with skepticism. Every piece of evidence should be thoroughly verified—or disproven. And this skepticism shouldn’t stop there; it should even extend to questioning our own perspectives and biases. After all, cultivating reverse thinking and adopting an opposing viewpoint is crucial. Consider things from the prosecution’s angle: Is their argument logically sound? Could you effectively challenge or refute it?
That's all for now—just my personal perspective, which may inevitably be biased. It’s intended only as a reference for everyone. I hope you’ll develop a basic understanding of criminal defense, enabling you to achieve positive outcomes and effectively safeguard the legitimate rights and interests of your clients in every case.
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