论程序正义视域下的中国刑辩律师困境

律师职业自产生之初就与正当程序有着紧密联系,正是程序正义赋予了律师职业以内在的价值追求.但现今的中国刑事辩护律师却处境尴尬：他们参与刑事辩护率低迷;在刑事诉讼中的各项权利难以保障;有时深受社会公众与媒体舆论的怀疑、攻讦,甚至有可能面临牢狱之灾.一系列问题表明,刑事辩护作为司法程序中的重要环节,正日益失去其维护司法公正的的意义和作用.因此,要突破律师现今面临的种种困境,必须在现念上和制度上进一步落实程序正义.     

Criminal defendants' satisfaction with lawyers: perceptions of procedural fairness and effort of the lawyer

At present, procedural justice theory has predominantly been used to explain defendants' satisfaction with the police, courts and prisons. It is unclear to what extent this theory is also applicable to lawyers. This study investigates to what extent (1) criminal defendants are satisfied with their lawyers and (2) procedural fairness characteristics and the effort of the lawyer are related to defendants' satisfaction with their lawyers. Data from the Prison Project were used: a large-scale research project among Dutch criminal defendants (N = 1479). Results suggest that generally, Dutch defendants are very satisfied with their lawyers. Variation in defendants' satisfaction with their lawyers can be attributed for a substantial part to procedural fairness characteristics.     

Law as a branch of applied psychology

Because the law for the most part consists of a system of rules for the control of human social behaviour, the law may be taken as a branch of applied psychology. However, one may well ask how good lawyers are as applied psychologists. As a partial answer to this question two well-known issues in criminal law are explored; the deterrent effect of punishment and the viability of the presumption of innocence. It is argued that lawyers, although they tend to speak in confusing ways about the deterrent effect of punishment, in practice show themselves to be pretty good applied psychologists. This is different with respect to the viability of the presumption of innocence, as they do not appear to realize that the ways in which criminal trials are commonly conducted cannot but violate this sacred principle of due process.     

The Way in Which Fee Reductions Influence Legal Aid Criminal Defence Lawyer Work: Insights from a Qualitative Study

This article examines how fee reductions influence criminal defence lawyers’ work. Data from 29 qualitative interviews with English defence solicitors and barristers are analysed in order to understand the way in which cuts to fees paid by government for criminal legal aid work can operate to influence criminal defence lawyers’ working practices. I use game theory and Bourdieu's concepts of habitus and field to build a theoretical construct illustrating the invidious position current financial conditions place criminal legal aid lawyers in. I argue that these conditions reward and encourage perceived poor practices and values to thrive at the expense of other concerns – such as the conviction of the guilty, acquittal of the innocent, fair treatment of both victims and defendants, and value for the taxpayer. Ultimately, I argue that criminal legal aid lawyers are set up to fail by the current financial conditions within which they must work.     

Nature versus Nurture: A Comparison of Russian Law Graduates Destined for State Service and for Private Practice

This article explores the mind‐set of Russian law students on the cusp of graduation. Drawing on a 2016 survey, the analysis finds that, despite having taken different paths to their degrees, the respondents share a confidence in the Russian courts that distinguishes them from Russians without legal education. Within the sample, a natural division is evident between those who plan to go into state service and those who plan to go into private practice. Aspiring state lawyers are more likely to support the policies of the Putin regime, even when they preference politics over the letter of the law. This strongly suggests that the tendency of judges and state lawyers within the criminal justice system to work as a team to ensure convictions is not solely the result of workplace incentives, as had previously been assumed, but is an element of a worldview that these lawyers share that predates their legal education. Aspiring private lawyers, by contrast, are consistently more skeptical of the state. To the extent that they are later coopted by the state, as studies of criminal defense lawyers suggest, such behavior would likely be the result of a desire to endear themselves to investigators and prosecutors in order to ensure further appointments to represent indigent clients.     

Advocates,experts, and suspects: three images of lawyers in Chinese media reports

Research on the public image of lawyers often focuses on lawyers’ role as advocates and neglects other representations. Based on the content analysis of 669 media reports of Chinese criminal cases between 1979 and 2009, this article provides a typology of lawyers’ media images: as advocates, as experts and as suspects. Even when lawyers are characterized as defenders of suspects, media depictions of their roles are vacuous and lawyers may be considered unnecessary and dispensable. Furthermore, the characterization of lawyers in the case stories has a binary quality that is contingent upon the media's substantive judgment of case outcomes. With findings from the Chinese case, the article calls for more attention to lawyers’ images in the media, both in China and in comparative research on the legal profession.     

Are lawyers neurotic?

This paper reports on an ethnographic exploration of the lawyer–client relationship focusing on the attitudes held by legally aided lawyers to their criminal clients. The study combines formal interviews with participant observation in a mixed methodology approach designed to give voice to the lawyers taking part as well as allow the researcher to provide their own perspective. The research produced two quite contradictory viewpoints as lawyers claimed to hold positive attitudes of their clients in interview while presenting negative attitudes under observation. To reconcile this difference, the author suggests considering psychoanalytic literature on self-image, which can be applied to show that the lawyers may have been displaying signs of Freudian defence mechanisms and, ultimately, presented as neurotic in their practise.     

中国刑事辩护制度发展的命运——以建立中国控辩协商制度为视角

从立法的角度看,中国刑事诉讼法的修改,无疑是中国刑事司法改革的一个巨大进步,甚至有人把它说成是刑事诉讼立法科学化、民主化的“一个重要里程碑”也不为过。然而,在司法实践中,就刑事诉讼法的修改对中国刑事辩护制度所引起的实质性影响而言,不仅不是巨大进步,而且是严重倒退。中国的刑事辩护正面临着让立法者始料不及的艰难困境。中国目前的辩护制度状况尚无法满足辩诉交易中国化的基本要求。只有实现中国辩护律师队伍的专业化,赋予中国律师必要的辩护权利和执业保障权利,才能使得辩诉交易在中国移植后,被告人有适格的辩护律师提供帮助,以确保其在控辩协商中得到公平对待。     

Contemporary criminal defence practice: importance of active involvement at the investigative stage and related training requirements

ABSTRACT

The shifting focus of criminal proceedings from the trial to the pre-trial stages leads to a changing role of criminal defence practitioners across Europe. European criminal defence lawyers are now expected to enter the proceedings earlier and exercise “active” and “participatory” defence as early as the investigative stage. Criminal lawyers, trained in the traditional trial-centred paradigm, are ill-prepared for this role, which results in an important skills gap. Legal representation at the investigative stage presents unique challenges, such as shortage of information, time pressures and the closed nature of pre-trial proceedings. It requires lawyers to operate in a more complex communication environment, than the one to which they have been accustomed. This article sets out the main elements of a professional training programme aiming to fill in the emerging skills gap. The training programme (SUPRALAT) was successfully implemented in Belgium, Hungary, Ireland and the Netherlands, and is being expanded further. The training focuses on effective communication skills, experiential learning and the development of reflective skills. It includes elements of interprofessional training and encourages the development of “communities of practice”.     

Political Liberalism and Political Embeddedness: Understanding Politics in the Work of Chinese Criminal Defense Lawyers

This article examines the meanings of politics in everyday legal practice using the case of Chinese criminal defense lawyers. Based on 194 in‐depth interviews with criminal defense lawyers and other informants in 22 cities across China, we argue that lawyers’ everyday politics have two faces: on the one hand, lawyers potentially can challenge state power, protect citizen rights, and pursue proceduralism in their daily work; on the other hand, they often have to rely on political connections with state agencies to protect themselves and to solve problems in their legal practice. The double meanings of politics—namely, political liberalism and political embeddedness—explain the complex motivations and coping tactics that are frequently found in Chinese lawyers’ everyday work. Our data show that the Chinese criminal defense bar is differentiated along these two meanings of politics into five clusters of lawyers: progressive elites, pragmatic brokers, notable activists, grassroots activists, and routine practitioners. They also suggest that a principal manifestation of political lawyering is not merely short‐term mobilization or revolutionary struggle against arbitrary state power, but also an incremental everyday process that often involves sophisticated tactics to manage interests that often conflict.     

美国刑事无效辩护制度及其对我国的借鉴

美国不仅有世界上最严密的刑事诉讼规则,还有非常完备的辩护律师制度。其中,刑事诉讼中的无效辩护规则是被告人获得律师帮助最有力的救济措施。美国最高法院确立的无效辩护标准包括形式标准和实质标准。基于提高刑事辩护的质量,确保刑事被指控人的辩护权的真正实现,我国应当借鉴美国的无效辩护制度,从立法和司法上进一步完善刑事诉讼法律制度、律师刑事辩护规则和律师职业伦理规则等。     

刑事辩护障碍的观念之维

我国刑事立法观念、司法观念、律师观念远远落后于我国现行刑事辩护制度,因此造成了辩护制度与法律观念之间的"不兼容"现象,这种"不兼容"现象使得我国刑事辩护制度裹足不前。所以,刑事诉讼观念的相对滞后是我国刑事辩护障碍的最深层次的原因。     

Contingent-Fee Lawyers and Their Clients: Settlement Expectations, Settlement Realities, and Issues of Control in the Lawyer-Client Relationship

One hallmark of Herb Jacob's analyses of criminal courts—extensive consideration of the interaction among actors–was less pronounced in his work on civil justice, which was more focused on institutions and the politics behind the laws that those institutions administered. In the research I report here, my emphasis is squarely on the actors in the civil justice process: the relationship between contingency-fee lawyers and clients, and how that relationship plays out in the settlement process. In Felony Justice, Herb, and his coauthor James Eisenstein, focus on the courtroom workgroup as a case-processing (and, largely, case-settling) machine; clients are relatively peripheral. In my account, clients, both current and future, are extremely important in how the lawyer works to settle cases. In the criminal court workgroup, lawyers do not worry about where future clients will come from because police secure them. In contrast, the contingency-fee lawyer has constant concerns about future clients, and I argue, this concern provides a control over lawyers that prior analyses of the contingency fee have largely missed. This dynamic also may explain why the courtroom workgroups, or court communities, found in the criminal courts do not appear to exist in the civil justice system.     

Incentives, criminal defence lawyers and plea bargaining

Plea bargaining has become a central feature of criminal procedure in Anglo-Saxon jurisdictions. This paper explores an area seldom discussed in the economic literature on plea bargaining: the influence of the defence lawyer's fee contract on the terms of the bargain. In particular, it uses data from one jurisdiction of the impact on case trajectories of changes in publicly funded defence lawyers’ contracts to test the proposition that the nature of the lawyer's contract influences how cases are managed. An event study methodology on a pooled time-series cross-section data set of case trajectories before and after the change in the nature of the contract is used to examine whether the new payment regime significantly changed the trajectories of cases through the summary criminal justice system. Overall the results seem to suggest that the behaviour of defence lawyers may be influenced by financial incentives. This implies that the terms of plea bargains reached between prosecution and defence lawyers may be affected by the defence lawyer's remuneration contract. Consequently, the authors conclude that the role of defence lawyers has been under-researched in the literature on the economics of plea bargaining.     

再论律师在场权——以台湾地区为参照

在台湾地区刑事诉讼中,在场权被视为律师一项独立的权利,具有重要的价值。台湾地区在司法警察、检察官及法官实行某些调查行为时均给予律师以在场权,同时设置一些例外,能够在保障人权与控制犯罪维持一种均衡,此外,与在场权相配套的程序设置也相对比较完善,值得学习与借鉴。     

论刑事律师的利益冲突规制

作为律师职业伦理中的重要规则,利益冲突及其规制在我国刑事领域受到了不应有的忽视。规制利益冲突体现了律师消极的忠诚义务,是司法程序理性运行的要求,也有助于维护律师的职业形象。根据利益冲突的严重程度,可将利益冲突划分为直接的利益冲突和间接的利益冲突。基于对利益冲突的严重性、实体真实的发现、当事人获得律师帮助的权利、律师自由执业的机会等因素的考虑,律师存在强制性规避和任意性规避两种方式。违反利益冲突规则既会使律师个人承担责任,也会带来程序性的法律后果。目前,律师利益冲突的规制在我国尚处于起步阶段,未来在利益冲突的类型划分、律师规避、法律后果以及司法审查等方面都有待进一步完善。     

Deficiencies in the Development of European Criminal Law

Criminal law is beginning to outgrow the shoes which were fitted to it by European law. It is seeking to come of age, to play the role in European law previously reserved to commercial law, private law, employment law, and public law in the broadest sense. Economic knowledge and legal-political organisational interests have long grouped around 'European criminal law'; a still vaguely determined object. A desire also exists to make criminal law justiciable in Europe. Thus, the ranks of the contributions to European criminal law are swelling, European associations of lawyers are developing, legal practitioners are launching appeals3 and winning influence within European institutions. These institutions themselves are beginning to accept and to use criminal law as a political option. This article aims to (I) reflect upon the contents of this development, (II) to clarify their tendencies, and (III) to examine the contents of these premised tendencies, in order to (IV) furnish a critical evaluation.     

The Social Organization of Legal Services to Indigent Defendants

This article draws together materials portraying appointed counsel services in a variety of jurisdictions to illustrate the role of court organization in shaping legal services to indigent defendants. Many criminal courts are bifurcated into preliminary hearing and trial courts. Legal representation of indigents is frequently organized to parallel these stages. As a result, indigent defendants receive defense services from a succession of different lawyers at different stages of their cases. This occurs in three ways. First, some defendants legally eligible for appointed counsel at the inception of their cases have counsel appointed for them only at the trial court after initially employing their own counsel at the preliminary hearing. The dual court system encourages such one-stage representation by private lawyers by facilitating their withdrawal between stages of a case. Second, indigents may also have different private lawyers appointed to represent them at different stages because judges, interested in efficiently running their court calls, desire that particular lawyers represent indigents in their courtrooms. Finally, defender offices often assign different lawyers to different stages as a result of both the demands by judges that defenders be assigned exclusively to their courtrooms and the costs of delivering continuous legal services in a tiered judicial system. For indigent defendants the sequential system of representation may adversely affect the quality of case preparation and undermine a sound attorney-client relationship.     

Political Embeddedness and its Impact on Chinese Lawyers’ Practices in Criminal Defense Cases

Based on survey data of 348 lawyers in Fujian, this study empirically tests how lawyers' political embeddedness (i.e., lawyers' bureaucratic, instrumental, and/or affective ties to the courts and prosecutors) has impacted upon their defense practices in criminal trials and their pursuit of liberal values. Our data reveal that politically embedded lawyers report more (not fewer) difficulties in practice (e.g., in requesting witness testimony in court, requesting new evidence, and requesting new evaluations and investigations of the case). Clients are more satisfied with representation by politically non-embedded lawyers than lawyers who are embedded. Using statistical evidence, this paper analyzes potential reasons and draws out the implications.     

对我国刑事法律援助制度几个问题的思考

我国现阶段刑事法律援助制度存在着适应范围和对象过窄、援助主体不多、援助基金不明确和对援助的质量缺乏监管等几个方面的问题，必须对我国现阶段的刑事法律援助制度进行进一步的完善。应适当扩大援助的案件范围和对象，扩大援助的主体，明确规定和切实保障援助的基金，加强对援助质量的监管。