“Roadman Law” Lecture Series of Science and Culture Festival：
The Lecture on “The theory and practice of effective defense” by Professor Xiong Qiuhongheld successfully
On the afternoon of April 24, 2019, Xiong Qiuhong, the professor of the Law Research Institute of the Chinese Academy of Social Sciences, Deputy Director of the Supreme People’s Court and the winner of Chinese Top Ten Outstanding Young Jurists Prize, was invited to deliver a lecture in the Science and Culture Festival of Nanjing Normal University.The lecture is concerning the theory and practice of effective defense . Li Jianming, the professor of NNU School of Law, presided over the lecture. More than 100 person attended the lecture, including undergraduate, graduate and doctoral students and some teachers.
At the very beginning of the lecture, Prof.Xiong introduced the defense theories from the historical perspective, she believes that the history of the law of criminal procedure is, in a sense, a process of expanding and developing the right to defense. She said, academic circles only discussed the issue of defense at first, and then put forward the concept of effective defense. Effective defense, in accordance with the UN regulations on human rights protection, refers to the guarantee of timely and equal access to defense for the accused, and defense should not be a mere formality, but should also be effective.
After that, Prof. Xiong brought our attention to the field of comparative law. In the context of American Law, effective defense should beunderstood differently, and the standards of censorship are also different. Invalid defense system is adopted in American Law. The systemcan be used as a reason to request a new trial, but a few cases can be found as invalid defense. Three criteria should be given to judgeeffectiveness of the defense made by lawyers:whether the attitude of the lawyer is diligent,whether the defense work of the lawyer conforms to the industry practice, and whether the choice of the way of the lawyer's defense is reasonable.
In addition, Prof. Xiong also introduced some perspectives of European countries on the effective defense. These views are made to address the following issues. Whether do lawyers have representation experience or not?What is the capacity of a lawyer? Did the lawyer's series of defense activities bias the jury or the judge against the defendant? Whether grasping the lawyers’ defense in these ways is effective defense or invalid defense? However, from the perspective of judicial practice, it is very rare for the court to judge the case defended by a lawyer as invalid defense.
Most of all, the lecture was not confined to the introduction of effective defense theory, Prof.Xiong also gave us plenty of advice from the height of scholarship. She said in an earnest tone, the concept of effective defense cannot be understood in a literal way. We should trace back to its source, accurately understand the concept of effective defense and clearly define its meaning. Effective defense has two meanings respectively in a broad sense and a narrow sense. To make effective defense proposed by the United Nations come true, it requires a series of standards, and many documents on effective defense published by the UN are the norms of “effective defense”. Law of criminal procedure of a state shall guarantee the effective exercise of the right to defense, stipulate when the lawyer may intervene in the proceedings, guarantee the basic rights of lawyers (such as correspondence, meetings, examination of files), stipulate the determination of the lawyer's qualifications, the immunity of the lawyer from court debate and the personal safety of the lawyer, etc. These are part of the system of effective defense. The narrow understanding of defense means thestandard, qualified and effective defense of lawyers.
Besides, taking UK and USA as examples, Prof. Xiong further explained the difference of effective defense theory in the world. She said The United Kingdom and the United States, which are both in the Anglo-American legal system, still have great differences. The invalid defense is mainly represented by the United States. The United States established the system in 1984 in the referee of the “Steck v. Washington State” case. The United States believes that the criteria for measuring a lawyer's defense include standard of conduct and outcome. Initially, the criteria for effective defense and invalid defense were limited to the defense at the trial stage, and then developed into the stage of plea bargaining. The hearing procedures for pretrial detention are filled with metrics for effective defense and invalid defense, all of which are subject to review by the courts. Although we emphasize trial-centered today, the effective defense of the prosecution stage in practice should also be given attention. Because it prepares for the trial stage on the one hand, and on the other hand, lawyers also defend in the stage of review and prosecution, so the importance of pre-trial defense cannot be ignored. In the United States, the invalid defense system plays a key role in the capital cases, because the adjudication of the capital cases has higher standards for the identification of facts. There are also risks in the invalid defense system in the United States, because criminal proceedings are confrontation between the state and the individual, and the implementation of an invalid defense system will damage the independence of lawyers and encourage clients to challenge the quality of lawyers' defense. Thus, the relationship of trust between the clients and the lawyers is destroyed. It is also for these reasons that the invalid defense system exists only in the United States, which is inextricably linked to the pattern of litigation.
Finally, Prof. Xiong turned the perspective from overseas to China. She explained the present status of studies on effective defensesystem in our country. There are different understandings and explanations about effective defense in theory, for example, effective defense requires national legislation to protect the right of defense. Some scholars believe that effective defense should guarantee self-defense or entrusted defense, and lawyers should defend the clients at all stages. Some scholars think that effective defense refers to the loose environment of litigation, and some scholars divide effective defense into formal defense and substantive defense. Different from many scholars, Prof.Xiong thinks that our country still does not have the conditions to introduce invalid defense system. She thinks that we should improve the quality of the lawyers' defense positively and build the lawyers' team and defense system. At the same time, she believes that the effective defense in China should refer to the legal system for the protection of defense right with the aim of fair trial. It should emphasize the unity of the sufficiency and effectiveness of the defense. Different cases should have different requirements for the defense right.
After Prof. Xiong’s speech, the lecture went to the interactive discussion session, which was held by Prof. Li Jianming. Prof. Xiong and the students discussed many questions from the extent of effective defense to whether the standards for the defense were reasonable etc. And she answered the questions of the students seriously and clearly.
At the end of the lecture, Prof. Li made a brief summary of the lecture, pointing out that the lecture had a distinctive theme, rich content and great significance. He believed that Prof.Xiong explained the effective defense and invalid defense theory in detail and expressed his best appreciations to Prof. Xiong for her comingto our law school. Prof. Li also said we all hope Prof. Xiong will visit our law school again in the future. At last, the lecture which lasted more than two hours ended with warm applause and the students expressed that they had acquired much knowledge from this lecture.