Khoá luận tốt nghiệp: The role of lawyer in criminal procedure: A comparison between Vietnamese and American systems

The sole of lawyer as defender for justice 34 Chapter 3: THE ROLE OF LAWYERS IN CRIMINAL PROCEDURE UNDERVIETNAMESE LEGAL SYSTEM AS COMPARED TO THE AMERICAN SYSTEM AND PROPOSALS FOR VIETN

MINISTRY OF JUSTICE MINISTRY OF EDUCATION AND TRAINING

CONG THỊ HAI YEN

442951

COMPARISON BETWEEN VIETNAMESE AND

AMERICAN SYSTEMS

‘GRADUATION THESIS

HANOILAW UNIVERSITY

CÔNG THỊ HAT YEN.

442951.

SYSTEMS

'VAI TRÒ CUA LUAT SU TRONG TO TUNG HÌNH SU: GÓC ĐỘ SO SANH

'GIỮA HỆ THONG PHÁP LUAT VIỆT NAM VÀMỸ.

Major: Conparative Law GRADUATION THESIS

Supervisor

Dr Dao Le Thu

Hanoi - 2023

Supervisor's confirmation

Dao Le Thu

STUDENT DECLARATION Therewith formally deciare that Imyseif have written the submitted bachelor’s Thesis independently, the conclusions and data tn the Bachelor's Thesis are

trutiftl and veltable /

+2023 Researcher's signature

Cong Thi Hai Yen

ACKNOWLEDGEMENT First and foremost I would like to express my deepest gratitude to my supervisor, Ms Dao Le Thu for her tavaluable guidance ofmy graduation thesis, for ler patience, entinsiasm tmmense knowledge and understanding She has always been dedicated devoted and thoroughly instructed me through all the stages of completing my thesis It was a great privilege and honor to work and study trlder ler guidance

My sincere thanks also go to all staffand lectwers at Hanot Law University where it has been my honor and pleasure to be educated for the past four years On top of that, with all the lessons and the extra-curricuinim activities, I have the opportunity not ony to widen my language knowledge but also better my personality and become the person Ï mm today.

Last but not least, I owe spectal thanis to my fianily and the valuable assistance of my classmates in class 4429, as well as other peers of mine in the Institute of Comparative Law during the tmplementation of the study They are so supportive to my work, without which this paper could not have been fulfilled

TABLE OF CONTENTSSTUDENT DECLARATION.

3 The object and teks of the Thesis, 8

4 The object and delimitation ofthe Thess, 8

5 Methodology and research methods of the Thesis 9

6 Scieaific and practical implications ofthe Thesis 0

7 Suche of the Thesis 10CHAPTER 1 FUNDAMENTAL ISSUES ON THE ROLE OF LAWYER INCRIMINAL PROCEDURE "

1 Actors involved in ciminal procedure u

12 The necessity endimpostence of lawyer in ciminal procedure 2

13 The oles of lawyer in criminal provedwe la1.3.1, The role of lawyer esa protector of sights snđintaesbs forthe pasties 141.3.2 The role of lawyer as an advocate of the pestis l61.3 Role of lawyer asa defender for justice 81.4 Mein factors affecting the role of lawyer in criminal procedure

1.4.1, Objective factors 18

1.4.11 The leglficmework onthe legal stahs anu role of lawyer 181.4.12 The criminal procediwal models 91.42 Subjective factors 21.42.1 Legal browledge 21.42.2 Profesional sls 2Conclusion of Chap er 1

CHAPTER 2: THE ROLE OF LAWYER IN CRIMINAL PROCEDURE UNDERAMERICAN LEGAL SYSTEM

2.1 The relevant legal framework in the American legal system 1⁄42.2 The pastioular roles of lawyer in criminal procedure under the American legal system

”

3131 Thesole of 1eyyer as « protector of sights end interests forthe pastes ”2.22 The sole of lawyer os an advocate forthe pastes 302.23 The sole of lawyer as defender for justice 34

Chapter 3: THE ROLE OF LAWYERS IN CRIMINAL PROCEDURE UNDERVIETNAMESE LEGAL SYSTEM AS COMPARED TO THE AMERICAN

SYSTEM AND PROPOSALS FOR VIETNAM 38

3.1 The sole of lawyer in criminal procedure under Vietnamese legal system 38

3111 The selevent legal framework in Vietnamese legal system 383.1.2, The soles of lawyer inthe cximinal procedure under Vietnamese legal system 393.1.2.1 The role of lawyer as aprotector of rights and interests for the parties 393.1.2.2 The role of leeyer as an advocate for the parties 23.1.23 The role of lawyer as a defender for justice 45

32 Compering the roles of lawyers in criminal procedure between Vietnamese andAmerican systems 4

3.2.1, Similarities in the roles of lawyers in criminal procedure between Vietnamese

and American systems 4

3.2.2, Differences in the sole of lawyers in criminal procedure between Vietnamese andAmerican systems 03.2.2.1, Factors impact on the differences in the role of lawyers in criminal

‘procedure between Tietemese and American systems sĩ3.2.22 Particular differences in the role of lawyers between Vietnamese and

American criminal procedire Ey

33, Proposals for improvement of the role of Iewyer in criminal procedwe in Vietnam

3.31, Proposals forthe improvement of Cximinel Provedwe Code 23.3.2 Proposes forthe improvement onthe precticel lls of lawyers in cima

procedure “

Conclusion for Chapter 3

CONCLUSION

REFERRENCES

LIST OF ABBREVIATIONS

ABA ‘American Bar Association CPc Criminal Procedure Code ete et cetera (and so forth)

us United States

1 Rationale of the research

Lawyers in general end thei soles in criminel procedure in perlicvlsr heve always beenconsidered evidently necessary, especially in the context of the rule of lew Their legalstatus and roles must be guaranteed for justice to be accessed adequately In other words,gusrantecing suchprocedural sights of lavyers is animportant part ofthe overall upholding

of justice At the international level, the roles of lawyer, most outstandingly the function ofadvocating, ae recognized in most international legel instruments Constitutions end ews

of nations over the world have indeed recognized the sole of lawyers in criminal procedureend the state isreaponsible for guaranteeing his legel status end pesticipation in all criminalstages More to mention, criminsl procedure is not necessarily an equel struggle between

the opposing pasties! This means thet, for feimness to prevail, all parties in the proceedings,

including the prosecution end the defense, must each be vested with the oppostunity toperform their functions On this bass the lewyer, who is qualified in terms of legalknowledge and capeble of perticipsting in proceedings in a manner, deserves to be fair to

the prosecution’ Guaranteeing the roles oflawyersin criminel procedure involves ensuring

thet the accused is ensured to be supported and the lawyer's function of protecting clientsaginst the llegetions of the state is also affirmed

On an international scale, the tasks of guarentesing the sole of lawyer end improving thelew of criminal procedure have attracted the attention in many nations There heve beenmoves towards the continued development and improvement of legislation in order toprovide complete legal mechenisms which will reinforce the participation of lawyers in

criminal procedure in some counties As to the US, a report of the National Committee

Ô Nguyễn Thái Phúc (2007), “Vietnam craminal proceeding model - theoretical and practical issues (MG hin Tổ hư,

"hàn Vile Nem - Ning vin đ ý bộn vi theta)” Leg Scionce Juma lu 53)

2 Sebaore Zappali (2005), mun Rights in uernatona Criminal Procedie, Oxford, 2005, pp 109-125

` This Repart named “Tice Deed Anericats Continuing Neglect of Otr Constincional Right to CoreuelTMas

‘been supparted by gearous corres fremthe Open Society stings athe WAllace Gizbel Fan in April 1009 This Repar is avaible a come constntimproject ong> and mrad or,

on the Right to Counsel has used the recommendations to try and educate state and federalpolicy makers regarding the critical reforms necessary to achieve a truly fair criminaljustice system for all individuals, including reinforcing the defense role of lawyer end hispsticipetion in criminal procedure, In Chine and other countries in Asia, criminal justicesystems have been reformed One of the key tasks of these reforms is to improve theprovisions of the current Imws on criminal procedure concerning the procedural sights ofthe Inwyer and ensure they ere in line with intemational standards Currently, China hasamended the Law on Lawyers to prepare the ground for the ratification of the Internetional

Covenant on Civil and Political Rights!

InVietnam, adversarial principles and the role of lewyer in criminal proceedings have been,recognized in certain legal documents Article 103.5 of the Consitution 2013 of Vietnamstipulates as follows: “The principle of institute legal proceeding against is guaranteed intrials.” Thisis the commend and the orientation for improving the edverseriel principles inthe Criminel Procedure Code 2015 of Vietnam (hereinafter the CPC) According to Article

26 of the CPC, the role and participation of pasties in criminal proceedings is guaranteed

to be equal Typicelly, during the charges, investigation, prosecution, adjudication,investigators, prosecutors, competent authorities, defendants, defense counsels and otherpesticipents in proceedings ere equally entitled to present, evaluate evidence and makerequests for clavificetion of objective truths of the Iewsuit, As many other netions aroundthe world, Vietnam has been carrying out a comprehensive reform of criminal justice One

of the key tasks of the reform is to expand the proceedings et criminal trials, in which theneed for further emphasis on the role of levyer The settlement of criminal cases tends toindicate thet the practicability of lawyer on his function is still bleak This rests from

‘various causes, of which the overlapping and contradictory nature ofthe leysis one Even.though the CPC 2015 has undergone several amendments and supplements, it has onlypastly overcome its existing shortcomings Under these circumstances, the State mustclearly show the intent to speedily improve the legal system in general and the CPC 2015

“According the repart ted Asetonnet Report n the Neinal Hamam Fights Acien Pn of Cina

(2008-2010), <kep JRnfn dni com cnichinw2011-07/1¢cenert_12804570 bem

in pasticuler Compared to countries which have made great sides in the affirmation alawyer's role in criminal procedure, certein shortcomings and mismatches in practicalspplicetion still exist, This may affect or even damage the sights end interests of bothlawyers end citizens invelved in legel proceedings

‘The above shows that guarantesing legel stetus in general end the roles of lewyers inpesticuler is e global concem and not merely # matter affecting each nstion This requiresVietnam to continue further speeding up the process of judicial reform in order tomminimizethe impact of current limitetions Wishing to contribute to the enhancement of theeffectiveness of improving the lew regarding the sole of lawyer in criminal procedure, theuthor chose to underteke research on the theme “The role of lawyer in criminalprocedure: A comparison between Vietnamese and American systems.”

2 Literature review

Most foreign scholars pay constant attention to studying the sole of lewyers from theperspectives of legal ethics, professionel responsibilities, the impact of criminal procedtvalppecacigm end the pattcipetion legal status of lawyer in terms of his legal ethics andobligetions, there waslack of analysis on about how lawyer conducts their sole accordingly

to specific provisions ofthe legal framework in pesticuler stages, such as the investigationand evidence presentation The subject matter of research involving role of lawyer incriminal procedural system means thet there should be # comprehensive analysis on thesole of lawyer in multi- dimensional functions in distinct stages insteed of merely at stage

In the process of researching and exploiting the topic, the author has consulted severaldocuments and typicel reseerch reports in the form of scientific topics, master’s theses,doctoral theses, books, and magezines Accordingly, some typical projects cen besunmerized below

today’s American criminal procedural system Following his perspective, a lawyer, as amember of the lege profession, is «representative of clients, anofficer ofthe Legal systemend a public citizen having special responsibility for the quality of justice The languagedoes not differentiate the soles based on the kind of law the levyer practices nor does itprioritize the different roles This lack of differentiation leeds to the conclusion thet alllawyers, no matter whet ares of law, have a responsbility thet goes beyond merelyadvocating for the client An sttomey must act as an officer of the cout, respecting theneed for truth end truth seeking within the confines of the adversary system and es an activeperticipent of a system that places justice as a core value This aficle seeks to investigateend enalyze how the roles ofthe ettomey are played out in this specialized area of lew andmore importently, how each of these soles are fulfilled in a particularly difficult ethicalsituation Author also emphasizes the hermonyin conducting three different roles of lewyer

in criminal procedure end looks et the hypothetical from the assumption thet the multiplesoles of en attomey implicate distinct responsibilities, and each must be fulfilled in everyction end decision

Role of lewyerin an adversesiel system, especilly in America is described in one journal

of Smith (2013), namely “The “quiet revolution” in criminal defence: how the zealousadvocate slipped into the shadow.”” Accordingly, the concept of defense attomeys doesinvolve lawyers considering the interests of the court and the public, but the ettomey'sprincipal duty is to the client The euthor claims that defense attomeys’ duties to theirclients as a “zeslous advocete” encompess three key obligations The first obligation ispestisenship, peticularly that lnvyers must be completely parisen toward their clients endtheir clients’ interests, The defense lewyer exists es & “champion in a hostile world” andmust be fully deckcated to all legal options available to benefit their cients The secondobligetion is detachment, which is the lawyer's duty to refrain from judging the morality

or personel aspects of « defendant or œ case Defense lawyers must be objective andimparidl toward their clients end duties, acting professionally and according to codes of

© nih, mn 2013), “De ‘quetrevohtion"in canal defence: How the uc xo slgped tothe shadow.”bucrationl Jue of the Le gel Profession 20 10.1080/09695958,2013 835506.

cthios segerdless oftheir personel views or beliefs The thicd obligetion is confidentiality

In the attomey-client relationship, the client will likely provide senstive, personal endsometimes confidential information relevant to the case and a defense lawyer must keepprivileged information secret However, « defense lawyer may also reveal confidentialinformation to prevent his client from committing « criminal offense thet the attomeybelieves ill immenently result in the death or herm of another person, or to defend him selffrom charges of misconduct

A competison between the sole of lawyer in adversarial and inquisitorial proceduralsystems is presented in The Role of the Criminal Defense Lawyer in an Inguisitorial

Procechwe: Legal and Ethical Constraints’ by Tecqueline (2006) Using the example of

contemporary France, this paper considers the legal end ethical constreints upon the roleend fimction of the criminal defense lewyer in a criminal proceduwe rooted in theinquisitorial model, Recent reforms promise to open up the space occupied by the eximinaldefense lawyer, but in practice, the defense role continues to be overshadowed by thedominance of juckcial supervision both as «theoretical organizing festwre andinthe ways

in which this shapes legel and occupational cultwes The paper argues thet despite thelimitations of judicial supervision in practice and the expectations of increased defensepesticipetion in measures designed to accelerate the disposition of cases, the legel andethical xeguletion of the lawyer continues to define his role as auiliery to thet of theinvestigating judge rather then as en autonomous actor in the eximinel process

Samuel Dash (2016), The Emerging Role and Function of the Criminal Defence Lawyer,provided multidimensional interpretations on the new status of the criminal defenselawyer to the rash of United Stelee Supreme Cout ceases thet have strengthened thedefendent's position in state and federal criminal proceedings through interpretation of thefouth, RRh, sixth and fourteenth amendments to the United States Constitution Samuel(2016) shows an analysis on the importance of lawyer to efor tial through practical cases

"Hodgson, acqueline (2006), The Role g the Crna Defence Layer ox bapaitril Procedboe: Lege xd F0icad Consents Legpl Bes 9.10 1080/1460728302006 11424254

` 8mmul Dash (2016), Ti Bmerging Role nu Foeon ofthe Crinined Defence Lawyer, 4T N C TL, Rav S08

In speaking of the sole and function of the criminal defense lawyer, the author refers tothose aspects of lawyer's professional behevior desling with his lationship with is client,the manner inwhich decisions are made conceming the conduct ofthe case; the obligationsend services lawyer properly owes to the client and those he does not; his application ofthe insights into the practical workings of the criminal justice system he must possess; therelationships with defense and prosecution witnesses, lewyer's relationship with theinvestigators he uses; his relationships with the prosecutor, the court end the juxy, andim anyother behavioral fectors in lewyer’s day-to-day work onbebelf of his client thet refer to hisprofessionel status

2.2 Domestic publications

Recently, in Vietnam, there has been increasing research on the legal status of lawyers incriminal proeedtve, which lay the foundation for the appropriate approach towerds thepesticipation of lewyers end potential proposals for the CPC 2015 of Vietnam to seinforcethe prosctive sole of lawyersin the criminal procedural system

Nguyen Manh Hung 2012), *Frctions in Tretamese criminal proceedings - Theoreticalcand practical issues”, has claified theoretical issues ebout the function of accusstion, thefunction of defense and the function of tial in criminal proceedings Also, this peperconducts research end evelustes how these functions ate pesformed practically inVietnamese criminal proceedings, and consequently proposes necessary solutions for betterefficiency However, the author merely evaluates the function of cach litigation model andthe subjects enitledto such functions in protecting legitimate sights andinterests of citizens

‘without mentioning the sights and obligetions of lawyers in criminal procedure

Ngo Thi Ngọc Ven (2016), "Defense actiities of lawyers duưing the first instance tril ofcriminal cases!” has fully enelyzed the concept of defense end the causes, which resulted

in certain limitations of lawyer's defense ducing the first instence tial stage However, the

"gavin Mie Hig C01), econ in Panes crn proceedings - Theoretical nvlprec tcl ses, Doct

Dissertation of la, Graduate Academy of Social Sciences, Hanoi

"Ngo Thủ Ngoc Vin (2008), Defense acts of ayers ing the fost nstnce til of eriminal cases, Master

‘sie bv, Hanoi Lav Univesty, 9 6.6

scope of analysis is limited to the trial stage, instead of comprehensively focusing on theother crucial stages in criminal procedure, such as the investigation phase, so it is silfreguentary when integrating the participation of lawyers.

Luong Thi My Quynh (2011), "Guarantee ofthe accused person's right to defense counsel

= A comparative study of Tiehnamese, German and American criminal procediwe laws!"*,

generalizes historical perspectives on the formation of right to defense counsel and theconcepts of the sight to defense on international end domestic scale, thereby summarizesond affirms the basic contents to guarentee the sight to a defense recognized by bothinternational and netionel level The dissertation slso focuses onseseerch which will leify

in & scientific manner the provisions of the applicable criminal procedusal laws andmeterials providing in cach county, the practical context of the guarantee of the sight todefense counsel in the countsies selected The second sim ofthis dissertation is to proposesuitable end practicable solutions to improving the selevent criminal procedure laws ofVietnam and thus to contributing to the enhancement of the effectiveness ofthe settlement

of criminal cases and the handling of crimes while sill protecting umen sights However,the paper does not emphasize on the role of lewyers in criminal proceedings, nor does itmention the sights end obligations of lawyers in protecting the legitimate sights andinterests of clients in Vietnamese criminal proceedings

In addition to the defense function of lawyers, umber of previous studies heve enalyzedother soles of lawyers in criminal procedure, typicelly the master thesis namely "The role

of layer in ensuaing democracy and objectivity in criminal proceedings in Thetnam* by

Nguyen Thi Kieu Trang (2020) This paper studies theoretical issues ebout the lawyer's

role of upholding justice in snsuring đem ocrecy and objectivity in criminal proceedings

‘The author enalyzes the cusrent participation of lewyers in ensuing democracy andobjectivity in criminal proceedingsin Vietnam; consequently the paper offers perspectives

`! Luong TEM Qhựnh Q01), “Guewonce ofthe cited persis right to defence comncel- A comparative su)

ef Pemeoese, Geren ave Anericen criminel rocedge Tats, The cty of Lew, Lund Univers

' Nguyen Th Kieu Tg (2020), Te role of leer in encimig democracy coud olgeciy mn criminal proceedbiss

sn Pet, Master These of av, no Lav Unsere, Hino.

end solutions to improve the sole of lawyers with reference to this function in Vietnam.LuongVen Tron (2002), The role of lawyers in protecting the legitimate rights andinterests

of suspects and defendants in criminal proceedinge!’, ofers a different perspective on the

sole of lawyers The author presents the theoretical basis for implementing the principle ofensuring the ight to defense of suspects and defendants and studies the role of lewyers inprotecting the legitimate sights end interests of suspects end defendants in comprehensivestages of criminal proceedings A mumber of recommendations are proposed to improve theCPC 2015 andimprove the efficiency of lawyers

3 The object and tasks of the Thesis

‘The study sims to make some proposals for the improvement of the sole of lawyer in thecriminal procechre of Vietnam from the experiences of the American framework Toachieve these goals, the author has focused on the following teks

- Analysing theoretical issues ofthe role of lawyer in criminal procedure

he selevant framework of the American and Vietnamese system; the legel stipulations onAfferent roles of lawyer in criminal procedure in the two counties

- Comparing the similerities and differences in the manifestation of the role of lawyer in

criminal procedure in Vietnam and America

- Preparing some proposals for Vietnam to guarantee end promote the role of lewyer in

criminal procedure

4 The object and delimitation of the Thesis

Firstly, in terms of the research objec, the thesis focuses on studying the relevant lew andinstitutions concerning the role of lewyer in the criminal procedure of America andVietnam, including their legal status and pasticipetion in criminal proceedings

Secondly, regarding the research delimitation, the thesis researches the manifesttions ofthe sole of lawyer in criminal procechze mainly from the criminal justice system endselevent parts of the law on the participation and stipulated role of lawyer in criminal

mg Vex Teen 2002), Te ole of Layers in protecting the legitimate vighs eu eer of sapects nd

feces in cronnal proceeding, Master Thess of a, noi Law Unrest, Hanoi

proceduse, The focus ofthis thesis is to research on the law, the development ofthe legalfrom evork forthe patticipetion of lawyers, and the different functions of lawyer in criminalprocedure, International legel documents directly related to the research topic will also beenalyzed to investigete the conformity of these netional laws to intemnational stenderds.The present seseerch project lies in the field of criminal procedure lew and uses @comparative approach The legislative practices of the compared country are not onlyslated to lew-m king activities but also reflectedin the development of other relevent legaldocuments by competent state agencies, The counties with manifestations of the sole oflawyer in criminal procedure thatthe author chose for compasison inthis thesisis Am exice,which is « developed country with reference to legal status of criminal lewyer Based onthe differences mainly from the source of law end criminal procedural modules betweenthe two countries, the rest ofthis thesis is some proposels for enhancing the legal statusend sole of lawyer in criminal procedure in Vietnam from Am exicen experiences.

5 Methodology and research methods of the Thesis

With an sim of achieving the objectives andl tasks of the thesis, evaluations in this peper

re based onits thalecticel method and materialistic view of Marxism - Leninism There isalso a combinetion of seseerch methotls as en analytical method, synthetic method, and themethodology of Comparative Laws, (1) Analytical and synthetic methods ere used inChapter 1 to clarify the general issues of the role of lawyer in criminal procedure; (2)Analytical and synthetic methods are also used in Chapter 2 to analyze the manifestations

of the sole of lawyer in criminal procechre in América, (3) In Chapter 3, the author usesmethods of interpretation, analytical and synthetic methods end Comparative methotls toanalyze the manifestations of the role of lewyer in criminal procedure in Vietnam andhighlight s mumber of similarities end differences of the two countsies mentioned above onthe mein isrue ofthe thesis As aresult the author hes commented and recommended someproposelsfor Vietnam from American experiencesin terms of the role of lawyer in criminalprocedure

6 Scientific and practical implications of the Thesis

Fissly, with reference to the scientific significance, the thesis is a systematic study of therole of lawyer in criminal procedure in Vietnam The study has a comparison withdeveloped counties, typically America, whichhas had alot of experience in the process ofensuring the pasticipation of lawyer and developing the role of lewyer in criminalproceduce, The research also analyzed end clarified the necessity and significance of thesole of lawyer in criminel proceduwe; evelusted the current legel status of lawyer in criminalprocedure end the operetion of the lawyer's ctions in these two counties Afterall, thethesis wouldlike to emphesize the importance of improving the legel provisionsin the light

of the sole of lawyer in criminel procedure and enhancing the perticipation of the lawyerdosing criminal proceedings

Secondly, in terms of practical significance, the proposals end recommendations of thethesis are provided by « belenced cussiculum of theoreticel and practical research towerdthe sole of lawyer in criminal procethe, This thesis is a valuable reference for Stateagencies in the process of formulating policies and developing laws to ensure the role oflawyer in criminel procedure es well as compatibility with internetionel commitments, Ination, the proposals can improve the efficiency of the development and opereion of thesole of lawyersin criminel proceduwe in Vietnam Thisis also exesource to support researchectivities for any individual or orgenization interested in lawyersin general end the role ofthis actor in criminal procechre in specific

7 Structure of the Thesis

Apest from the introduction, conclusion and list of references, the thesis content consists

of 3 chapters:

Chapter 1: Fundamental issues on the sole of lawyer in criminal procedure

Chapter 2: The sole of lawyer in criminal procedural under American legel system

Chapter 3: The sole of lawyer in criminal procedure under Vietnamese legel system ascompared to the American system and proposals for Vietnam

‘CHAPTER 1, FUNDAMENTAL ISSUES ON TRE ROLE OF LAWYER IN

CRIMINAL PROCEDURE

11 Actors involved in criminal procedure

Fisst and foremost, criminal procedure refers to the legal processes and rules thet governhhow criminel cases ere hendled from investigation and arrest through rial and if necessaryeppeel Criminal procechre highlights the sometimes difficult conflict between theconstitutional sights of « suspect or defendant and the power of government to maintainpeace and order and ensure public safety That conflict must be sesolved through presesibedrules; csiminel procedure is those rules The law of criminal proceduwe tempts to disectthe actions of such seleted actors, typicelly including police officers, prosecutors, defenseattorneys, judges, and other government officials The lew prescsibes the way in which thelew enforcement authorities (an behalf of the sate) may interact with residents, suspects,defendants, convicted offenders, and victims Examples of procedwal ismes ateindividuals’ sights during lev enforcement investigation, erret filing of charges, til, endsppaal

In the criminal procedure, cach of the actors has their own set of goals end priorities thetsometimes conflict with those of other institutions and actors, or with the supposed goals

nd priorities ofthe system as e whole, Based on the general legal framework end specific+egvletions enacted by canh country, there is no common standard for the participation ofactors in criminal procedive Commonly, there ae three mein groups of actors engegingincriminal proceduce, including the secusing pasty, defense pasty end the Court These actorscensure justice to be catied out on a daily basis Some are in the forefront, others behindthe scenes

With reference to the sccusing pasty, the role of prosecutors typically demonstrates thefunctions of this perty in criminal procedure A prosecutor supervises end cerries outinvestigations, prosecutes, argues eccusstions on behlf of the state and pesforms incriminal proceedings Prosecutors can participate in ell stages of criminal investigation

‘The Prosecutor's Office may conduct pre-trial investigations and supervise investigativeoperations as well as initiate and supervise the enforcement of judgments

Lawyers can pasticipate in criminel proceedings as a representative of the defense pasty.

‘Taking charge of each different legal status, lawyers have separated rights and obligations,however, the role cen be seen to operate on three interwoven levels: First, he is themouthpiece of his client, secondly, he is « defender of justice; and finelly, he acts as

protector ofthe sights of his client!* To some extent, e lawyer has a duty to feaslessly raise

every issue, advance every argument and ask every question, however distasteful, whichthe thinks will help his client's case Nevertheless, es an officer of the cout concemed withthe administration of justice, he has en overriding duty to the cout, to the standards of hisprofession and to the public, which may often lead to a conflict with his client's wishes,1.2 The necessity and importance of lawyer in criminal procedure

In terms of semantics, the term “role” can be accessed as the “behavior expected of an

individual who occupies a given social position or statis" A role is @ comprehensive

pattern of behavior thet is socielly recognized, providing a means of identifying end placing

an individual in a society It also serves as a strategy for coping with recurrent situationsand dealing with the roles of others

Pasticulerly approach to the term “role of lawyer”, it has commonly described esto act onbehalf of the accused or defendants to do the rights of defend; acquit, to be on favor of theaccused or defendants to prove by sentences to evidence the aggravating circumstances.Meannehile, during the proceeding, lawyers ere required to provide additionelly the exhibitsthet are used for proceeding by the Justice Department

‘The role of lewyer, in criminal procedures in theory is controversil even though they pleythe important role of protecting their client's sights through the application of legal theories

Adar Anew & Bie, Meredith 2009) acs andthe Criminal Defence Layer Legal Bhics 7 C) 167 1H

Brame Dictimay, eps lhmmrbrtunice comstopctol

end knowledge Once defending his client and acting as legal representative, the presence

of lawyer is regarded as an independent party in criminal procedures as-well as the legalrepresentative ofthe accused This representation is of e special nature, not to be confused

swith other forms of representation!’ When representing the accused, a lawyer not only

defends his client but also acts according to his client's will since the xeletionship betweenthe two is govened by a legel service contrect (except for the case when the lawyer isappointed by the cou

Nowadays, the organization of this profession vasies across legal juisthctions, however, it

is commonly recognized thet all lewyers share the sole of "upholding justice!”* As @

pesticipent in proceedings with comprehensive knowledge of law and professionel stalls,

‘working in « professional organization, a lewyer upholding justice in criminal procedures,must be crucial in society due to two concuurent missions Protecting the sights of his client(person, oxgenizetion) end protecting the law Lawyers have to defend their client on the

‘basis of and with respect for the lew Their psticipetionin the proceedings should not onlydefend his client's rights end legel interests but also assist in identifying the truth of «case,facilitating the processes of fair investigation, prosecution end bidl, protecting theinnocents and preventing criminals from sipping away Cleetly, a lewyer shell not defendhis cient through illegal meens thet bend the truth

Defending the sights end interests of the sccused through legal means lewyers contribute

to civil sights protection and judicial reform It is significent to echieve a clearunderstanding of their soles in criminal procedures, which should constantly be necessarytoinform government bodies, especially those conducting triels, aswel as the people

1.3 The roles of aw yer in criminal precedure

In the enalysis section, the author focuses on the roles of Iewyers in criminal proceedings

in three aspects: Protecting the legal rights and interests of pasties, advocating for the

‘Nguyen Van Tan 2019), Some Bites on 7D Cried Procedie Cod, Judicial Ablishing House, Buol.p ML

` Cam the disemnation and education of leo the Government (2010), Topics an yer an th ave ot

perties, and upholding the lew However, the seperation of these roles does not imply adetachment ofthe sights and duties of lawyers Regerdless ofthe sole they pesform, lawyersust fulfill two functions in criminal proceedings: "legal representation” end “legalcounsel " Moreover, the roles of lawyers ere expressed harmoniously across the stages ofcriminal proceedings, without distinct seperstions, The author chooses certain stages of theproceedings that most clealy demonstrates a particular role of lawyers among the threementioned, without implying thet the role is not expressed in other stages of theproceedings

13.1 The role of lawyer as a protector of rights and interests for the parties

Lawyers play @ crucial sole in protecting the legitimate sights and interests of parties,pesticulesly defendents in criminal procedures The specific rights they aim to safeguardnay very depending on the jurisdiction, legel system, and the stage of the criminal process,

‘but some fundamental sights typically include sight to legal counsel, ight to a fer trial,sight to remain silent and protection against unreasonable searches end seizures Alewyeroperates his role of « defender for the sights and interests of his parties through certein,stages, including investigeions and evidence gathering,

Inthe stage of investigation

‘The sight to a lawyer during the preliminery investigation and the necessity ofthe presence

of his legal work on behlf of cients, especielly dosing interrogetion, essential guerentees

to protect individual sights end freedoms and prevent the violation of the sight of defenseLawyer dusing the preliminary investigation leads to belance and achieve the principle ofequality of sưng 1n criminal procedures, because the pursuit of professional judges, privateplaintiffs, officers of Justice sttomey or his lawyers and prosecutorsin the protection of thesights of the injured! motiveted crime to collect evidence ageinst the accused engagedrequires lawyers sctive and leading the charge to defend his/her legal sights The presence

of lawyer in investigations, thereby preventing disorder atthe expense of is research andhis heart

‘The lawyer has a double function in the investigation phase of the eximinel process Tossist the suspect in gathering exonerating evidence and to protect him from violations of

his tights a the hands of lew-enforcement personnel, All legal systems grant the suspectthe sight to the assistance of an attomey, and in many counties the zuspert must beinformed ofthis ight before police interrogete him Ifthe suspect doesnot have the meanttohice alawyes, often the state will pay the attomey’sfee or provide the muspect with sate-employed counsel

However, the lew also restricts « lawyer's sbility to cany out his fmetions In somejusisdictions, the Inwyer hes no sight to be present when the suspect of & witness isinterogated by the police only afew counties, suchas the UnitedStates, grant the defensethe right to compel witnesses on its behalf to appear in cout Moreover, in mostjusisdictions, the levyer has no or only limited access to informetion gethered by theprosecution before the case reaches the court

Inthe stage of gathering evidence

Inthe couse of the investignion, the lewyer peticipates in the examinetion of evidence toenawe the rights and interests of his parties The evidence in criminal proceedings is theremult of fmman thinking operetions and can be represented by the methodologicalconstruction “Composition of eriminal-juckcial evidence”, which includes regulatery-

procedural, knowledge, fact-finding, and judicil-intespretation segments!* Pasticipation

of a defense layer in the collection of evidence ding the judicial investigeion takesplace in thyee forms: 3) pasticipation in the conduc of investigative actions 1) presentation

of evidence, ¢) presentation of motions, &) presentation of evidence

Alavryer hes the authority to collect and present the evidence necesswy to provide legeassistance, which means exclusively that he collects and presents factual data conosrringthe case, which will probably later serve as evidence In a judiciel investigation, itis thecout that has such authority Tt istohim that the attarney provides evidence, ie, documentsand items of evidence

‘The presentation of each of them by the Inwyer has its procedural form Thus, whenpresenting an object, the Inwyer must make an oral Œecorded in the record of the court

VR, Gayako etal Q018), hii Nese of Bvidnce (in Proceeding’, Foxonal of Aabenced ReseachLess end Feoncmics, WO 10,20.17-p 1976

session) or waitten (attached to the metesials of the criminal case) request to attach theobject as physical evidence to the materiels of the criminal case, The coust shell issue &determination and the judge shell issue a ruling to add the object as physical evidence tothe criminal case file

Generally, as defender for the clients, lewyer is involved in the criminal legal proceedingstohelp deteinees, suspects, accused, defendants, end convicted persons in the defense oftheir Legal interests, to provide them with qualified lege assistance, to make it impossiblefalsification of evidence, use of ilegel methods of maintenance investigation, to neutralizethe sccusstory bia ofthe preliminary investigetion, contsibute to the ruling by the cowt of

a lewful end well-grounded verdict: Lawyer should not only be present but also activelypesticipate in investigative actions He must help the eccused navigate the nsture of histestimony, talking with him before the interview above, determine the correctness of thetactical techniques used by aninvestigetor from the point of view of their compliance withthe reel provision of law the accused to the defense

1.3.2 The role of lawyer as an advocate of the parties

In the context of criminal procedure, en advocate, or « defense counsel, performs a renge

of tas im có at ensuing the fair tel for his parties, prove thei innocence or mitigate atsentencing and on top of thet, sfeguard the consitutionel sights of individuals accused ofcrimes, including the sight to defense, The specific actions taken by ø lawyer can very

‘based on the stege ofthe criminal proceedings end the circumstences of the case includingsome mein phases such as pre-trial motions, trial preparation, and courtroam advocecydosing tel as analyzed below

At pretrial motions, en advocate conducts extensive research on the case at hand Hereviews all available evidence, including police reports, witness statements, forensicenalyses, and any other selevant materials thet may aid in building a strong defense Theadvocete may file emotion to suppress certain evidence if they believe thet twas obteinedillegally or in violation of the defendant's constitutional sights, for instance, the Fourth

Amendment rights of America egeinst unreasonable seerches and ssiztrss'® Additionally,

if the advocate believes that certain witness testimony is unreliable, inlevant, orinadmissible, they may file a motion to exclude thetestimony from the tie,

In the preperston of trial, not only filing the motions, but an advocate may slso gatherevidence, formulate legal strategies, and ensure that they are well-equipped to present acompelling case on behalf of their clients If the defense plans to call witnesses, theadvocate works to prepare them for testimony, This involves seviewing key point,explaining cowtroom procedwes, and addressing potenti chdlengez dung cross

examination

Dusing til, the Legal process can be daunting for both attomeys and their clients as itinvolves questioning witnesses presented by the prosecution, objecting to improperevidence or testimony, and crafting compelling opening end closing statements that outlinether clients version of events However, it should be noted thatthe role of defense counsel

on tial vasiesin each different procedural modal, including adversarial criminal procedure

system and inquisitorial procedure system” With reference to the adversarial procedural

system, dung cout trials the prosecution and defense ae the main presenters to decidethe couse of the trel with cetein issues such ex: Which witnesses need to be summoned

to Cout; the order of questioning witnesses; Questions to asl witnesses, ete Almost allquestioning ond cross - examining of defendants o: witnesses is charged by Imwyer andprosecutor In contres, regarding the inqsistionel proceduce mode, the role ofan advocatemainly focuses on explaining evidence related to the case, which may directly affect theUltimate decision, as most of the interogetion tasks to supplement, claify, and evaluatethe cage evidence belongs tothe judge

"The Fouth Amendment (Amendment IV) to the United States Constitutions pat of the Bill of Rights Itproluatrwaueasonableseatces anl seizes and set 2equuements forewing waste

SE list congesegenstaneenvaendest 4)

° Rebsr explawtio on advererial rocedral system and utara procediel sytem is chided inthe 14.1

cf tas dupe.

133 Role of lawyer as a defender for justice

Finally, the lewyer is called to be a citizen with « special duty tojustice In criminal case,hae plays en important role by providing expert guidance, strategic advice, and strongrepresentation They thoroughly investigate the case, chellenge the prosecution's evidence,and ensue their client's sights are protected throughout the legel process With theirunwavering commitment to feimness, lewyer is essential in upholding the integpity of thecriovinal justice system

This role goes beyond the duty of the officer of the court to respect the truth-seekingprocess, It is seid thet “justice is something larger and more intimate then truth Truth isonly one of the ingredients of jusce *!” This duty places an affirmative esponsibility onall ettrneys to appreciate justice as @ core value of our system The typical case requiresthe criminal lawyer to advocate with courage and devotion and to sender effective, qualityrepresentation Lawyers are bound by a code of ethics thet requires them to uphold theprinciples of justice and feimess This includes mainteining confidentiality, avoidingconflicts of interest, and providing competent representation They can also meintein therule of low by ensuing thet legel processes are followed, end individuals are treated fislyend impertielly They help prevent arbitrary exercises of power ancl ensure thet decisions

re based on established laws and procedures While & lawyer is advocate for is party, healso can educate their clients about their legal sights and responsibilities, helping themmake informed decisions about their cases Informed clients are better equipped topesticipate actively in their defense and understand the legel processes involved

14, Main factors affecting the role of lawyer in criminal procedure

144.1 Objective factors

14.11 The legal framework on the legal status and roles of lanyer

Legal framework cen be considered the first factor affecting disectly tothe legel status oflewyers in criminel proceedings, especially in ensuing objective democracy That allpowers and ectivities of lawyers are epprovedl by the competent authorities, from

registering to defend to leter activities such as recommending for the implementetion ofsppraisel and inspection, evidence seevalustion, ete conbibutes significantly to thedevelopment ofthe lawyer's paticipetion In other words, only whenthe law place lawyerscon an equal footing with the prosecution agency will they heve enough space to effectively

perform their role”

To promote the role of lmvyer in criminal proceedings, it is essentiel thet the legalfrem ework on csiminel proceedings stipulate fully detailed sights and obligations relatedtothe role of lawyer Among those sights, most importantly, lawyers should be empowered

to pasticipete in legel proceedings such as intexrogation, identification on crime exemined

+ scene, and the right to collect evidence, ete, Since the legel framework regulates and

ensues the legal status of lawyers associated with cestein power in proceedings, it can bemore proactive for lawyers to fulfill their responsibilities

14.12 The criminal procedural models

‘The term “criminal proceäial model” is generally sccessed as « high generalization of

‘basic and common characteristics which reflects how criminal proceedings are organized

to find the objective truth of the case, In the world there are two mein types of cximinalprocedure motlels: The adversaril system and the inquisitorial system Accordingly, such

<fferent cheracteristics in both these two procedural systems are the mein factors to decidethe pesticipstion of lawyer in criminal procedwe

The adversarial system

‘The adverseriel system is a set of legel procedures used in Common Lew counties todetesmine the truth ducing adjudication whereby the prosecution and defense counselcompete ageinst cach other while the judge ensures feimness and edherence to the sules Inthe adversesial system, it is essumed that the truth will arise from the free and opencompetition aver who has the correct facts,

= Ngan Thi Kien Bg (2020), Te role f aver nang democracy end object mx roma proceednge

‘The adversarial system is often compared to a game or contest in which both sides are

trying to win, and a neutral umpire decides two things! (1) whether they are playing by

the rules and (2) which side wins Often, the judge acts as umpire for both of these espects

of the contest In some cases, the judge's chief responsibility is to make decisions thatensure a fair contest, while a jury declares the actual winner

Regarding the role of lawyer, the participation of defense lewyers in the case resolutionprocess is mandatory The existence of Iewyers can be considered as important as the sole

of prosecution agencies and courts The accusing and exonerating parties have equalpositions, which means both subjects have the same rights and obligations throughout theproceedings Pasticulery, t tial, the prosecutor representing the State only plays the sole

as a subject belonging to the eccusing pasty to cerry out the function of incriminating thedefendant, The lawyer, as an exculpating person, shell argue for innocence or reduced guilttolegelly protect his client, That this system allows lawyers to fully engage inthe criminalprocedure can help the court acquire more valueble sources of information to determinethe objective truth of the case

Besides, the adverserial system also hes major disadvantages Thetis, the person whoseduty is to judge passively participetes in the trial, while in reality neither the prosecutionnor the defense in this system have the obligation to seek the objective truth

The inguisitorial system

‘The inquisitorial system has been a main mode! of criminal procedure most commonlyassociated with Civil Lew systems, it also has touched every legal system in the worldThe inquisitorial system was actually developed to protect defendants against beingwrongly convicted, in essence, It was believed that to protect defendants from beingwrongly convicted it was necessary to condemn the guilty only if he confessed or if there

‘was the evidence from two eyewitnesses The result was the development of a complexbody of laws that created an impediment to justice The system adjusted and tried tocircumvent the laws by allowing defendants to be tortured as encouragement to confess

> bass, Hany Bad I

5 Amuse C019) Comperatve criminal juice gương, 50 ed, Bena, CA:

and the reputation of the inquisitorial system as of torture began to grow" Therefore, the

inguistional system refers not to eny legecy of the Inquisition but to the extensive prebrialinvestigation and interrogations that are designed to ensure thet no innocent person is

‘brought to trial

Inthe inquisttoril system, the court combines the case file end continues examining et tial

to resolve the case When a case is brought to the Court, the Cowt shall bear theresponsability for finding the truth, which is contrary to the adversariel system, where the{wy entitles the prosecutor end lawyer certain prosctive sights at trial end come to conclude

4 decision only when being convinced by the erguments and evidence of ether side

Noticeably, the pasticipstion of lawyersis not requiredin all eases, leading tothe fact thattheir role in criminel proceedings is bleak and passive Because the responsibility ofproving a crime belongs to authorities end individuals empowered to institute Legalproceedings in cases where the accused or defendants do not exercise thei sight to defend

or to be defended, these actors are still responsible for clarifying the truth of the case, as

‘wel es clasifying the innocence or guilt of the suspect or defendant” This may be against

the principle of impastalty end objectivity an lessen the importance of debate at the trial

142 Subjective factors

142.1 Legal knowledge

Inthe sole of a criminel lawyer, itis required to employ comprehensive knowledge

of ews to understand legal options and present the cases in cout Thanks to the sustainable

‘base of legal knowledge, criminal lawyers cen determine eccurstely the legel matters faced

by the clients and the criminal incident to be resolved by the prosecution to orient anspproptists solution to their cients Lawyers may review case law and legislation to findanswers for citstions at triel and determine how to proceed with a case Criminal cases

* Dehmas Marty, M, & Spencer, TR 2009), Finepeancrinal pocectoes, Cambridge Unaversty ress,» 9

`” Ngayen Thao C013), Criminal proceival models of some counries croton te world en seme suggestions Jor Perum mn 0e process of euending the Code of Criminal Trosdit,, Central Conmtet's rang] Poltxtl

encompass awide rangs of offenses including bụt not limited to the, assault, drug cximes,white-collar crimes, end homicides The complexity and seveity ofthese cases demand adeep wnderstending of ciiminal lev, cowtroom procedues, and the ability to craftpersuasive legal arguments, Therefore, understending federel, provincial, and tesitoiallors contributes greatly tonavigete the justice system and help lawyers prepare their casewithin specific jurisdiction,

By contrast, a lack of foundational lege knowledge shall deter Iewyers fromfulfilling their esponsibility The repercussion is that, even though lawyers participate inthe criminal proeedive, they fil to perform their sole, which may lower remakably theirlegal status generally

1.4.2.2, Professional skils

Being « cximinal defense lawyer is a demanding end highly specialized professionthat requires & diverse range of salls, such ax research, information gathering andespecially ial preparetion and litigeion These legal professionals play a crucial role insafeguarding th rights and freedoms ofindividuels accused of crimes Lacking specializedsills, Invyers Leck the most basic means to practic - like a fisherman without fishing

rod, From navigating complex legal frameworks to advocating for their clients in the

covstroom, criminal defense lawyers must possess a unique set of abilities to excel in theirfield In the realm of criminal lav, cases can teke unexpected turns, evidence can emerge

or be suppressed, witnesses may chang: ther testimonies, and new legel precedents can.giao Successful defense lawyers have the bility to assess and respond to thesedevelopments promptly and effectively They are capable of adapting thei lege strategies,suguments, and approaches in sel-time to best serve their clients’ interests For instance,

in high-profile murder til, new forensic evidence might be presented that challenges theprosecution's case A criminal defense Iewyer would quickly evaluate the implicetions ofthe new evidence, adjust their cross-exemination of witnesses, andincorporate the findingsinto their defense strategy Clearly, being proficient in specielized skills can help reinforce

` Tương Nut Quang G013), Zage Consitaion Seite, Labour Pibldvr, Hanoi,» 34

the Legal status and role of lewyers in cximinal proceedings

Conclusion of Chap ter 1Inthe intricete landscape of criminal procedure, various actors play pivotal roles, with thelawyer, as a defense party, emerging as central figure whose responsibilities areinfluenced by a mysied of factors The lewyer in criminal proceedings undertakes asultfaceted sole as an advocate for a pasty sallfully nevigeting the complexities of thecourtroom to present a compelling case Simultaneously the lawyer acts as a protector ofsights and interests, ensuing thet constitutional guarantees are upheld at critical stages ofthe criminal process, Furthermore, the lawyer serves as defender of justice, engaging inpractical activities such as pro bono work end community outreach to contribute to the

‘broader societal px mát of sfdr and equitable legal system Severel factors shape and sffectthe lewyer'ssole, including the chosen criminal procedural model (including the edversasialend the inquisitorial criminal procedure system), the prevailing egal framework, the depth

of legel knowledge, end the honing of professional skills These factors collectivelyinfluence how the ettomey interprets end applies the law, adapting their epprosch to thespecific muances of the case end contributing to the evolving dynamics of the Amesicen,criminal justice system,

CHAPTER 2: THE ROLE OF LAWYER IN CRIMINAL PROCEDURE UNDER

AMERICAN LEGAL SYSTEM2.1 The relevant legal framework in the American legal system

The sole of lewyers in American criminal procedure is primarily governed by the US.Constitution, particularly the Sixth Amendment, as well as federal and state lows Therelevent legel documents and typical case lew mentioned below collectively shape andentrench the role of lawyers in American criminal procedure, ensuring the protection ofdefendants sights and the fair administration of justice

- The Sixth Amendment guarantees the right to counsel in criminel proceedings It states

that "In all criminal prosecutions, the accused shall enjoy the right to have the Assistance

of Counsel for his defense?”* This right to counsel applies at critical stages ofthe criminal

process, including dusing interrogation, trial, and certain post-conviction proceedings

- Ethical Rules for Attorneys: Lawyers in the UnitedStates are also bound by ethical rules,

typicelly established by the American Bar Associations (ABA) and the state berassociations In the realm of criminal procedure, the ABA has established standards thetattorneys are expectedto adhere to when representing clientsin criminal cases Particularly,the ABA Defense Function Standards constitute e comprehensive set of guidelines andprinciples thet outline the fundamental requirements for the provision of effective legalrepresentation to individuals facing criminal charges Recognizing the critical role played.bby defense attorneys in upholding the principles of justice and protecting the rights of theaccused, the ABA hes formulated these standards to establish a framework for the defensefunction within the criminal justice system

- State Criminal Procedure Laws: The UnitedStates does not have & single, unified criminal

procedural code that applies uniformly across the entire country Instead, the criminaljustice system is lergely governed by a combinetion of federal laws, sate statutes, andlocelrules Each state hasits own criminal code end procedural laws, endthe federal governmenthas its own set of rules that apply to federal criminal cases For instance, New York's

77S Const mend VE, tps eonstnutin cang có gov ensthtim/amendnet 6

Criminel Procedure Law governs the criminel justice process in the stete while Texes hesits Code of Criminal Procedure, which outlines the proceduses for the enforcement of thecriovinal lews of the state

- Some typicel relevant case lew:

@ Gideon v Weisnexight (1963)

In this lendm rk Supreme Coust case, the Court held thet the Sicth Amendments right tocounsel applies to state criminal proceedings, and thet states must provide legel counsel toindigent defendants Specifically, in this case, alewyer played a pivotal role in establishing

4 significent constitutional sight related to csiminal defense, Clarence Eeil Gideon, thepetitioner in this case, was cherged with breaking end entering into Florida state courtDuring his trial, Gideon requested the cout to eppoint an attomey for him because hecoulda afford to hire one, but the tial court denied his request Gideon wes subsequentlyconvicted and sentenced to prison The central issue in Gideon v Weimeright was whetherthe Sixth Amendment's sight to counsel, which guarantees the assistence of counsel fortheaccused in criminal prosecutions

(4 Siddandv Washington (1984)

Inthis cese, the role of a lawyer was central to establishing the legal stander for evaluatingclaims of ineffective assistence of counsel under the Sixth Amendment to the United StatesConstitution The case involved a criminal defendant, Clarence Eal Stricklandchalenging his conviction on the grounds thet his defense ettorney's performance wasconsitutionally deficient, and that this deficiency prejudiced the outcome of his tial

Following the ABA Defense Standard 4-1.2 (B)** on functions and duties of defense

counsl, the prim ery duties thet defense attomeys owe to clients and to the administration

of justice are to serve as client advocates with courage and devotion, protect clients’ legalsights, and provide high-quality legel representation with integrity If « defendant werecompelled to speak, he/she would be faced with whet has been called the “crt! trilemma

of selfaccusation perjwey oF contempt” - being forced to choose between confessing @

Aumann Ber Assocation (2017), Defense Faction, Crimi 2u + Sandals

crime, lying end being punished for perjury, or keeping silent end being punished forcontempt The absence of effective counsel undermines faith inthe proper functioning of

the edversery process”? Thus, defense counsel in the US justice system is not only the

representative ofthe accused but also serves to check the epplicetion of government powes,bby ensuring thet the defendant's sights are protected In their role es he client's advocate,they put the government to proof, requiring thatthe cese against the defendant be provedbeyond « reasonable doubt

More tomention, the criminal procedural model is @ foundational feature ofa egal system,which remerkebly impacts the role of lawyer In America, the employed criminalprocedual model is en adversary system, where facts" ere "proven dielectically throughcomplex process of persuasion The parties, almost always acting through sttosneys,control end manage the presentation of evidence - the materials from which "facts" are

constructed?” The parties and their attorneys are also atitudindly and ethically committed

towinning the contest rather than to some other goa, such es discovery of truth or faimnesstothe opposing side Lawyers should consider the impect of these duties at all stages of @criminal representation end on all decisions and actions thet arise in the cowse of

performing their functions below, pursuant to the ABA Stenderd 4.1.3" on Continuing

Duties of Defense Counsel

Notably, in Amesicen criminal procedure, lawyers may not have the sight to participate inthe initial investigation stage, their participation only begins from the Arrests by deciding

to approve the Cowt's wanant Their presence is mandalory at all stages of coutproceedings At the przbidl stage, both lawyers end prosecutors have equal investigativesights Therefore, they are entitled to the right to gather evidence, examine witnesses andprepare criminal records themselves to eccommodate their own defense purposes andinvestigate through the evalustion of the prosecution's evidence (including possible se-testing or re-evaluation of physical, forensic, end expest evidence) end consideretion of

fim N Pedic (2005), Criminal Proceaie forthe Cru Juice Preftsion,Thamson Whésrartsp 28

® Guy Goodpaser (1987), On the Tươn of erica Adverseoy Crimine Tal, Vol 78, J Cram L &(Grimnology 118 p 120 hops /scholstyconmuans In nortureston sdujcl NOUBISS13

`" mat Bur Assocatin Q017), supra ote 25

inconsistencies, potential avenues of impeachment of prosecution witnesses, and otherpossible suspects and alternative theories thet the evidence may raise Also, lewyers alsohave the sight to negotiate a guilty plea; inform the prosecutor about the defense reasons

‘before trial (alibi, mental condition ) end to request prosecutors to exchenge information,evidence and criminal records; otherwise, they heve the right to sue in cout

2.2 The particular reles of lawyer in criminal procedure under the American legal

system,

2.2.1 The role of lawyer as a protector of rights and interests for the parties

Fisst and foremost, defense attomeys must zealously and uncompromisingly protect thesights andinterests of the client They must do sowith all their ability and ereetivity, withinthe bounds of law Lawyers must accept this duty as sacrosanct end be prepared to do

‘whetever it takes to improve the client's position In tems of function asa protector, whiledefense lawyer participates in proceedings mainly to prove the innocence or reduce thecriminal responsibility of the accused, that is, those accused of 4 crime, defense comsels

xe responsible to protect the legitimate certein sights and interests of their clientsespecially including the right to defend of cients Prompt end thorough actions to protectthe clients of the defense counsel in criminal procedure are provided in ABA Standard 43.7, typically such as:

(@) Many important rights of a criminal client can be protected and preserved only by

‘prompt legal action Lawyer should inform the client of his or her rights in the criminalprocess atthe eevliest opportoaty, and timely plan and take necessary actions to vindicatesuch rights within the scope of the representation

(©) Lawyer should promptly seek to obtain and review all information relevant to thecriminal matter, including but not limited to requesting materials from the prosecutionLeoryer should when relevent, take prompt steps to enstre that the government's physicalevidence is preserved at least until the defense can examine or evaluate it [ ]

With regard to the sights of the accused, the sight toe lewyer (whether hiced or provided)

is probably the most important for preventing wrongful convictions and herassmentTM

Accordingly, the Supreme Coust has recognized a right to the assistance of counsel in all

cases in which the defendant faces incarceration Under US lew, a Inwyer aids in

investigation ofthe facts, negotiation with the prosecutor, examination of the witnesses,presentation of legal end factual arguments tothe judge and jury, and presentation of anappeal A lawyer also provides prychological support to the defendant and an air ofobjectivity which the defendant himself could not provide

Paiticulaly, this role reqhives Inwyer first to obtein from his client « full and franiestatement of the facts in his client's possession The lawyer must learn the worst he has toface in order to make sound legal and stetegic judgments concerring the conduct of thecase, emerging role)

He should make his own investigation of the fects of the case and seek to leam whetevidence isin the possession ofthe prosecutor Thisinvestigation may leadhim to concludethat despite his client's admission of gult to him, the prosecutor isunable to prove his guilt

in accordance with the lew Under these cium stences he should advise his client to pleadnot guilty and seek to obtein an acquttl based on the fale ofthe prosecutor to make out

4 cage, The lawyer's investigation must include the circumstances surounding the ares,including the obtaining of evidence or the taking ofa confession from the defendant Ifhecan find any seesonsble bess on the facts and the lay to challenge the manner in which thegovernment obteined the evidence it relied on for a conviction itis lewye's duty to makethe necesstry motions to suppress the evidence, Additionlly, Inwyer should determine

‘whether the clients inteests would be served by engaging fact investigetor, forensic,accounting or other expests ot other professional witnesses such as sentencing specilists

or torial workers, and if so, consider, in consultation with the client, whether to enghgethem, Counsel should regulesly re-evaluate the need for such services throughout the

representation

© Sued gel (1972), Te Rights of the Accused, Sage Publications, Beverly Hills, London, p 17 As quted by

TA Langbein, supra note28,p 44

`! Pha Chanernuby, Lait Levenson (208), CriniualPocecbee bwestigtion, Aspen Pblidvrs,p 2.