Literature review Most foreign scholars pay constant attention to studying the role of lawyers from theperspectives of legal ethics, professional responsibilities, the impact of criminal
The legal framework on the legal status and roles of lawyer
Legal framework can be considered the first factor affecting directly to the legal status of lawyers in criminal proceedings, especially in ensuring objective democracy That all powers and activities of lavyers are approved by the competent authorities, from
* Charkss P Curtis (1951), The Bthics of Advocacy, 4 STAN L REV 3, 12 registering to defend to later activities such as recommending for the implementation of appraisal and inspection, evidence reevaluation, etc contributes significantly to the development of the lawyer's participation In other words, only when the law place lawyers on an equal footing with the prosecution agency will they have enough space to effectively perform their role”?.
To promote the role of lawyer in criminal proceedings, it is essential that the legal framework on criminal proceedings stipulate fully detailed rights and obligations related to the role of lawyer Among those rights, most importently, lavyers should be empowered to participate in legal proceedings such as interrogation, identification on crime examined
- scene, and the right to collect evidence, etc Since the legal framework regulates and ensures the legal status of lavyers associated with certain power in proceedings, it can be more proactive for lawyers to fulfill their responsibilities.
The term “criminal procediral model” is generally accessed as a high generalization of basic and common characteristics which reflects how criminal proceedings are orgatized to find the objective truth of the case In the world there are two main types of criminal procedure models: The adversarial system and the inquisitorial system Accordingly, such different characteristics in both these two procedural systems are the main factors to decide the participation of lawyer in criminal procedure.
The adversarial system is a set of legal procedures used in Common Law countries to determine the truth during adjudication whereby the prosecution and defense counsel compete against each other while the judge ensures fairness and adherence to the mules In the adversarial system, it is assumed that the truth will arise from the free and open competition over who has the correct facts.
?? Nguyên Thi Kieu Trang (2020), The role of lawyer in enstatng democracy and objectivity in crbu bai proceedings in Vietneon , Master Thesis of law, Hanoi Law University, Hanoi,p 28.
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 aspects of the contest In some cases, the judge's chief responsibility is to make decisions that ensure a fair contest, while a jury declares the actual winner.
Regarding the role of lawyer, the participation of defense 1awyers in the case resolution process is mandatory The existence of lawyers can be considered as important as the role of prosecution agencies and courts The accusing and exonerating parties have equal positions, which means both subjects have the same nights and obligations throughout the proceedings Particularly, at trial, the prosecutor representing the State only plays the role as a subject belonging to the accusing party to carry out the function of incriminating the defendant; The lawyer, as an exculpating person, shall argue for innocence or reduced guilt to legally protect his client That this system allows lawyers to fully engage in the criminal procedure can help the court acquire more valuable sources of information to determine the objective truth of the case.
Besides, the adversarial system also has major disadvantages That is, the person whose duty is to judge passively participates in the trial, while in reality neither the prosecution nor the defense in this system have the obligation to seek the objective truth.
The inquisitorial system has been a main model of criminal procedure most commonly associated with Civil Law systems, it also has touched every legal system in the world, The inquisitorial system was actually developed to protect defendants against being wrongly convicted, in essence It was believed that to protect defendants from being wrongly 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 complex body of laws that created an impediment to justice The system adjusted and tried to circumvent the laws by allowing defendants to be tortured as encouragement to confess
?' Daxmer, Hay R., and Jay S Albmese (2014) Comperative criminal justice systems, Sth ed Belmont, CA:Cengage Leaming,p 54 and the reputation of the inquisitorial system as of torture began to grow’ Therefore, the inquisitional system refers not to any legacy of the Inquisition but to the extensive pretrial investigation and interrogations that are designed to ensure that no innocent person is brought to trial.
In the inquisitorial system, the court combines the case file and continues examining at trial to resolve the case When a case is brought to the Court, the Court shall bear the responsibility for finding the truth, which is contrary to the adversarial system, where the jury entitles the prosecutor and lawyer certain proactive rights at trial and come to conclude a decision only when being convinced by the arguments and evidence of either side.
Noticeably, the participation of lawyers is not requiredin all cases, leading to the fact that their role in criminal proceedings is bleak and passive Because the responsibility of proving a crime belongs to authorities and individuals empowered to institute legal proceedings, in cases where the accused or defendants do not exercise their right to defend or to be defended, these actors are still responsible for clarifying the truth of the case, as well as clarifying the innocence or guilt of the suspect or defendant’’ This may be against the principle of impartiality and objectivity an lessen the importance of debate at the trial. 1.4.2 Subjective factors
In the role of a criminal lawyer, it is required to employ comprehensive knowledge of laws to understand legal options and present the cases in court Thanks to the sustainable base of legal knowledge, criminal lawyers can determine accurately the legal matters faced by the clients and the criminal incident to be resolved by the prosecution to orient an appropriate solution to their clients Lawyers may review case law and legislation to find answers for citations at trial and determine how to proceed with a case Criminal cases
*tDemas- Marty, M., & Spencer, JR (2005) Furopean criminal procedies , Cambridg: University Press,p 9
* Nguyen Thao (2013), Criminal procecial models of some countries arotoid the world and some suggestions for
Vietncm in the process of amending the Code of Criminal Procechae,, Central Canma#tets Itermal PoltxalCommission, https:/noichinh wvinghien-cw-trao-doi/2013 1] Amo-hinh-to-tmg-hinh-su-cua-mot-so-muoc-tren-the- gioi-va-mot-so-goi-mo-cho-viet-nam-trong-qua-trinh-swa-doi-bo-hut-to-tung-hinh-su-292909/, encompass a wide range of offenses, including but not limited to theft, assault, drug crimes, white-collar crimes, and homicides The complexity and severity of these cases demand a deep understanding of criminal law, courtroom procedures, and the ability to craft persuasive legal arguments Therefore, understanding federal, provincial, and territorial laws contributes greatly to navigate the justice system and help lawyers prepare their case within a specific jurisdiction.
THE ROLE OF LAWYER IN CRIMINAL PROCEDURE UNDER
THE ROLE OF LAWYERS IN CRIMINAL PROCEDURE UNDER
The relevant legal framework in Vietnamese legal system 3.1.2 The roles of lawyer in the criminal procedure under Vietnamese legal system _
In Vietnam, the legal framework governing the role of lawyers in criminal procedures is primarily established by the Vietnam Criminal Procedure Code 2015 (CPC 2015) and the Law on Lawyers (2006, amended in 2012 and 2015) based on the foundational principle stipulated in the C onstitution of the Socialist Republic of Vietnam (2013).
Regarding the legal documents, the CPC 2015 outlines the procedures for investigating, prosecuting and trying criminal cases, affirming the fundamental right of the accused to legal defense This legal document specifies the rights and responsibilities of lawyers throughout the criminal justice process, including their participation in interrogations, access to case files, and the right to represent clients in court The Law on Lawyers (2006) further regulates the legal profession in Vietnam, encompassing mules related to confidentiality, professional conduct, and the representation of clients On top of that, the Constitution (2013), serves as a foundational document that establishes overarching principles for the legal system, influencing interpretations and applications of laws, including those governing criminal procedures Together, these legal instruments form the comprehensive framework shaping the role of lawyers in Vietnam's criminal justice system, sefeguarding the rights of the accused and ensuring due process It is crucial to consult the latest versions of these legal documents and seek guidance from legal professionals for the most up-to-date information.
Regarding the criminal procedural model, Vietnam has followed a mix ed procedural model that favors inquisition, in which competent authorities are assigned the responsibility of proving crimes and seeking truth However, the criminal procedure law of Vietnam does not classify actors into the accusing party and the defense party Instead actors are categorized into persons conducting criminal procedure (persons working for procedure- conducting agencies) such as the investigator (investigation agency), the procurator
(procuracy), the judge (court), and procedural participants (including the defense counsel), thus, the defense counsel (lawyer) is only seen as a participant in criminal proceedings, rather than a principal party Furthermore, in other policies and laws, lawyers are still identified as part of the judicial complementary’ group and are still officially considered to play only an insignificant and passive role as someone who is allowed to participate in criminal proceedings conducted by the investigator, the procurator, and the judge.
Consequently, detainees, suspects, defendants and their lawyers are still passive and, in many cases, dependent on the competent authorities The Court takes charge of an overly proactive position in the first instance and appellate trials as well asis entitled to exercise anumber of powers, which are inconsistent with such judicial functions (e.g prosecuting cases, retuming files to the Procuracy) The role of lawyer is vague, leading to a repercussion of failing to create a basis for promoting the initiative, positivity and responsibility of the agency Notably, the role of the lawyer is weak, as there are bleak regulations to protect the rights of lawyer in exercising procedural rights.
However, the improvement of CPC 2015 of Vietnam has resultedin a range of reformative provisions that promoted adversarial principles and confirmed the roles of lawyers in criminal procedure One significant example is the regulation on the fact that lavyers have tight to join in the criminal procedure such as: Present to get the words of arrested or in- hold persons, during interrogation, and then if agreed by the authorized persons, they can cerry out the conduction of getting words or process the interrogation to arrested or temporarily arrested persons, or defendants After each time of words collection or interrogation ended by the authorized persons, then the vindicators might start to queries the arrested or in-hold persons, or defendants, meet up with the accused or defendants to collect and present documents, exhibits or study the case profile However, not at anytime, anywhere, lawyers could be facilitated to execute their rights as regulated by law.
3.1.2 The roles of lawyer in the criminalprocedure under Vietnamese legal system
3.1.2.1 The role of lawyer as a protector of rights and interests for the parties
It should be noted, the CPC 2015 of Vietnam uses the term “defense cormsel” (luật su bào chữa) to denominate a lawyer who defends the accused in a criminal case If a lawyer participates in a criminal case to protect the interest of those who are involve in the case but not on the defense side (such as the victim, civil plaintiffs, civil defendant, persons with interests and obligationsrelated to the case), he/she just acts as a counsel for who concerned in the case, but not the defense counsel The lawyer who represents the interest of such persons in a criminal case has a totally different legal status from that of a “real” defense counsel The difference between a lawyer (as a universal term) and a defense lawyer is meaningful for the correct understanding of the two terms The criterion for differentiating between the criminal defense counsel and the lawyer who are the protectors of the other participants in criminal procedure is based on the defining who is the client of the lawyer. Pursuant to the Article 84.2 of the CPC, it can be understood that lawyers who participate in procedures in accordance with the lav on lawyers can be regarded as a protector of rights and interests for clients when being requested and registered by the court as a defense counsel in the criminal procedure Lawyers engage in legal proceedings upon the prosecution of suspects Lawyers of arrestees and temporary detainees engage in legal procedure upon the arrestees’ appearance in an office of investigation authorities or units assigned to carry out certain activities of investigation or upon the release of a decisionon temporary detainment Specifically, this role of lawyer can be interpreted as following activities:
(i) Present evidences, documents, items and requests,
(ii) Verify, assess and confer on relevant evidences, documents and items and request authorized procedural persons to inspect and evaluate such;
(iii) Be present during the extraction of statements from accused persons or facing requisitions for charges or, with the consent of the investigators or procurators, question such persons After competent individuals end a session of statement extraction, the defender of legitimate rights and benefits of accused persons or facing requisitions for charges is entitled to question such persons.
(iv) Be present during a session of confrontation, identification, recognition of voice of accused persons or facing requisitions for charges,
(x) Lodge complaints about competent procedural authorities and persons’ decisions and legal proceedings.
Especially, compared to the CPC 2003 of Vietnam, there is an advanced change of the CPC
2015 That lawyer is entitled to participate and activate their regulated activities in the crime denunciation stage, in which competent authorities implement inspection and verification to determine whether the crime being conducted such suspects or not Thus, their legitimate rights and interests will be susceptible without defense counsel and even be abused by other individuals and organizations to violate their legitimate nights and interests In another word, the stage of denunciations has clearly demonstrated the lawyer's role as a protector of the rights and legitimate interests of those accused or suspended.
More to mention, the stage of investigation also contributes significantly to lawyer's function as a protector of the legal rights and interests for clients, as well as helping to clarify the objective truth of the case, consequently avoiding injustice in the process of resolving criminal cases Also, the involvement of lawyers in investigation not only demonstrates democracy but also improves the quality of investigation processes, ensuring that the investigation is not central to accusing the defendant Lawyers involvement promotes rather than impedes the fight against crime and helps to overcomes mistakes in handling the case To fulfill this role, after being appointed, the lawyer shall meet with the defendant, attend the taking of testimony, and participate in other investigative activities to check for any violations of the law To do this, lawyers should actively meet and exchange information with investigators to be aware of investigator's schedule; request to be present in the testimony-taking process, identifying approaches for gathering documents, items and circumstances related to the defense, as well as firmly grasp and reinforce the evidence proving his client's innocence or extenuating circumstance; explain the law while expressing sympathy to the client, understand the wishes and aspirations of the client, mentally prepare the client for the worst case scenario, discuss with the client on the defense plan and make proposals to the investigation body in case of need.
In terms of evidence presentation and assessment, the CPC 2015 of Vietnam allows defendants and their lawyers to use the evidence they become aware of under the right to review Under the right to present evidence, there must be a recognition of the parallel entitlement to conduct an independent investigation so that a lawyer or a defendant can discover facts that would otherwise not be presented to a judge by the prosecutor However, the CPC 2015 doesnot address how evidence can be authenticated or shown to be reliable through the proper laying of an evidentiary foundation Sources of evidence which cannot be confirmed legally such as anonym ous letters or testimony through hearing if the witness cannot indicate the process of gathering Therefore, when discovering details or objects obtained during investigation activities illegally, lawyers should firmly request that the competent authorities to consider for evidence rejection In the process of defending, the lawyer is responsible to clarify and assess the obtained evidence and make a request to inspect and evaluate if necessary In another case, the lawyer may discover new evidence that the investigation agency or Procuracy has not yet discovered In this situation, the lawyer can also adopt this right, but only if that evidence is beneficial to the defendant. Lawyer can also make requests to summon additional witnesses, request expert examinations, and request changes or cancellation of preventive measures on the basis of favoring his clients.
3.1.2.2 The role of lawyer as an advocate for the parties
In Vietnam, this function of lawyer is favorably known as a “defense counsel” The CPC
2015 of Vietnam categorizes the defense counsel as a litigating participant, who has to help the accused on legal issues, help bring into light evidence and elements that would mitigate the guilt or penal liability of the accused and to contribute to the protection of the law The presence of defense counsel in the criminal procedure is normally as requested by the accused In some cases, defense counsel is appointed mandatorily in accordance with the Article 57 of the CPC 2015.
It is provided by Article 72 of the CPC 2015 that those who can act as defense counsel are lawyers, people’s advocates, or the statutory representative of the accused, in which, the role of defense counsel is demonstrated through certain rights and responsibilities following the Article 73 of this code as follows, especially including gathering evidence and litigation, which indicate most clearly the defense role of lawyer in criminal procedure. Different from the function of being a protector, defense counsel is entitled to collect the evidence and also conduct the clarification and assessment for it.
Pursuant to the provisions of CPC, alewyer can gather documents, items and circumstances related to the defense from the person in custody, the accused, the relatives or from bodies, organizations and persons at the request of the person in custody or the defendant as long as they are not state or business secrets The CPC also specifies the rights of participants in a proceeding including lawyer, to supply documents and proofs to protect himself and the right to equally present proofs, documents, and items, as well as the right to make requests and argue at court.
However, until now the law still lacks specific guidelines to legally accommodate lawyers in this area, so itis still difficult for lawyer to gather evidence on his own The law also provides that in each phase of the proceeding any evidence collected by the lavyer must be submitted discreetly to the appropriate procedural body instead of being publicized, which may sometimes lead to the evidence being rejected or distorted It is necessary for the lawyer to retain his collected evidence and use it at the appropriate point of time in the proceeding in order to adequately defend his client In practice, however, the exercise of this right often meets with hindrance and denial from the procedural bodies!?, Moreover, it is provided in the law that when a lawyer provides documents and items, the procedural body must examine the validation of such evidence In reality, though, when certain evidence is provided by the lawyer to prove the innocence or the extenuating circumstance of his client, the procedure-conducting body occasionally fails to verify them for use.
In criminal procedures, it is a fact that the defense function exists in parallel to the conviction function? With its democratic nature, the CPC recognizes the accused's right
* ‘Trnh Thi Tom (2022), The Defense Activities of Lasyers in Criminal Proceedings in Fiemam , Master Thesis of
Law, Hanoi Lavy University, Hanoi, p.67 © Nguyen Thi Kieu Trang (2020), supra note 10,p.76.