Special Declaration: This article is an original work by Attorney Shao Shiwei. It represents only the personal views of the author and does not constitute legal consultation or legal advice on specific matters. For article reprints, legal consultations, or professional exchanges, please add contact: sswls66.
After a family member is arrested, many relatives, even after consulting with lawyers, often remain confused and lack clarity regardingwhat is most important for their loved one’s case、which issues should be prioritized, remaining bewildered and without a clear concept.
Of course, this is understandable, as being criminally detained by public security organs is, for most defendants and their families, a first-time experience in life. When individuals suddenly receive a massive amount of information in an unfamiliar field, they often become confused and unsure how to truly help their loved ones.
Therefore, this article will focus on analyzing two common psychological misconceptions that families have in this special situation, hoping to address some of the confusion and doubts in their minds.
My family member has been arrested; can I wait and see first?
If I later feel the case is indeed quite serious,
should I then engage a lawyer?
Wait and observe before taking action. — This is a common strategy in decision-making. It indeed has its rationality when handling related affairs, such as avoiding impulsive purchases while shopping or blind following in stock market investments.
However, everything has two sides. This decision-making approach also has certainlimitations, such as:
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Due to prolonged passive waiting, fleeting opportunities may be missed. For example, in entrepreneurial opportunities in emerging fields, entrepreneurs who wait and enter late may find that the market has already been occupied by early entrants;
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While constantly observing and attempting to gather more information, one may fall into the trap of information overload, making it difficult to make decisions. For example, job seekers who always observe development trends in different industries, trying to find an absolutely perfect career, may be unable to make a choice due to too many options;
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During the period of observation, although the risk of blind action is avoided, potential gains may also be lost due to inaction, such as in real estate investment;
So, in criminal cases, for family members,should they wait and see, or take the initiative to engage a lawyer immediately?This begins with the"Golden 37 Days"(the maximum period from the arrest of a family member to the procuratorate's decision on approval of arrest) in criminal cases. This is a unique feature of the criminal procedure process, which is often overlooked by many families.
It can be said that these 37 days will determine the direction of the entire investigation and the ultimate fate of the defendant. During this period, the public security organs will secure all evidence proving the defendant's guilt and submit it to the procuratorate for approval of arrest.If arrest is approved, the case will basically be transferred to the court for trial. Let us speak directly with data:
In March 2025,the Supreme People's Procuratorate released the "White Paper on Criminal Prosecution Work (2024)" , which stated thatthe combined proportion of non-prosecution after arrest and acquittal after arrest accounted for only 0.27% of the total number of individuals (see chart below):
In other words, out of 370 cases transferred to the procuratorate, if arrest is approved, only one person may ultimately be found not guilty.
Therefore, in China, if a defendant is arrested, striving for a not-guilty verdict is almost impossible. The reasons for this are:
For prosecutors, having made the decision to approve arrest, subsequent non-prosecution or bringing the case to court would essentially mean admitting their own mistake in handling the case, for which the defendant could apply for state compensation. Therefore, in practice, even if there is significant controversy over whether the act constitutes a crime, once arrest is approved, prosecutors will mostly proceed with prosecution despite the difficulties.
However, ifarrest is not approved for the defendant, prosecutors will have much greater flexibility in handling the case, and depending on the specific circumstances, lawyers may still hope to help the defendant achieve results such as non-prosecution or case dismissal.
Therefore,what work will lawyers do during these urgent 37 days?The core objective is to achieve the following through sufficient communication with the defendant:
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Understand the case details, provide legal support and case guidance to the defendant;
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Strive to seek evidence that can prove the defendant's innocence or lesser culpability;
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Help the defendant and their family make appropriate decisions on key issues of the case (such as whether to plead guilty and accept punishment, whether to return illicit gains and provide compensation, etc.);
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Choose appropriate timing to communicate with the handling police officers and prosecutors regarding the case, striving for bail pending trial for the defendant;
During this period, if one chooses to wait and observe passively, one can only leave matters to fate. However,the criminal procedure process is irreversible; there is no remedy for regret.。
In criminal cases,how significant a role can lawyers actually play?
Some families may wonder, since the decision to arrest is made by the prosecutor,is engaging a lawyer useful?？Can lawyers influence the prosecutor's decision?？
Or, some defendants, before being taken away by the police, may tell their families roughly what the matter is about. Consequently, when families communicate with lawyers, the focus often becomes:How is this matter regulated by law? How serious is it? Does it constitute a crime? Can the person be released?
The urgency of families is understandable, as this misconception in communication stems from their first experience with criminal cases.
Why is this considered a misconception in family communication?
The reasons are as follows:
1. There is loss in the transmission of information.
The facts recounted by families are not comprehensive. After all, only the defendant who has been criminally detained has personally experienced the facts involved in the case. When the defendant recounts these to their family, they mayconcealcertain key facts related to the case, or (believing certain facts are unimportant and thus not mentioning them to the family) there may beomissionsin the recounting. Some facts, due to the passage of time, may originally have beenforgotten, and are only recalled during meetings with the lawyer, where the lawyer's probing of the communication content helps bring to light key facts favorable to the defendant.
Furthermore, if families learn part of the case facts through friends of the defendant involved in the case, the loss of information is even greater.
2. The case facts known to the family ≠ the content recorded in the defendant's interrogation transcript
When the procuratorate and court review cases and determine the defendant's guilt, they rely on written transcript evidence, not the case facts subjectively believed by the family or the defendant. Therefore, what the defendant said during the interrogation and how the police recorded it are extremely important. The defendant's statements are not entirely equivalent to the content actually recorded in the interrogation transcript.
What the defendant says during interrogation depends on:
（1）The defendant's understanding of the circumstances involved in the case。
For example, in a case where guilt is undisputed, if the defendant, due to a lack of legal knowledge, believes they are innocent, their insistence may lead to the result of arrest, whereas pleading guilty might lead to lenient treatment and the possibility of bail.
（2）The defendant's understanding of the law。
For example, mere trading of crypto assets does not constitute a crime, but knowingly using virtual assets to help transfer illicit funds for others' money laundering does constitute a crime. The distinction between guilt and innocence lies in subjective knowledge. For crimes such as aiding information network criminal activities or concealing criminal proceeds, 100% of defendants will claim they lacked subjective knowledge, but the public security organs' determination of "subjective knowledge" actually depends on the transaction background and details at the time.
Regarding these factual circumstances of the case, how did the defendant describe them during interrogation? Lawyers can only further judge the severity of the case by understanding this through meetings.
(3) Thedefendant's own psychological state。
For example, in a fraud case, my client, as the borrower, was unaware of how the loan intermediary and the lender communicated, or whether there were fraudulent facts in between. However, considering the bank statements showed transfers between himself and his wife, he worried about involving his wife in the case. His interrogation transcript was a mess, and he even admitted guilt. In reality, his wife was completely unaware of her husband's previous borrowing, and the transfers between them were for daily living expenses or financial management, unrelated to the case.
Regrettably, the wife only thought to engage a lawyer after her husband was arrested. Having known her husband for 15 years, she believed he was innocent and that he was smart enough to handle the interrogation well. After I met with him and learned these details, his wife was shocked, never imagining her husband would think in such a way. Thus, although she did not participate in the fraudulent acts, his consistent confessions in multiple transcripts that he participated in the fraud planned by the intermediary led to a one-and-a-half-year sentence for a case that should have resulted in acquittal.
Therefore, before the lawyer meets with the defendant, even the family cannot predict how the defendant will perform in the interrogation transcript, and naturally, the lawyer cannot provide specific and targeted judgments on the case.
Only through communication between the lawyer and the defendant can the actual case facts recorded in the transcript be understood. This allows the lawyer to provide reasonable legal direction and advice to the defendant, and to emphasize to the handling police officers and prosecutors case facts not recorded in the transcript but which can prove the defendant's innocence or lesser culpability.
Final Thoughts
The reason for writing this article is that Attorney Shao has discovered in his work that many families have misconceptions about responding to criminal cases. Although they are extremely anxious due to their family member's criminal detention, they often remain stuck in the stage of "thinking," hoping to obtain specific and definite conclusions about their family member's case merely through communication with lawyers and analysis based on the lawyers' past case-handling experience.
From the perspective of family members, I can understand that this is caused by tension and anxiety. Nevertheless, I hope that families can respond to sudden criminal cases with a more rational attitude.
After all, even the most experienced lawyers, without face-to-face meetings and sufficient communication with the defendant, find it difficult to precisely analyze individual cases and thereby provide more targeted and practical judgments and recommendations to families and defendants.
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