Abstract:
If you or your family or friends are going through a criminal case, there is a truth you must know: do not expect the case-handling authorities to take the initiative to prove your innocence for you. In real judicial practice, to assert innocence and seek non-prosecution or withdrawal of the case, you need to explain clearly and completely, in a manner acceptable to the case-handling personnel, why you did not do it. The author of this article, Lawyer Shao Shiwei, has ten years of criminal case experience and has accompanied hundreds of clients. She will tell you: the three most fatal mistakes most easily made during interrogation, how your interrogation record becomes evidence against you, how difficult it actually is to obtain a not-guilty outcome, and why the earlier a lawyer intervenes the better. This is not theory; it is practical experience that can help you avoid detours.
Keywords:not-guilty defense, what to do upon criminal detention, evidentiary effect of interrogation records, timing of lawyer intervention, economic crimes
Special Statement:This article is an original work by Lawyer Shao Shiwei and represents only the author's personal views. It does not constitute legal consultation or legal advice on any specific matter. To repost the article, seek legal consultation, or communicate with peers, please add: sswls66.
Main Text
In criminal cases, there is a widely misunderstood commonplace.
Many clients and their families take it for granted that if the public security organ believes I am guilty, then it should be up to them to prove that I am guilty.
The reality, however, is that if you want to assert that you are innocent, then you need to prove that you are innocent.。
As a matter of legal principle, the burden of proving guilt of course lies with the prosecution.
But in the actual handling of criminal cases, if a client wants to seek a not-guilty outcome, non-prosecution, or withdrawal of the case, merely saying "I did not commit a crime" is often far from enough.
You need to explain clearly and completely, from an angle that follows the logic of the case-handling personnel and that they can accept, why you did not carry out the criminal conduct, why you did not participate in a joint crime, why you lacked criminal intent, and why you should not be convicted.
Lawyer Shao has practiced law for ten years and has accompanied hundreds of clients through what may be the only criminal case experience in their lives. I can tell you responsibly that fully understanding this point is truly very important.
Many family members of criminal defendants and the defendants themselves ask lawyers,What are the most favorable and most unfavorable outcomes in my case? Roughly how many years might the sentence be?
However, they often underestimate how significant the defendant's own statements in the record can be for conviction and sentencing, innocence defense, non-prosecution, and withdrawal of the case. Yet this is precisely one of the keys that determines the outcome of the case.
But it must also be acknowledged that for many defendants, this view is hard even to accept, let alone to put into practice. After all, having done nothing and then being caught and detained in a detention center and accused of a suspected crime is emotionally very difficult to process in itself. For the defendant, what they feel first and foremost is anger and incomprehension.
For the defendant, it is essential to process this emotion, because only by following the rules of this real-world game is it possible to ultimately obtain the most favorable outcome.
I Author of this article: Lawyer Shao Shiwei
1
Why do the case-handling personnel not prove my innocence for me?
Many defendants ask lawyers: I have not done anything illegal or criminal, so why will the police not investigate clearly? Why do they not believe me?
Many family members of criminal defendants also wonder: did the police arrest the wrong person? My husband absolutely could not have done anything illegal!
In fact, during the handling of a case, different participants stand in different positions and view the case from different perspectives. Investigative authorities need to examine the facts of the case from the perspective of investigation and accusation. The case-handling personnel must already have obtained preliminary criminal leads before carrying out an arrest. Therefore, for investigators, because of their work and standpoint, it is inevitable that in the early stage of case investigationpresumption of guilt。
Moreover, even for a suspect who is guilty, when facing investigators, it is also very common for them to equivocate when first confronted with interrogation, out of concern about legal liability and other reasons, in an attempt to "muddle through." Investigators face this kind of situation every day, and it is indeed difficult in the early stages of a case to distinguish who is truly not liable.
Of course, the above is not said on behalf of the case-handling authorities, but to make the party clearly understand that, since the other side will not proactively prove your innocence for you, you must do this yourself. How you do it directly determines the final outcome.
2
The three most fatal mistakes most easily made during interrogationMistake
Although the current judicial environment has improved considerably, and even if acts such as torture to extract confessions, starvation, and freezing during interrogation still occur, they are extremely rare. However, even mere psychological pressure is unbearable for most parties who have never experienced a criminal case. A scenario full of interrogation techniques is itself a huge stress test for the party.
And under such high pressure, parties are most prone to making three fatal mistakes.
The first: being unable to withstand the pressure and choosing to plead guilty in exchange for peace and quiet.
More often, the party cannot withstand the immediate pressure of interrogation and chooses to plead guilty and compromise. Because in this way, they can temporarily avoid enduring the high pressure of interrogation any longer, since as long as they admit it, the interrogation can end. No one will press them again and again. The world can be peaceful.
But after the peace and quiet, what then? An interrogation transcript signed and confirmed by the party will be transferred by the public security organ to the procuratorate and become important evidence in the subsequent review for prosecution and in conviction and sentencing.
Lawyer Shao had a client suspected of the crime of concealing or disguising criminal proceeds who was exactly like this. Looking back, if he had not compromised under the high pressure of interrogation at the time, he could originally have sought acquittal.
The second: not understanding the law, answering only the literal meaning, without realizing that one should state things completely.
A month ago, I met with a client at the detention center. Because he did not understand the law and believed that he had not participated in criminal conduct together with others, he was very optimistic. But after I spoke with him, he gradually came to realize that the contents of the transcript were indeed his own statements, yet on the whole they seemed to point in a direction unfavorable to him. Although he had felt something was odd when he read it at the time, he raised no objection and simply signed.
Faced with interrogation during the investigation stage and closed-ended questioning, he responded only to the literal meaning, without fully explaining the background of his conduct, his subjective awareness, or why he did not constitute a joint offender, or explaining the objective reasons for conduct that appeared unreasonable.
This case also presents a practical problem: the other several persons involved in committing the offense in this case have not been apprehended.
Although there is still some time before case-file review and the court hearing, based on my experience handling cases, I can already picture how regretful he will be a few months from now—when he denies the criminal charge against him, the prosecutor will say, did you not already admit it in your transcript? Is this your own signature? You say you did not do it, so why did you sign?
Then the client will say, I did not read it carefully at the time; the police told me to sign, so I signed.
The prosecutor will say, since it is your own signature, that means you admitted it. If you have evidence proving you did not do it, then produce the evidence.
Produce what? How? The co-participants could prove his innocence, but where are they now? In the country or abroad?
In a fraud case involving a certain company in Northeast China with an amount involved exceeding 100 million yuan that was concluded last year, and a virtual currency theft case with an amount involved in the tens of millions that was handled in the first half of this year, the case-handling authorities' approach to establishing guilt followed a similar logic: since the principal offender is at large, the persons who have been apprehended and are in the case become the principal offenders. Because the case-handling authorities' logic is simple: you have no way to prove that you are not the principal offender.
Third: proactively pleading guilty out of unnecessary worries such as fear of implicating family members.
Such scenarios are also very common in criminal cases. I recall that in a routine-loan fraud case I handled several years ago, my client in that case was merely a provider of the loan funds and in fact knew nothing about how his associates defrauded the victims of their property. However, because he worried that his bank account flows had been transferred to his wife and feared that his wife would be implicated in this case, he immediately admitted to the fraud charge at the outset of the police arrest.
Because I became involved only at the stage of review and prosecution by the procuratorate, the contents of the transcript I saw at that point were already very unfavorable to him. Although there was no evidence proving that he had carried out the fraud, his transcript had already admitted the alleged criminal facts.
The three types of errors lead to the same endpoint:Once the transcript is signed,it becomes evidenceused to accuse you,and laterreversing the outcome becomes extremely difficult.。
3
How is it that facts I stated in my transcript became evidence used to convict me?
What is written in the transcript is indeed what the party said, but the "facts" as presented may be completely different from what you intended to convey. This calls for an explanation using a concept from film art—"montage."
"Montage" is a very core and fundamental concept in film art. Simply put, it means editing two or more different shots together to produce a third meaning that no single shot possesses on its own. The actor's performance does not change, but through montage (different combinations of edits), the audience reads a completely different meaning.
Likewise, in criminal cases,the way "facts"are pieced together directly determinesthe "truth."the appearance。
1. The prosecution's “narrativemontage”
The investigation and prosecution process is, in essence, a form of "montage" creation. Investigators are not acting with malice, but constrained by the incompleteness of information at the investigation stage and the inertial thinking of the presumption of guilt, they may inadvertently adopt a "guilty narrative montage":
selective sourcing。 From the vast array of life facts, only those shots pointing to crime are excerpted. For example, focusing only on surveillance screenshots of the suspect appearing at the crime scene, while ignoring footage of him shopping normally for several hours beforehand. But in reality, the suspect's appearance at the scene may be on his daily commute, with no abnormal behavior throughout. What defense lawyers must do is restore the complete surveillance footage and eliminate the prosecution's constructed singular directionality.
editing of causal chains。 Editing isolated fact A (purchasing a knife) and fact B (having had an argument with the victim) together, through temporal succession, establishes a causal connection of “premeditated murder” in the minds of the audience (prosecutors, judges). A and B are not crimes in themselves, but their splicing creates a “new meaning” of crime. But in reality, the purchase of the knife and the occurrence of the dispute may be separated by as long as half a year, and even if a dispute occurred, the suspect took no concrete action. Defense lawyers need to dismantle this artificially spliced causal chain and restore the true timeline and behavioral logic.
emotional dramatization。 By emphasizing certain details (such as a “cold expression” or “glaring bloodstains”) and employing techniques such as close-ups and repetition, negative emotions are aroused in the adjudicator to replace rational judgment. For example, the prosecution interprets the suspect's silence or anxiety as a guilty conscience and bad attitude. But after communicating with the client, the defense learned that the client was on the verge of a mental breakdown at the time due to a family tragedy, and that hospital diagnostic records exist to prove a reasonable explanation for his abnormal reactions.
This is the “guilty puzzle” initially formed by the prosecution. In this puzzle, the suspect is fixed in the role of “criminal.”
2. The defense lawyer's “de-montage”
After defense counsel becomes involved, the primary task is not to create a 'montage of innocence,' but to perform a'de-montage' operation—dismantling the guilty narrative constructed by the prosecution and exposing the 'shots' that were cut, ignored, or wrongly spliced together.
Defense counsel should maintain an open mind and sufficient patience, communicate comprehensively and in detail with the client, and seek to understand the client's complete life experience, behavioral background, and case details—especially during theinvestigation stagewhen access to the case file is not yet available; such communication is particularly important.
Given the particularity of individual cases, the work performed by defense counsel is also highly individualized; there is no standard, uniform template, and it is more often built on the lawyer's experience.
In short, the same sentence may be described in the transcript in a positive or neutral way, but it may also be described negatively. During this special period and stage, the client must not say a single word or sentence incorrectly.Transcripts are of critical importance。
4
How difficult is it to obtain a not-guilty outcome?
How difficult is it, really, to obtain a not-guilty outcome? Let us first look at a very typical real case.
This is a dangerous driving case decided by a Xinjiang court in 2016 [Case No.: (2016) Xin 22 Xing Zhong No. 113].
The court of first instance found, upon forensic examination, that when the defendant Qiu moved his vehicle, his blood alcohol content was 84 milligrams per 100 milliliters, constituting driving a motor vehicle while intoxicated. The court of first instance therefore ruled that he was guilty of the crime of dangerous driving.
The case was subsequently appealed to the court of second instance, which found the following facts: Qiu had not driven a vehicle on the road after drinking, but had merely moved his vehicle; the vehicle was moved on the day after drinking, after Qiu had rested for a night following drinking, and after a night's rest he was not aware that he was still in an intoxicated state; and the reason for moving the vehicle was that, under the direction of traffic police, he moved the vehicle a short distance at low speed from the location of the violation to the opposite side of the road.
Ultimately, the court of second instance held that Qiu did not possess the subjective intent required for dangerous driving and acquitted Qiu.
What appears to be a matter-of-course judgment was in fact a hard-won result obtained only after Qiu himself had been detained in custody at the detention center for 20 days, over the course of one year and eight months, through his joint efforts with defense counsel. This was still the case where thecauses and consequenceswere extremelysimple, and the testimonial and physical evidence was completein circumstances where。
Let us look at several cases handled by Lawyer Shao himself:
A client in a case of the crime of illegal business operations described that at the time of arrest, one day while he was at home there was suddenly a hurried knocking at the door; as soon as he opened the door, about ten people came in and immediately handcuffed him, and it was only after he was taken to the police station that he learned that his case was being handled through joint enforcement by a special task force composed of multiple departments including public security, customs, market regulation, press and publication, and culture. Nearly two years later, he finally obtained a result in which the public security authorities withdrew the case(➡️For details, please click:A real case of the crime of illegal business operations: lawyer successfully secured an acquittal, reprinted and published by Shanghai Legal Daily）。
A businessman from a certain Hong Kong, Macao or Taiwan region was arrested by a Shanghai case-handling authority on suspicion of the crime of false litigation. After enduring multiple interrogations and more than 300 days of unlawful detention in a detention center, he ultimately received a non-prosecution decision from the procuratorate.
In a cryptocurrency fraud case involving nearly RMB 200 million in funds that Attorney Shao recently concluded, the client was accused of conspiracy to commit fraud and was arrested across provinces. After a period of two years, the public security authority ultimately withdrew the case.
In a case of illegal business operations involving the purchase and sale of foreign exchange using virtual assets, with an amount in dispute of several billion, because the dispute over whether the conduct constituted a crime was significant, Attorney Shao and the handling prosecutor had already communicated countless times, and the matter has now reached a stalemate. In this situation, I again contacted the handling police officer in this case. After in-depth communication, the handling police officer was also candid and told me that he now also believed that the evidence was insufficient to establish this crime against the client. However, according to the client's description of the interrogation scene at the time, that was not his attitude then; at that time, in every interrogation of my client and in every statement record made, he attempted to make him confess.
The formation of the handling police officer's current conclusion was truly hard-won:
-
First, through communication between the client and me, he gradually developed a legal understanding of why this case was suspected of the crime of illegal business operations, and at the same time learned how he should respond to interrogations;
-
Second, after carefully reviewing the case file, the prosecutor and I repeatedly demonstrated the reasons why the conduct in this case did not constitute a crime, and that the existing evidence was insufficient to charge my client with a crime, and requested that the procuratorate supplement the key evidence for conviction in this case. The prosecutor listened carefully to all of this, and judging from the case files returned each time for supplementary investigation, the prosecutor responded one by one to the doubts I raised and requested that the public security authority supplement evidence accordingly;
-
Third, the handling police officer proactively asked me to send him the defense opinion for reference.
Only clients and family members who have truly experienced it can understand how difficult a result that appears to be "as it should be" actually is:
For the client, what they must face are every high-pressure interrogation and repeated investigations; bearing the suspicions and misunderstandings of case-handling personnel; and, in the face of various unfounded speculations, needing to constantly explain and argue forcefully on the basis of reason; enduring enormous mental pressure day and night.
—This short passage may sound very simple. But for me, what comes to mind are the eyes full of grievance and sorrow of every client I met in the detention center. Because every one of them asked me: Attorney Shao, why are they treating me like this? I clearly did not do anything wrong.
There is also a deeper reason why these cases are difficult. Most of the cases handled by Attorney Shao are economic crime cases. Unlike traditional violent crimes, clients in such cases often lack a clear subjective intent to commit a crime and mostly believe that what they are engaged in is normal commercial activity, investment conduct, or conduct within the scope of their work duties. The amounts involved often start at tens of millions, and the personnel relationships, case facts and background involved are extremely complex, and much of the evidence is also objectively difficult to obtain. At the same time, many new economy cases originally lacked particularly clear legal provisions, and the characterization of whether conduct constitutes a crime is itself highly disputed. All of this further increases the difficulty of handling cases.
Therefore, outcomes such as acquittal, non-prosecution, or withdrawal of the case are in fact low-probability events. But low probability does not mean impossible. The key is that every step on this path must not be taken wrongly.
5
Whyis it better for a lawyer to intervene as early as possible in a criminal case?
Let us return to the most central question.
Because the client personally does not possess sufficient legal knowledge, when facing the high-pressure state of interrogation, they often lack sufficient capacity to react and respond.
The transcript of the record is the foundation of a lawyer's defense, and a lawyer's defense cannot exist apart from the transcript.
This is also why I have always said that in criminal cases, the mostfavorable outcome is soughtnever by the defense lawyer working alone, but requiresthe client and the lawyer to fight side by sideof.
Therefore, in criminal cases, the earlier a lawyer intervenes, the better. The lawyer needs to help the client remain clear-headed, rational and steadfast at all times in this special time and setting.
Every detail may affect the subsequent conviction and sentencing, release on bail pending trial, non-prosecution, withdrawal of the case, or even a defense of innocence, so every statement must be made with particular caution, and not a single step may be easily misstepped.
Even so, a successful arrival at the destination is not guaranteed, because this was always a difficult path. A single misstep along the way will later require enormous effort to retrieve and remedy.
But at the very least, do not let a wrong first step make this already difficult path even harder.
Recommended Reading
