Why do lawyers defend the bad guys?

However, the existence of the defense system is not conducive to helping judges discover the truth of all cases. As we all know, the defense of innocence, as a typical form and the highest realm of the defense system, may pose certain obstacles to the criminal prosecution to effectively prove the facts of the crime and "expose the truth" whether from the entity (no constitutive elements of the crime) or from the evidence (such as insufficient evidence accused by the prosecution). Especially in recent years, the so-called procedural defense, which quietly entered the room in China, has no direct relationship with the truth because it does not directly pursue the verdict of the defendant's innocence or light crime. Because, as an important way for the defense to exercise the right of appeal, the direct purpose of procedural defense is to urge the court to declare the procedural violations of the police, prosecutors or judges invalid, so that the "official offenders" are punished and sanctioned to a certain extent, and the infringed rights are given judicial relief. Dershowitz, a famous American criminal defense lawyer, believes that in some cases, the court acquitted the defendant, not because there was doubt about whether the defendant was really guilty, but because the defendant's constitutional rights were violated. The developing exclusionary rule begins to pay attention to whether the actions of the police and prosecutors lead to such suspicious confessions, not just whether the defendant is guilty or innocent. With these, the defendant's defense lawyer can sue the government in court. If the police and prosecutors are found to have violated the defendant's fifth amendment rights, then the defendant's confession is invalid and the defendant should be released. (see Allen? 6? 1 dershowitz: the best defense, translated by Tang Jiaodong, Law Press, 1994, p. 49. It can be seen that the existence of the defense system may be beneficial to the court to discover the truth, or it may have nothing to do with discovering the truth. Even in some cases, it may hinder the court from discovering the truth. In this case, the viewpoint that "the defense system is based on epistemology" cannot be completely proved. Otherwise, if the defense system does not help or even hinder the court from discovering the truth, it will completely lose its legitimacy. From this point of view, it is not completely convincing to prove the existence value of the defense system from the perspective of epistemology, and take epistemology as the theoretical basis of criminal defense system. In fact, the basis of the existence of the defense system is not to discover the truth, but to protect the defendant's dominant position and effective defense right, and to ensure the defendant to get a fair trial by correcting the imbalance between the prosecution and the defense. After all, as the party being sued, no matter how high the position of the defendant is, no matter how rich he is, his strength cannot be compared with that of the investigating and prosecuting party as a national law enforcement agency. As Professor Ito Tiankan pointed out: "The defendant is no match for the prosecutor at any point. Most of the defendants are individuals who don't know the law and have no freedom of movement, and their economic strength is limited. They were investigated or prosecuted by investigators only because they were suspected of committing crimes, so they suffered a heavy mental blow. " Professor Ito Tiankan's analysis is undoubtedly correct. But there are unfinished business. In fact, even those defendants with legal knowledge are easily fascinated by the parties because of the psychological pressure of being sued. Without the help of a defender, it is difficult to effectively exercise the right of defense. Only through the defense system can the defendant's defense ability be strengthened and the disparity between the prosecution and the defense can be moderately balanced. It can be said that the existence of defense system is not only the need to achieve equality between prosecution and defense, but also the minimum requirement to achieve a fair trial. Accordingly, although the defender is not the defendant's agent, he can only engage in acts that are beneficial to the defendant's interests, but can't do acts that are unfavorable to the defendant's interests. This is the highest criterion for the defender to act. Of course, the interests and non-interests do not depend entirely on the defendant's independent decision, and the defender does not have to abide by the defendant's requirements to defend. Although defenders can only engage in actions that are beneficial to the defendant, they cannot deny the color of their public interests. On the surface, defenders do not consider national interests like prosecutors, nor pursue judicial justice like judges, but only conduct litigation from the perspective of benefiting the defendant. However, it is the intervention of defenders, especially defense lawyers, that eases the inequality between the state and the defendant, on the one hand, it promotes the real discovery of interactive dialectics, on the other hand, it ensures the legalization of the national judicial process, especially the defendant's status as the subject of litigation, the presumption of innocence and the implementation of the principle of fair trial. In fact, by protecting the interests of the defendant, the defender also guarantees the rule of law procedure with public welfare connotation. (See Lin Yuxiong: Criminal Procedure Law (I), Renmin University of China Press, 2005, p. 16 1. It can be said that the defender's promotion of social public interests is realized by safeguarding the legitimate rights and interests of the defendant. Defenders' involvement in specific cases may lead to the defendant being given a lighter sentence, or even the actual guilty person being acquitted, although this may be due to the pursuit of a favorable litigation result for the defendant. Therefore, it seems that the existence of defenders is not conducive to national interests. But in fact, defenders, especially defense lawyers, can participate in criminal proceedings, which can prompt the exercisers of public power to correct their mistakes in time, strictly abide by the procedures prescribed by law, and avoid innocent people from being wronged to the greatest extent. It can be said that the existence of defenders can indirectly promote the realization of judicial justice. At least, defenders, especially defense lawyers, are neither social unrest nor national dissidents. Otherwise, what reason does the state have to establish a defense system? Why should the people's court be given a statutory obligation to appoint a defender for the defendant when the constitution and laws meet the statutory conditions? Even, we can say that in a general sense, the existence of defenders, especially defense lawyers, is still an indispensable and important part of the country. However, this does not mean that lawyers must be morally nobler than public security personnel and the general public in society. In fact, lawyers are neither the embodiment of justice nor the pronoun of evil. The direct motive of lawyers to protect the legitimate rights and interests of clients is to pursue their own professional interests. In fact, it is in the process of pursuing their own professional interests that lawyers play a role in safeguarding the legitimate rights and interests of the parties. Fourth, it is precisely because defenders undertake certain public welfare functions that defenders must abide by a higher code of conduct than defendants. For example, as far as the authenticity obligation is concerned, the defendant does not bear the authenticity obligation, and even if he makes a false statement or destroys the evidence of his own crime, he does not bear the criminal responsibility of perjury or destroying the evidence; Defenders have the obligation of authenticity, which is in line with their roles as public welfare and judicial functions. However, compared with the public prosecutor, the defender does not undertake objective obligations based on his claim that he is in line with the interests of the defendant, so he only acts in accordance with the interests of the defendant without considering its unfavorable parts; Secondly, it only undertakes a low degree of true obligation. Therefore, although it is not allowed to actively lie or help the defendant escape or destroy evidence, it is still necessary to passively conceal the facts that are unfavorable to the defendant. When the defendant confesses the crime to the defender and provides relevant information, the defender has the confidentiality obligation to maintain the business trust relationship, and shall not voluntarily provide criminal information to anyone, especially the prosecutor or the court. (See Lin Yuxiong: Criminal Procedure Law (I), Renmin University of China Press, 2005, p. 162. The above criteria determine that defenders can only engage in behaviors that are beneficial to the defendant, regardless of whether the defendant is a "good guy" wrongly prosecuted by the state or a "bad guy" who is considered heinous (in fact, a person who is considered a "bad guy" may not be a "bad guy", even if the defendant has made a guilty confession. Needless to say, in China, due to the opaque investigation and interrogation procedures, criminal suspects are often forced to extract confessions. Even in the United States, where the power of investigation is well regulated, many innocent people have made guilty confessions.