Protection Of Lawyer’s Right To Defense Under The Background Of Digitalization Of Criminal Justice

Under the combined effect of changes in the social environment and the vigorous promotion of the central government,criminal system of China is undergoing a digital transformation.Digital technology,represented by big data and artificial intelligence,has penetrated into criminal procedure,which has impacted the basic principles and mechanism of criminal procedure.It is not difficult to find that digital empowerment is concentrated only on the judiciary authorities’ side,and the reform promoters pay insufficient attention to the accused.The defense lawyer is the main bearer of the defense function in the criminal procedure.Many litigation rights of the accused are realized by the lawyer.The effect of the lawyer’s defense determines the degree of realization of the accused’s rights.Therefore,to investigate the new concerns and old problems encountered by lawyers under the background of digitized criminal justice,and propose corresponding solutions,is helpful to improve the protection level of the rights of the accused and correct the imbalance of public and private power in the process of transformation.The first chapter explains the performance and characteristics of the digital transformation of criminal justice and provides background for the analysis of subsequent chapters.The digitalization of case files,data sharing among agencies,and intelligent legal decision-making are the three cores of the digital transformation of criminal justice.The process of digital transformation of criminal justice shows the characteristics of emphasizing efficiency over justice,mismatch between technology supply and judicial demand,and data and algorithms becoming the key element.The second chapter examines the environment of the lawyer’s defense from the perspective of structure of criminal procedure.First of all,the digitalization of criminal justice has exacerbated the imbalance between prosecution and defense:on the one hand,the ability of the prosecution to collect and use evidence has been further enhanced after technology empowerment;The lack of protection of the defendant’s data rights and the limitations of the professional resources the respondent can seek make it difficult for the defense to effectively defend against the prosecution’s allegations.Secondly,the use of digital technology has also strengthened the participation of the conclusion reached by the investigative authority,technical power,and administrative power in the formation of adjudication conclusions,thereby weakening the degree of influence of lawyers’ defense on adjudication conclusions.The third chapter focuses on the impact of lawyers’ defense rights from a microcosmic perspective.What is most affected is the evidentiary rights of lawyers.Various factors,such as technical barriers,personal information protection,and lack of compulsion,have made lawyers face many difficulties in exercising their right to investigate and collect evidence.The wide range of data collected by digital technology is used in prosecution activities,which narrows the scope of lawyers’ review;the massive amount of data also detracts from the ability of lawyers to find evidence that is favorable to the accused.The failure of the cross-examination mechanism,the existence of algorithmic black boxes,and the use of auxiliary trial systems all restrict the effect of lawyers’ cross-examination.The fourth chapter responds to the problems analyzed in the previous chapter and puts forward the corresponding improvement measures.In terms of improving the right of investigation and evidence collection,it should be reasonably allocated to network information providers to cooperate with the obligation of assisting lawyer in evidence collection to ensure the exercise of lawyers’ right to investigate and obtain evidence on its own.At the same time the rigidity of the right to apply for evidence from judicial organs should also be enhanced.With regard to the improvement of the right to review files,it is emphasized that the prosecution should undertake more assistance obligations to ensure that the defense can effectively review files.In terms of the improvement of lawyers’cross-examination,the transparency of the algorithm should be ensured,the algorithmic cross-examination mechanism should be improved,and the auxiliary trial system should also be reasonably used by judges.Finally,it is necessary to ensure the ability of lawyers to defend by improving the system of expert assistants and strengthening lawyer training and other supporting measures.