Introduction With 144 countries abolitionist in law or in practice states that retain the use of the death penalty are bucking a global trend towards eliminating the death penalty from the criminal justice process.1 Although capital punishment is not prohibited under international law its use is heavily circumscribed by requirements for a fair trial and other safeguards. The decision to retain use of the death penalty has profound implications for a country’s legal system and the capacity of its judicial institutions to protect those facing execution from a miscarriage of justice. Criminal lawyers are critical actors in defending the rights of persons facing the death penalty to a proper scrutiny of the state’s case against them and the decision to impose a capital sentence. Yet lawyers face legal, institutional, political and professional obstacles to providing an effective defence. Without high quality legal representation during all stages of a death penalty case there is a strong risk of a wrongful conviction or unjust sentence. For advocates of abolition, there is evidence that an effective legal defence reduces the number of executions and contributes to a climate of opinion in which the death penalty is increasingly seen as unacceptable. A majority of countries in the Asia region retain the death penalty though there is marked variation between states in the frequency with which it is used. The Rights Practice has begun a programme of work with criminal justice research institutes and NGOs in seven Asian countries. Together, and with EU financial support, we have launched an initiative to look at the question of effective defence in death penalty cases in Asia. As a first step, we supported our partners to carry out research into the law and practice context for defence representation in death penalty cases.2 This Working Paper introduces our approach, discusses the international legal framework for representing death penalty cases, provides an overview of the research findings and highlights issues for further investigation.3 Preliminary conclusions from the research reports suggest little progress in the Asia region since the Anti-Death Penalty Asia Network (ADPAN) published its Unfair Trials Report in 2011. Researchers in our study looked at the legal and institutional barriers to fair trials and the limited role international law plays in informing domestic law and practice across the region. A common thread in the research reports was inadequate legal and practical provisions to allow lawyers to provide appropriate legal assistance during the pre-trial stage. Too often the case was assumed to begin when it came to court. As researchers from Malaysia and Pakistan highlighted, the absence of lawyers during the investigation phase heightened the risk of torture and coerced confessions. The lack of time, resources and authority to investigate the alleged crime and prepare the case for trial was a frequent complaint from lawyers questioned during the study. Lawyers clearly face formidable obstacles to playing a more effective role in representing a client facing the death penalty. Inadequate resources were a constant refrain. All countries reported 1 Amnesty International. “Death Sentences and Executions 2021”. Figure as of 31 December 2021. https://www.amnesty.org/en/documents/act50/5418/2022/en/ 2 The national research reports which informed this background document are currently in draft and are expected to be published in 2023. 3 This paper is a background document for a side event at the 2022 World Congress Against the Death Penalty in Berlin. A fuller revised report is expected to be published in 2023. Our research partners have not yet had a chance to review this working paper. Any errors are the sole responsibility of The Rights Practice. 2