A lawyer's independent defense right

¡        Situation1

The defendant believes his innocence, the lawyer also pleaded not guilty, but the lawyer found guilty, this kind of situation? The lawyer is pleaded not guilty in accordance with the defendant's request, or regardless of the defendant's willingness to defend guilty?

 

First of all, a lawyer should fully understand the defendant believes his innocence is that he doesn't want to plead guilty, or because he knew is wrong in fact, evidence, law. If there is a mistake in understanding, the lawyer can help him analysis, explain, why his behavior is guilty, even if they do not admit the crime also can not evade, and as such a plea, fully defended in sentencing, strive for the lightest punishment.

Secondly, if the defendant does not accept the law interpretation, a lawyer shall explain to him what the consequences are not guilty, let him know the stakes.

Finally, anyway, the defendant insisted on his innocence and asked the lawyer to defend when innocence, lawyers can not restricted, still for the accused plead guilty? I think a lawyer can't. Although, the lawyer has independent status in the proceedings, but this is not absolute, is relative independent. The relative independence is different and the opinions of the parties concerned lawyers can, but must obtain the consent of the parties or approval, must not be contrary to the wishes of the parties, is not conducive to the parties.

 

¡        Situation2

    The defendant confession, and finds that defendants not guilty.

 

Why did this happen? There are several reasons: some because the defendant was taken in the social aspects of pressure, dare not guilty, know the case can not be innocent results, rather than simply plead guilty, treatment may receive a lighter, in this case, the lawyer to give the defendant some explanation, description, make clear his case indeed is innocent, don't confess. I hope he correct ideas, adjust train of thought, with the common good lawyer pleaded not guilty. But if the defendant insisted to plead guilty, lawyers not forced him to join with you. You can explicitly asked his opinion, you confess, I pleaded not guilty, wouldn't you agree? In his consent, lawyers protested his innocence. However, this situation will be affected by social criticism and even blame. Beijing media speculation had been a case, the defendant is guilty in a court of law, the defender has pleaded not guilty. The second day the newspaper published a commentary, accused the lawyer, said the defendant himself admitted, lawyers have pleaded not guilty, this is with unreasonable demands. The defense is a certain risk. So must obtain prior approval of the defendant, but even if approved, may have to bear the social criticism of you.

There is a reason, that the defendant is not what pressure, is to know your heart, especially in fact really is him, sometimes with deep hatred and resentment, is to plead guilty. But from the point of view of law, his behavior is not guilty. In this case, the lawyer can do some persuasion, education and ideological work, let him lift the ideological pressure and inner repentance, do not clearly is innocent, to confess, and strive to both sides to form a consensus opinion of innocence.

In a word, in this issue, a lawyer should strive for as far as possible to reach an agreement with the defendant, agree on can not be the case, the lawyer can do a plea of not guilty, but must obtain the approval, if not approved, would rather quit defense.

¡            Situation3

If a defendant has two defenders, whether a plea of not guilty, a light offence defense?

 

Both lawyers and defendants, or between lawyers and lawyers in defending opinions on, try not to make two kinds of sounds, this should be the ideal state. However, the reality sometimes is not so ideal, there have different defense two lawyers, there may be several reasons: one reason is that the two lawyers is this understanding, a guilty, another think. This is due to the understanding of their legal professional level, professional knowledge, action caused by experience. The two lawyers are independent of the body no good who to who. At this time, the two lawyers must explain to the defendant, asked his opinion, at least get his approval, because this is not just between the two law of things, should communicate with the accused person exchange.

There is also a case, is the two lawyers feel that the defendant is innocent, or are deemed to be guilty, but some practical or strategic considerations, in order to obtain a can in turn back the initiative, sometimes artificial division of labor, a plea of not guilty, another to defend guilty. First of all, for the innocent results, if not guilty, because from the guilty angle is also put forward a lot of defendant in fact, evidence or legal basis, for a light sentence.

This Is it right? Contradiction? In fact is not a contradiction. A lawyer should be within the scope permitted by law, to maximize the maintenance of the suspect, the defendant's rights. In the guilty and innocent question, if the conditions for innocence, of course, should strive to acquire innocent results; when innocence is not possible, and when in sentencing and space, we should maximize the defense, from the sentencing for sentences, this is the attorney's obligation requirements.

 

On the evidence of Defense

Today, I'm afraid no one dares to say that only lawyers need to study the theory of constitution of crime regardless of litigation evidence. Even solid defense and defense is often necessary evidence combination can achieve good defense effect. We can even say, solid defense is the essence of evidence defense.

Evidence of defense can be divided into two basic forms: one is the evidence defense; two is the judicial proof defense.

The so-called "individual evidence defense", is a lawyer qualification of evidence for a prosecution evidence and proof of defense. In criminal defense, lawyers often indicate one of prosecution evidence is not legitimate, do not have the admissibility, pointed out that a prosecution evidence is not real, not reliable or with the facts of the case does not have any relevance, even asking the court to those in the ability of evidence or proof there are flaws evidence in court outside. These all belong to the individual evidence defense. Through this single evidence of defense, defense attorneys can convince the court will be those who do not have the evidence. In the experience, logic and legal evidence, excluded from the court, so that it can not be converted into the basis of judicial.

Another form of defense is the "evidence of judicial proof defense". Such a defence is also known as more evidence of defense or the relevant evidence system defense. The attack is the whole evidence system. This evidence defense goal has two: one is the weakening of the system of evidence, the judge said "facts unclear, insufficient evidence"; two is the overthrow of the prosecution's evidence system, or the collapse the accusation evidence system, so that the charge was not charged.

In judicial practice, the evidence is not enough to cause the defense often not guilty, because even if the exclusion of certain evidence, the defendant may still be sentenced. While the judicial proof defense is often able to play a greater role, after weakening or overthrow the evidence system, the court made the judgment of acquittal for the accused, or to review, to withdraw the prosecution of such ruling. In fact, these results are evidence of defense has made significant signs of success.

Here today to introduce several common techniques, evidence of Defense

¡        The problem:

When a defendant has the same behavior of the statements made exactly the opposite, and other available evidence can not prove that these two conflicting statements is true, what is false, in which prevail?

 

"Zero confession"

So-called"Zero confession"Refers to, when the defendant makes two completely opposite statements, the judiciary will confessions and excuse as does not exist, and the first to other evidence review confession outside have not reached the conviction standard.

Many judges are not confirmed in the confession, by means of "zero" verdict. Unfortunately, many lawyers in his defence was not grasp this key.

¡        The problem:

Torture to extract confessions led to the defendant does not stop the confession, the defenders can not give the proof of evidence of torture to extract confessions, how to do?

If because of torture to extract confessions led to the defendant does not stop the confession, the occurrence of major conflicts between the confession or testimony and other evidence, to influence the correctness of confession. At this point, we can not only the procedural defense means of torture to extract confessions legitimacy, can also take legal means as a breakthrough point, proved by confession has false may greatly to the defense evidence law.

In many cases, the judge will clearly tell the defenders, torture to extract confessions must submit procuratorial organs placed on file, the prosecution and then submitted to the court, and the defenders only need to debate on the defendant's criminal act, if the defender can not give the proof of evidence of torture to extract confessions, will not allow entangled the problems in court. Encounter this kind of situation, and continue to adhere to, not timely adjustment of defense strategy, will be the focus of the debate from the existence of torture to extract confessions behavior to the authenticity of the defendant's confession, as long as that there are significant contradiction between the confession and other evidence can not be ruled out, the general will pay more attention to the court.

¡        The problem:

   Witness testimony and confession has major contradiction can not be excluded, it should be how to defend?

In this case, if the witness himself not to testify in court, the witness testimony is not accepted. For example, together with the bribery case, the defendant of a bank president was accused of accepting two bribes, a pen is fifty thousand yuan, another sum of $thirty thousand, the defendant usually is not at the home, these money are the same to the briber retired from his wife at home, the Renqi only admitted the first pen fifty thousand dollars of the facts, but said he did not tell her husband, the defendant is not willing to admit their own informed. Second for $thirty thousand, the defendant wife told the defendant, the defendant argued that the money he didn't know, was the wife of. The first session, the key witness failed to appear in court, counsel submitted a request to testify in court two witnesses apply to court, but the judge did not adopt, appeal after being remanded, but the judge still did not call witnesses to testify in court, which upheld the decision made. When the defendant appeal again to the Beijing high court, lawyer changed tactics, he exists in multiple copies of testimony10A contradiction as the breakthrough point, points out the two key witnesses do not appear in court, the authenticity of testimony is difficult to judge, suggested that two deposition excluded in the verdict, the Supreme Court of Beijing on the grounds of insufficient evidence to make a judgment of acquittal.

So, if the witness testimony and confession has major contradiction can not be ruled out, repeatedly asked the witness can indeed be used as a defense skills, but if not adopted, will be immediately to request a court ruled out hard to distinguish the authenticity of testimony.

 

¡        The problem:

    The witnesses to appear in court overturned the original testimony, how to do?

Our law has not established the hearsay evidence rule[1]In the court, does not have the evidence before the court record than larger, but tend to real evidence as the standard to adopt the testimony of a witness. In view of this situation, recently, in many places the emergence of a new defense skill: when a witness in court overturned when pretrial testimony in court, lawyers for the testimony and the testimony before the court shall not be taken as a basis, and then apply to the court for an out of court to investigate the witnesses in the presence of the parties, if the finally, an out of court investigation is believed to be true, it adopted the testimony, if that is hard to distinguish the authenticity or confirmation is false, we exclude all the testimony of the witness.

For example, a trial with cases of torture to extract confessions, the defendant is a director of the police station, the first trial the defendant guilty, the police station of the security is a key witness in the case, the security to the investigators that the defendant was not only, also directs the whole process of the torture to extract confessions, lawyers in the second stage investigation, but the accident that testimony security original investigators extracted under torture, a lawyer with two assistants, also invited the village Zhibao director and other witnesses to forensics, and the whole process video made optical disc. The second instance trial lawyer read the new security requirements of testimony, was summoned him to testify in court, but the security for various reasons did not appear, so there have been two testimony exactly the opposite: one is the police testimony, another is the testimony pen lawyer. The public prosecutor in court immediately according to the "criminal law" article306Lawyer's liability shall be investigated, the30Years experience in lawyer advised the court out of court investigation, court ultimately adopted by the court investigation evidence.

Through the above analysis, I want to explain to you is, two extreme practices are unacceptable: the first is to court statement one witness testimony only standard attitude; second is that as long as the police collected testimony by court testimony to overthrow the cannot be adopted. These two approaches can not be realized in china.

 

About the meeting

¡        The problem:

    Before the court meet the defendant can make relevant evidential materials to the defendant to see?

 

This is a very important problem, may even bring great risk to the lawyer, on this problem, my personal view is, should be treated differently. In the stage of investigation, lawyers had no clear understanding of the formal channels the facts of the case and evidence materials, and at this stage, the investigation organ did not fully grasp the evidence material, so the lawyer to visit the suspected criminal suspects in general is to understand the case he know, listen to his opinion, he does not exist to check the facts of the case condition. Therefore, in general there is no bring him the evidence problems. In addition, the general should not disclose the lawyer learned from other channels of case information to him. But if the suspect has no time, not to the scene, the lawyer made the necessary investigations, to check the situation of his, or even to produce the relevant evidence materials. But this is the exception.

In the prosecution in particular phase of the trial, the case is different, the investigation has ended, the lawyer shall consult the materials in accordance with the law in accordance with the law, defended the views to the case handling organ. In order to fulfill these duties, he will be the case and the suspect, the defendant know, verification, including this to show him, inform the related evidence material. However, the case is different from the evidence, different materials, specific practices are also different. If it is a subjective testimony of witness speech material evidence, suggest that lawyers don't take to each other to see. But some material evidence, documentary evidence, material evidence, such as, for example, a file materials, what Is it right? Parties dealt, sign above what Is it right? Signed by him, if not him, let him recognize how line?

Now countries around the world through the evidence discovery system or marking system, let the lawyers in court before understanding, grasp the evidence the prosecution, is this why? Of course, to guarantee the full exercise of the right of defense lawyers. However, the lawyer was not involved in the implementation of crime, the evidence material Is it right? Objective, true, he very difficult, also cannot make independent judgments. So the discovery of evidence or marking system, or, on the surface is the lawyer, is essentially to the defendant, the defendant did not participate in the end because of participation in the accused of the crime, the prosecution evidence Is it right? Real, objective, only the most clearly, he can see the problem. The lawyer even do a lot of work, a lot of effort, but also very responsible, may not be able to see the problem. More importantly, he is not the parties, even can see the problem is to find the problem of logic, rather than from the facts of the case itself to find problems, most who have the right to speak on the facts of the case and the basic evidence? Of course is the defendant. So, if the lawyer in court before does not take evidence materials to him, to him to verify the alleged facts and evidence is established, and how to defend ready? How to conduct cross examination in court? So, I think this is a course as unalterable principles contained a self-evident right in the defence of the accused and the defender of the rights of.

 

¡              The problem:

    Whether it should be criminal suspects, defense and defense exchanges to determine the plan view during the meeting?

 

First of all, the lawyer came in a lawsuit, what to do? Whether the defendant commissioned, or a court appointed lawyer participating in litigation activities, what is the purpose? In addition to protect the legitimate rights of the defendant, the promotion of justice, lawyers don't have other interests. Therefore, lawyers and independent, nor how to defense issues do not communicate with the exchange, and gain their approval. According to the relationship between lawyer and client, they'll pay the lawyer fees, entrusted to you for his defense, or people accepted the court appointed for you, accept you for his defense, lawyers have natural obligation, legal obligation to tell people, obtain recognition and people exchanges, communication and.

In addition, why want to communicate, there is one point as far as possible in order to form a defense agreement, in order to maximize the defense effect. Because the hearing before the communication, cooperation or cooperation both in court, can achieve better defense effect.