The lawyer will copy the evidence for the defendant to reason in law

Duan Jianguo

    The lawyer will copy the evidence for the defendant to consult, sensitive problem is a both sides under dispute, is a lawyer is the most headaches. If the problem cannot be solved timely, it will cause a great impact on the defense system.

"Criminal Procedure Law" article36The defense lawyers in the trial stage to copy the case of the facts of the crime accused material rights, and met with the defendant in custody rights, the problem is with the defendant in a lawyer,The defendant to request access to lawyers evidence of replication,Or identify the evidence presented,Lawyers can not copy the material evidence, court records to the defendant at?In order to obtain the defense effect,If the lawyer can take the initiative to get the defendants from evidence material replication access to defend the court opinions?This problem has been the thorny issue of lawyers.

But so far I have not seen the relevant legislative interpretation, judicial interpretation,Not to mention the law clearly defined. On this sensitive issue,There are two possible answers different. A lawyer can not copy the material evidence, court records to the defendant; another is a lawyer could let the defendant from evidence court replication at.

Lawyers can not copy the material evidence, court records to the defendant to see one reason is:

First, when the evidence that the defendant looked after,The defendant may,Has the possibility to make excuses for the evidence in the trial,So the court to conviction and sentencing of the accused;

Second,Lawyers may be suspected of the defenders and agents ad litem, destruction of evidence, false evidence, prejudice to testify the crime. "Criminal Procedure Law" article38The provisions:"Defense lawyers and other defenders,May help the criminal suspects, defendants to conceal, destroy or falsify evidence, or collusion,Not threatening, luring witnesses to change their testimony or other interference of judicial litigation activities."If the lawyer with the evidence to the defendant at,Let the defendant to prepare,The defendant may be retracted, lawyers will be suspected in collusion,In the litigation activities judicial organ normal,Then according to the "criminal law" article306The provisions,Go easy for lawyers. This is probably the main reason for the problem carefully conceal mentioning the lawyer occupation.
    The lawyer could be the evidence to the defendant court replication at a party for:

First, is conducive to the full protection of the defendant's right to defense.

"Criminal Procedure Law" article11The provisions:"The accused has the right to defense,The people's courts shall have the duty to guarantee the defendant to defence."In the international human rights conventions also have similar provisions,But if the defendant cannot see the accused guilty evidence,No evidence in its favor, the defendant to make cross examination opinions? How to carry out the powerful rebuttal to conflicting evidence?How to make your own depth, strength of the defense?

The law"The people's courts shall have the duty to guarantee the defendant to defence",But for the defendant can be out of touch with reality,Evidence not to know,The evidence does not show,How to let the defendant to exercise the right to counsel?The lawyer will evidence court copied let the defendant to consult, can make the defendant to fully understand what evidence against themselves, what evidence in their favor, the defendant published evidence opinion will have a definite object in view, effectively can take the right of criminal defense.

Second, the existing legal system doesn't give the defendant reading sufficient evidence of the time,Deprived the accused person's right of defense.

"Criminal Procedure Law" article157The provisions:"The public prosecutor, the defender should show the material evidence to the court,For the parties to identify,Appraisal conclusion, identification of records of testimony of witnesses who are not present in court as evidence of and other documents,The public prosecutor, the parties shall listen to and the defenders and agents ad litem, opinions."Here"Party"Of course, including the defendant. The law has clearly give the defendant of the evidence to identify the right and the other evidence of the right of cross examination. Since the opening of the trial, the defendant to identify right and the right of cross examination, why not let the defendant knew the prosecution's evidence and make the identification and quality certificate?

In judicial practice, the prosecution is usually several or even dozens of the evidence at the reading, and then let the defendant concentrated examination opinions. The defendant after the long period of detention,All of a sudden stop to the solemn court inevitable tension,Let the defendant in a short period of time on the few months of preparation of several volumes of evidence judgment immediately, immediately that attitude, which can not make the defendants formality. In particular, the read only the evidence, that the defendant to read,Read what people, if there are omissions, whether there is a trade-off, the defendant may be confused. Only read the evidence to the defendant sufficient time, in order to protect the rights of defendants.

Third, improve the efficiency of the proceedings, save judicial resources.

In a relatively short period of time, by the prosecution in accordance with the needs of their charges against the defendant, just read the part, if there are favorable, the defendant does not know, what is the complete content, the defendant not. In not understanding, without knowing it, let the defendant published examination opinions, and even make an argument, it is to be the biggest joke in the world. To improve the efficiency of the proceedings, save judicial resources, obviously cannot illegal deprivation of the defendant's right to defense cost. Before the trial, lawyers allowed evidence to the defendant to consult, identification, is the method to solve this problem very well.

If the lawyer will copy the evidence in the trial before the defendant access,The defendant can be familiar with the prosecution evidence,Not in the trial by the prosecution read word for word and sentence for sentence,It can reduce the trial time, reduce the cost of litigation. To improve the efficiency of the proceedings, save judicial resources, often is the abstract read excuse. But, if the accused did not read the file evidence, then the read will make the defendant's right to defense useless. How to balance between the two, so that the defendant's rights are protected, but also can reduce the lawsuit time, allow lawyers evidence to the defendant to consult, identification, should be effective method.

Fourth, the defendant may be retracted or sophistry, evidence is not a lawyer can not copy the court records to the defendant to see reason.

The defendant does not see evidence still confession or sophistry, in judicial practice, the defendant confession in a lawyer before intervention.

"Criminal Procedure Law" article46Provision,"Of all cases are to be sentenced to the weight of evidence,Investigation and study,Don't believe the oral confession."Confession should not be the king of evidence, shall not be not enough attention. As long as the other evidence of solid,Even if"Zero confession"Still can, conviction and sentencing of the accused. If the chain of evidence are not be too strong to break,There are many loopholes,Only expect the suspect, defendant's confession support of course not firm.

As the saying goes to the next,Heed only one side and you will be benighted. Listen to the opinions of the defendant,May avoid miscarriages of justice.

Fifth, the lawyer may be suspected of the defenders and agents ad litem, destruction of evidence, false evidence, prejudice witness to the criminal evidence law, not can not copy the court records to the defendant to see reason.

In Chinese,The lawyer handling criminal cases born with risk. "Criminal law" article306One is hanging in the lawyer's head sword, let outsiders access to lawyers, especially when the defendant family access, resulting in the testimony of a witness against the facts, change is not proper, the lawyer shall bear the legal consequences of according to law.

However, the practice of Western Judicial Watch, a lawyer for the defendant to see evidence, seems to be is the basis of lawyers and defendants agreed defense strategy.

Lawyer's right to the defendant, lawyers make their parties', the defendant shall enjoy the right of defense fully, it does not violate the law of our country's intention. Legal sanctions against the conduct of lawyers, not conducive to the exercise of the right of the defendant.
    Since want to protect the defendant to fully exercise the right to defense,Since in the trial must listen to the views on the evidence of the defendant,Cross examine the dialectical,In order to improve the efficiency of the proceedings, save judicial resources,Analysis of evidence, the court can not be read to the accused person full time,In order to realize the judicial justice,Proposed the corresponding has the right to explain further, allow the lawyers in the trial of former copy evidence the defendant access,In order to make the trial preparation.

Duan Jianguo (Department of deputy director of the law firm Beijing branch,23Years of occupation lawyer, "lawyer", "Journal of Chinese Chinese lawyer" commentator, director of the litigation documents Chinese law society, member of the Beijing Bar Association's Committee on criminal procedure law, "China defense network", "China innocent defense network" chief lawyer, published the "Chinese lawyers marketing" and other works, telephone13501331448, mailbox:Djglawyer@126.com)