The new criminal procedural law training content

According to the Xuancheng city procuratorate prosecutors lecture recording adds finishing

To prevent a new criminal procedure law, the defense system reform and lawyer risk.

(A) on the defense system reform

In the investigation stage:

1First, the lawyer defense identity.

2The lawyer to provide legal aid, in advance, to expand the scope of.

3To collect evidence, the defense lawyer may have conditions.

4The defense lawyer may, has the condition to meet the suspect.

5The defense lawyer, defended the views on the circumstances of the case can be.

6The defense lawyer may, at any time change coercive measures apply to the investigation organ. Can be oral, can also be written.

In the prosecution phase:

1, clearly defined since the procuratorate for examination and prosecution, can access to the case file, copy, photography, scanning can.

2, defense to criminal suspects and defendants, and verify the evidence.

3To put forward opinions, defend the.

At the trial stage:

1The exclusion of illegal evidence, clear rules and procedures. Specify the prosecution on the legitimacy of evidence provided by the burden of proof.

2Provisions of the pretrial conference system, (the lawyer may apply, the prosecution may apply, the court may also decide organization pretrial meeting system).

3The lawyer has the right to participate in, contribute to the criminal reconciliation, and suggested that the court to settle the case the defendant a lighter or mitigated punishment.

4The defense lawyer may, put forward concrete sentencing suggestion.

5Lawyer, can apply for court, procuratorate investigation of evidence, witnesses, expert witnesses to testify in court to apply for.

(two) against the defense lawyer risk

1The defense lawyers, suspects must prevent to induce them to make false statements.

2Pay attention to the prevention, investigation and evidence collection of risk in the investigation stage. Only collect three types of evidence. Other evidence can not be collected.

3The criminal suspect shall not, with family members at the meeting of the letters, articles. But the lawyer can communicate with the criminal suspect.

4To consult, copy, excerpt, archival materials shall not be copied to the principal, the criminal suspect circulated.

5Pay attention to risk prevention, cause to suspect, the defendant to verify the evidence. During the meeting the conditions are best two people meet, ask the criminal suspect to sign. To suspect own confession, material evidence, documentary evidence for criminal suspects, the other co staff statement can only communicate with the criminal suspect in oral way, can't get to the criminal suspect at.

 

The review of criminal evidence is required to implement the two, the new criminal procedural law and influence.

(a) the probative force of evidence and evidence.The ability of the legitimacy of the evidence is evidence. The strength of the evidence validity is proved. The weight of evidence refers to the authenticity, relevance of evidence. The evidence ability, namely the legality of evidence admittance involves3A problem:

First of all: the forensics subject to legal;

Secondly: evidence means to legitimate;

Again: the evidence in the form of legal.

Effect of the probative force of evidence and that the evidence, it by the authenticity and relevance, involving2Problems: one is the authenticity of the evidence; the two is the relevance of evidence.

The first to review evidence, proof of legitimacy, evidence of the second review of the evidence, namely the authenticity, relevance.

(two) method to determine the criminal evidence review

1The determination of material evidence, documentary evidence, and the review. To see whether it is original, original, whether through identification of criminal suspect, the transcripts to identify whether two people making etc.. Jian Zhen problem of certificate of. Jian Zhen is higher than that of identification, Jian Zhen proved that the samples are reliable.

The new "criminal procedural law" interpretation of the material evidence, documentary evidence examination and verification of the relevant provisions

Article sixty-ninth The material evidence, documentary evidence shall be mainly examine the following contents:

(a) material evidence, documentary evidence is original, original, whether through identification, identification; evidence photos, videos, copy or copy, copy of documentary evidence is consistent with the original, the original, whether made by more than two people, there is no producer on the production process and raw materials, the original store where text and the signature;

(two) material evidence, documentary evidence collection procedures, whether in accordance with the law, the relevant provisions; the inquest, inspection, search, seizure of material evidence, documentary evidence extraction, whether with related record, list, record, whether the list by the investigators, the holder of the articles, signature of witness, no article holder signature, whether to indicate the reasons; item name, quantity, quality, features, or indicate clearly;

(three) physical evidence, documentary evidence in the collection, preservation, identification process is damaged or change;

(four) material evidence, documentary evidence and the facts of the case are irrelevant; on blood, scene and criminal identification with conditions related to humoral, hair, fingerprints and other biological samples, trace, articles, is asDNAIdentification, fingerprint identification, the corresponding biological materials, biological characteristics, geometric and articles on defendants or victims;

(five) associated with the material evidence, documentary evidence and the facts of the case is a comprehensive collection of.

Article seventieth According to the verdict evidence shall be the original material. The original inconvenient for transportation, is not easy to preserve, shall keep, handled by the relevant departments in accordance with the law, or shall be returned, can shoot, making enough to reflect the original shape and features photos, video, copy.

Evidence photos, videos, copy, can not reflect the shape and characteristics of original, shall not be taken as a basis.

Evidence photos, videos, copy, without error, identified as true or otherwise identified as true check with original, can be taken as a basis.

Article seventy-first According to the documentary evidence shall be the original verdict. It is difficult to obtain the original copy, copy, you can use.

Documentary evidence to change or change the signs cannot explain copies of copies, or documentary evidence, cannot reflect the original and its contents, shall not be taken as a basis.

A copy of the documentary evidence, copy, without error, identified as true or otherwise identified as reality checks with the original, can be taken as a basis.

Article seventy-second The facts of the case may be associated with the blood, body fluids, hair, body tissue, fingerprints, footprints, handwriting and other biological samples, trace and items, should be extracted without extraction, shall be checked without inspection, leading to the facts of the case in question, the people's court shall explain the situation to the people's Procuratorate, the people's Procuratorate, supplementary collection obtaining of evidence or make reasonable explanations.

Article seventy-third At the inquest, inspection, search process, material evidence, documentary evidence from seizure, not a book or list, can not prove that the evidence, documentary evidence sources, shall not be taken as a basis.

Material evidence, documentary evidence collection procedures, methods in any of the following defects, the correction or to make a reasonable explanation, can use:

(a) the inquest, inspection, search, extraction of notes or seizure list no investigators, the holder of the articles, signature of witness, or the name of goods, quantity, quality and other characteristics, indicating the unknown;

(two) evidence photos, videos, copy, copy, copy of documentary evidence does not indicate with the original check is, no time to copy, or no was collected, signature, seal;

(three) evidence photos, videos, copy, copy, copy of documentary evidence no producer about where the production process and the original, the original explanation, or description of no signature;

(four) there are other defects.

The material evidence, documentary evidence sources, collection procedure has doubt, can not make a reasonable explanation, the material evidence, documentary evidence shall not be taken as a basis.

 

2On the testimony of witnesses, and determination, the statement of the examination and verification.

First of all, the testimony of a witness to a witness qualification.

Secondly, review the testimony of witnesses, program to obtain the victim statement. The questioning of witnesses, victims should be individually. The testimony of witnesses, victims' statements to be checked. Witness the victim is deaf, not familiar with the local language to provide translation. The questioning of witnesses, victims of the site, to the exact time, in accordance with the law.

The new "criminal procedural law" interpretation of witness testimony and identified, the victim stated examination and verification provisions:

Article seventy-fourth On the testimony of witnesses shall mainly examine the following contents:

(a) the contents of the testimony is the direct perception;

(two) a witness to testify in age, cognitive, memory and the expression ability, physical and mental state whether the witness;

(three) the witness and a party to the case, case processing results with and without interest;

(four) asking the witness whether individually;

(five) for the production, modification is in conformity with the relevant provisions of law, asked, indicate whether the time and place for the first time, when asked whether to inform the witnesses to testify about the rights and obligations of the legal responsibility, the interrogation record check to confirm;

(six) ask the minors, whether to notify the legal representative or the relevant personnel to the scene, the legal representative or the relevant personnel are present;

(seven) the testimony of witnesses have no to violence, threats and other illegal methods to collect;

(eight) between the testimony and other evidence can confirm each other, there is no contradiction.

Article seventy-fifth Apparently drunk, poisoning or anesthesia state, can not be normal perception or the correct expression of witness testimony, shall not be used as evidence.

The speculation, commentary, inferential testimony, shall not be used as evidence, but according to the general life experience judgment except in accordance with the facts.

Article seventy-sixth The testimony of witnesses is under any of the following circumstances, shall not be taken as a basis:

(a) witness no individual of;

(two) the written testimony by witnesses did not confirm;

(three) ask the deaf, dumb, deaf, dumb shall provide a gesture and not provided;

(four) ask the local language, the text does not know the witness, an interpreter shall be provided and not provided.

Article seventy-seventh Collection procedures, witness testimony has the following defects, the correction or to make a reasonable explanation, can use; no correction or to make a reasonable explanation, not as a basis:

(a) inquiry shall not asked, record, name of the legal agent and ask the starting and ending time, place;

(two) ask the site does not comply with the provisions of the;

(three) for the no record inform the witnesses on the right to testify obligations and liabilities of the;

(four) for the show at the same time, the same questions asked different witnesses.

Article Seventy-eighth The testimony of witness court made by both sides, the court cross examination, verification, should be taken as a basis.

The witness in court testimony before court testimony to its contradiction, witness to give a reasonable explanation, and relevant evidence, shall be accepted the court hearing; can not make a reasonable explanation, but the court testimony related evidence, can adopt the pretrial testimony.

The notice of the people's court without justified reasons, the witness refused to testify in court or court refused, the authenticity of the testimony can not be confirmed, the testimony of witnesses shall not be taken as a basis.

Article seventy-ninth To identify the victim statement examination, the relevant provisions of this section are applicable.

 

3With that, the defendant's confession and defense review.

Whether the interrogation time, place, the identity of the person, number and interrogation, interrogation way in accordance with the law. Production, the interrogation record changes with the law; if the informed interrogation enjoy human rights.

The defendant's confession and exculpation of examination and verification of the provisions of the new "criminal procedure law":

Article eightieth The defendant's confession and exculpation shall mainly examine the following contents:

(a) interrogation time, place, the identity of the person, whether the interrogation interrogation mode number and in conformity with the relevant provisions of the law;

(two) production, the interrogation record whether changes in conformity with the relevant provisions of the law, whether or not a specific interrogation, indicate the time and place for the first time, questioned whether to inform the accused rights and legal provisions, whether the defendant confirm;

(three) the interrogation of juvenile defendants, whether to inform the legal agent or the relevant personnel to the scene, the legal representative or the relevant personnel are present;

(four) the defendant's confession not to torture to extract confessions and other illegal methods to collect the case;

(five) whether the defendant's statement consistent, there is no repeated and repeated reason; all confessions and excuse of the accused have been transferred along with the case;

(six) the defendant argued content is consistent with the case and common sense, there is no contradiction;

(seven) the defendant's confession and exculpation and co defendant's confession and exculpation and other evidence can confirm each other, there is no contradiction.

When necessary, can obtain interrogation recording, the defendant import health examination record, record the detention center, and combining audio and video recording, record, review of the content.

Article eighty-first The confession of the defendant is under any of the following circumstances, shall not be taken as a basis:

(a) the interrogation record without the defendant confirm;

(two) the interrogation deaf, dumb people, should provide a deaf, dumb and not provide gesture;

(three) the defendant interrogation does not know the local language, the text, an interpreter shall be provided and not provided.

Article eighty-second The interrogation record has the following defects, the correction or to make a reasonable explanation, can use; no correction or to make a reasonable explanation, not as a basis:

(a) the interrogation record fill in the interrogation interrogation time, people, record, legal representative is wrong or contradictory;

(two) the interrogation without signature;

(three) the first interrogation no records told stipulated interrogation people related rights and law.

Article eighty-third Review of confession and defence of the accused, should be based on both sides to provide all the evidence and the defendant's confession and exculpation of all.

As the defendant, but cannot explain the cause of the confession or excuse and evidence of the case of contradiction, and the pretrial confession and other evidence to support each other, can adopt the pretrial confession.

The defendant pre-trial confessions and excuse has repeatedly, but the trial confession, and other evidence and support each other, can adopt the courtroom confession; the defendant pre-trial confessions and excuse has repeatedly, the trial is not acknowledged, and no other evidence and pretrial confession confirmation, shall not be accepted the pretrial confession.

 

4, And verification of expert opinion review.

Expert opinions of examination and verification of the provisions of the new "criminal procedural law" interpretation:

Article eighty-fourth We should examine the following contents on expert opinion:

(a) whether the authentication institutions and identification with the statutory qualification;

(two) identification of human existence should be avoided;

(three) source, materials, storage, inspection made in compliance with the relevant provisions of the law, and the relevant records, extraction, seized items list, written content is consistent, samples is sufficient, reliable;

(four) form elements of expert opinion is whether complete, whether filed identification, identification of the reasons stated principal, identification, identification requirements, identification, identification method, identification of the date and other related content, whether the identification organization with dedicated seal judicial identification and signed by the appraiser, seal;

(five) the identification procedures are in compliance with the provisions of the relevant laws;

(six) whether the process and method of evaluation in accordance with the relevant professional standard;

(seven) the expert opinion is clear;

(eight) the expert opinion and factum probandum in have no association;

(nine) the expert opinion and investigation, inspection record and related photos or other evidence is contradictory;

(ten) the expert opinion is to inform the relevant personnel, the parties have no objection to the expert opinion.

Article eighty-fifth Expert opinion is under any of the following circumstances, shall not be taken as a basis:

(a) identification of institutions have no legal qualifications, or identification of issues beyond the business scope, technical conditions of the appraisal institutions;

(two) identification of the person does not have legal qualifications, do not have the relevant professional and technical or professional titles, or violates the provisions of the avoidance;

(three) the materials submitted, samples of unknown origin, or because of pollution do not have the condition of identification;

(four) identification of objects and materials submitted, samples are not consistent;

(five) identification procedures in violation of the provisions of the;

(six) the identification process and method is not in conformity with the relevant professional standard;

(seven) identification documents missing signature, stamp;

(eight) the expert opinion and cases to permit no related facts;

(nine) other circumstances in violation of the relevant provisions.

Article eighty-sixth After the people's court shall notify, identification of refusing to testify in court, expert opinion shall not be taken as a basis.

Identification of human due to irresistible causes or for other legitimate reasons can not appear in court, the people's court may decide to adjourn the trial or re identification.

No legitimate reason refuses to appear in court to testify the identification of people, the people's court shall notify the judicial administrative organ or the relevant department.

Article eighty-seventh In the case of special problems need to be identified, but not the legal institution of judicial authentication, or legal, judicial interpretation of the provisions of the test can be performed, can be assigned, employ specialized knowledge of inspection, the inspection report can be used as the reference of conviction and sentencing.

And that the review of the inspection report, the relevant provisions of this section are applicable.

The people's court notice, inspection people refusing to testify in court, the inspection report shall not be as the conviction and sentencing of reference

 

5With determination, an inquest or examination, identification, investigation, experiment record review.

The new criminal procedure law interpretation of the record of investigation, inspection should be focus on the review and confirmation:

(a) inspection, to check whether the law, making the records of compliance with the provisions of the relevant laws,, inspection, inspectors and the witness whether the signature or seal;

(two) record of investigation, check whether the records filed an inquest or examination, inspection, examination of the cause, time, location, presence of personnel, the range, the surrounding environment, site articles, personal, body position, characteristics of the situation, as well as the inquest, inspection, search process; written records and real or drawing, photo, video is consistent; site, articles, and whether the forgery traces, without damage; personal characteristics, the circumstances of the injury, physiological state without disguise or change;

(three) for inspection and examination, whether the reason again for inspection and examination, and an inquest or examination, and whether the contradiction.

Article eighty-ninth Record of investigation, inspection are not in accordance with the law, the relevant provisions of the situation, can not make a reasonable explanation or description, shall not be taken as a basis.

Article ninetieth To identify transcripts should focus on the review process, method of identification, and the production of the transcripts to identify whether or not in conformity with the relevant provisions.

The transcripts to identify any of the following circumstances, shall not be taken as a basis:

(a) identification is not in the investigation personnel under the auspices of the;

(two) to identify people meet to identify objects identification before;

(three) identify the activities of no individual;

(four) identify the object does not have mixed in with other objects with similar characteristics, quantity or for identifying the object does not comply with the provisions of the;

(five) identification to recognize obvious hints or clearly identified;

(six) in violation of the relevant provisions of other circumstances, can not determine the transcripts to identify the authenticity of the.

Article ninety-first Methods focus on the review process, experiments should be on the Investigative Experiment record, and making the records of compliance with the relevant provisions.

The experimental conditions and events of the conditions have obvious difference, or the presence of other circumstances scientific experimental conclusion of Investigative Experiment record, shall not be taken as a basis.

 

6The review found that, with the audio-visual materials, electronic data.

The new "criminal procedural law" interpretation of audio-visual materials, electronic data examination and verification provisions:

Article ninety-second We should examine the following contents of audio-visual material:

(a) are attached to the extraction process description, the legality of the source;

(two) is the original, there is no copy and copy number; is a copy, if not, obtain the original reason with copies of the production process and the original location of the show, producer, the original audio-visual data holders to sign or seal;

(three) the existence of threat, inducement parties in violation of the law, the relevant provisions of the state in the process of making;

(four) shall include producer, the identity of the holder, time, location, condition and method of making;

(five) content and the production process is true, there is no clip, increase, delete etc.;

(six) content and the facts of the case have no association.

There are questions about audio-visual material, should be identified.

Article ninety-third The e-mail, electronic data interchange, online chat, blog, micro blog, mobile phone short message, electronic signature, electronic data domain, we should examine the following contents:

(a) if the original storage medium transfer; in the original storage medium cannot be sealed, inconvenient movement or by the relevant departments, shall be kept in accordance with the law, the return process, extraction, copy the electronic data is carried out by more than two people, is enough to ensure the integrity of electronic data, there is no extraction, where the replication process and medium original store the text and signature;

(two) collection procedures, is in conformity with the laws and the relevant technical specifications; electronic data by investigation, inspection, search, investigation collection, whether it is accompanied by notes, list, and by the investigators, electronic data holders, signature of witness; no Holder Signature, whether to indicate the reasons; electronic data remote access to overseas or in different places the relevant circumstances, indicate whether; on electronic data specification, type, file format. Specify whether or not to know;

(three) electronic data content is true, there is no delete, modify, add situation;

(four) electronic data and facts have no association;

(five) electronic data associated with the facts of the case is a comprehensive collection of.

There are questions about electronic data, should be identified or tested.

Article ninety-fourth One of the following situations with audio-visual materials, electronic data, shall not be taken as a basis:

(a) after examination and unable to determine the authenticity of;

(two) production, the time, place, method of doubt, cannot provide the necessary certificate or to make a reasonable explanation.

Three, the illegal evidence exclusion problem.

1Clearly, the identification standard of illegal evidence and scope.

2The exclusion of illegal evidence, application program,

3The exclusion of evidence, application stage.

4Clearly, the illegal evidence exclusion startup procedure.

5The investigation of evidence, procedure legitimacy.

Illegal evidence exclusion rules to explain the new criminal procedural law:

Article ninety-fifth The use of corporal punishment or corporal punishment in disguise, or use other defendants in the physical or mental suffering from severe pain or suffering, forcing the defendant confession against their will, should be identified as the fifty-fourth criminal law provisions"Torture to extract confessions and other illegal methods".

The qualification of the fifty-fourth criminal procedure law stipulates the"May seriously affect judicial justice"We should consider the collection of material evidence, documentary evidence, in violation of the statutory procedures and the consequences of the severity of the situation.

Article ninety-sixth The parties concerned and the defenders and agents ad litem, apply to the people's court to exclude the illegal methods to collect evidence, should provide clues for alleged illegal evidence of personnel, time, location, methods, contents or materials.

Article ninety-seventh The people's court to the defendant and his counsel to a copy of the bill of prosecution, shall inform the application of the exclusion of illegal evidence, shall be made prior to the trial, but the court found that except for clues or materials.

Article ninety-eighth Before the hearing, the parties and the defenders and agents ad litem, apply to the people's court for the exclusion of illegal evidence, the people's court shall copy before the court timely application or application notes and clues, materials to the people's procuratorate.

Article ninety-ninth Before the hearing, the parties and their counsel, litigation agent for the exclusion of illegally obtained evidence, the people's court after examination, have doubts about the legitimacy of evidence collection shall be in accordance with the provisions of article second, paragraph 182nd of the criminal procedure law called before the court session, on the exclusion of illegal evidence to understand the situation, listen to the views of. The people's procuratorates can produce relevant evidence materials, explained to the legitimacy of evidence collection.

Article 100th During a court hearing, the parties and their counsel, litigation agent for application of the exclusion of illegal evidence, the court shall review. After review, there is doubt about the legitimacy of the evidence collection, should be investigated; no doubt, should explain the situation and reasons in court, to the court. The parties concerned and the defenders and agents ad litem, again for the same offence for the exclusion of illegal evidence, the court no longer review.

The collected on the legality of the evidence, according to the specific circumstances, can put forward to the exclusion of illegal evidence and its application in the defender, agent ad litem, can also be carried out in the court investigation before the end of.

During a court hearing, the parties and the defender, agent ad litem for exclusion of illegal evidence, the people's court after examination, does not meet the ninety-seventh interpretation of provisions, shall be examined in court investigation before the end, and decide whether the investigation evidence collection of legitimacy.

Article 101st The court decided to investigate the legality of evidence collection, by the public prosecutor, read by showing the interrogation record or other evidence, to play the interrogation process of recording, the court drew notice of investigation or other personnel to explain the situation and so on, prove the validity of evidence collection.

Indicating the material the prosecutor submitted forensics process legitimate, shall be approved by the relevant investigators signature, and stamped with official seal. Without the approval of relevant investigators signature, shall not be used as evidence. The above description of materials can not be alone as proof of lawful according to the evidence collection process.

Article 102nd After the trial, confirmed or cannot rule out the existence of fifty-fourth criminal law provisions to collect evidence by illegal methods, exclusion of relevant evidence shall be.

The people's court to investigate the legitimacy of evidence collection, shall inform the public prosecutor, the investigation conclusion of the parties and the defender, agent ad litem.

Article 103rd Any of the following circumstances, the people's Court of second instance shall examine the legality of evidence collection, and dealt with according to the relevant provisions of the criminal procedure law and the interpretation of the:

(a) the people's Court of first instance to exclude illegal evidence to the parties and the defenders and agents ad litem, the application has not been examined, and as the evidence according to the;

(two) the investigation conclusion of a people's Procuratorate or the defendant, private prosecutor and his legal representatives or the people's Court of first instance to the relevant evidence collection of legitimacy, protest, appeal;

(three) the parties concerned and the defenders and agents ad litem, found clues or materials in the first trial ended, apply to the people's court for the exclusion of illegal evidence.