From September 27th to 28th, 2003, a Sino-British seminar on Defenders' Rights Protection and Evidence Discovery was held in Beijing, co-sponsored by the Research Center of Litigation System and Judicial Reform of Renmin University of China and the Cultural and Education Section of the British Embassy. Legal experts from Britain, Mr. Robert seabrook (Robert seabrook's royal lawyer), Mr. Bruce Holder (Bruce Holder's royal lawyer) and Mr. robert brown (robert brown's lawyer), demonstrated the rights and interests of criminal suspects and defense lawyers before the trial of criminal cases through the demonstration of specific case proceedings. Nearly 70 well-known experts and professors from China, including the NPC Law Committee, the National Lawyers Association, the court and procuratorial system, lawyers and criminal law research fields, actively offered suggestions on how to strengthen the protection of China's defense lawyers' rights in view of the advanced British defense lawyer system and the limitations of China lawyers' rights, roles and functions in criminal proceedings.
At the meeting, Chen Weidong, a professor at the Law School of Renmin University of China, and his doctoral students and young teachers presented the Report on Defenders' Litigation Rights Protection and Evidence Discovery (hereinafter referred to as the Report) to the participants. The Report not only provided detailed data for the participants, but also examined and analyzed the crux of the current "difficult going" of defense lawyers in China, and put forward constructive suggestions from the aspects of theory, practice and reality.
In order to give readers a direct context, the author will edit the speeches of some participants into words. I hope that the technical excerpts will not be inappropriate for lawyers who care about their own development and readers who care about their own destiny.
Mr Robert seabrook, Mr Bruce Holder, Mr robert brown:
1. Independent system of detaining police officers
Background case fragment 1: A woman called the police and said that two men had just tried to steal her watch in a street. The police immediately rushed to the scene of the crime and arrested two young people who matched the perpetrator's situation. The police took the suspect to the police station and gave it to the detained police officer.
In Britain, the arresting police should immediately hand over the suspect to the police officer in custody after arresting him at the first scene. The detained police operate independently and are not interfered by other police, but they are not allowed to participate in the investigation activities of collecting evidence from criminal suspects. He also needs to ensure that the suspect reads and understands the Guidelines for the Implementation of the Police and Criminal Evidence Law, which regulates police behavior, so as to fully protect his litigation rights and prevent the abuse of police power. If the detainee is a minor, he should inform his guardian or parents of his place of detention. If his parents are not present, he can't be questioned. If the detainee is ill, the detained police must ensure that he gets medical help. The illegal behavior of the police will lead to the prosecution's evidence being excluded as illegal evidence in court. The most important authority of a detained policeman is that he can decide whether to bail the suspect.
2. The suspect has the right to remain silent.
Background case fragment 2: The police informed the two suspects of their legal rights such as the right to silence.
At this stage, the suspect has the right to remain silent, but it should be noted that subtle changes have taken place in Britain in recent years. In the past, it was forbidden to infer suspects because of silence or refusal to answer. 1994 after the reform of the right to silence, the wording of informing the suspect of the right to silence was changed to: "If you don't answer the questions put to you and then use them as the basis for defending in court, your defense will be adversely affected."
3. Efficient lawyer duty system
Background case fragment 3: The suspect gets in touch with the lawyer on duty, and the lawyer on duty provides them with preliminary legal advice by telephone.
After the detainee arrives at the police station, the police officer in custody must ask him if he wants to contact a lawyer. If necessary, the lawyer on duty can be provided with 24-hour free service, and whether it is necessary must be recorded in the detention record. The lawyer on duty must arrive at the scene within 45 minutes after receiving the call. Of course, suspects also have the right to entrust their own lawyers to get in touch.
The lawyer on duty has received strict and continuous vocational training to ensure that the lawyer on duty understands the new development of the law, that the lawyer has good professional ethics, and that the police do not abuse their power. Any victim or bar association can complain to the disciplinary court about the misconduct of lawyers, such as criminal acts, dereliction of duty and illegal practice. The members of the disciplinary court come from on-the-job lawyers with no less than 65,438+00 years of practice, and the president of the disciplinary court must be a practicing lawyer.
At this stage, lawyers have the right to meet their clients at any time, and there is no time limit. Its role is to protect the legal rights of suspects and help them claim these legal rights. A lawyer has the right to communicate with his client in secret, and shall not divulge his client's secrets. The lawyer's practice privilege is subordinate to the client, and the legal advice he provides is private.
Lawyers have the right to be present at the trial. In order to consult a lawyer for further legal advice, the suspect has the right to ask for a suspension of the trial. Lawyers have the right to express their opinions on the identification and identification procedures decided by the police because of the needs of the case and the decision to prosecute the defendant.
In Britain, some people think that it can prevent the police from abusing their power and make the defense get more information, but it also interferes with the burden of proof of the prosecution to a great extent, so it is necessary to modify the current lawyer system.
4. The system of discovery of evidence runs through the whole process of litigation.
Background case fragment 4: In the investigation stage, the lawyer learned all the evidence held by the prosecution through evidence discovery.
Before the interrogation, the lawyer on duty can talk with the police handling the case and get the general situation of the case from the police, including the evidence held by the police. Although there is no legal right to require the defense to disclose evidence, in practice, the police often disclose evidence to defense lawyers. If such evidence discovery is not made, the prosecution will be forbidden to ask unfavorable inferences from the silence of the defendant in the court trial.
After deciding to prosecute the suspect, the evidence that the prosecutor intends to use in the trial must be disclosed to the defense. The advantage is that by disclosing evidence to the defense, it is possible to solve the case as soon as possible and fairly, and it is also possible to urge the defendant to plead guilty to appropriate charges. After the prosecution produces the evidence, the defense must also provide a written defense summary and produce relevant evidence such as the defendant's absence from the crime scene. After that, the prosecutor will present the evidence that may be beneficial to the defense for the second time. If the prosecution fails to fulfill its disclosure obligation according to law, the judge can issue specific instructions to force the prosecutor to disclose relevant evidence.
5. Unrestricted lawyer's right to investigate
Background case fragment 5: The lawyer intends to find witnesses to collect evidence of the defendant's alibi. The police wanted to contact the witness first, and threatened the lawyer that if the lawyer contacted the witness first, the police would arrest the lawyer for obstructing police work. The dispute between the police and the lawyer is submitted to the court, and the court decides that the witness does not belong to the prosecution and the defense, and the lawyer has the right to investigate the defense.
6. Lawyers have the right to know all the file materials.
Background case fragment 6: Before the trial begins, the lawyer knows the police statement of the case and relevant expert conclusions and other evidence.
Wang Shangxin (Deputy Director of Criminal Law Office of the National People's Congress Standing Committee (NPCSC) Law Committee): 1996 When the Criminal Procedure Law was revised, the idea was to give lawyers greater rights and advance the right to read papers to the stage of case review and prosecution. However, considering that the examination and prosecution stage may be returned to supplementary investigation, the expert conclusion and litigation documents may be changed, and allowing lawyers to read papers may be unfavorable to investigation, so lawyers cannot read papers during the examination and prosecution stage. Admittedly, because the criminal procedure law has changed the way of trial, there are many problems that need further study.
Liyan Luo (Liaoning Sunshine Law Firm): Regarding the right to meet a lawyer, generally, only one lawyer meeting is arranged during the investigation stage. If the suspect changes his lawyer, no new lawyer will be arranged to meet him. Before the meeting, the lawyer was explicitly warned not to know the case from the criminal suspect, and some case-handling organs even asked the lawyer to agree to record the meeting, otherwise it would not be arranged; Meeting at the stage of examination and prosecution, accompanied by the procuratorate; During the trial, the detention center arranged a separate interview room for lawyers, but the interview room was equipped with monitoring equipment and there were correctional officers present. Therefore, it is necessary for us to study and discuss how to improve the lawyer's right to meet. As for the extent to which lawyers should have the right to investigate and collect evidence, there is still no relevant provision in our laws and regulations until now.
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Suggestions on improving the lawyer's right to meet in the report: 1. Improve relevant legislation and judicial interpretation with reference to the prevailing standards of relevant international conventions. At present, many international treaties that China has acceded to or signed have provisions on lawyers' right to meet, such as the International Covenant on Civil and Political Rights and the Basic Principles on the Role of Lawyers, and the relevant provisions have become the common standards of lawyers' right to meet. Therefore, legislation should make uniform provisions on specific interview procedures, and law enforcement agencies should not interpret the relevant provisions of the Criminal Procedure Law at will, but should follow the principle of "no prohibition without express provisions in the law" and abandon the behavior of "all interviews must be approved".
2. Reform the subordinate system of detention centers. In our investigation, we found that the resistance encountered by lawyers at present is not from the detention center, but from the investigation organ. Due to the management of public security organs, most detention centers cooperate with investigation organs, with limited restrictions. Therefore, it is necessary to consider separating the detention center from the public security organ system.
3. Improve the relief mechanism of the right to meet. "Without relief, there is no right", and legislation should give lawyers the right to apply for relief from a neutral judicial organ when their right to meet is unreasonably restricted. In addition, we should also set corresponding legal responsibilities for illegally restricting lawyers' right to meet, and establish a disciplinary mechanism in which individual administrative responsibilities and procedural sanctions coexist.
Li Ming (Fujian Tianheng United Law Firm): To improve criminal defense system in China, we can start from the following aspects: First, we should be in line with international standards, and make clear that lawyers have the right to meet their clients at any time without illegal interference, so that laws can be followed and law enforcement must be strict. Second, amend the contradictory provisions in the Criminal Procedure Law to make it rigorous and unified. For example, Articles 37 and 48 of the Criminal Procedure Law stipulate that the former stipulates that the defense lawyer can be exempted from the obligation to testify, and the investigation and evidence collection can only be carried out with his consent, while the latter stipulates that "anyone who knows the circumstances of the case has the obligation to testify". In short, it should be made clear that defense lawyers and public prosecution agencies in relatively equal have the right to investigate and collect evidence. Third, establish a hearing system; Amend Article 306 of the Criminal Law so that lawyers cannot be listed as the subject of crime alone; It is forbidden for public prosecution agencies to examine the evidence obtained by defense lawyers during the trial stage.
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Suggestions on improving lawyers' right to obtain evidence in criminal investigation in the report: The results of questionnaire survey show that 64% of the respondents think that the legal provisions are unreasonable, and 3 1% think it is due to the difficulties of law enforcement departments. To ensure the realization of lawyers' right to investigate and collect evidence, we should start from the following aspects: 1. Accurately locate the right of investigation and evidence collection of defense lawyers. The lawyer's right to investigate and collect evidence not only comes from the defendant's own inherent basic right-the right to defense. At the same time, lawyers, as a profession, represent social forces from the people and are divorced from the state power system. Therefore, lawyers' litigation rights are fundamentally based on social power. It is this source of rights that determines that lawyers have independent litigation status and litigation rights independent of judges, prosecutors and defendants. Understanding this position is helpful to correctly understand the inherent rationality of lawyers' right to investigate and collect evidence.
2. Update the judicial concept and eliminate the privileged thoughts of case handlers. Measures must be taken to improve the quality of judicial personnel, eliminate the privileged thinking of case handlers, rectify the judicial team, and investigate and deal with serious violations of lawyers' rights such as abuse of power, restriction or obstruction of lawyers' right to investigate and collect evidence.
3. Give lawyers full rights to investigate and collect evidence, and improve relevant supporting systems.
(1) Improve the right of existing defense lawyers to obtain evidence by themselves and apply for evidence. It should be stipulated that defense lawyers have the right to collect materials related to this case from relevant units and individuals. If the relevant units and individuals cannot provide it, the defense lawyer has the right to apply to the people's court for collecting evidence. If the people's court disagrees with the application, it shall have specific reasons and give the lawyer the right of reconsideration.
(2) Cancel the provisions of Article 306 of the Criminal Law, and eliminate the defense lawyers' concerns about the high risk of obtaining evidence. The content of Article 306 of the Criminal Law has actually been incorporated into Article 307 of the Criminal Law. The meanings of "threat" and "inducement" are broad and inaccurate, leaving a large space for judicial personnel to investigate the criminal responsibility of lawyers at will. Lawyers' violations of discipline and law shall be handled by the Lawyers Association; If the case constitutes a crime, it may be investigated in accordance with the provisions of Article 307 of the Criminal Law.
(3) Establishment and implementation of other related supporting systems. In judicial practice, the reluctance of witnesses to testify is also one of the main obstacles for defense lawyers to investigate and collect evidence. Therefore, we should improve and perfect the witness testimony system, strengthen the protection of personal rights and property rights of witnesses from legislation, and establish the provisions of economic compensation and refusal to testify. In addition, we can consider establishing a system of evidence preservation and notarization of key evidence to ensure the timely fixation and collection of evidence and the legitimacy, authenticity and effectiveness of evidence collection.
Yu Xin (Shandong Kangqiao Law Firm): Before the trial, the defender can only see the copy of the indictment, the evidence list and the "main evidence" considered by the procuratorate, which makes the defensive trial activities lack the support of the defense's fully prepared materials, and the proof and cross-examination can not achieve practical results. In view of the defects of legal provisions and the disadvantages in judicial practice, I think we should improve the evidence discovery system in China through legislation. Make clear provisions on the principle, scope, time and place of evidence discovery.
In order to achieve the expected effect of the trial mode of combining prosecution and defense, and make the strength of both parties basically balanced, it is suggested to legislate to stipulate the rules, methods and responsibilities of lawyers for improper evidence collection. After formulating the standards for lawyers to obtain evidence, all kinds of restrictions on lawyers' investigation and evidence collection will be lifted, and witnesses and other units and individuals will be forced to provide evidence to lawyers. Before collecting evidence from the victim, we should not need the permission of the procuratorate or the court, but should stipulate that lawyers should strictly follow the rules of evidence collection, otherwise the investigated person has the right to refuse to testify. If it is really difficult for a defense lawyer to investigate and collect evidence, he may apply to the procuratorate or the court to assist the lawyer in collecting evidence according to the norms.
With regard to the question of witnesses appearing in court to testify, because the law and judicial interpretation clearly stipulate that witnesses should and must appear in court to testify, the trial activities of witnesses not appearing in court to testify are illegal in procedure. Therefore, the people's court must faithfully implement the system of witnesses appearing in court to testify. At the same time, it is suggested that the National People's Congress Standing Committee (NPCSC) should enact the Evidence Law to regulate the rights and obligations of witnesses.
Because the judge did not pay attention to the trial transcript, the whole trial transcript was incomplete, and even some particularly important contents could not be recorded, which seriously affected the quality of the trial and directly affected the trial of cases in the future (especially the written trial is still widely used in the second instance of criminal cases) and the discussion and determination of cases by the judicial Committee.
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Research on discovery of evidence in the report: (1) Whether discovery of evidence should be one-way or two-way. The discovery rules of Yantai Procuratorate clearly stipulate the principle of reciprocity. That is, not only the procuratorial organs need to show evidence to the defense, but also the defense must show the corresponding evidence to the prosecution, as well as evidence that has not been shown or used in court, and the defense is no exception. We believe that the modern evidence discovery system has changed from simply paying attention to judicial justice to paying equal attention to fairness and efficiency. In practice, it often happens that the defender suddenly presents the evidence of the defendant's innocence during the trial, which makes the prosecution unprepared and has to ask for a recess, which affects the efficiency of the proceedings. Therefore, it should be stipulated that both the prosecution and the defense have the obligation to show the corresponding evidence to each other. Of course, the scope of each disclosure can be different.
(2) How to determine the scope of evidence discovery. The Rules for the Discovery of Evidence of Yantai City Procuratorate stipulates that the prosecution should discover the evidence of the indictment: the evidence presented in court and the evidence not presented in court, the list of witnesses and experts who appeared in court, the evidence of statutory sentencing circumstances and discretionary sentencing circumstances, and prove the legality of the above evidence and other evidence that should be discovered. The defense shall make a record of the meeting with the criminal suspect and defendant; The criminal suspect or defendant is not present at the scene, has no criminal responsibility, has not reached the age of criminal responsibility, and has no evidence to prove the constitutive requirements of the alleged crime; Evidence that can overturn the legal presumption; Evidence of statutory and discretionary circumstances of a lighter, mitigated or exempted punishment; List of witnesses and appraisers appearing in court; Prove the legality of the above evidence and other evidence that should be made public. At the same time, they also stipulated exceptions such as exemption of national and public interests and keeping professional secrets. In addition, Yantai City Procuratorate also requires lawyers to submit their opinions and opinions on the evidence and related cases to the procuratorate after discovering the evidence, which is similar to asking for informing the defense opinions in advance. As you can see, the scope of evidence discovery stipulated by them is very extensive, but several aspects have attracted our attention:
First of all, the scope of evidence that the prosecution and the defense should disclose in the court rules overlaps. For example, court evidence and non-court evidence have the same relationship with the latter evidence. "Evidence that does not have the constitutive elements of the alleged crime" includes evidence that is "absent from the scene, incapable of criminal responsibility and under the age of criminal responsibility".
Secondly, it is unreasonable in law and sense that defense lawyers must also make public transcripts when meeting with criminal suspects and defendants. The interview record is the communication record between the defense lawyer and the client, which may contain secrets between the lawyer and the client, especially the contents that may be unfavorable to the criminal suspect and the defendant. No matter from the professional requirements or legal provisions, the defense is not obliged to disclose the evidence against the prosecution, so it is obviously inappropriate to include the interview records of defense lawyers.
Thirdly, whether the witness testimony obtained by the prosecution and the defense before the trial should be made public, or whether it should be explicitly excluded from the public scope. During the investigation, prosecutors and lawyers unanimously expressed their concern that after the evidence was disclosed, the witness's testimony might be changed by the other party in some way. In fact, in some countries, the law clearly stipulates that statements made by witnesses to the prosecution or the defense are not within the scope of disclosure to the other party. On the one hand, it can prevent the witness from being changed by the other party in some way before the trial, on the other hand, it is also the requirement of the principle of direct words in the trial. We think China can also learn from this practice. The discovery of evidence only needs to show the witness list and address, and both parties can ask the witness in advance. But the witness's statement does not belong to the scope of discovery to the other party, nor can it be submitted as evidence. It can only be used to prepare the indictment and defense, and finally the case has to be decided by the witness appearing in court to testify. In this way, the problem of worrying that witnesses will be lured and coerced to change their testimony after the evidence is revealed may not be too prominent.
Finally, after the evidence is discovered, whether the defense lawyer should submit his views and opinions on the evidence and the case to the procuratorate before the trial. The reason for Yantai's practice is that the public prosecution agency has provided the defense with evidence materials and an indictment containing public prosecution opinions. As a kind of reciprocity, the defense should also provide its own defense opinions, reasons and reasons to the prosecution before the trial. This provision can be compared with Japan's pre-trial arrangements for the focus of disputes between the prosecution and the defense, the exchange of opinions in the pre-trial defense guidance procedure in Britain, and the defendant's submission of defense before court in civil proceedings. We think it has certain positive significance, even if it can't belong to evidence discovery, it can also be used as a link in the pretrial preparation procedure.
(3) Whether it is necessary to specify the form and time of evidence discovery. Investigating the historical development of evidence discovery system, we can find that the essence of this system is actually the disclosure of evidence information by both the prosecution and the defense. Based on this, Japan, the United States and some other countries have no strict forms for the discovery of evidence, and there are no specific restrictions on the number of discoveries. It can be seen that as long as both parties can understand each other's information, they do not need to be too rigid in the form of discovery, do not need to design it in the form of trial or hearing, and do not need to stipulate whether it is the first discovery or the second discovery.
When we understand the nature and form of discovery, we can easily solve the problems of discovery, time and place. Under normal circumstances, when lawyers go to the procuratorate to consult and copy evidence materials, they only need to disclose their own relevant information to the procuratorate. If necessary, both parties can continue to disclose. As for how to solve the dispute between the two sides over the discovery of evidence, we think it can be submitted to the court for ruling according to law.
(4) Handling of undisclosed evidence. The discovery rules of Yantai Procuratorate claim that anything that has not been discovered shall not be shown and used in court. We believe that the choice of evidence in criminal trial must be cautious, and simply stipulating that it is not allowed to be presented and used in court may not bring positive results. Drawing lessons from the practices of other countries and regions, when establishing the evidence discovery system in China, the following relief and sanctions can be stipulated: the court can order the defaulting party to continue to disclose evidence to the other party; The court may approve an application for postponement of the trial filed by one party based on the violation of the notification obligation by the other party; If the violation of the obligation of discovery leads to the postponement of litigation, the court may give economic punishment or require the other party to give economic compensation; Finally, in some special cases, the court may prohibit the production and use of undisclosed evidence in court.
Zhang Jinlong (Zhang Jinlong Law Firm, Hebei Province): Although defense lawyers enjoy a series of rights, there is almost no provision on defense lawyers' right to know in legislation. For example, whether to inform the lawyer to extend the detention period, whether to inform the lawyer to end the investigation, transfer the prosecution, return the supplementary investigation, file a lawsuit with the court and which court to file a lawsuit with.
1. In the investigation stage, the investigation organ shall perform the following notification obligations to the defense lawyer. First, timely convey the criminal suspect's intention to hire a lawyer. B. Respond to complaints and allegations made by defense lawyers in a timely manner. Lawyers should be informed in writing of the reasons for extending the detention period. The lawyer shall be notified in writing when the investigation is concluded, the case is transferred for prosecution or the case is revoked.
2. In the stage of examination and prosecution, the procuratorial organ shall perform the following informing obligations to the defense lawyers. First, the written notice of returning to the public security organ for supplementary investigation shall be served on the lawyer. B, should inform the lawyer of public prosecution, non prosecution or withdrawal.
Li Ming (Fujian Tianheng United Law Firm): The road to criminal defense is not easy, but we can't help it, because how many detained criminal suspects and defendants are waiting for lawyers to open the door to criminal defense for them, bringing a beam of legal sunshine. Since the birth of the lawyer system, it has become the sacred duty of lawyers to fight for the rights of clients. Mr. Lu Xun once said: "There is no road on the ground. If there are more people walking, it will become a road. " I believe that as long as generations of lawyers can pay more attention to and actively participate in criminal defense in order to achieve justice, the road to criminal defense will be wider and smoother!
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About the time for defense lawyers to participate in litigation. In Britain, lawyers should master the defendant's materials at the first time and have enough time to prepare and study them. The preliminary investigation stage is the most critical stage. At this stage, the suspect may be tortured to extract a confession, which may lead to the final judgment of the court. Therefore, at this stage, suspects should receive comprehensive legal assistance from lawyers, not inferior assistance.
Regarding lawyers' litigation rights, in Britain, any questioning lawyer of the police will be present all the time, and the communication between lawyers and criminal suspects is confidential. The client does not need to worry that the lawyer will reveal his story, which means that the prosecutor has no right to know the content of the communication between the lawyer and the client.
On the role of defense lawyers. In Britain, defense lawyers and prosecution lawyers are equal, that is, in criminal proceedings, people, especially judges, support and respect them equally.
In Britain, defense lawyers are required to never betray the interests and trust of clients, and people expect defense lawyers to argue fiercely for the interests of defendants. However, all the actions of lawyers must be carried out under legal rules and industry norms.
Author: Hua Peng
Source: China Lawyers Network.