How do lawyers exercise their right to investigate and collect evidence in pre-trial proceedings?

Lawyers' right to investigate and collect evidence is a basic litigation right of lawyers. It refers to the right of lawyers to collect, collect and verify evidence materials that can prove the innocence, light crime or reduction or exemption of criminal responsibility of criminal suspects and defendants in the process of undertaking criminal cases. The procedural significance of giving lawyers the right to investigate and collect evidence in the pre-trial stage lies in: first, it is conducive to enhancing the defense ability of criminal defense lawyers in court. The confrontation between the prosecution and the defense is essentially the confrontation and debate between the prosecutor and the lawyer. It is important for lawyers to have high defense skills and rich experience in court, but if lawyers can't master first-hand information, instead of collecting evidence materials beneficial to the defendant in person, they will only copy and use the evidence materials provided by the prosecution to appear in court, it will be difficult to win the lawsuit; Secondly, it is conducive to the balance of functions between the prosecution and the defense. In modern criminal proceedings, lawyers participate in litigation mainly to ensure the balance of litigation status between the prosecution and the defense. Lawyers stand on the defendant's side and show their strength against prosecutors in court. The evidence obtained by lawyers that has practical influence on the defendant's conviction and sentencing is an important weight to achieve the balance between prosecution and defense; Finally, it is conducive to enhancing the comprehensiveness and authenticity of the collected evidence. Although the law requires the procuratorial organ to collect both evidence favorable to the defendant and evidence unfavorable to the defendant, in more cases, the prosecutor is concerned about whether the accusation is successful, and it is easy to ignore the collection of evidence favorable to the defendant. At this time, lawyers need to collect these evidences through the process of exercising the right to investigate and collect evidence. At the same time, the investigation activities of defense lawyers can play a supervisory role in the collection of evidence by judicial organs. Avoid illegal evidence from entering court proceedings and being accepted as judgment evidence. The current Criminal Procedure Law, Provisions of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of National Security, the Ministry of Justice and the Legislative Affairs Commission of the National People's Congress Standing Committee (NPCSC) on Several Issues Concerning the Implementation of the Criminal Procedure Law (hereinafter referred to as "Several Provisions") and the Interpretation of the Supreme People's Court on Several Issues Concerning the Implementation (hereinafter referred to as "Interpretation of the Supreme Court") provide detailed provisions on the rights of defense lawyers to investigate and collect evidence. The first paragraph of Article 37 of the Criminal Procedure Law stipulates: "With the consent of witnesses or other relevant units and individuals, defense lawyers may collect materials related to this case from them, or apply to the people's procuratorate or people's court to collect and obtain evidence, or apply to the people's court to notify witnesses to testify in court." The second paragraph stipulates: "With the permission of the people's procuratorate or the people's court, and with the consent of the victim or his close relatives or witnesses provided by the victim, the defense lawyer may collect materials related to the case from them." Article 15 of Several Provisions further clarifies the provisions of the first paragraph: "If a defense lawyer applies to a people's procuratorate or a people's court to collect and obtain evidence, the people's procuratorate or the people's court shall collect and obtain evidence, and the lawyer shall not issue a decision on permission to investigate, so that the lawyer can collect and obtain evidence." The provisions of the interpretation of the Supreme Law are further concretized. Article 43 stipulates: "If a defense lawyer applies for collecting materials related to this case from the victim, his close relatives and witnesses provided by the victim, the people's court shall grant it and issue an investigation permit if it deems it necessary." Article 44 stipulates: "When a defense lawyer collects and retrieves materials related to this case from a witness or other relevant units or individuals, he applies to the people's court for collection and retrieval because the witness, relevant units or individuals do not agree. If the people's court deems it necessary, it shall agree. " Article 45 stipulates: "A defense lawyer directly applies to the people's court to collect and obtain evidence. If the people's court considers it inappropriate or impossible to collect and obtain evidence from witnesses or other relevant units or individuals, it shall agree. When the people's court collects and obtains evidence according to the application of the defense lawyer, the applicant may be present. " As can be seen from the above-mentioned legal provisions on lawyers' right to investigate and collect evidence, compared with the investigation right and investigation right of investigators, prosecutors and judges, lawyers' right to investigate and collect evidence has the following characteristics: 1, lawyers' right to investigate and collect evidence is not legally mandatory. Article 45 of China's Criminal Procedure Law stipulates: "People's courts, people's procuratorates and public security organs have the right to collect and obtain evidence from relevant units and individuals. The relevant units and individuals shall truthfully provide evidence ". Judging from the content of the provision that "evidence should be provided truthfully", it means that the investigation and evidence collection by public prosecutors and legal personnel is mandatory. There is no provision that lawyers have the right to compulsory evidence collection. Lawyers' investigation and evidence collection is only an activity with the nature of visiting, and it is not mandatory. 2. Lawyers' right to collect evidence in criminal investigation focuses on collecting evidence beneficial to the defendant. According to legal duties, lawyers should not seek and collect evidence against the defendant, which will easily confuse lawyers' defense duties and play the role of prosecutors. Lawyers should collect facts and reasons that can prove the innocence, light crime or reduction or exemption of criminal responsibility of criminal suspects and defendants from the perspective of safeguarding the legitimate rights and interests of the parties. 3. The evidence obtained by the lawyer's investigation must be verified by the court before it can be used as evidence. The evidence obtained by the lawyer's investigation cannot be directly used as the basis for the court to finalize the case. The validity of evidence can only be determined by questioning witnesses and cross-examination by both parties during court investigation. Lawyers' evidence investigation in the pre-trial stage includes consulting case files, meeting with defendants, investigation visits, and participating in court investigations, among which the effective exercise of investigation claims is a necessary means for lawyers to conduct evidence investigation. Criminal defense lawyers' evidence investigation is the basic skill of lawyers' business, and we must pay attention to the art and skills of evidence investigation: 1. With regard to how to consult the case files in the pre-trial procedure, the Criminal Procedure Law stipulates that "defense lawyers may consult, extract and copy the criminal facts and materials accused in this case from the date when the people's court accepts the case". This is the lawyer's first contact with the case file when he participates in criminal proceedings, and it is also the most important link for lawyers to fully understand the case and decide the direction of investigation. However, in accordance with the provisions of the law and relevant judicial interpretations, except for the case in which summary procedure is applied, "the people's procuratorate shall transfer all the files and evidence materials to the people's court", other public prosecution cases require that "the indictment has clear facts about the alleged crime, and is accompanied by a list of evidence, a list of witnesses and a copy or photo of the main evidence". Moreover, according to the judicial interpretation of the Supreme Procuratorate, the so-called "main evidence" refers to "conviction evidence". From this point of view, the file materials that defense lawyers have access to are also incomplete, especially those that have an important impact on the defendant's sentencing, and lawyers can hardly see them in the file. In view of the above situation, lawyers should mainly grasp the following points when consulting case files: ①. Review the indictment. Focus on what crime is charged, the motive, purpose, time, place, means, circumstances and consequences of the crime, the position and role of the defendant in the crime, the severity of the crime, whether there is a lighter, mitigated or exempted punishment, and whether there is criminal responsibility. Review whether the legal provisions cited in the indictment are appropriate, etc. (2), evidence list and witness list review. Lawyers can roughly understand the evidence system and types of the case by consulting the evidence catalogue and witness list, and check the relationship between the "main evidence" materials collected and the evidence materials that have not been collected to prove the facts of the case. Through the list of witnesses listed by the procuratorate, we can understand the role of other witnesses in proving the facts of this case, and through meeting with the defendant, we can understand how to carry out the investigation and collection of these evidences and witnesses' evidence beneficial to the defendant. (3), the main evidence copy and photo review. Through the review of the main evidence, we can know whether the evidence of the defendant's conviction in this case is sufficient and true, which evidence has doubts and contradictions, so as to classify and exclude it, which evidence needs to be investigated and verified immediately, which evidence needs to be met with the defendant and which evidence needs to be verified during the court investigation. 2. How to exercise the right to claim investigation evidence in pretrial procedure? Lawyers' investigation and evidence collection is not protected by state coercion, which objectively makes lawyers' investigation and evidence collection rights often unable to be truly implemented. Therefore, the Criminal Procedure Law and related judicial interpretations give a remedy, that is, the defense lawyer can request the court to issue a "decision on permission to investigate" when it is unable to obtain or encounters difficulties. If the relevant witnesses and relevant units disagree, they may also request the people's procuratorate or the people's court to collect and obtain evidence. Lawyers should pay attention to the following issues when exercising their right to claim investigation evidence: ① A written application must be submitted. The written application includes the information of the applicant, the defendant and the respondent and the reasons for requesting the investigation, with a detailed Survey Outline attached; (2) According to the relevant laws and regulations, when the people's court collects and investigates evidence according to the application of the defense lawyer, the defense lawyer can be present as the applicant, but it depends on the case and the witness's situation, and the consent of the court investigators must be obtained; (3) Evidence materials for court investigation A lawyer may request to keep a copy of the evidence and present it in court as defense evidence. Only after court investigation and cross-examination can it be used as evidence to determine the facts of the case; (4) If the witness and the victim refuse to accept the investigation, and the evidence requested by the lawyer may be rejected by the court, and the evidence is really beneficial to the defendant, the defense lawyer shall apply to the people's court to inform the witness (victim) to testify in court, so that the evidence can be adopted by the court as the evidence of the judgment by means of inquiry and cross-examination. 3. Regarding the investigation and confirmation of illegal evidence, the Criminal Procedure Law stipulates that judicial personnel must collect all kinds of evidence that can prove the guilt or innocence of criminal suspects and defendants and the seriousness of crimes in accordance with legal procedures. It is strictly forbidden to extort confessions by torture and collect evidence by threats, enticements, deception or other illegal methods. It can be seen that although the criminal law prohibits the use of illegal means to obtain evidence, it does not stipulate that evidence obtained by illegal means cannot be used as evidence. The problem is that in the process of collecting evidence, the prosecution is more likely or qualified to use illegal means to achieve the purpose of accusation and proof. Once these illegal evidences are presented in court, they will have a negative impact on the determination of the facts of the case, eventually leading to the abuse of power and affecting judicial justice. Therefore, it is of great significance for defense lawyers to collect relevant evidence to prove the existence of illegal evidence in the pre-trial stage and to pre-examine its legality. The author believes that the examination and confirmation of illegal evidence mainly starts from three aspects: ① the subject, such as the evidence collected by investigators, should be avoided; Evidence obtained by non-statutory investigators; Testimonies and expert conclusions provided by non-natural persons; Testimony provided by young people or mental patients who can't distinguish right from wrong and express correctly should be the key content of lawyer's examination and investigation. (2) Procedurally, only one investigator was present when the testimony transcript was taken, and the legal responsibility of testifying was not informed when the witness was asked. Investigators use torture to extract confessions and collect evidence through threats, seduction and deception. (3) Written confessions, testimonies and statements without the signatures of criminal suspects, defendants, witnesses, victims and interrogators; There is no appraisal conclusion sealed by the appraiser, and there is no inspection record signed and sealed by the producer or witness. The above evidence belongs to the category of illegal or illegal evidence. Once the defense lawyer can prove the illegality and illegality of the evidence, he shall promptly transfer the relevant materials to the people's court and request the court to exclude the illegally obtained evidence from the court investigation. In order to prove the fact that investigators illegally collect evidence, the people's court may be required to summon investigators, inspectors and appraisers to testify in court, raise objections to the collected evidence, and expose in court that the evidence is illegal in subject, procedure and form, so as to prevent these illegal evidence from being used as evidence for judgment by the court. Lawyers must seek truth from facts, be loyal to the facts, provide legal assistance to the parties on the basis of respecting the facts, and safeguard the legitimate rights and interests of the parties when conducting investigation activities in the pre-trial stage. Do not help criminal suspects and defendants to conceal, destroy or forge evidence or collude with each other, do not threaten or induce witnesses to change their testimony or commit perjury, and do not interfere with judicial procedures. This is the most fundamental and important requirement to be a lawyer, especially to be a good lawyer and protect yourself.