Date: 2008-1-12 22: 28: 00 font size: large, medium and small.
Although our country's laws clearly give lawyers the right to investigate and collect evidence, it is generally difficult for lawyers to investigate and collect evidence, and the process of obtaining evidence is often difficult because lawyers' right to investigate and collect evidence does not have judicial compulsion, but also has the nature of visiting. Therefore, it should be a matter of great concern to the legal profession.
With the improvement of the public's legal awareness, the improvement of the judicial environment, and the gradual integration of China's criminal justice system with international criminal justice norms and standards, lawyers have gradually gained universal recognition in criminal defense because of their outstanding comprehensive qualities such as professional knowledge and skills. As an important force, lawyers' rights are gradually guaranteed. Article 37 of China's Criminal Procedure Law and the relevant provisions of the judicial interpretation of "Supreme Court, the Supreme People's Procuratorate" give defense lawyers the right to investigate and collect evidence. However, in criminal judicial practice, it is difficult to guarantee the right of defense lawyers to investigate and collect evidence, and the relief procedures for lawyers to obtain evidence stipulated in the Criminal Procedure Law are often a mere formality, which leads to lawyers' failure to collect necessary evidence materials normally. What is even more exasperating is that the judicial organs often restrict lawyers' right to investigate and collect evidence, and sometimes apply legal errors to arrest and sentence lawyers for perjury, so that defense lawyers bear certain professional risks when exercising their right to defense. How to treat and solve this problem?
I. Basis and reasons for giving lawyers the right to investigate and collect evidence
Evidence is the soul and core of litigation. The presentation of defense claims and the final formation of judgments must be based on evidence collected and verified according to law. Police, prosecutors, judges and defense lawyers are all centered on litigation evidence.
Giving lawyers the right to investigate and collect evidence is first of all the need for lawyers to perform their statutory duties according to law. Prosecutors in procuratorial organs are representatives of social welfare, and they can rely on the judiciary to collect all kinds of evidence in the process of criminal proceedings. In contrast, defendants often appear weak and passive. Lawyers are defenders of the legitimate rights and interests of criminal suspects and defendants. The basis of effective defense depends not only on the lawyer's familiarity with the law and the case, but also on the lawyer's right to investigate and collect evidence. Therefore, giving lawyers the right to investigate and collect evidence is the premise for lawyers to perform their defense duties according to law.
Giving lawyers the right to investigate and collect evidence is the need to ensure that the judge finds the truth of the case. In the process of criminal proceedings, there is a triangular structure of prosecutor's accusation, defense lawyer's defense and judge's intermediate judgment. Only in the contest between the public prosecutor's attack and the defender's defense can the judge find out the real situation of the case and finally finalize the case. Lawyers' right to investigate and collect evidence makes up for the lack of evidence obtained by public security and procuratorial organs, which is the need to discover the true situation of the case and realize judicial justice.
Giving lawyers the right to investigate and collect evidence is also a necessary condition for lawyers to exercise their right to defense independently. Lawyers' right to investigate and collect evidence not only comes from the rights of defendants, but also is the need for lawyers to independently exercise their right to defense. Generally speaking, according to the law, the defendant has no obligation to prove innocence of the accusation of the public prosecution agency, but the defendant has the right to defend and collect favorable evidence. It can be inferred that the defense lawyer certainly enjoys the right to obtain evidence. Moreover, the defense lawyer is not the spokesman of the defendant and has an independent litigation status in criminal defense activities. Lawyers only protect the legitimate rights and interests of criminal suspects and defendants, and lawyers have the right to refuse the illegal and unreasonable demands of defendants.
Second, the lawyer's right of direct investigation and the right of claim for investigation evidence.
In criminal judicial proceedings, defendants and their defense lawyers exercise their right to defense in two ways: First, the evidence claims put forward by the public prosecution agency prove false, which makes the judge doubt the facts of the case on which the charges are based and the applicable legal basis, thus undermining the credibility of the charges made by the public prosecution agency. The second is to show the evidence in favor of the defendant to the court and actively prove the facts in favor of the defendant to the court, thus prompting the court to make a judgment in favor of the defendant. For example, if the defendant is accused of robbery by the public prosecution agency, the defendant can overturn the accusation of the public prosecution agency as long as he shows the evidence of "not being at the scene of the crime" to the court, and this evidence can be quite credible and admissible. However, whether this can be effectively implemented depends to a large extent on whether the right of the defendant and his lawyer to directly investigate and collect evidence and the right to ask for investigation and evidence can be fully and effectively guaranteed.
The so-called claim for investigation evidence refers to the right of the defendant and his lawyer to request the public prosecution agency and the court to bring their own evidence into the scope of court investigation. This right includes two aspects at the same time: first, the defendant has the right to obtain legal help enforced by the court by state compulsory means, so that evidence beneficial to him can be submitted to the court. Second, the evidence submitted by the court to the defendant is generally included in the scope of court investigation, and shall not be rejected unless the law clearly stipulates that the evidence has no legal effect or obviously belongs to the evidence with no legal effect.
Third, learn from foreign regulations on lawyers' right to investigate and collect evidence.
In the Anglo-American legal system, it is regarded as a basic right of criminal defendants to obtain evidence beneficial to them through compulsory procedures. Before the trial, the defendant may ask the court to summon his own witnesses to testify in court by compulsory means or ask the relevant personnel to hand over documentary evidence and physical evidence in favor of the defendant. In civil law countries, the right of defendants and their lawyers to claim investigation and evidence collection is also guaranteed by law. If a witness or expert witness refuses to testify in court for justified reasons, the court may impose a fine, detention or compulsory summons on him, and order him to bear the relevant expenses.
In countries with two legal systems, defendants, their defense lawyers and prosecutors enjoy equal opportunities and guarantees in investigation and evidence collection and participation in court trials.
Fourthly, the present situation and future development solutions of lawyers' right to investigate and collect evidence in China.
(1) Article 37 of China's 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; With the permission of the procuratorate or the court, the defender may investigate and collect evidence from the victim, his close relatives and witnesses provided by the victim. " Subsequently, the Law on Lawyers stipulated: "With the consent of witnesses or other units and individuals, lawyers may collect materials related to this case from them. Lawyers' investigation and evidence collection is based on the consent of the respondents and must also be approved by the procuratorate or the court, which seriously limits lawyers' right to investigate and collect evidence and makes it more difficult for lawyers to investigate and collect evidence. In the United States, defense lawyers actually have the right to investigate and collect evidence. Comparatively speaking, China's laws clearly restrict lawyers' right to investigate and collect evidence, which is not conducive to the real role of defense lawyers. In particular, it is obviously too restrictive to require lawyers to collect evidence from victims. For example, in a rape case, the relationship between the victim and the defendant is an important factor that determines the nature of the case. The victim may call adultery rape, so it is necessary for lawyers to know and confirm relevant information from the victim. If the victim is willing to talk to the lawyer, in this case, the lawyer is still required to obtain the consent of the procuratorate and the court, and the lawyer may not get the real information. It can be recognized that as the legal provisions are understood by more people, it will become more and more difficult for lawyers to investigate and collect evidence.
(2) China's laws emphasize lawyers' legal practice obligations and require defense lawyers to take facts as the basis and the law as the criterion. Otherwise, lawyers will often put themselves in a very unfavorable position and even be investigated for criminal responsibility.
Article 38 of the Criminal Procedure Law stipulates that "defense lawyers and other defenders shall not help criminal suspects or defendants to conceal, destroy, forge evidence or collude in confession, and shall not threaten or induce others to commit perjury or engage in other acts that hinder judicial proceedings. Anyone who violates the provisions of the preceding paragraph shall be investigated for criminal responsibility according to law. Article 306 of the Criminal Law correspondingly stipulates: "Defenders and agents ad litem who forge or destroy evidence in litigation, help the parties to destroy or forge evidence, threaten or induce witnesses to change their testimony of facts and commit perjury shall be sentenced to fixed-term imprisonment of not more than three years. "However, the above provisions have brought great practice risks to lawyers in judicial practice.
Since the implementation of the Criminal Procedure Law, cases of lawyers being detained, arrested and sentenced by public security and judicial organs have occurred from time to time. It is inevitable that a few lawyers, driven by self-interest, deliberately help criminal suspects destroy and falsify evidence. However, there are also many people who abuse the provisions of Article 38 of the Criminal Procedure Law and Article 306 of the Criminal Law. For example, lawyer Zhou Jianbin of Lingshan, Guangxi (? He was arrested on suspicion of obstructing testimony, and was later acquitted by two courts. Since the implementation of the Criminal Procedure Law, some lawyers in our province have been criminally investigated for allegedly obstructing testimony.
Therefore, we believe that the public security and judicial organs cannot regard the negligent behavior of defense lawyers as a help to criminal suspects, nor can they regard the lawyer's reasonable investigation of witnesses as a temptation and threat to witnesses, nor can they pursue the lawyer's responsibility for obstructing testimony just because the witness changed his testimony. In practice, the personnel of public security and judicial organs have expanded the interpretation of the provisions of Article 38 of the Criminal Procedure Law and Article 306 of the Criminal Law, and the ugly phenomenon of retaliation against lawyers should be eradicated.
At present, the following problems should be paid attention to in the implementation of the criminal procedure law. 1. Encourage units to provide relevant evidence to lawyers. At present, when lawyers inquire about some information and collect relevant evidence from public security, taxation, industry and commerce departments, they are often rejected by the above-mentioned national management and functional departments. We should actively cooperate with lawyers in the investigation from the perspective of safeguarding the correct implementation of national laws. Procuratorates and courts should adopt a more tolerant attitude towards lawyers collecting evidence from victims. If the victim is willing to provide it, the procuratorial organ shall agree to allow it. 3. It is necessary to effectively protect the right of lawyers to apply to the courts and procuratorates for investigation and evidence collection. Because lawyers' ability and means to collect evidence are very limited, sometimes procuratorates and courts will not inform lawyers even if they collect evidence according to their applications. Therefore, the Supreme People's Procuratorate and the Supreme Court should, on the basis of summing up practical experience, make specific and clear provisions on the evidence to be collected in specific execution.
To sum up, sometimes I will learn from some excellent experiences of foreign legal systems and combine the actual situation in China to independently optimize the specific provisions of lawyers' right to investigate and collect evidence in other legal systems.