According to the provisions of Article 32 of the Criminal Procedure Law of People's Republic of China (PRC), we are entrusted by Huang, the defendant suspected of obstructing testimony, and appointed by Jiahe Law Firm and Law Firm to act as the defender of Huang, the defendant in the first instance of this case, and defend Huang according to law. After accepting the entrustment, we made a detailed investigation and understanding to the relevant units and individuals, met with the defendant Huang, and carefully reviewed the materials of this case. After the court investigation just now, we had a more comprehensive and objective understanding of this case and its nature. Generally speaking, we believe that the prosecution accused the defendant Huang of the crime of obstruction of testimony, which is an error in ascertaining the facts, improper application of the law, insufficient evidence and violation of legal procedures. Defendant Huang did not constitute a crime according to law and should be acquitted. The specific reasons and facts are analyzed as follows:
1. The defendant Huang's behavior does not meet the constitution of the crime of obstructing testimony, and does not constitute a crime according to law, so he should be acquitted.
Article 305 of the Criminal Law of People's Republic of China (PRC) stipulates that in criminal proceedings, witnesses, appraisers, recorders and translators who intentionally make false proofs, appraisers, records and translations of important information of a case with the intention of framing others or concealing criminal evidence shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; If the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. Article 306 stipulates that in criminal proceedings, defenders and agents ad litem who destroy or falsify evidence, help the parties to destroy or falsify evidence, threaten or induce witnesses to change their testimony about facts or commit perjury shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; If the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. Witness testimony or other evidence provided, presented or quoted by defenders or agents ad litem is inaccurate, not intentionally forged, and does not belong to forged evidence. The above-mentioned legal provisions determine the criminal constitution of perjury and the crime of defenders obstructing testimony. The defendant Huang's behavior in this case does not meet the criminal constitution of the crime of obstructing testimony, and does not constitute a crime according to law, so he should be acquitted.
(1) From the main point of view, the defendant Huang does not belong to the subject of perjury as stipulated in Article 305 of the Criminal Law, and the accusation of the public prosecution agency is inappropriately and wrongly applied.
The subject of perjury stipulated in Article 305 of the Criminal Law is clearly defined as four kinds of people, namely, witnesses, experts, recorders and translators. That is, only these four kinds of people will constitute perjury, and other subjects involved in criminal proceedings do not constitute this crime. In this case, the public prosecution agency accused the defendant Huang of his behavior, which has violated the provisions of Article 305 of the Criminal Law and constituted perjury. However, in the case of Mo Tiejun's alleged theft, Huang's litigation status is Mo Tiejun's defender. Therefore, if it constitutes a crime, it only constitutes the crime of obstruction of testimony by defenders as stipulated in Article 306 of the Criminal Law, and it cannot constitute the crime of perjury as stipulated in Article 305 of the Criminal Law. Moreover, as far as the law is concerned, Articles 305 and 306 of the Criminal Law stipulate the crime of perjury and the crime of defenders obstructing witnesses, and define their respective criminal subjects, that is, defenders can only constitute the crime of defenders obstructing witnesses in criminal proceedings, otherwise they are innocent and cannot constitute other crimes. Those who participate in falsifying evidence constitute the crime of defenders obstructing testimony, and those who do not participate in falsifying evidence do not constitute a crime; The witness concerned should bear the legal responsibility for perjury. For lawyers, it is a problem of inaccurate evidence, not perjury. Therefore, from the legal point of view, in criminal proceedings, there is no * * * joint crime between the defender and the witness, and * * * jointly constitutes perjury. Therefore, the accusation of the procuratorate is improper and the application of the law is wrong.
(2) Subjectively speaking, the defendant Huang did not have the subjective intention of obstructing testimony, and the accusation of the public prosecution agency was wrong and wrong.
According to the law, the subjective elements of the crime of obstruction of testimony by defenders stipulated in Article 306 of the Criminal Law or perjury stipulated in Article 305 of the Criminal Law are direct subjective intent, and there is no negligent crime. That is to say, if the witness testimony or other evidence provided, presented or quoted by the defender or agent ad litem is untrue, it does not belong to intentional forgery, does not belong to forged evidence, does not constitute a crime, and is not punished as a crime. In this case, the defendant Huang had no direct subjective intention to interfere with the testimony. Mainly reflected in two aspects:
1. From the cognitive factors, the defendant Huang did not knowingly commit an act.
Defendant Huang can't recognize the fact that Mo Tiejun and related witnesses worked in Guangdong from August 2006 to June+February 5438, and the parties didn't provide lawyers with travel expenses to Guangdong for investigation and verification. He just listened to Mo Tiejun and Mo Ping telling relevant witnesses that Mo Tiejun and relevant witnesses worked in Guangdong from August 2006 to June+February 5438. In fact, there is a basic fact that Mo Tiejun and related witnesses have gone to Guangdong to work. It's just that the time is different. Huang believed this fact without going to the field investigation, and on the basis of believing this fact, he asked the relevant witnesses to testify and testify in court. It's not that Mo Tiejun and related witnesses forged evidence without working in Guangdong from August 2006 to June+February 5438. At present, only the testimony of people who have an interest in the procuratorial organ denying legal responsibility can not prove that the defendant Huang Zhiming is false, but still deliberately asks the witness to falsify. Moreover, judging from the materials in this case, there is no evidence that Huang knowingly is false, except for the statements made by the stakeholders of Mo Tiejun and Mo Ping's father and son, and he still deliberately asks the witness to falsify.
2. From the perspective of will, the defendant Huang does not have the motive and realistic possibility of fraud.
In this case, Huang and Mo level and Mo Tiejun's family are not related; Moreover, the Mo family's life is difficult. The law firm only charged 1000 yuan in the first instance of this case, and the lawyer's fee for the second instance is currently unable to pay. The two sides have no agreement on future economic benefits, so it is unprofitable. This case is just a very general criminal case, not a major case. Even if the lawyer defends successfully, he cannot make a name for himself. This is called anonymity. Since there are no relatives and there is no reason, it is unreasonable for lawyers to take the risk of letting witnesses cheat. Moreover, in the second trial, under the premise of not communicating with witnesses, Huang also informed witnesses to appear in court, so that witnesses could testify in court better. If he knew it was a false certificate, the witness wouldn't have to appear in court in person and take the risk. Therefore, Huang's motive and realistic possibility of perjury does not exist.
(3) Objectively, the defendant Huang didn't commit any criminal act of obstructing testimony.
1. The public prosecution agency accused the defendants Huang and Mo Ping of conspiracy to defraud, and the crimes were intentionally the same, and the facts were found wrong.
In this case, the public prosecutor accused the defendant Huang and Mo of conspiring to cheat, but there was no evidence that they discussed the time, place and way of cheating. Moreover, according to the facts of the case, Mo Tiejun proposed that he and related witnesses go to work in Guangdong. The defendant Huang naturally thought of it, and he could only think of going to find Mo Tiejun's father and wondering who was working with Mo Tiejun in Guangdong. This is also the performance of lawyers in performing their duties and conducting investigations. Therefore, just because the defendant Huang went to find Mo Ping and let him know who was cooperating with Mo Tiejun in Guangdong, it cannot be assumed that the two conspired to cheat. In reality, this possibility is not ruled out, that is, Mo level found someone to cheat, and witnesses are willing to cheat (in fact, witnesses Mao Hengfeng and Mo Tiejun are neighbors, and witness Zhang Huolian is Mo Tiejun's cousin), and the defendant Huang did not know, so the relevant witnesses testified. Moreover, in court, witness Mo Hengfeng made it clear that Mo went to see him alone, but the lawyer did not go to see him. Mo told him that his working time was "August 2006 to 65438+February". At the same time, it is not excluded that Mo explained to Zhang Huolian in advance that the working time is "August 2006 to 65438+February". Therefore, the defendant Huang did not constitute a crime.
2. The accusing organ accused the defendant Huang Erdraft of being a false act, which was an error in ascertaining the facts.
In this case, the defendant Huang did give a manuscript to the witnesses Mo Hengfeng and Zhang Huolian, but the witness testimony submitted by the witnesses Mo Hengfeng and Zhang Huolian to the court was not the content of the manuscript made by the defendant Huang to the witnesses Mo Hengfeng and Zhang Huolian. The time of the manuscript made by the defendant Huang to the witness Mo Hengfeng was about 2006. As for the identity of the witness, it is also blank, because Huang had never seen the witness before the trial of the first instance on February 8, 2008, and did not know his identity. Therefore, it is also wrong for the procuratorate to accuse plagiarism. The manuscript given by the defendant Huang to the witness Zhang Huolian was formed according to the content of his question. Judging from the reality and judicial practice, the witness in this case has a low level of education and legal knowledge. They don't know how to produce witness's testimony. They asked the lawyer to write an outline or draft first, and then give testimony according to the draft. This also exists objectively and does not violate the law. The law is also allowed, and it is also a manifestation of lawyers' legal help and legal services. Therefore, it cannot be because the defendant Huang gave witnesses Mao Hengfeng and Zhang Huolian. Moreover, from the content of the testimony itself, it also clearly indicates the legal obligation of the witness to testify and the legal responsibility of perjury. The witnesses in this case are all normal adults, who can modify their testimony or refuse to commit perjury. Obviously, it has nothing to do with the defendant Huang's behavior and should bear the legal responsibility for perjury.
3. The public prosecution agency accused the defendant Huang of instructing the witnesses Mao Hengfeng and Zhang Huolian to give evidence and testify in court, which was a false act and a mistake in ascertaining the facts.
In this case, the behavior of witnesses Mao Hengfeng and Zhang Huolian testifying in court was accused by the accused authorities of fraud directed by the defendant Huang, which we think is a wrong identification of the nature of the behavior. Without knowing it, the defendant Huang asked the witnesses Mao Hengfeng and Zhang Huolian to testify in court, which is precisely the performance of lawyers in performing their defense duties and providing legal help and legal services. Moreover, the defendant Huang did not meet the witnesses Yan Hengfeng and Zhang Huolian beforehand. How could he be told? Therefore, the accusation of the procuratorate is a factual error.
4. The public prosecution accused the witness Mao Hengfeng of perjury in the first trial of Mo Tiejun's theft case, which was an error in ascertaining the facts.
In this case, the public prosecution agency proposed in the indictment that the evidence provided by witness Mao Hengfeng in the first trial of Mo Tiejun's theft case was false. However, according to the judgment of the first instance, it is not enough to prove that Mo Tiejun did not commit the crime, and it is not clear that this testimony is false. Therefore, the prosecution found the facts wrong.
Second, the prosecution found that the facts of the crime in this case were clear and the evidence was indeed sufficient, which was wrong. From the perspective of evidence analysis and acceptance, the prosecution accused the defendant Huang of perjury, because the evidence it relied on was not objective, legal and relevant at the same time, so it could not be used as the basis for finalizing the case. The prosecution accused the defendant Huang of perjury, but the facts were unclear and the evidence was insufficient. The specific analysis is as follows:
According to the theory and spirit of China's criminal law and criminal procedure law, and Article 42 of People's Republic of China (PRC) Criminal Procedure Law: "All facts that prove the true situation of a case are evidence", therefore, an effective evidence must be objective, legal and relevant at the same time. Based on the theory of criminal evidence, this paper makes a concrete analysis of several aspects of the evidence that the public prosecution accused the defendant Huang of perjury, which is embodied in the following aspects:
1. In this case, the confession of the co-defendant and the witness testimony provided by the procuratorate cannot have the probative effect and probative force of the evidence because they do not have the objectivity of the evidence. Therefore, it can't be concluded that the defendant Huang constitutes perjury.
In this case, the main and important evidence for the prosecution to finalize the case is the confession of the co-defendant and the testimony of witnesses, which are produced by the parties for their own interests because they have an interest in this case. From the perspective of investigation, these evidences can only be regarded as a pure clue, just a clue, that's all. From the point of view of evidence science, they are not evidence itself, so they do not have the due efficiency and force of proof. In other words, it cannot be proved that the defendant Huang constitutes perjury. The analysis is as follows:
(1) The confessions of Mo Ping, Mo Hengfeng and Zhang Huolian are not credible.
The confessions of Mo Ping, Mo Hengfeng and Zhang Huolian are not credible enough. There are four reasons: first, among the three people, Mo Ping is Mo Tiejun's father, Zhang Huolian is Mo Tiejun's aunt, and Mo Hengfeng is Mo Tiejun's neighbor. The three people themselves and their personal relatives have an interest in Mo Tiejun and will instinctively commit perjury for Mo Tiejun. Second, the two of them are co-defendants in this case and have an interest in the outcome of the lawsuit. In order to shirk the responsibility, the responsibility can be placed on the defendant Huang. Third, there is an interest between Mo Ping, Yan Hengfeng and Zhang Huolian, and their testimony is naturally unfavorable to the defendant Huang. Fourth, Guo Hengfeng's confession and Zhang Huolian's testimony contradict each other in court with the public security organs.
(2) Mo Tiejun's testimony is not credible.
Mo Tiejun's testimony is not credible for two reasons. One is that the procedure is illegal (discussed separately below), and the other is the four transcripts made by Mo Tiejun in the defendant Huang, especially the transcripts of 65438+200810.2. Mo Tiejun made it clear that two of them were not stolen in 2006 before the defendant Huang did not understand the relevant case, read the case file and contacted witnesses. At that time, he was working in Guangdong and had no time to commit crimes, that is to say,
(3) The testimony of Yao, Shi Weiming, Zuo, Liang and others can't confirm the accusation of the defendant Huang's perjury.
There are many witnesses in this case, such as Yao, Shi Weiming, Zuo and Liang. Their testimony can only confirm the contact process between the defendant Huang and the witness, but can't directly prove that the defendant Huang made the so-called perjury. In other words, it cannot be proved that the defendant Huang knew in advance that it was a false certificate, and how to "instruct" the witness to make a false certificate.
2. The evidence provided by the procuratorial organ does not have the legitimacy of evidence, does not conform to the provisions of the law in terms of source and form, and violates legal procedures, so it does not have the ability to prove evidence and cannot prove the object of proof in this case completely and comprehensively. The reasons and facts are as follows:
(1) The interrogation of Mo Tiejun by the investigation organ in the second trial stage did not conform to the legal procedures, and his confession could not be used as the basis for finalizing the case.
According to the provisions of Article 83 of the Criminal Procedure Law of People's Republic of China (PRC), public security organs and people's procuratorates shall file a case for investigation within their jurisdiction when they discover criminal facts or criminal suspects. Article 129 When investigating a closed case, the public security organ shall ensure that the facts of the crime are clear and the evidence is true and sufficient, and write a prosecution opinion, which shall be transferred to the people's procuratorate at the same level for examination and decision together with the case file and evidence. In this case, Mo Tiejun's theft case is in the second trial stage, and the investigation is over. The investigation organ cannot interrogate Mo Tiejun as the defendant without returning the supplementary investigation. Otherwise, it will violate the legal procedures, and the evidence obtained cannot be used as the basis for finalizing the case. Mo Tiejun's confession, provided as witness testimony, should be made into an interrogation record to inform the witness of the legal responsibility of testifying, not an interrogation record. Therefore, this is also a violation of legal procedures. Moreover, judging from the content of interrogation, it is basically the fact of theft, and there are also a lot of traces of confession. Therefore, the investigation organ's interrogation of Mo Tiejun in the second trial stage did not conform to the legal procedures, and the use of interrogation transcripts as witness testimony also violated the legal procedures and could not be used as the basis for finalizing the case.
(2) The filing, investigation and prosecution of this case did not comply with legal procedures.
According to Article 3 of the Criminal Procedure Law of People's Republic of China (PRC), the public security organs are responsible for the investigation, detention, execution and pre-trial of criminal cases. The people's procuratorate shall be responsible for the prosecution, approval of arrest, investigation and prosecution of cases directly accepted by procuratorial organs. The people's court is responsible for the trial. Except as otherwise specified by law, no other organ, organization or individual has the right to exercise these powers. In criminal proceedings, the people's courts, people's procuratorates and public security organs must strictly abide by the relevant provisions of this Law and other laws. Article 7 stipulates that in criminal proceedings, the people's courts, people's procuratorates and public security organs shall be responsible for the division of labor, cooperate with each other and check each other to ensure the accurate and effective implementation of the law. In this case, Huang, the defendant, was placed on file for investigation in the investigation department on the charge that the defender was suspected of obstructing testimony. Until the end of the investigation and the transfer for review and prosecution, the public security organs did not change the charges. However, in the prosecution stage, the public prosecution agency prosecuted the defendant Huang for perjury. In other words, the defendant Huang's perjury was not put on file for investigation by the public security organs, but was prosecuted directly with the evidence at the end of the investigation in the name of the crime of alleged defender obstructing testimony. This is obviously a violation of legal procedures. Of course, this investigation and evidence collection cannot be used as the final basis for the case of the defendant Huang suspected of perjury.
3. The evidence provided by the public prosecution agency has no evidence relevance, so it has no evidential force on the facts of this case, does not meet the proof requirements of clear criminal facts and sufficient evidence, and cannot be considered that the appellant committed fraud.
The first paragraph of Article 162 of the Criminal Procedure Law of People's Republic of China (PRC) stipulates: "If the facts of the case are clear and the evidence is true, and the defendant is found guilty according to law, a guilty verdict shall be made." This is the proof requirement of criminal facts in China's criminal proceedings, and it is also the specific standard for making a guilty verdict, that is, the relevance of evidence and the proof requirement. In this case, the procuratorial organ presented the above evidence materials to the court, which belongs to the category of indirect evidence in the theory of evidence science. In terms of the validity of evidence, they only proved part of the facts mechanically, but not all the facts. In other words, a witness in this case has perjured himself. The key facts of this case and all the facts accused by the public prosecution agency, that is, the crime of perjury, are false proofs made horizontally by the defendants Huang and Mo. The whole process and all the facts can't be completely and truly confirmed. Therefore, the existing evidence in this case cannot form a complete chain and system of proof at all, which does not meet the requirements of conclusive and sufficient criminal evidence. It cannot be proved that the facts of the defendant Huang's perjury are clear and the evidence is indeed sufficient, so the defendant cannot be convicted and sentenced.
4. Mo Tiejun's interrogation record confirmed the fact that the defendant Huang intentionally and did not commit perjury.
In the transcript of Huang's conversation with Mo Tiejun on June 5, 2008+10/October 2, 2008, Mo has clearly stated that he did not steal the second order in 2006. Prior to this, the defendant Huang had no contact with Mo Ping or other witnesses in this case, and it was impossible for him to collude with Mo Ping in perjury to excuse Mo Tiejun. Mo Tiejun can't even say that he worked in Guangdong from June 2006 to June+February 65438, so he didn't commit crimes. Therefore, Mo Tiejun's interrogation record confirmed the defendant Huang's intention and facts of not perjury.
Therefore, we urge the people's court to examine all the evidence provided by both the prosecution and the defense in line with the judicial purpose of taking facts as the basis and taking the law as the criterion, and accept it fairly.
Third, Huang, the defendant in this case, was negligent in defense work and should not be punished as a crime.
In criminal proceedings, the relationship between the prosecution and the defense is unity of opposites, that is, although we are in opposing positions and inevitably have differences in views, in any case, the value of criminal law we pursue is always unified, that is, "three points and one line", that is, prosecution, defense and trial, that is, procuratorate, defense lawyer and court, which are based on facts. On the premise of taking the law as the criterion, while ensuring accurate and timely identification of criminal facts and punishment of criminals, we should pay more attention to the proportionality between crime and punishment and ensure that criminals are subject to corresponding criminal investigation according to law. Ensure that people who do not commit crimes are not investigated for criminal responsibility as stipulated by law. This is also the same goal, * * * with the maintenance of the dignity of the law and the correct implementation of the law. This is also the whole meaning and core value of criminal defense. In this case, the defendant, Huang, did his duty to collect evidence of misdemeanor for the defendant after receiving a meager lawyer's fee, which fully reflected his defense duty. However, due to his negligence in defense work, he did not go to the field for investigation and review, resulting in inaccurate evidence. This is also essentially different from deliberately forging evidence and should not be punished as a crime. Please ask the court to distinguish between right and wrong, crime and innocence.
To sum up, the defender believes that the public prosecution agency accused the defendant Huang of the crime of obstructing testimony, which is an error in ascertaining the facts, improper application of the law, insufficient evidence and violation of legal procedures. The defendant Huang's behavior in this case does not meet the criminal constitution of the crime of obstructing testimony, and does not constitute a crime according to law, so he should be acquitted.
Protecting lawyers' rights means protecting clients' legal rights. The more lawyers' rights are guaranteed, the better and more perfect, and the more civilized and progressive the laws of a society and a country will be. The trial result of this case will have a great and far-reaching impact on the criminal defense work in Wuzhou city and even Guangxi. Therefore, as lawyers and defenders, in this solemn court, under this dazzling national emblem and under this fair balance, we are full of reverence for legal dignity and full of hope for judicial justice, and urge the people's court to make a detailed investigation, distinguish right from wrong and deal with it in time. It is related to judicial justice, and the defendant Huang is acquitted according to law. In order to safeguard the legitimate rights and interests of the defendant and reflect the fairness and seriousness of the law.
Please fully consider and adopt the above defense opinions when commenting on this case.