The death penalty, also known as capital punishment and execution, is one of the oldest punishments in the world, which means that the executioner ends a prisoner's life based on the power given by law. Prisoners subjected to this method of deprivation of life usually commit serious crimes in the local area. Article 37 A defense lawyer shall meet the defendant in custody in time. During the meeting, the defense lawyer shall prepare the meeting outline in advance. When a lawyer entrusted by a close relative meets the defendant for the first time, he should first identify himself as a lawyer and ask the defendant whether he agrees to entrust. If the defendant agrees to entrust, he shall be required to sign the power of attorney for confirmation. If the defendant does not agree to the entrustment, it shall record the situation and reasons, submit them to the defendant for signature and confirmation, and go through the formalities of canceling the entrustment contract with the client. Article 38 During the meeting, the defense lawyer shall ask the basic information of the defendant in detail, focusing on the following matters: (1) Whether the defendant has reached the age of 18, and whether he reached the legal age of criminal responsibility at the time of committing the crime; If the defendant commits multiple criminal acts, the defense lawyer shall ask the defendant's age at the time of each criminal act in detail; (2) If the defendant is a woman, the defense lawyer should ask whether she is pregnant and whether she has induced abortion or spontaneous abortion during the criminal proceedings; In any of the above circumstances, the defense lawyer shall ask the defendant to provide corresponding evidence clues. Article 39 During the meeting, the defense lawyer shall ask the defendant whether there are any circumstances stipulated in Articles 26 to 31 of these Guiding Opinions. Article 40 During the meeting, the defense lawyer shall inform the defendant of the legal significance of surrender. When confirming whether the defendants surrender, defense lawyers should ask the defendants one by one whether they have the following behaviors: (1) whether they appear in court automatically before being questioned or taking compulsory measures; (two) whether there is a plot to surrender in the process of being chased and pursued; (three) whether it was captured by the public security organs on the way to surrender; (four) because of suspicious behavior, after questioning and education by the relevant organizations or judicial organs, whether to take the initiative to explain the facts of the crime; (five) whether to surrender to other units, organizations or relevant responsible persons other than the case-handling organ; (six) whether to entrust others to surrender or surrender in other ways; (seven) whether there is a fact that relatives and friends sent the defendant to surrender; (eight) whether the main criminal facts have been accounted for; (nine) whether the facts of the accomplice in the joint crime are confessed. For the defendant who confesses the crime truthfully and recants after voluntarily surrendering, the defense lawyer should explain to him that if he confesses truthfully again before the judgment of the first instance, the court will still consider him to have surrendered himself. Article 41 During the meeting, the defense lawyer shall inform the defendant of the legal significance of rendering meritorious service. The defense lawyer shall explain to the defendant the procedure of meritorious service and the time required for confirmation of meritorious service, and inform the defendant of the importance of meritorious service as soon as possible. In order to confirm whether the defendant has rendered meritorious service, the defense lawyer should ask the defendant one by one whether he has committed the following acts: (1) whether to report or expose other people's criminal acts to the case-handling organ; (two) whether it has provided the case-handling organ with important clues to detect other cases; (3) Whether the criminal activities of others have been stopped; (four) whether it has assisted the judicial organs in arresting other criminal suspects; (five) whether there are other outstanding performances beneficial to the country and society. Article 42 During the meeting, the defense lawyer shall inform the defendant of the legal significance of actively compensating and appeasing the victim, and ask whether he has repented and compensated the victim. In the absence of compensation, the defense lawyer should ask the defendant whether he is willing to pay compensation. If the defendant agrees to pay compensation and wants his close relatives to pay compensation on his behalf, the defense lawyer shall put it on record and let the defendant sign for confirmation. Article 43 During the meeting, the defense lawyer shall inform the defendant of the legal significance of returning stolen goods. For the defendant who has not returned the stolen goods, the defense lawyer shall inform him that he can entrust his close relatives to return the stolen goods on his behalf. Article 44 During the meeting, if the defendant claims that his rights have been infringed, the defense lawyer shall record it and submit it to the defendant for signature confirmation. If the defendant requests the defense lawyer to appeal and accuse on his behalf, the defense lawyer may appeal and accuse on his behalf. Article 45 If a defense lawyer finds that the defendant is unfit for custody, he shall apply to the case-handling organ for changing the compulsory measures.
Legal objectivity:
The death penalty is the most severe punishment, involving the right to life. How to defend the condemned prisoners and protect their legitimate rights and interests? China's laws on the death penalty, judicial interpretation and criminal policy are applicable to some specific issues, which are the four levels that criminal defense lawyers must master and the basic requirements for criminal defense lawyers. As a death penalty defense lawyer, when handling death penalty cases and defending death penalty prisoners, we should pay attention to the following points: 1. Carefully examine the facts and evidence of the case. Where did the facts come from? Rely on the confirmation of evidence. Therefore, the examination of the facts of the case is actually the examination of the evidence. Some lawyers, no matter what kind of cases they accept, can't defend their views without the principle of "two noes", that is, "unclear facts and insufficient evidence". Since the facts are unclear and the evidence is insufficient, of course, they can't be convicted and sentenced. Therefore, you are nicknamed "innocent lawyer" by people in the industry. We don't deny that although some criminal cases have gone through two procedures of investigation and prosecution, there are still some problems in facts and evidence. Because the starting point of lawyer's work is to safeguard the legitimate rights and interests of the defendant, the angle of understanding the problem is different from that of judicial personnel. In the eyes of lawyers, there are indeed many problems in the facts and evidence of some cases, but in the eyes of judicial personnel, the existing problems are insignificant and do not affect the qualitative and sentencing. Why do you have different or even opposite understandings of the same facts and the same evidence? That's why. Therefore, there is also a problem of communication and coordination between criminal defense lawyers and judicial personnel. Different types of cases have different evidence and different evidence requirements, but there is only one standard, that is, "sufficient and true evidence" (Article 46 of the Criminal Procedure Law). As a criminal defense lawyer, we should master the standards and rules of evidence proof in criminal cases. To review evidence, we must grasp the legitimacy and authenticity; Grasp the consistency between evidences; Grasp the sufficiency of the amount of evidence and the uniqueness of the proof conclusion, and eliminate all reasonable doubts. In China's three major litigation fields, the Supreme People's Court has made uniform provisions on evidence in civil litigation and administrative litigation. Although these provisions can't be called evidence rules in the full sense, they have at least a basic framework. The only thing that has not been promulgated now is the Provisions on Evidence in Criminal Procedure. Nevertheless, there are still some scattered contents in the Criminal Procedure Law and the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of the Criminal Procedure Law. From the unanimous understanding of the theoretical circle, the rules of evidence in criminal proceedings should at least include the following aspects: first, the rules of free will, that is, witnesses testify or defendants confess, all of which are made out of their own will; The second is the hearsay evidence rule. That is, witnesses and victims may not use the words relayed by others as evidence; The third is the exclusionary rule of illegal evidence, that is, illegally obtained evidence cannot be used as the basis for finalizing the case; Fourth, originality, original priority rules and so on. Therefore, criminal defense lawyers must be familiar with these rules and consciously use them to make accurate judgments on evidence. Second, put forward enough mitigating circumstances. Generally speaking, public prosecution organs attach great importance to death penalty cases, and prosecutors are particularly serious in presenting evidence and debating in court. The primary purpose of the defendant and his relatives to hire a lawyer is to obtain a judgment of non-execution through the effective defense of the lawyer. Therefore, lawyers must put forward enough sentencing circumstances to the court to lighten or mitigate the punishment, so as to counter the accusation of the procuratorate or weaken its accusation. This is an important way to help defendants gain vitality, and it is also an important part of the work of criminal defense lawyers. In any criminal case, there are various situations. There are conviction circumstances and sentencing circumstances. The circumstances of sentencing include both heavier punishment and lighter or mitigated punishment. Pre-crime circumstances in sentencing circumstances, such as good behavior or being rewarded or commended; There are also circumstances in crime, such as stopping crime and preventing others from committing crimes; There are also circumstances after the crime, such as surrender and meritorious service. In some cases, there are both circumstances of heavier punishment such as recidivism and lighter punishment such as surrender. When there are two or more different sentencing circumstances, some scholars call it reverse sentencing circumstances. In this case, criminal defense lawyers should not only try their best to deny aggravating circumstances, but also put forward mitigating circumstances as much as possible. For example, in the case of Rong being accused of organizing and leading an underworld organization, there are two facts of injury crime, one of which came into effect in 1998. In 2000, the defendant Rong was punished for several crimes. When the procuratorate initiated a public prosecution, it was determined that the defendant was a recidivist. The defender pointed out that Rong's behavior constituted several crimes rather than recidivism. Because the previous judgment was actually a post-crime, the crime now accused is a crime of omission, and there is no case that Rong committed a new crime during the execution of the penalty or within five years after the execution of the penalty. Therefore, it cannot be regarded as a recidivist. The court adopted the lawyer's opinion and refused to impose a heavier punishment. In addition, lawyers must also collect evidence in favor of the defendant. For example, in the robbery case of Guan et al., when the lawyer met with the defendant, Guan reflected that the defendant in the same case was arrested after he provided his name and contact information to the public security organ. Later, the lawyer investigated the investigation organ and proved that the plot was true. The court found that Guan had rendered meritorious service and gave the defendant a lighter punishment. Sometimes, because of the need to crack down on crimes or because it is troublesome, the investigation organ is generally unwilling to issue relevant certificates to the defendant after committing crimes, which makes the defense work of lawyers more difficult. In this case, lawyers can apply to the people's court for evidence collection and get relief from the court. For the evidence of pre-crime circumstances, lawyers are more likely to collect evidence, so they should collect evidence in time and don't give up any evidence that may be powerful to the defendant. Only in this way can our defense succeed. Third, accurately grasp the general direction of death penalty cases. Death penalty cases will receive more attention than ordinary criminal cases. Once it is disclosed by the media, it may cause greater repercussions. Criminal defense lawyers should pay special attention to the following issues: First, fully respect the victims. In cases where the victim does not appear in court, criminal defense lawyers should respect the victim, and in cases where the victim appears in court, criminal defense lawyers should respect the victim and his family. Even if the victim is at fault, the debate can only stop, and the victim's fault can't be exaggerated or expanded indefinitely, especially in the court of public hearing, which will be counterproductive. When defending a case of intentional injury causing death, a lawyer repeatedly accused the victim of "seeking trouble" and "immoral". As soon as the trial was over, the victim's family ran after the lawyer, and later the lawyer was able to leave the court safely under the protection of the court bailiff. The second is to effectively resolve the "public anger." The word "popular indignation" has occupied an important position in China's criminal judgment documents for many years. In a case of vicious homicide, if the defendant has surrendered himself or rendered meritorious service, he should not be sentenced to death according to law. However, in order to quell the "public anger", the court often sentenced the defendant to death on the grounds that "not killing is not enough to anger the people", which is extremely terrible. In this kind of cases, one of the functions of criminal defense lawyers is to skillfully level and resolve "public anger". The dictionary interpretation of "people's anger" is people's resentment or anger towards guilty people. ⑥ Some "popular anger" occurred when the case occurred, such as organizing gangs to commit violent crimes that seriously affected social order, such as murder, robbery and rape, and there was indeed a certain range of "popular anger". However, each case has its own uniqueness. Defense lawyers must dig out and seize all the circumstances that are beneficial to the defendant: such as excessive defense, the victim's fault and other factors; Some "people's anger" is only produced after media hype. In fact, when some crimes happen, ordinary people don't know. On the contrary, when the media disclosed it, many people were surprised: the place where we live was so horrible! As a result, a kind of "popular anger" appeared. Therefore, criminal defense lawyers must clearly tell the difference between the "public anger" at the time of committing a crime and the "public anger" after committing a crime, distinguish the fear afterwards from the anger at that time, effectively resolve the nihilistic "public anger" afterwards, and try not to let it affect the judge's judgment on the social harm of the case as much as possible. At the same time, we should also note that "public anger" is neither a criminal act nor a criminal fact, but an evaluation, a perception and a subjective thing after the criminal act. Therefore, as a defender, we should effectively distinguish "popular anger" from crime, and don't let "popular anger" affect the facts of the case, let alone become the main factor affecting the punishment. Third, properly handle the relationship between "strike hard" and careful use of the death penalty. Since 1980s, China has launched "strike hard" for many times in view of the social security situation in different periods. "Strike hard" is a phenomenon with China characteristics in the field of criminal justice, and it is also an important content of China's criminal policy. We can't deny that "strike hard" has played a positive role in social order in different periods; We can't deny that "strike hard" is based on policy, and the phenomenon of policy supremacy in judicial practice is actually a kind of destruction of the rule of law. Mr Chen Xingliang's personal experience is very telling. In the early 1980s, he defended a defendant who committed theft. The first defendant was sentenced to 15 years imprisonment, and the second defendant was sentenced to 10 years imprisonment. Just a few days later, "strike hard" came, and Mr. Chen saw a notice at the gate of the court. The first defendant was immediately sentenced to death, and the second defendant was sentenced to death with a suspended execution. Obviously, the case told by Teacher Chen reflects the destruction and negation of the rule of law by "strike hard". It should be pointed out that "strike hard", as a criminal policy, affects the severity of punishment and even judicial justice for a period of time. The judicial justice upheld by the judiciary is the justice of most cases. For lawyers, we must pay attention to the fairness of the case. In the lawyer's view, if the case is unfair, judicial justice is out of the question. Therefore, criminal defense lawyers must properly handle this relationship when defending death cases during the "strike hard" period. We should not only obey the criminal policy and take the overall situation into consideration, but also not compromise outside the criminal norms and impose heavier punishment, and strive to safeguard the legitimate rights and interests of the defendant. The fourth is to advocate strict control of the death penalty. Judging from the attitude and development direction of the international community towards the death penalty, abolishing the death penalty is the only way. However, under the condition that China still retains the death penalty, criminal defense lawyers must consciously advocate strict control of the death penalty. As mentioned above, although the death penalty is stipulated in the relevant duty crimes and economic crimes stipulated in China's criminal law, the application of the death penalty has been controlled to a certain extent. In fact, if it is not a violent crime that kills people and steals money or causes extremely serious consequences to the country, the death penalty may not be applied. People's understanding of the legitimacy of the death penalty depends on the retribution view of revanchism, but there are no cognitive factors such as "public anger" in economic crimes and duty crimes, and the consequences of economic crimes, no matter how serious, cannot be compared with human life. Because all values are created by people, without people who create values, the world can only be a desert. Therefore, under the general trend of the world, criminal defense lawyers must clearly advocate strict control of the death penalty and work hard for its eventual abolition. Fifth, make good use of the general principles of criminal law to defend. Article 48 of the Criminal Law stipulates that the death penalty is only applicable to "criminals with extremely serious crimes". Although the law does not stipulate the standard of "especially serious crime", whether it belongs to "especially serious crime" should be judged from three aspects according to the principle of consistency between subject and object: first, whether the subjective malignancy is particularly serious; Second, whether the circumstances of the crime are particularly bad; The third is whether the consequences of crime are particularly serious. Only when all three have reached a particularly serious level can they be considered as "extremely serious crimes". As long as one of them does not reach a particularly serious level, it cannot be considered as an "extremely serious crime" and the death penalty cannot be applied. Today, if some cases of intentional injury cause death, although the consequences are particularly serious, but the defendant's intentional injury behavior is out of passion, indignation and other factors, rather than premeditated revenge or other despicable motives, it can not be considered that its subjective malignancy is particularly serious, and of course it can not be considered that "the crime is extremely serious." In addition, some other principles or provisions in the general principles of criminal law are also related to or affect the application of the death penalty, such as unit crime and accomplice crime. Therefore, criminal defense lawyers must attach importance to the application of the general principles of criminal law and put forward the best defense. In a word, the defense of death penalty cases is an important business that criminal defense lawyers must take seriously. As long as the lawyer's defense is well-founded, he will fully safeguard the legitimate rights and interests of the defendant and make due contributions to "respecting and safeguarding human rights."