Misunderstandings, Taboos and Blind Areas in Criminal Court Debate
1, three major mistakes in court debate
Mistake 1: blindly arguing with the judge
In China's trial practice, the judge is not the party to the court debate, but the judge is the moderator of the court debate. This is the role and function of the judge that we should clearly recognize. Practice has proved that arguing with the judge may gain some so-called lawyer dignity, but it is often at the expense of the client's interests. Sometimes, due to the toughness of lawyers, defendants are often sentenced too heavily. Sometimes, the defendant and the defendant's family weigh the pros and cons and carefully consider terminating the entrustment of a tough lawyer. Of course, there are no exceptions. For major unjust, false and misjudged cases, if the host turns a blind eye, the defender must argue according to reason, stick to the end and defend hard, which is also the best policy.
Mistake 2: Ignore the judge's question.
According to the principle of trial psychology, the judge is the referee, and the purpose of court debate is to persuade the judge to adopt his own effective defense opinions. Because in our trial system, judges have the right to take the initiative to investigate in court, and they will take the initiative to ask supplementary questions about some facts and evidence that they think are very important, controversial or unclear, and need to strengthen free evaluation of evidence. These problems reflect the concerns of judges to a great extent. From these concerns, we can even judge the judge's possible tendentious opinions by combining the controversial points of the case. Therefore, the defender should always pay attention to every question of the judge like a radar during the trial. Just like a driver driving, when we reverse the car, the radar on the car is red and the drip keeps ringing. If you don't step on the brakes, you will inevitably bump or crash.
In short, accurately record and quickly and efficiently analyze the judge's court questions? Reverse reasoning, capturing the judge's trial thinking, is also one of the concentrated manifestations of the defender's comprehensive quality.
Mistake 3: talk big, not to the point.
Back to the topic, what is the core expression of lawyers in the court debate stage? I have always believed that at this stage, the core task of a lawyer is to let the judge hear clearly what the core issue you want to express, and not to discuss your problem (opinion) in a hurry. Many times, the defender didn't even refine the topic accurately, didn't focus on the topic, didn't take a good pulse, and began to talk big and read the draft 10 minutes. It should be like a long-distance running. He started running 300 meters before blowing the whistle. Don't run back and run again. In other words, you are eager to discuss the question without asking it? But before he conquered, he was dead. Sometimes, learning to let bullets fly for a while in court is also a concentrated expression of defense lawyers' professionalism.
In most criminal cases, after a long trial procedure, many times, in fact, the judge has? Burnout? Yes And our sentencing in court is almost meaningless. Therefore, the most important thing in court debate is to let the judge understand your question and sincerely think that this may be a problem. If he gets the question you asked and initially approves your question, then your argument will be stronger and more acceptable, which will make the judge shine? Effectively defend and influence the referee.
2. Four taboos of trial defense
Taboo 1: hypnotic defense
I noticed an interesting phenomenon in court: in court debate, sometimes the defender just read out the pre-printed defense according to the script, and then it was gone. Therefore, I personally think that reading the written defense only in the court debate stage can not achieve the due defense effect, and it can not even be called a real debate. First of all, it is difficult to attract the judges simply by reading the defense. Observing the performance of the trial, it was found that most judges were absent-minded when the defender bowed his head and read the defense. When the defense was read for more than half an hour, some judges even fell asleep over and over again. The goal of court defense is to convince the judge and avoid reading the defense words that hypnotize the judge as much as possible.
Secondly, it is difficult to realize the function of court debate simply by reading the defense words. According to the current trial procedure, the proof and cross-examination of case evidence and the investigation of case facts should be completed in the court investigation stage, and the role of the court debate stage is mainly to summarize the facts that have been investigated clearly, and on this basis, to put forward opinions on the nature of the behavior and the application of law. Without putting forward defense opinions according to the court investigation, simply reading out the written defense prepared before the court, the court debate will not be able to summarize and analyze the court investigation. Court debate and court investigation are completely different, and court debate will be simplified as just a procedure to complete the prescribed actions. Therefore, the new generation of defenders should avoid reading the defense words according to the script in court debates.
In some cases involving complex theoretical exposition or evidence analysis, lawyers can submit detailed written reports to judges in court, extract and throw out relevant opinions during the trial, and try to be easy to understand. On the premise that lawyers create the trial effect in this way, judges will be willing to listen, like to listen and listen, and it will be easier to accept the lawyer's point of view, so that it is possible to think carefully about the questions raised by lawyers.
Taboo 2: long speech
It seems that we need to deeply reflect on a question, or ask more experienced judges outside the case: Why do judges often interrupt lawyers? The judge's answer may be this: answer irrelevant questions; Repeatedly reiterate the views that have been expounded; I said more than five sentences, but I haven't got to the point yet. In other words, all statements of criminal trial defense should focus on the following core elements: first, the focus (what is the problem); Second, efficiency (short time transmission); Third, clear (effective delivery). In short, all technologies are designed to clearly convey the questions you want to express to the audience (judges) in the shortest time.
In this regard, the recognizer should consciously train the following ways of thinking? Forging and carving yourself: if you are given ten minutes, you should think clearly about how you want to express yourself in these ten minutes; If you are given five minutes, you should think clearly about the same question. How do you want to express these five minutes? Therefore, if the same question gives you different time, you have to express it in different ways. At this time, it will inevitably involve? Primary and secondary? problem The most important and core expression must be the most priority, the most concise and the most effective expression. Don't make a long speech, just like the old lady's foot wrap? It's smelly and hard, and the judge won't interrupt you. That is to say, the judge can bear it and put himself in the shoes. How can he defend effectively?
Taboo 3: attack in an all-round way
Defenders should not only compare, analyze, judge and demonstrate the favorable and unfavorable evidence accurately extracted before the trial in court, because the unfavorable evidence is the public prosecutor's debate material, but also extract it comprehensively and accurately! Furthermore, defense lawyers should be keenly aware of this? Core evidence and key evidence? What's in the file? The key? Evidence is a cancer, so we should concentrate our firepower on repeated bombardment, repeated thinking and repeated deliberation, because sometimes one brick or several bricks can win a great victory, and defense lawyers don't need to tear down the whole wall? A long speech, covering everything, is sometimes submerged and diluted? Key weakness? . Of course, criminal defense often? A fatal blow? Rarely, but? Core combination boxing? But it's ours? Technical embodiment? Admittedly, this requires a defense lawyer's keen sense of smell and strong and thorough reasoning and argumentation ability.
In short, in judicial practice, 95% of criminal cases don't need a comprehensive crackdown? Defenders don't need to tear down the whole wall. Defenders only need to refine the controversial issues, set keywords around the controversial issues, and accurately demonstrate firepower (all facts unrelated to keywords will be ignored by the court, and all arguments that cannot be quickly retrieved by the court are at risk of being ignored). Therefore, lawyers' court arguments must be based on? Controversy? As the core, this is the premise to enhance the court's persuasiveness? You don't need to cover everything, you need to attack in all directions.
Taboo 4: Too emotional.
The court is a reasonable place and should be based on rational speech. Can't be confused? Reasonable defense? With what? Emotional expression? , they are not the same concept. ? Reasonable defense? Are you online? Is it reasonable? , refers to? Natural? That is the normal feeling of ordinary citizens. Essentially,? Reasonable defense? Or a rational statement. Too much emotional expression will make the judge disgusted and think that the lawyer's performance is too much, thus interrupting the lawyer's performance? Performing? . Therefore, defenders should accurately judge and study the case, and the proportion of evidence, facts, laws and reasons should be well balanced, so as to be flesh and blood, bone and soul.
3. Three blind spots in court debate
Blind spot 1: role dislocation
For example, some defenders will be evidence in the cross-examination stage? Do you like it? , say? This evidence only proves that my client's so-called cross-examination refers to whether he has negative opinions on this evidence. Is the evidence unqualified? Static argumentation analysis; Is it evidence application to prove a fact with this evidence? How to use it? The dynamic application shall be announced at the stage of court debate. The judge will interrupt and remind the defender: You have heard clearly. Now I ask you if you have? Objection? This is one of the blind spot errors in role positioning.
Blind zone 2: the second round of defense
Some defenders think that only one round of defense is needed, or like to repeat their important defense opinions many times, or repeat them in the second round of debate, thus attracting the attention of judges. Judges usually stop repeating themselves because facts don't need to be repeated 10 thousand times. It's also true that you only said it once. Unless you're lying? Considering the efficiency of the trial, accurate expression is very important.
What's more important is to make a detailed, systematic and structured analysis and refutation of the controversial focus in the first round. Defenders can't respond to the more specific and higher-level second-round defense, which seems to be a waste of time and performance.
Blind zone 3: the focus of controversy
Every minute of the trial is precious. Defenders should not leave the focus of controversy, and debate closely around the main line. In practice, defense lawyers are often narcissistic, obsessed with self-confidence, advancing according to their own established direction and main line, impassioned, but unconsciously deviating from the core controversy focus of court investigation? Isn't the focus of controversy summarized by judges, prosecutors and defenders intertwined? Two skins, no waste. Don wept bitterly again.
Although the court debate is a debate, it is not a fancy debate on the university campus. We should firmly grasp the main direction, not deviate from the theme, and seize the core minefield and weak point of the indictment? The criminal facts, evidence and legal application of the accused were debated. There is no need to argue about details unrelated to conviction and sentencing. In other words, although many criminal cases have complicated cases and voluminous files, as long as defenders have controversial focus thinking, they stay up all night, hit the bull's-eye, read the files carefully and salvage them seriously? Rolling the sea? Are you online? Soul evidence system? You will find that there may not be many circumstances that really affect conviction and sentencing. In a word, criminal defense is like playing chess. If you catch the veteran, you win. As for how many pieces are left, it is meaningless. Furthermore, defense lawyers should have the skills to accurately refine the focus of disputes before and during the trial, and the focus of disputes must be consistent with the focus of disputes that judges think. It can be said that coincidence is the real kung fu of defense.
Finally, it expounds eight characters of criminal defense: understanding, conscience, professionalism and frankness. The order of these eight words cannot be reversed or confused. Understanding is mutual and both sides; Conscience is single, but it comes first. If a lawyer has no conscience, he is like a black-hearted doctor. The better his medical skill, the greater the harm. Specialty is one-sided, and specialty is the best medicine for us to go all out; Honesty is also mutual. Only when the information of both sides is symmetrical and honest can we win the trust of the other side and convince the third party, and can we strike and defend accurately? Because our goals are the same, and we don't want to free our families all the time, the defender will devote himself to the next case? Defend life and shout for freedom.
On how lawyers participate in trial from the perspective of judges
Know yourself and yourself. Before a good lawyer participates in the trial on behalf of his client, he must first understand the mentality of the presiding judge. The mentality of judges mentioned here refers to the mentality of ordinary judges who usually stand in a fair position to try cases, and abnormal mentality is not included. Understanding the mentality of the presiding judge does not mean that lawyers should try to figure out what the judge thinks about the case, but what the judge wants the lawyer to do in court.
The normal state of mind of a judge in court.
What is the normal mentality of a judge in court? Judges don't want to sit in court for a long time. They want the trial to be conducted in an orderly manner according to the established rhythm. They don't want the trial process to be loose and protracted, and they don't want other unexpected situations to occur during the trial. It should be said that this is a normal mentality of judges who have been hearing cases all the year round. Trial is a routine work that judges often repeat in their career. The daily work is to mechanically repeat these procedures in court, and these trial procedures are essential. Of course, I hope to complete the formalities as soon as possible and get down to business as soon as possible. He hopes that the lawyer's speech in the trial can directly clarify his point of view, the theme is clear, the argumentation process is concise and clear, and unnecessary empty talk is reduced. The last thing a judge wants is to answer questions about seven or eight times, which seems to be voluminous. There are a lot of legal discussions at all times and in all countries, but few words involve the focus of the case dispute. Some lawyers know what they are talking about is irrelevant nonsense, but in order to make the client feel that he is representing the case responsibly, he spared no effort to write a long proxy word and read it impassioned in court. On the surface, it is meaningless to please the parties.
How to be a qualified litigation lawyer
Young lawyers are new to the legal profession. Don't learn the manners of barristers and famous lawyers. They should handle cases seriously. Of course, it's not that barristers are bad, but barristers and famous lawyers started from the past, and now they have the foundation of years of hard work, so they don't need to do small cases like in the past. Some specialize in large-scale economic cases, some specialize in major criminal cases, and some turn to the non-litigation field, so it is difficult to devote all their energy to ordinary cases. Even if a friend is forced to represent an ordinary small case, many things are arranged for an assistant to do.
To be a qualified litigation lawyer, you must first have professionalism. This professionalism is now to do a good job in every case, strive for the rights that customers deserve, and make customers feel that you are really serving their interests and paying agency fees. In this way, word of mouth can win the trust of customers and undertake more cases. Second, we must have professional legal literacy. Dedication is only the basic condition for becoming a qualified litigation lawyer. If you want to be truly qualified, you must also be familiar with the application of relevant laws and regulations and have the spirit of research. The legal literacy mentioned here does not simply mean whether you have a master's degree or a doctor's degree in law or whether you have published any academic papers, but whether you have the ability to apply the laws you have mastered to practice, that is, the ability to integrate theory with practice.
First of all, before the trial
Whether the pre-trial preparation is sufficient is the key to whether the lawyer can cope with the trial freely.
The first step is to know the basic situation of the case? This is the basic work that lawyers need to do before attending the trial. Before the trial of first instance, you should know the basic case. If you don't participate in the agency of first instance, but directly participate in the agency of second instance, you should read the papers before the trial to understand the trial of first instance, so as to avoid repeating the problems that have been solved in the trial of second instance, or wasting energy by repeatedly investigating facts.
The second step is to sort out the focus of the case dispute according to the known cases and my own understanding of the law. Judges should sort out the focus of disputes, lawyers should represent cases, and of course, they should also be clear about the main controversial points of the cases they represent. As long as they find the focus of the dispute, they can carry out the necessary investigation in a targeted manner, focusing on the focus of the dispute, the investigation of uncertain facts, the application for an investigation order and the application for court investigation. In fact, the second step before trial can best reflect the role of lawyers. For example, in some cases, lawyers will guide the parties to apply for court evidence preservation according to their own legal understanding. If the evidence is not preserved in time, the evidence beneficial to the parties may be transferred or lost; Lawyers guide the parties to apply for litigation preservation or pre-litigation preservation at the first time, so that the substantive rights of the parties can be guaranteed. This is the role of lawyers. Incorrect guidance of lawyers to clients will lead to the loss of substantive rights of clients.
The third step is to consider the facts that the judge may question in the trial from a fair point of view, so that he can give a targeted answer in the trial instead of asking three questions.
The fourth step is to complete the opinions of the judicial organs of the court. On the basis of the first three steps, according to the basic situation of the case, grasp the core issues and concisely complete the trial agency opinion.
Second, in court
The trial is an examination room that reflects the lawyer's agency level and tests whether the pre-trial preparation is sufficient. The basic attitude requirement for lawyers to participate in the trial is concentration, and the professional requirement is to be familiar with the trial procedure, answer questions concisely and clearly, ask questions around the facts of the case, debate opinions close to the focus of controversy, and keep their views clear.
-Concentration is the basic attitude requirement for lawyers to participate in the trial. Concentration not only reflects the lawyer's respect for the judge, but also reflects the lawyer's attention to the matters entrusted by the client and his attitude of doing things seriously. Some lawyers don't know what they are thinking during the trial, don't listen to some things read by the judge during the trial, and don't know what to say to some questions answered by the judge. When the judge asked if there were any objections to the facts identified in the first-instance judgment, some lawyers answered that there were objections, but they all said that the court had objections to the facts identified in the judgment, not to the facts themselves, indicating that he did not hear and understand the judge's question clearly.
-Familiarity with the trial procedure is the basis for lawyers to cooperate with the court to complete the trial procedure according to the normal rhythm. The so-called familiarity with the trial procedure does not require lawyers to memorize all the procedures stipulated in the Civil Procedure Law, the Criminal Procedure Law and the Administrative Procedure Law, but requires lawyers to participate in the trial according to the trial process of the court. Some lawyers follow their own ideas in the trial, regardless of the stage of the trial. At the stage of court investigation, the judge asked for cross-examination of the evidence presented by the other party. At this point, he only stated whether to approve or disapprove the other party's evidence around the authenticity, legality and relevance of the evidence. But he always refutes the other party's evidence first and is eager to express his prepared arguments. In the debate stage, he remembered that he had questions to ask the other party. The opinions he expressed in the debate were all those he had said before, and there was nothing new, which showed that he was unfamiliar with the trial procedure.
-Answer the question simply and clearly. When you ask questions about the facts of a case or the other party's questions in court, you should give a straight answer: yes, yes, no, no, if you don't know clearly, you can't say clearly. Don't:
(1) prevents customers from answering some related questions. In the process of disputes, the parties are the clearest. Some questions can only be answered by the parties themselves, and some lawyers are worried that the answers of the parties to some questions will have an adverse impact on the court's fact finding, so they will prevent the parties from answering in court and let the agents answer, which will make the judges suspicious and think that lawyers have to hide some facts. The solution is also simple? Lawyers should fully communicate with the parties before the trial.
(2) Answering questions related to the facts of the case is vague and specious.
(3) Believe in your understanding of the facts of the case and the application of the law, and don't blindly guess the trial intention of the judge's question. In some trials, the judge asks more questions from one side, and the lawyer will guess which side the judge may favor. It is often heard that some lawyers said after the trial that the other side could not answer the questions asked by the judge in today's trial, and we also asked the other side down. It seems that the judge's decision will be in our favor. For this guess, I can only hehe.
-Ask questions around the facts of the case. All questions raised in court should be related to the facts of the case. The purpose of asking questions is to make the facts of the case clearer and restore the truth of the case through detailed questions and answers. Don't try to ask questions that are used for reasoning in a roundabout way. This is a waste of everyone's time. Today's laws in China are based on evidence and will not believe in so-called reasoning to determine the facts of a case; Don't ask questions that involve each other's privacy or insult. This way of causing confrontation will only cause unnecessary resentment of judges.
-Debate points are closely related to the focus of controversy, with clear views and no digression. Court debate can best reflect the lawyer's legal practice skills. Everyone understands the legal provisions. The real skill of litigation lawyers is to combine what they know with trial practice, put forward their own clear views around the focus of controversy, and prove their views with the facts found in the trial and relevant legal provisions. As long as you talk about the matter and explain your point of view simply and clearly, you don't need a macro theory. There are a large number of laws and cases in ancient and modern China and abroad.
? The layman watches the excitement, and the expert watches the doorway? Court debate is not a debate. There is no need to be mean and tit for tat everywhere. The judge will ask when he asks? Do the two sides have anything new to say? Some lawyers definitely want to talk when they see that the other side has put forward new opinions, but they still talk about the debate opinions mentioned earlier. In fact, don't think that the more you say, the better. Not repeating the rebuttal does not mean agreeing with the other party's point of view. The other party has expressed its views many times. You have stated your opposite point of view and refuted the other side's point of view, so there is no need to refute the other side's point of view repeatedly.
Third, after the trial.