In view of the fact that cross-examination is conducted under the auspices of the judge, the purpose is to help the judge examine, identify and identify the evidence, and on this basis, convince the judge to accept his own defense point of view. It is necessary for defense lawyers to understand the judge's understanding and attitude towards cross-examination in order to adjust their own cross-examination methods and contents, so that it can be accepted by the judge in both procedure and entity.
What's the status of the trial?
To explore the judge's understanding and standard grasp of cross-examination, we should find the answer from the background of criminal proceedings.
First, there are too many court cases, including various assessments such as settlement rate, balanced settlement rate and statutory settlement rate. It is the judge's first priority to conclude the case quickly. As the saying goes, "radish doesn't wash mud soon", in reality, I'm afraid some judges don't want to wash mud, but they really don't have time to do it, which is also the judge's helplessness. Second, after reading the papers before the court, the judge has made a preliminary judgment on the possible problems in the case and often goes to court with questions. The essential function of cross-examination is to verify the problems he predicted, but it is not the focus for other evidence. Third, the defense lawyers are very active and enthusiastic in the trial. Because I can't understand the logic and thinking of the judge, I am worried that my views will be missed. They simply express all their opinions and let the judge choose which ones are useful and which ones are useless.
This has formed contradictions and conflicts between judges and defense lawyers in time and procedure. Judges need to close the case quickly and lawyers need more time to express their opinions. The judge believes that the trial should be conducted around the case disputes that he has identified, and other matters can be concise and to the point. The lawyer demanded that all his opinions be fully expressed in court. "Your judge doesn't think this is a key issue, but my lawyer thinks this is a very important issue, and there are many important issues."
What is the function of cross-examination?
Cross-examination plays a triple role for the judge who pursues to close the case within the normal trial limit and has formed a trial prediction. First, go through the procedure. Whether it is the first trial or the second trial, the absence of cross-examination means that the trial is not over and the case cannot be closed. Therefore, it is the judge's first priority to successfully complete the process. The second is to verify the key problems found in the pre-trial marking, listen to the opinions of both the prosecution and the defense, find out the facts of the case, and seek ways to solve the problems. This is a necessary action and must exist; Third, listen to other opinions of both the prosecution and the defense, and see if you can find other problems that you haven't noticed. If it does not exceed expectations, the case will be closed smoothly, and if there is something worthy of attention, it will be reviewed again. For judges with rich trial experience and strong trial ability, this situation is less likely to happen and should belong to the third level of cross-examination.
What is the standard of cross-examination?
Since the judge thinks that cross-examination can play a substantial role in both procedure and entity, it is bound to put forward specific requirements for all parties involved in cross-examination in both procedure and entity. In a word, it is hoped that all parties to the litigation can complete the cross-examination work in a standardized and efficient manner under the command of the presiding judge.
The norms are embodied in three levels: first, the trial order level, in which evidence is discussed in the cross-examination stage, and court investigation or debate is not allowed; Second, at the level of cross-examination, express opinions around the "three characteristics" of a single evidence, and don't involve anything other than the evidence; Third, at the level of cross-examination rules, cross-examination is conducted according to existing laws, regulations and evidence rules, and emotional catharsis and personal attacks beyond existing laws are not allowed.
Efficiency is reflected in four levels: first, there are key points, not just eyebrows and beards. If the lawyer disagrees with all the evidence presented by the prosecution, I am afraid that people will think that "it is not for cross-examination, but for quarreling"; Second, there is an argument. Don't be secretive, but you can't express your central meaning clearly in the fog. You should choose one of legitimacy, authenticity and relevance as your foothold. Third, there is a basis, and the arguments thrown out should be based on the existing legal provisions; Fourth, there is a way out. It is not enough to just point out the problem. It is best to help the judge solve the problem and put forward specific ideas or plans to solve the problem.
Where is the boundary of cross-examination?
What activities should be carried out in cross-examination is controversial in theory and practice, and there is no answer recognized by all parties in the prosecution and defense trial.
Usually, the so-called legality of evidence refers to first judging whether it belongs to illegal evidence stipulated by the Criminal Procedure Law. If it does not belong to the exclusion category, then talk about the subject and procedure of obtaining evidence; The so-called authenticity refers to whether there is confession, inducement, collusion or contradiction with other evidence. Generally, it is only necessary to point out the specific details of the contradiction between the evidence and other evidence, and not to quote or elaborate the contents of the contradictory evidence; The so-called relevance refers to whether it is related to the facts to be proved. Just give an opinion in a few words, and there is no need to discuss it.
How to understand the authenticity and relevance of evidence, or whether a comprehensive cross-examination can be carried out in the cross-examination stage, is the focus of contradictions and disputes among all parties. Indeed, a piece of evidence itself is difficult to prove its authenticity, and it often needs to be compared with other evidence in the case. However, if the detailed comparison of the evidence content is allowed, it will inevitably take a long time, and the comparison content will inevitably be discussed by the defense as the main argument in the court debate stage, which will essentially cause the repetition of the trial and waste judicial resources. The judge wants all the words, regardless of the prosecution and the defense, to be said only once in court. Therefore, in the cross-examination stage, the defense is often asked to point out the problem, and the specific content will be discussed in detail during the debate.
Why did the judge interrupt the lawyer?
Generally speaking, the judge's overall expectation or ideal state of court cross-examination can be summarized in two sentences: "simple but not simple, in place without offside." Concise, concise, detailed and detailed expression of cross-examination opinions, publish all the contents you want to express at one time, without omission; It should be the content of the debate, and the problem of "three natures and two forces" in the evidence can be clearly stated without going beyond the scope of comprehensive argumentation.
Knowing the judge's expectation of the role of cross-examination and grasping the boundary of cross-examination, it is not difficult to find the reason why the judge interrupted the lawyer's cross-examination speech. To sum up:
First, when the judge thinks that the lawyer's speculation on the case has no factual basis, he is sure that the lawyer's point of view will not be adopted, and there is no need for him to continue to elaborate, he will directly interrupt. For example, the defense claimed that the defendant was tortured to extract a confession on the grounds that he had a scar on a certain part of his body, but he could not provide any clues about the torture. However, the judge had recorded the scar on the defendant's physical examination form before the trial, which ruled out the possibility of extorting a confession by torture, so the lawyer would not be allowed to continue to express this opinion.
Second, when the judge thinks that the lawyer has explained the contents and reasons of the objection in detail when cross-examining other evidence, the court has heard clearly what the lawyer wants to express. When there are similar cross-examination opinions and cross-examination logic, the judge often wants to hear a simple sentence from the lawyer, "The defender thinks that the evidence has the same problems as the above evidence, and the specific reasons will not be developed" or "the cross-examination opinions are the same as the testimony of someone". At this time, if lawyers use the same logical rules for cross-examination, they will be reminded by the judge.
Third, when the judge thinks that lawyers argue in the cross-examination stage because they are beyond the "three natures and two strengths" of the evidence itself, but discuss whether they can prove the facts to be proved by combining other evidence, they will remind lawyers that cross-examination should be "one certificate and one quality". The court will give lawyers sufficient time to demonstrate the comprehensive application of evidence in the debate stage, and only state the arguments in the cross-examination stage, without elaborating the arguments supporting the arguments and the argumentation process.
What is the situation that the judge does not want to face?
In fact, in recent years, judges have paid great attention to protecting lawyers' right to defense, and it is rare to interrupt lawyers' speeches. We can't say that judges deliberately avoid difficulties and ignore case problems, which is unfair to the vast majority of judges, but at the same time, it is unrealistic to ask judges to have the courage to undertake difficult and complicated cases or hope that judges will complicate cases.
Because it violates the human nature of seeking advantages and avoiding disadvantages, who doesn't want their work to be relaxed and happy? Therefore, whether intentionally or unintentionally, when I was a judge, I often prayed secretly that the next case assigned to me would be less controversial and simpler, and there would never be cases such as starting the illegal evidence exclusion procedure or witnesses and experts testifying in court. The reason for this consideration is also obvious:
First, whether the case is excluded or the witness appears in court, it will increase a lot of coordination and contact work and consume a lot of trial time. In the case of more people and fewer cases, the marginal impact caused by the increase of case workload and the slowdown of handling cases will multiply. Second, such cases are often more complicated, it is more difficult to identify the facts of the case, and the probability of misjudged cases is greater. Third, the prosecution and the defense are more antagonistic in such cases. Whether investigators explain the situation in court or witnesses testify in court, because they know little about trial procedures and trial skills after all, there are more uncontrollable factors under the cross-examination of both the prosecution and the defense, which puts a more severe test on the judge's trial control ability.
Because the judge does not actively pursue the start of the exclusion procedure or the appearance of witnesses in court, after the defense makes such a request, the judge generally does not start it without starting it, and if it can be replaced by other means, it will be replaced by other means.
The commonly used methods are as follows: First, it is suggested that the public prosecution organ explain the defects of the evidence, let the investigation organ and the appraisal institution issue written explanation materials, and then collect the evidence and cross-examine it in court; The second is to throw the question to the prosecutor in court, and the prosecutor will express his opinions on the defense's request. If the prosecutor can reasonably refute the defense's request, the judge can often reject the defense's request; Third, when the content of verbal evidence is controversial, judges often hand over several defendants to the court for confrontation on the spot at the same time. Both the prosecution and the defense can ask questions, and the judge will add questions, hoping to eliminate contradictions through the comparison between multiple defendants, which can not only achieve the goal but also avoid reorganizing the trial and summoning witnesses. Fourth, in some cases, the defense is required to prove, for example, the defense believes that some evidence has some reasonable doubts. After hearing this, the judge felt that what the defense said was not unreasonable, but incomplete, because there might be some guilty evidence and the defense could not make a reasonable explanation. At this time, the judge may say that if the defense can have evidence to deny the guilty evidence, I can support you. If not, I can't help you, which essentially puts the burden of proof on the defense to some extent.
How to improve the system construction?
People's cognition will change with the external environment and their own learning. After transferring to the legal profession, the author also reflected, stood on more positions, put himself in the shoes, and began to feel that there were some problems in the previous practice.
First, the question of whether a comprehensive argument can be conducted in the cross-examination stage is still the principle of one evidence and one quality. However, in the case of the public prosecutor giving evidence in groups or giving evidence in an all-round way, the defense should be allowed to demonstrate all the evidence presented by the public prosecutor to a certain extent, because the rights of the prosecution and the defense are equal in court. Since the prosecution can comprehensively prove a certain fact to be proved through a certain close relationship between the evidence and a centralized presentation, Of course, the defense should also be allowed to doubt whether there are contradictions between the multiple pieces of evidence presented by the prosecution, whether they can confirm each other, and whether they can identify the facts that the prosecution wants to prove.
Secondly, regarding the distribution of the burden of proof and the degree of proof, especially the exclusion of inapplicability and reasonable doubt, although there is little controversy between theoretical research and the determination by the highest judicial department, the chronic disease that the court controls the initiation procedure too strictly and demands too much from the defense has not been fundamentally reversed in grassroots judicial practice. For example, excluding reasonable doubt, it is definitely impossible for the defense to speculate without foundation. The judge can only ask the defense to provide some clues that are based on facts and conform to the laws of logic and experience. It not only exceeds the ability of the defender, but also violates the provisions of Article 5 1 of the Criminal Procedure Law that the procuratorial organ has full responsibility to prove the defendant's guilt.
Thirdly, regarding the necessity for investigators, witnesses and expert witnesses to appear in court, the Supreme Law stipulates three conditions in the Interpretation of the Criminal Procedure Law: "There is a major dispute between the prosecution and the defense, and witness testimony plays a very important role in conviction and sentencing, which the collegial panel considers necessary." The third point lies entirely in the judge's subjective understanding. In my previous cases, investigators, witnesses and experts all appeared in court. It should be said that in order to ensure the quality of the case, the judge will work tirelessly, but
Of course, if I go back to continue my trial work now, I will definitely consider the workload and coordination, but I am afraid that I will change from "can't start" to "can start". Although the factors considered are the same, the priority of factors has changed.
How do lawyers follow suit?
After the quasi-judge takes the pulse, as a defense lawyer, it is quite clear how to follow the trend.
First of all, do your evidence homework in advance. Guided by the purpose of cross-examination, taking the cross-examination method as the starting point, this paper classifies and distinguishes the file evidence in detail, and makes a detailed cross-examination outline.
Second, do a good job of multi-party communication before the court. Communicate with the parties, do a good job of division of labor, the facts are cross-examined by the parties, and the legal parts are cross-examined by lawyers; Communicate with the judge, mainly to communicate with the judge on the arrangement of comprehensive cross-examination. Whether in the cross-examination or debate stage, the judge should always reserve some time for himself; Communication with the public prosecutor is mainly the method and strategy of giving evidence to facilitate their own cross-examination; Communicate with the clerk and provide the cross-examination outline to the clerk for comprehensive records.
Third, the court flexibly grasps the cross-examination method. If the presiding judge is not strict with the scale, the lawyer will speak more and more thoroughly. Don't make the same mistake after the presiding judge reminds him of the same problem. It should be noted here that lawyers should adjust the cross-examination strategy according to whether the presiding judge of the case is the undertaker. If it is the same person, because the presiding judge has predicted the focus of attention and the lawyer has learned it through pre-trial communication, then the lawyer's cross-examination is narrow, but he has more to say. As long as the expression is within the range of the presiding judge's concern, he will not interrupt but hope to speak as fully as possible. If it is not the same person, the lawyer can either focus on the key points that the undertaker pays attention to or elaborate on several topics that he thinks are important, but don't talk too much about a certain topic, lest the presiding judge think it redundant or repetitive. To put it simply, it is necessary to make rational use of the information asymmetry between the presiding judge and the undertaker to maximize their own interests.
Fourth, cross-examination in court should be combined with written cross-examination Despite adequate preparation, in some cases, after the trial, I still feel that the expression in court is not sufficient. At this time, I can still add written opinions. Especially in cases of second instance, most cases of second instance are heard in writing, and there is no opportunity for cross-examination in court. In this case, the written cross-examination opinions on the evidence adopted in the first instance shall be submitted in time. On the one hand, it is to express their opinions and shake the blind faith of the judges of second instance in the evidence of first instance. On the other hand, I hope to promote the trial of the second instance and strive for the opportunity to send it back or change the sentence.
Can a judge punish a lawyer in court?
What I said earlier is how lawyers cooperate with judges and how to guide them according to the situation. On the other hand, if the lawyer does not cooperate with the judge, what kind of sanctions can the judge give the lawyer?
Judging from the author's experience, judges are sometimes very helpless. If a lawyer talks at length about every detail, humanity, feelings and stories in court, that is, he doesn't talk about the law, and the judge will always remind him. But if the lawyer turns a deaf ear, the judge can only let it go. If the lawyer did not attack the party and state system in court and did not attack personally, the judge had no reason and no need to expel him from court. Since he can't stop it, let him give full play until the rest of the defenders can't stand it. Formally, the lawyer beat the judge and won the right to speak in court for himself, but in fact, what he said was really hard to remember. Whether this is really for the benefit of the parties is worth pondering.
In court, judges, prosecutors and lawyers have different responsibilities, but their goals should be the same. They should try to tilt one end of the scale to their own side in the way they think is right, so that through this joint effort, they can finally achieve the result of pursuing fairness and justice.