Lawyers should mainly grasp the following points when consulting case files:
(1) indictment review. Focus on what crime is charged, the motive, purpose, time, place, means, circumstances and consequences of the crime, the position and role of the defendant in the crime, the severity of the crime, whether there is a lighter, mitigated or exempted punishment, and whether there is criminal responsibility. Review whether the legal provisions cited in the indictment are appropriate, etc.
(2) Review the evidence list and witness list. Lawyers can roughly understand the evidence system and types of the case by consulting the evidence catalogue and witness list, and check the relationship between the "main evidence" materials collected and the evidence materials that have not been collected to prove the facts of the case. Through the list of witnesses listed by the procuratorate, we can understand the role of other witnesses in proving the facts of this case, and through meeting with the defendant, we can understand how to carry out the investigation and collection of these evidences and witnesses' evidence beneficial to the defendant.
(3) Review of photocopies and photos of main evidence. Through the review of the main evidence, we can know whether the evidence of the defendant's conviction in this case is sufficient and true, which evidence has doubts and contradictions, so as to classify and exclude it, which evidence needs to be investigated and verified immediately, which evidence needs to be met with the defendant and which evidence needs to be verified during court investigation.
2. How to exercise the right to claim investigation evidence in pretrial procedure?
Lawyers' investigation and evidence collection is not protected by state coercion, which objectively makes lawyers' investigation and evidence collection rights often unable to be truly implemented. Therefore, the Criminal Procedure Law and relevant judicial interpretations have given a remedy, that is, the defense lawyer can request the court to issue a Decision on Permission to Investigate if it is impossible to obtain or encounter difficulties. If the relevant witnesses and relevant units disagree, they can request the people's procuratorate or the people's court to collect and obtain evidence. Lawyers should pay attention to the following issues when exercising the right of claim for investigation and evidence collection:
(1) A written application must be submitted. The written application includes the information of the applicant, the defendant and the respondent and the reasons for requesting the investigation, with a detailed Survey Outline attached;
(2) According to the relevant laws and regulations, when the people's court collects and investigates evidence according to the application of the defense lawyer, the defense lawyer can be present as the applicant, but it depends on the case and the witness, and needs the consent of the court investigators;
(3) Evidence materials of court investigation. A lawyer may request to keep a copy of the evidence and present it in court as defense evidence, which can only be used as evidence to determine the facts of the case after investigation and cross-examination by the court;
(4) Because the witness or the victim refuses to accept the investigation, the lawyer's request for investigation evidence may be rejected by the court. If the defense lawyer thinks that the evidence is really beneficial to the defendant, he shall apply to the people's court to inform the witness (the victim) to testify in court, so that the evidence can be adopted as judgment evidence by the court through questioning and cross-examination.
3. Investigation and confirmation of illegal evidence.
The Criminal Procedure Law stipulates that judicial personnel must collect all kinds of evidence that can prove the guilt or innocence of criminal suspects and defendants and the seriousness of crimes in accordance with legal procedures. It is strictly forbidden to extort confessions by torture and collect evidence by threats, enticements, deception or other illegal methods. It can be seen that although the criminal law prohibits the use of illegal means to obtain evidence, it does not stipulate that evidence obtained by illegal means cannot be used as evidence. The problem is that in the process of collecting evidence, the prosecution is more likely or qualified to use illegal means to achieve the purpose of accusation and proof. Once these illegal evidences are presented in court, they will have a negative impact on the determination of the facts of the case, eventually leading to the abuse of power and affecting judicial justice. Therefore, it is of great significance for defense lawyers to collect relevant evidence to prove the existence of illegal evidence in the pre-trial stage and to pre-examine its legality. The author believes that the examination and confirmation of illegal evidence mainly starts from three aspects: subject, procedure and form:
Regarding the subject, such as the evidence collected by investigators, it should be avoided; Evidence obtained by non-statutory investigators; Testimonies and expert conclusions provided by non-natural persons; Testimony provided by young people or mental patients who can't distinguish right from wrong and express correctly should be the key content of lawyer's examination and investigation.
(2) Procedurally, only one investigator was present when the testimony transcript was taken, and the legal responsibility of testifying was not informed when the witness was asked. Investigators use torture to extract confessions and collect evidence through threats, seduction and deception.
(3) Written confessions, testimonies and statements without the signatures of criminal suspects, defendants, witnesses, victims and interrogators; There is no appraisal conclusion sealed by the appraiser, and there is no inspection record signed and sealed by the producer or witness.
The above evidence belongs to the category of illegal or illegal evidence. Once the defense lawyer can prove the illegality and illegality of the evidence, he shall promptly transfer the relevant materials to the people's court and request the court to exclude the illegally obtained evidence from the court investigation. In order to prove the fact that investigators illegally collect evidence, the people's court may be required to summon investigators, inspectors and appraisers to testify in court, raise objections to the collected evidence, and expose in court that the evidence is illegal in subject, procedure and form, so as to prevent these illegal evidence from being used as evidence for judgment by the court.
Lawyers must seek truth from facts, be loyal to the facts, provide legal assistance to the parties on the basis of respecting the facts, and safeguard the legitimate rights and interests of the parties when conducting investigation activities in the pre-trial stage. Do not help criminal suspects and defendants to conceal, destroy or forge evidence or collude with each other, do not threaten or induce witnesses to change their testimony or commit perjury, and do not interfere with judicial procedures. Source: China Criminal Defense Network Author: Liaoning Sunshine Law Firm Luo Liyan