The duty of criminal defense lawyers is to accept the entrustment of criminal suspects, defendants or their families, and put forward materials and opinions to prove their innocence, reduce their crimes or reduce or exempt their criminal responsibilities according to facts and laws, so as to safeguard their legitimate rights and interests.
1. The duties of defense lawyers stipulated in Article 35 of China's Criminal Procedure Law mainly focus on defending criminal suspects and defendants from the substantive aspects, that is, only debating and defending criminal entities, whether it is to present materials to prove the innocence of criminal suspects and defendants, to reduce or exempt them from criminal responsibility, or to make comments, criminal defense is only conducted around criminal entity laws. Regarding the procedural defense responsibility, China's current criminal procedure law and related regulations are not clearly and fully affirmed.
2. The so-called procedural criminal defense refers to: "In criminal defense, on the grounds that the investigation, prosecution and trial activities of the relevant departments are illegal, the opinions that the suspects and defendants are innocent, the crimes are light or should not be investigated for criminal responsibility are put forward, and it is required to supplement or restart the proceedings that have not been carried out according to law and exclude the illegally obtained evidence." (13) At present, in China's judicial practice, procedural defense has not been paid enough attention, and it is basically an invalid defense method. For example, for illegal evidence, it is limited to illegal verbal evidence (such as extorting a confession by torture), but it has little defense effect on illegal verbal evidence. For the confession made by the defendant who was tortured in court, the people's court often used the evidence issued by the investigation organ (that is, the public security organ wrote and sealed that it did not extort a confession by torture in the investigation activities), and considered the verbal evidence valid because the defendant had no evidence to prove that the investigation organ had extorted a confession by torture. This is as absurd as Zhang San borrowing money from Li Si, and Zhang San's own words prove that he didn't borrow money from Li Si. It does not include illegal material evidence, which makes the procedural defense of illegal evidence collection almost meaningless. This should attract great attention from the legislative and judicial practice circles. When revising the criminal procedure law in the future, the procedural defense responsibilities of defense lawyers and other defenders in criminal proceedings should be clearly defined.
3. In addition to the direct responsibility of defense lawyers to safeguard the legitimate rights and interests of criminal suspects and defendants, some scholars believe that defense lawyers also have general responsibilities in criminal proceedings, that is, the responsibility of defense lawyers to assist criminal justice, including preventing and exposing mistakes in criminal justice, promoting compliance with the legal system, helping to safeguard individual rights and legitimate rights and interests, prompting the root causes and conditions of crimes, and promoting judicial education and perceptual realization. The general responsibility paid by defense lawyers requires defense lawyers not to interfere with the normal conduct of criminal justice. The key to this problem lies in whether the defense lawyers can take positive actions to help the judicial organs find the real entity from the standpoint of not benefiting the criminal suspects and defendants. According to the general duties of defense lawyers, it seems that they should answer directly. But this is actually related to the direct responsibility of defense lawyers to safeguard the legitimate rights and interests of criminal suspects and defendants and the general responsibility of assisting criminal justice.
4. Therefore, in view of the position of criminal suspects and defendants in criminal proceedings, we can't overemphasize the responsibility of defense lawyers as assistants of criminal justice, while ignoring the legitimate rights and interests of criminal suspects and defendants. Because the defense lawyer's direct responsibility can only be to help the judicial organs find the truth that is beneficial to the criminal suspects and defendants, and there is no obligation to help the judicial organs find the truth that is beneficial to the criminal suspects and defendants and to find out the truth that is beneficial to the criminal suspects and defendants. (14) Considering that the current laws of our country do not comprehensively stipulate the responsibilities of defense lawyers, and defense lawyers face many difficulties and obstacles in criminal proceedings, it is necessary for the legislature to clearly stipulate the nature and status of defense lawyers and the direct responsibility for safeguarding the legitimate rights and interests of criminal suspects and defendants, so as to promote the healthy development of China's lawyer cause. So that defense lawyers can better perform their defense duties and better safeguard the legitimate rights and interests of criminal suspects and defendants.
Lawyer's criminal defense business scope
Criminal defense is generally divided into three stages, namely, criminal investigation stage, criminal examination and prosecution stage and criminal trial (first instance and second instance) stage. At different stages of criminal proceedings, the work content of lawyers is different.
First, the lawyer's service in the criminal investigation stage:
1. Find out from the investigation organ what the criminal suspect is accused of;
2. Meet with the criminal suspect in custody and provide legal aid to the criminal suspect;
3, on behalf of the criminal suspect to lodge a complaint and report;
4. Put forward bail pending trial for the criminal suspect.
Second, the lawyer's service in the criminal examination and prosecution stage:
1. Meet with the criminal suspect in custody to understand the case;
2. Consult, extract and copy the litigation documents and technical appraisal materials in this case;
3. Apply for bail pending trial, and ask for cancellation or change of compulsory measures;
4, apply to the people's Procuratorate to provide witnesses or other relevant units and individuals to collect and obtain evidence, investigate and collect materials related to the case;
5. Put forward a written defense opinion that the criminal suspect is innocent, the crime is light, or his criminal responsibility is reduced or exempted;
Third, the lawyer service in the criminal trial stage:
1, go to the people's court to consult, extract and copy the case materials;
2. Meeting with the accused in custody;
3. Investigate and collect evidence related to the case according to law;
4. Participate in court investigations and court debates and submit written defense opinions.
5. Listen to the defendant's opinions on the judgment and give legal help.