In some cases, it is really necessary to obtain evidence or apply for witnesses to appear in court. We should be cautious again, but we should not give up eating because of choking. It just means that this method must be cautious and conform to the specifications.
First of all, it involves the situation that the family members of the parties need to provide evidence after they know the case. In this case, we try our best to find objective evidence such as documentary evidence and physical evidence, because their proof function is greater than the corresponding verbal evidence, and they can also play a role in excluding the prosecution evidence. In a robbery case I handled more than ten years ago, the defendant's parents repeatedly stressed to me that his child was under 18 years old when he committed the crime.
However, by reading the case file, it can be seen that the client has reached the age of 18, whether from his own confession or from the record of his identity card. At this time, the family asked the midwife at that time to testify for him, and I refused this question. Because the midwife didn't have the original documents recorded in the hospital at that time, and after a decade or two, how can the midwife's testimony ensure her objectivity? Not only does the evidence fail to achieve the purpose of proof, but it is also prone to risks.
At this time, I suggested that they go to the school to get the student status certificate of the client. Through the school records, can you find objective documentary evidence at that time, which can prove that his actual age was less than 18 at the time of the crime? By going to school, I also found that all the records recorded that he was 18 years old when he committed the crime.
Finally, it suddenly occurred to me that the defendant was the second child in the family. According to his age, he was doomed to be fined in the family planning era. I'll tell his family that you go home and look for this deposit receipt stub with a family planning fine. If these bills still exist, you can collect them, or we can go to the family planning department to collect their roots. Fortunately, the defendant's parents did find more than one proof stub of the family planning fine at home, and one of them recorded the time of birth and the time of the fine. According to calculation, the party concerned was really under 18 years old when committing the crime. We provided this evidence to the public prosecution and the court as evidence to prove the age of the defendant, which was recognized by the public prosecution during the trial of this case. Finally, the court also adopted our defense opinion, that is, referring to the case of the Supreme People's Court, the facts of evidence conflict were unclear, and the defendant could not be considered as 18 years old when he committed the crime, but should be considered as a minor. Robbery cases were also mitigated.
Secondly, for cases that must be obtained, from the perspective of defense lawyers, the method of fixed evidence can be adopted.
The first method is to synchronize audio and video recording in the process of obtaining evidence. In the process of synchronous audio and video recording, are there any misleading records and real records? These situations can be fully reflected. If the witness recants, it will be difficult. If he identifies the family members or lawyers of the parties and leads him to make false statements, it is relatively more difficult. As a public authority, it is also difficult to testify at this time, saying that the defender or the family members of the parties guide the witnesses to commit perjury.
But in many cases, the witness often rejects synchronous audio and video recording, and he does not agree to audio and video recording. Therefore, this witness who disagrees with the audio and video recording, I think we must pay attention when taking evidence. You can't make such a questioning record just because he doesn't agree, which will put yourself at risk. Because on the question of the authenticity of evidence, we must fix the question, so who is true and who is false? If you have no evidence, the final decision will be made by the judiciary at this time. Then many of our lawyers or family members of the parties are suspected of perjury in the process of disputes, and often after the witnesses correct their identification, they will eventually be judged against them. Then we can't stop recording or video recording just because the witness doesn't cooperate. Then a better method is that we don't have to tell you during the recording or video recording.
If we didn't tell you in the process of audio and video recording, then we don't need to provide the corresponding audio and video recording to the judicial organs. We can provide corresponding transcripts, but use audio and video as our defense evidence. That is, once the witness recants his confession again, if he says that the family members or lawyers of the parties concerned instructed him to commit perjury, led him to commit perjury and tricked him into committing perjury, then his identification will form corresponding evidence. However, after the evidence was formed, we took out audio-visual evidence as evidence to block the case, so if the witness wants to testify for the third time at this time, it is obviously not credible. This situation is also an effective means for defense lawyers and their families, that is to say, when evidence needs to be obtained, then the audio and video will be fixed for defense.
Another way is that we apply for witnesses to testify in court, which is relatively safe. However, most prosecution witnesses tend to avoid this question after testifying to the defendant, because most witnesses will know that the original testimony has bound him, and if he makes different testimony, there will be risks. At the same time, some witnesses themselves are potential targets of investigation by the judicial organs, or they have been investigated and are only released on bail pending trial. In this case, they are often unwilling to face risks and conflicts to restore the truth of the case.
In addition, the court usually does not want witnesses to testify in court. This strange phenomenon is unique to China. The main reason is that the court is unwilling to push itself into a dilemma. As far as the judge is concerned, he believes that if the evidence provided by the prosecution can form a complete chain of evidence, the case can be finalized. If a complete chain of evidence cannot be formed, the charges can be dismissed. Once the witness appears in court and makes something different from the prosecution's evidence, it will put the judge himself in a dilemma. Once you agree with the prosecution's evidence and disagree with the witnesses' different testimony in court, you will be criticized by the defendant and his family, including the defense lawyer.
On the contrary, once the witness's testimony is confirmed and the prosecution's testimony record is denied, the judge's judgment will be criticized by the prosecution and even lead to his own risk.
Therefore, judging from the experience of many judges, he evaded questions and did not want witnesses to testify in court, which is a negative state for witnesses to testify in court.
This situation is also the reason why it is sometimes difficult for criminal defense lawyers to achieve results in case defense, and it is also the reason why scholars have repeatedly criticized them. We don't use direct verbal evidence to find out the facts of the case, but the file is one-sided, which easily leads to unjust, false and wrong cases. However, this is our current judicial situation, which is not the topic we are discussing today. I just want to tell you how to communicate with the family members of the parties and how to ensure that the family members of the parties do not involve risks and do not involve lawyers because they are exposed to risks. Moreover, we also need to take into account that when the parties need to apply for witnesses, we will try our best to let the families of the parties cooperate in obtaining evidence.
Finally, in this regard, we must warn the families of the parties concerned. In fact, we had moderate protective communication with witnesses and kept the evidence communication. However, remember to clash with witnesses and avoid being accused by them. We will lure or buy them to testify, which will put ourselves in danger. In judicial practice, there are indeed family members of the parties, and some of them communicate with the rape victims, or even buy them, so that the victims can make different testimonies and retract evidence, which leads to being investigated for perjury. There are also cases in which lawyers have been investigated for legal responsibility for similar acts. So we must pay attention to it and remember the occurrence of this kind of behavior.
Fifth, not all the evidence can be told to the family members of the parties, and not all cases need to be told.
Some cases need to be reviewed by us, and we can't tell the families of the parties about some obviously inappropriate cases, otherwise it will be easy to fall into risks. Not only is it illegal, but it even directly falls into the legal risk of violating Section 306.
First of all, it is this kind of situation involving state secrets. Since there are clear rules, we obviously can't tell the family members of the parties. Because our professional protection of the rights and interests of the parties can only be implemented within the scope of the law, not beyond the scope of the law.
Secondly, it is some information transmitted by the parties, whose purpose is obviously to hinder the lawsuit. For example, in a case exchange, a young lawyer mentioned that he had met a client involved in drug trafficking, but said nothing else. Instead, he repeatedly stressed that the lawyer should tell his wife which compartment in the cupboard has a pair of shoes and let her throw them away. In this case, although the party refers to a pair of shoes, it can be judged from a person with a little legal knowledge that his behavior is obviously aimed at transferring stolen goods or evidence. In this case, if the lawyer passes this information out and the family members of the parties take corresponding actions, once the incident occurs, the lawyer will directly face the risk of being investigated for legal responsibility.
Some lawyers suggested that recording is not allowed when meeting the parties. I told the parties and their families the situation. How does the judiciary master it? What is the basis for them to hold me accountable? In fact, the suspects and defendants in the detention center are used as one end of the evidence, and the families of the parties outside are used as the other end of the evidence. As long as the evidence of both sides can be consistent with each other, this evidence advantage is enough to put the defense lawyer at a disadvantage.
Defense lawyers must understand that we should not expect the parties and their families to give their lives to protect your lawyer's rights and interests when facing risks. Because the defense lawyer himself and the client are a unilateral contract. In other words, apart from charging, we have almost only obligations and no rights to the parties. As for the client, he entrusted your lawyer and I paid the fee, so the lawyer engaged in the corresponding legal services, which he thought should belong to the service scope. If the lawyer's behavior of transmitting inappropriate information has corresponding legal consequences, it may be that the family members of the parties get a lighter punishment or are not held accountable, and lawyers are often unlucky.
Therefore, lawyers should regulate themselves when transmitting information, which obviously hinders litigation and has the purpose of obstructing litigation. This kind of words and deeds, this kind of thing, can't be passed on.
Third, some issues involving sharp conflicts, lawyers had better not pass them on to the families of the parties. For example, in some bribery cases, the defendant may think that the witness who identified him as bribing or the so-called briber has no economic relationship with him at all, so it is completely framed. Then, if we, as lawyers, fully report this situation to the client's family, and his attitude, views and opinions may make the client's family lose control of their emotions and make some words and deeds that offend witnesses, then this situation will also put the client's family and lawyers in danger.
From the perspective of defense lawyers, professional lawyers should look at problems more rationally than family members and parties. In the face of some bribery behaviors denied by the client, we can tell his family that the client does not agree with this issue. But don't intensify contradictions, remember to pull hatred. Otherwise, once there are serious consequences, the lawyer will bear the corresponding responsibilities, and at the same time, the family members of the parties will bear the corresponding legal responsibilities! I feel that if our lawyer puts himself or his client's family in the dock during the handling of the case, no matter how much effort you make in the handling of the case, it is also an obvious failure and a huge mistake.
In other words, we have some obvious situations where we can't communicate, so we must not communicate. Because communication is not conducive to solving the case, it will lead to intensified contradictions and acute problems, or this communication is obviously illegal, or because this communication leads the parties and their families to conceal and destroy evidence and hinder judicial justice, everyone will be investigated for legal responsibility.
Sixth, we should emphasize some information about informing the family members of the parties concerned, not only considering whether the form is illegal, but also considering the consequences of your informing.
As ordinary citizens who are not familiar with the law, the parties and their families are often more emotional and act on intuition. But from the lawyer's point of view, you should know why, and you should also know why. This is the case. I told him that this case itself may not be illegal, but you have to judge by experience. If he knows these things, what will he do? If you don't warn him, dissuade him and leave him alone, then I think this situation will easily lead to legal risks.
For example, in practice, we told the families of the parties that several witnesses identified the defendant in this case, and the defendant thought their identification was untrue. You only inform, not warn. Once the family members of the parties find the witnesses and the witnesses hand over the evidence, then in this case, the judicial organs often take the position of objective blame. In other words, your lawyer told the family of the client about the witness, and you revealed this information. The witness's testimony is untrue or inconsistent with the defendant's defense. Then you should expect that the family members of the parties concerned will go to the witness and ask the witness to hand over the evidence. Then the judgment that the judge should know will lead them to think that you know, or indirectly, or even that he thinks it is direct and intentional.
In judicial practice, when our lawyers face legal risks, the prosecution usually takes this position. Moreover, once a lawyer is sued and once he enters the judicial process, it is still very difficult to defend.
We are all professional lawyers, and we should know that in criminal proceedings, subjective proof often lacks exact standards and is very arbitrary. Then if this possibility can be inferred from an act, the prosecution insists that it exists. Then even according to the standard of proof, the defense believes that it can't draw a unique conclusion and can't rule out reasonable doubt. However, when the conclusion of the case is really determined, the judiciary will often think that you, as a professional lawyer, have superior judgment and know the behavior of witnesses and their families like the back of your hand. This situation is also difficult to defend, because your lawyer connives, connives and even instigates in disguise.
In another case, as defense lawyers, we informed the family members of the parties about the witness's name and his testimony. At this point, the family members of the parties and witnesses have had serious conflicts, even violent conflicts. There are precedents for this situation. Even in civil litigation, there are such precedents. Once this result occurs, the possibility of investigating the legal responsibility of lawyers will be further increased. Because the judiciary often thinks that you, the defense lawyer, are deliberately instigating and inciting. In practice, judicial organs are usually the logic of this objective imputation. As mentioned above, in the judgment of the constitutive elements of a crime, the objective aspect is often easy to judge by evidence, and the subjective aspect is often arbitrary. However, if the constitutive requirements of a crime are discretionary by the judicial organs, then defense lawyers will be in a relatively unfavorable state if they are deeply involved in such cases. Because defense is in a weak position in the whole criminal procedure pattern after all.
The last situation is that after the defense lawyer informed the family of the client, the family of the client did not listen to dissuasion, or you did not dissuade him, and he made such corresponding misconduct. Once the legal risk breaks out, the parties may choose to blame the lawyer, or even completely frame the lawyer for instigation. As I said before, we can't expect anyone to take responsibility when facing risks. He took responsibility himself, not shirked it. Then the lawyer will be in a very passive state in this case. As a matter of fact, the Li Zhuang case in Chongqing is well known, so Li Zhuang was only identified unfavorably by his own client and was finally convicted. Of course, lawyers in Zhu Mingyong at that time were very lucky. When the judiciary is also ready to hold Zhu Mingyong accountable, the client of lawyer Zhu Mingyong insists on defending his lawyer. In the end, compared with the clients, some clients were sentenced to a suspended execution, while Zhu's client was sentenced to immediate execution, and the Supreme People's Court finally approved the immediate execution of the death penalty. Of course, it is hard for us to expect such a lucky situation as Zhu Mingyong's lawyer, because once we put our fate on the level of luck, I don't think our rights can be guaranteed.
To sum up, I think that in criminal proceedings, it is necessary to satisfy the family members' basic right to know the case, inform them of some rights, and correctly guide them to cooperate with the proceedings. Also inform them of the risks and avoid taking risks. Don't contact witnesses, and don't provide evidence that you are not sure about the authenticity. It is even more impossible to influence judicial justice through other illegal channels. Moreover, it is also necessary to let the relatives of the parties know the special situation of the witness, and often they will not sacrifice themselves for others. Don't expect the witness to make such self-sacrifice If he doesn't interfere with the witness who is willing to prove the facts of the case, he will also take the initiative to apply to testify in court. Then for those who really need the cooperation of the family members of the parties to collect evidence, we should try our best to obtain the corresponding objective documentary evidence and physical evidence, because their authenticity can be determined. At the same time, for the corresponding witnesses, by applying to testify in court or making synchronous audio and video recordings during the conversation, the evidence is fixed and legal risks are avoided. Especially when lawyers plead not guilty, they should pay more attention to it. Because of the huge conflict between our views and positions with the prosecution, we should be more cautious when negotiating with the families and witnesses of the parties. In addition, it is about information that cannot be clearly transmitted. The parties and their families may use this information to hinder litigation, and even lead to sharp conflicts between the parties' families and witnesses. This information should not be transmitted. Because we told him the basic situation, we also did our duty. The way to send inappropriate information to the family members of the parties concerned is to quench their thirst by drinking poison. The way to cater to the parties is often beneficial to the parties on the surface, but in fact it may cause harm to the parties and their families, making them worse and more passive.
In addition, from the perspective of defense lawyers, we should not think that our actions are legal in form, and we are not responsible for any consequences. Because although our behavior is legal in form, if we infer that you can foresee some illegal consequences, or even that you can completely foresee the illegal consequences, you will still carry out this behavior and be investigated for legal responsibility. In judicial practice, just as others want to fight, looking for a shop owner to buy a kitchen knife, the shop owner knows that others want to fight and sells the kitchen knife to others, obviously risking being investigated for helping to commit legal responsibility. Similarly, when our defense lawyers inform the families of the parties about the case, if they find obvious signs of illegal behavior, they must be cautious, inform them of this right and protect themselves. For the families of the parties who obviously don't listen to dissuasion, then we can consider not telling them about some cases, or even consider canceling the entrustment and quenching thirst by drinking poison, which will put the families of the parties in danger, ruin their lifelong future and even have some negative effects on the lawyer industry.
The above is my personal opinion on whether the lawyer can convey the case to the family members of the parties for your reference. Please criticize and correct the shortcomings. Ok, that's all for today's communication. Thank you!