1. Can immediate family members be defenders?
Yes, if it is in the investigation stage, you can only entrust a lawyer as a defender. Relatives can be entrusted as defenders in the stages of examination, prosecution and trial, but the right to meet and read papers can only be enjoyed if the defender is a lawyer. Article 58 of the Civil Procedure Law stipulates that the parties and their legal representatives may entrust one or two persons as agents ad litem. Lawyers, close relatives of the parties, persons recommended by relevant social organizations or units and other citizens permitted by the people's courts may be entrusted as agents ad litem. According to the above provisions: relatives can appear in court as agents.
Second, the main points of criminal litigation defense
The development of modern criminal judicial procedure embodies the idea of protecting the defendant's legitimate rights and interests, and the revision of China's criminal procedure law also embodies the spirit of this principle, which has been implemented in the criminal procedure system. Therefore, the defense in all aspects of criminal proceedings should be able to help realize the purpose of protecting the legitimate rights and interests of the defendant. The main choices are bail pending trial, change of jurisdiction, non-prosecution, medical parole and so on. Among them, it plays a direct and decisive role in obtaining the result of the defendant's innocence and light crime in the procedural defense link, and is expounded as the main point of procedural defense.
(A), the debate about bail pending trial
A criminal suspect may hire a lawyer to provide legal aid. According to Article 67 of the Criminal Procedure Law, the people's courts, people's procuratorates and public security organs may obtain a guarantor pending trial for a criminal suspect or defendant under any of the following circumstances:
(1) may be sentenced to public surveillance, criminal detention or independent application of supplementary punishment;
(2) may be sentenced to more than fixed-term imprisonment, and obtaining a bail pending trial will not cause social danger;
(3) Women who are seriously ill, unable to take care of themselves, pregnant or nursing babies will not be socially dangerous if they are released on bail pending trial;
(4) Upon the expiration of the detention period, the case has not yet been settled, and it is necessary to obtain bail pending trial. Bail pending trial shall be executed by the public security organ.
According to the above provisions of the Criminal Procedure Law, as long as the criminal suspect is arrested and detained, as long as he meets the conditions of obtaining a bail pending trial, that is, obtaining a bail pending trial will not cause social danger, the lawyer should apply for obtaining a bail pending trial. As long as the suspect is released on bail pending trial, according to the current judicial practice in China, the court will generally apply probation and a non-custodial penalty to him.
In judicial practice, the decision to obtain bail pending trial is mainly made by the investigation organ. However, when the investigation organ makes a decision to obtain a bail pending trial, one case is that the investigation organ makes a decision on its own, and the other case is that the investigation organ requests approval for arrest, and the people's procuratorate decides not to approve the arrest after examination, and the investigation organ changes compulsory measures to obtain a bail pending trial. There are two situations in which the people's procuratorate does not approve the arrest, namely, innocence and guilt, and guilt refers to the situation that constitutes a crime but is not necessary for arrest [2]. There are two ways for lawyers to put forward bail pending trial for criminal suspects. One is to apply directly to the investigation organ, and the other is to appeal to the people's procuratorate. If the procuratorate accepts the complaint, once the procuratorate decides not to approve the arrest, the investigation organ must change the compulsory measures and release the suspect on bail pending trial.
(2) Debate on the change of jurisdiction.
Article 25 of the Criminal Procedure Law stipulates that criminal cases shall be under the jurisdiction of the people's court in the place where the crime was committed. If it is more appropriate to have the case tried by the people's court of the defendant's domicile, it may also be under the jurisdiction of the people's court of the defendant's domicile. Article 26 A case over which several people's courts at the same level have jurisdiction shall be tried by the people's court that accepted it first. When necessary, it may be transferred to the people's court of the place where the main crime is committed for trial. Article 27. A people's court at a higher level may designate a people's court at a lower level to try a case with unclear jurisdiction, or it may designate a people's court at a lower level to transfer the case to another people's court for trial.
It can be seen that the jurisdiction of the people's courts over criminal cases is not static, and there may be changes in regional jurisdiction and level jurisdiction. In judicial practice, in fact, the court trial is the last litigation link, and the jurisdiction problem has already appeared in the investigation, review and prosecution links, and once it is determined, it may not be changed in the trial stage. We must admit that in some cases, the same case may be handled by different judicial organs and may have different conclusions. For example, in the case of an employee of a company in Hangzhou who has great influence in China infringing on the business secrets of a company in Shenzhen, at the beginning, the public security organs in Hangzhou and Shenzhen had jurisdiction disputes. Later, the case was determined to be under the jurisdiction of Shenzhen public security organs, and the defendant was later found guilty. We have reason to assume that if the case is handled by the public security and judicial organs in Hangzhou, the results may be different. Therefore, for our lawyers, it is an important procedural defense link that how to strive for the case to be transferred to the judicial organ that is beneficial to the defendant.
But I personally suggest that if you are a professional lawyer, you can be a defender for your relatives, but if you don't have professional lawyer knowledge, don't be a defender. Because professional lawyers will not only safeguard our own rights and interests, but also strive for more rights for us outside ourselves.