First, information (inquiry) questions. In the court investigation stage, after investigating the guilty facts, the trial judge announced the court investigation of the sentencing facts. Under the auspices of the presiding judge, the public prosecutor may interrogate the defendant, the victim and the witness after the defendant and the victim respectively make statements around sentencing. In the sentencing trial procedure, the public prosecutor should take the sentencing facts as the center, make professional criminal defense, and follow the order of legality first, discretion later, and severity first. First, ask the sentencing circumstances of the statutory heavier punishment, and then ask the defendant the statutory lighter punishment circumstances. After interrogating the relevant statutory sentencing circumstances, the defendant should be questioned about the discretionary sentencing circumstances, first of all, the issue of discretionary heavier punishment, and then the discretionary lenient circumstances. In addition, the public prosecutor can ask the victim and witness about the sentencing, but this kind of inquiry is different from the comprehensive interrogation of the defendant's various sentencing circumstances, but aims at proving some specific sentencing circumstances and the damage suffered by the victim because of the criminal behavior.
With the permission of the presiding judge, the defender may ask questions about the circumstances of sentencing to the defendant, the victim and the witness. Generally speaking, the defender will ask the defendant questions about the sentencing circumstances of statutory and discretionary lenient punishment. If the defender has different opinions on the circumstances in which the public prosecutor interrogates the defendant for a heavier punishment, he may also ask the defendant supplementary questions on the facts on which the heavier punishment is based; As for the victim's inquiry, in the evidence investigation of sentencing trial, we can only ask the victim and witness questions related to sentencing facts, and no longer ask questions related to conviction facts.
According to the provisions of China's criminal procedure law, judges play an active role in the process of interrogating defendants. In the investigation stage of the sentencing court, even if both the prosecution and the defense have questioned and asked questions about the sentencing circumstances, the judge can still interrogate the defendant or the victim or witness ex officio according to the need of ascertaining the facts; When either party deviates from the sentencing issue, the judge should make necessary reminders and explanations, and ask both parties to make inquiries and questions around the sentencing issue.
Second, proof and cross-examination. In the evidence investigation stage of sentencing trial procedure, both the prosecution and the defense should present and cross-examine the evidence related to sentencing respectively. Both the prosecution and the defense should first briefly explain the source, content and purpose of sentencing evidence, so that the court can grasp the evidence information in time and effectively, and then present and read the relevant physical evidence and documentary evidence. When the same evidence involves both conviction and sentencing, both the prosecution and the defense should explain the influence of the evidence on sentencing when presenting the evidence.
When presenting evidence of sentencing, public prosecutors should first present evidence of statutory sentencing circumstances, and then present evidence of discretionary sentencing circumstances. When presenting evidence of statutory sentencing circumstances, first present evidence of statutory heavier punishment, and then present evidence of statutory lighter or mitigated punishment. When presenting evidence of discretionary sentencing circumstances, the evidence is also given in the order of first weight and then light weight. The defendant shall present sentencing evidence in the same order as the public prosecutor. However, because the defendant does not bear the burden of proof to prove the seriousness of his crime, the defense does not need to produce relevant evidence related to the circumstances of heavier punishment.
In the process of evidence investigation in sentencing trial, the judge shall organize both the prosecution and the defense to publicly cross-examine the controversial evidence materials that affect sentencing. The order of cross-examination should be based on the order of proof, but it is not rigid. As for the mode of cross-examination, is it adopted? One certificate and one quality? 、? A group of one quality? 、? One side and one quality? Or? The whole case is one nature? Mode, Beijing Law Firm, [3] should be flexibly selected by the judge according to the specific circumstances of the case.
If the defendant, his defenders or other participants in the proceedings submit evidence materials that can affect the defendant's sentencing in court for the sake of litigation justice and prevention of litigation surprise, the public prosecutor has the right to suggest that the court postpone the trial if he thinks it necessary to conduct supplementary investigation.
2. Sentencing court debate. After the prosecution and the defense debate on the conviction, they should be guaranteed the opportunity to express their sentencing opinions. The judge should inform the defendant that he has the right to defend sentencing, or explain to the defendant that he can refute the prosecution's sentencing opinion while defending innocence, and put forward favorable sentencing suggestions to eliminate the embarrassment caused by the defendant's inconsistency in words and deeds. (4) When the public prosecutor expresses his opinion on public prosecution, he shall separately express his opinion on sentencing. After the court investigation stage, the circumstances related to sentencing have been basically clear. The public prosecutor should objectively and fairly put forward sentencing standards and sentencing circumstances, affirm the correct sentencing opinions of the defense, refute the incorrect sentencing opinions, analyze the influence of various circumstances on sentencing in the order from heavy to light, and put forward sentencing opinions on this basis.
Before the trial, the procuratorial organ has put forward clear sentencing suggestions to the court. If there are no new facts and evidence that affect sentencing during the trial, the sentencing opinions published by the public prosecutor in court shall be consistent with the sentencing suggestions in the indictment or sentencing proposal; In the trial, if the defendant withdraws his confession in court and other unexpected circumstances that can affect sentencing, the public prosecutor shall change the original sentencing proposal according to the new sentencing circumstances.
In the case of pleading guilty, the defendant is most concerned about sentencing, and generally requires a lighter, mitigated or exempted punishment. The sentencing court debate is of greater significance to the defendant, which provides the defendant with an opportunity to express his opinions on the prosecution's sentencing suggestions, and professional defense lawyers put forward their own sentencing opinions. Defendants, especially defenders, can refute the prosecution's opinion of heavier punishment and strive for a lighter punishment or a lighter punishment if the punishment is mitigated. In the case that the defendant does not plead guilty, the court will not reopen the court for sentencing even if the views of the prosecution and the defense on whether it constitutes a crime are diametrically opposed at the trial. Not expressing sentencing opinions means giving up the right of defense when sentencing, so the defense should make full use of the sentencing court debate to put forward specific sentencing opinions that are lighter, mitigated or even exempted from punishment.
After the first round of debate, if necessary, the judge hearing the case can summarize the focus of the dispute between the two sides and organize the second round of court debate. If the collegial panel considers that the sentencing opinions of both the prosecution and the defense are clear, it may declare the court debate over.
3. The defendant's final statement. The purpose of legislation to give the defendant a final statement is to ensure that the defendant has sufficient opportunities to defend himself. At the final statement stage of the trial procedure, the court shall inform and guide the defendant to express his own sentencing opinions. After expressing opinions on the criminal facts alleged in the indictment, the defendant can also state the sentencing facts, refute the prosecution's sentencing evidence and opinions, emphasize the defense's sentencing evidence and opinions, express remorse and put forward sentencing opinions, expecting a fair judgment. If the defendant puts forward new facts and evidence of substantial significance to sentencing in his final statement, the court shall resume court investigation and court debate on sentencing; When the defendant puts forward new sentencing reasons and viewpoints in the final statement stage, the court may also resume the sentencing court debate procedure if it deems it necessary.