Author: Cheng Wei Release Date: 2006-12-0514:13: 39
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As we all know, the United States implements the adversarial trial mode. The basic feature of this model is antagonism. Judges and juries, as adjudicators of cases, do not take the initiative to investigate evidence, summon witnesses and question witnesses, but are in a passive and detached position. They are responsible for listening to the evidence and statements put forward by the prosecution and the defense, asking their own witnesses and evidence to the court and asking rebuttal questions to the witnesses of the other side. The judge and the jury asked questions about the legal issues of the case respectively.
I. Procedures before the official start of the trial
(1) Procedure for admitting or denying charges
In the procedure of denying the accusation, the defendant can put forward three kinds of defenses: guilty defense, innocent defense and uncontroversial defense. If the defendant pleads guilty, and the judge finds that the confession is voluntary, then the defendant who pleads guilty will not be formally tried, but will directly enter the sentencing procedure. If the defendant does not plead guilty, the judge will set a trial date and prepare for a formal trial. Before the formal trial begins, the judge needs to make necessary preparations for a series of procedural matters. For example, the court should try its best to solve the application that the prosecution and the defense may put forward to exclude certain evidence and ask the other party to produce evidence before the trial. Both the prosecution and the defense need to do a series of preparatory work, such as investigating and questioning witnesses, collecting evidence and revealing evidence. Some preparatory work may also require the participation of the court or the court's ruling on controversial issues between the two sides, such as pre-trial motions and pre-trial meetings.
(2) the procedure for selecting jurors
In the United States, cases that need to enter formal trial procedures because the defendant does not plead guilty are generally tried by juries. Unless the defendant gives up jury trial, the court must convene a jury in the first instance procedure. In order to form a fair jury, federal and state laws stipulate two procedural mechanisms: one is the random primary election procedure. Randomly selected jurors produce a list after necessary investigation and feedback procedures between the court and the parties, and the clerk prepares a list of jurors awaiting trial according to this list, and then informs these people to appear in court. The second is the strict "court selection" procedure. Jurors waiting to appear in court must undergo strict qualification examination after being informed of the nature of the case by the judge and lawyers of both parties before they can become real jurors. After screening through the above procedures, when the number of jurors waiting to be appointed reaches the legal number of jurors, the jury in this case is formally formed.
Second, after the official start of the trial (here I only go through the following steps in terms of the trial procedure after the jury is formed)
(1) Opening remarks
This refers to the statements made by the prosecution and the defense to the court first in the court trial, and their statements are consistent in all judicial systems, that is, the public prosecutor makes statements first and the defense lawyer makes statements later.
The prosecutor's opening statement is to tell the jury the nature of the accusation, the course of the case and briefly describe the evidence supporting the accusation. Objective To let the jury know the case better.
The defense lawyer's opening statement explained the main defense points. The general intention is to make the jury question the prosecution's case and explain that the defendant is innocent. For the sake of litigation strategy, the defense lawyer may also give up making the opening statement. In a few States, defense lawyers are also allowed to make opening statements after the prosecution witnesses testify and before the defense begins to present evidence.
Both the prosecution and the defense should clearly and briefly explain the basic position of this proposal when making opening statements, so as to clarify the direction of the next evidence. Therefore, the cases stated by both parties must be supported by corresponding admissible evidence, and the witnesses and testimonies mentioned must be respected in the trial. Do not involve matters that are not supported by admissible evidence, the personality and characteristics of the defendant, or use controversial or highly emotional language. Otherwise, the judge can stop it under the opposition of the other party or ex officio, and give the jury corresponding suggestions when necessary.
(2) The prosecution provides evidence.
After the opening statement, the prosecution should provide evidence to the court to support the complaint, including showing physical evidence and summoning witnesses to testify in court. Before testifying, the witness should swear or otherwise guarantee to answer the questions truthfully. First of all, the prosecution conducted a direct inquiry, the purpose of which was to let the witness tell the facts of the case and produce evidence. Ask direct questions, not leading questions.
Then, the defense lawyer asks questions, which is called cross-examination Its purpose is to expose the defects and shortcomings of witness testimony and to reveal to the jury that the witness is not credible. After the cross-examination by the defense lawyer, the prosecution can ask questions directly again, so as to reassemble the evidence pile overturned by the cross-examination, restore the credibility of the witness and clarify the ambiguity in the witness's testimony.
Defense lawyers can also cross-examine again and continue to attack the authenticity of witness testimony and the credibility of witnesses themselves. Further direct inquiry and cross-examination can be repeated several times until there is no need to ask again, but each jurisdiction has stipulated the scope of further direct inquiry and cross-examination, which limits the opportunities for further direct inquiry or cross-examination. During the whole period of direct questioning and cross-examination, both lawyers must abide by the rules of evidence. If a rule of evidence is violated, whether it is the way of asking questions or the way of witnesses answering questions. The opposing party can raise an objection and state the reasons for the objection, and then the lawyer who raises the question can briefly explain the justified reasons or explain in more detail why the question should be raised or answered by the judge. Then the judge decides whether the rules of evidence have been violated. If the judge disagrees, object to the question or answer the lawyer's opinion. If the judge agrees to ask or answer the lawyer's opinion, the judge will reject the opposing witness and continue to answer. The judge supports the objection, and the lawyer who asked the question must ask another question. If the witness's answer is opposed, the judge will advise the juror to ignore it. In some cases, because the witness's answer may be very beneficial to the trial result of the case, the lawyer then filed a motion for invalidation.
In a word, the rules of cross-examination are complicated and the process is often lengthy, but the theory of American procedural law attaches great importance to this evidence investigation method, which is considered as the best legal device to find out the truth of the case.
When the prosecution has produced all the witnesses and testimonies and thinks that the evidence has fully proved the crime, the prosecution will stop the prosecution. At this stage of the trial, the defendant filed a direct ruling motion as usual, asking the judge to find that the prosecution did not produce evidence to support various elements of the crime. The only question of justice can only be acquittal. In some cases, if the prosecution is not fully prepared, the evidence is scribbled down during the trial, or the case is really problematic, the motion to directly make a ruling is acceptable. As a result, the defendant was acquitted and the trial stopped immediately. However, in most cases, this defense motion is routinely rejected like a defense motion. Only when the defense application is not approved by the judge can the trial enter the stage of defense evidence.
(3) The defense provides evidence.
Witnesses summoned by the defense to testify are also directly questioned and cross-examined by the defense and the prosecution. It should be noted that in criminal proceedings in the United States, the defendant can neither be forced to testify against himself nor be required to prove his innocence unless the defendant is willing to testify. Otherwise, the defendant is not required to testify in court.
(4) Closing the debate
After the evidence investigation, the prosecution and the defense held a concluding debate. The prosecution first makes a debate speech, summarizing and debating the evidence according to the most favorable point of view, the defense makes a debate speech, answers the prosecution's debate speech, states the facts and reasons favorable to the defendant, reveals the contradictions and doubts in the evidence of the other party, and emphasizes that the law requires the prosecution to produce evidence to eliminate reasonable doubts before convicting the defendant, otherwise it should be acquitted, and the prosecution can refute the controversial points after the defense pleads. No matter whether the prosecution and the defense speak in the debate, it is not allowed to make a personal judgment on whether the defendant is guilty or not. It is the sacred duty and right of the jury to determine whether the defendant is guilty according to the evidence and debate of both sides.
(5) The judge instructed the jury.
As jurors are laymen of the law, before the jury leaves the court for deliberation, the judge presiding over the trial should make a summary reminder to the jury, including: the duties and obligations of the jury; Laws related to the case; Disputes caused by evidence; Explain the exact meaning of relevant legal terms. In addition, many States authorize judges to comment on evidence, but some States prohibit it. In criminal proceedings, the parties, especially the defense lawyers, can also ask the judge to give specific instructions, and the judge must decide whether to accept or refuse, or make necessary amendments, or even convene informal consultations for this purpose.
(6) Jury review
Before the jury leaves the courtroom for deliberation, the judge designates the jury chairman or tells the jury to choose a jury chairman and an assistant jury chairman, and then all the jurors enter the deliberation room for deliberation, presided over by the jury chairman. Jury deliberations are held in secret and the contents are confidential. No one is allowed to enter or leave the meeting room. In addition, no matter what the evaluation results are, legal investigation of the evaluation activities can not be carried out thereafter. The law does not specify whether jurors need centralized accommodation and isolation from the outside world during the trial or deliberation, and practices vary from place to place. Some states allow jurors to go home for the night or weekend, and many states leave this issue to the judge's discretion.
(7) Jury verdict
Although the number of juries in different judicial systems is different, unanimous verdict is generally required. Only Louisiana and Oregon do not need a unanimous ruling. If after a long period of deliberation, the jury still can't reach a unanimous conclusion, the judge can declare a "wrong trial" and dissolve the jury. For such a case, the prosecutor can re-prosecute, and the court will convene a jury for a new trial.
After the jury makes a verdict on the defendant's guilt or innocence, it returns to the open court, and the jury chairman announces the verdict to the court. If the verdict is not guilty, the judge must accept it and announce the release of the defendant in court. If convicted, the judge can order the defendant to be sent back to prison or released on bail. At this point, the formal trial procedure is over.
(Author: Jinggangshan People's Court, Jiangxi Province)
Source: China Court Network
Editor: Chen Si
The trial process of the case:
1, the procuratorate prosecuted the defendant Lin Hu for gambling;
2. Court investigation;
3. Court debate;
4. The defendant's final statement;
5. adjourn for ten minutes;
6. Sentencing;
7. Court education;
8. The court is closed.
Credits and costumes
serial number
Angular colors
Actor's name
1
Chief justice (judge, wearing a robe)
2
Judge 1 (Judge, wearing a robe)
three
Judge 2 (judge, wearing a robe)
four
Clerk (wearing a dark suit)
five
Judicial police (uniform)
six
Judicial police (uniform)
seven
Prosecutor 1 (prosecutor, wearing a dark suit)
eight
Prosecutor 2 (prosecutor, wearing a dark suit)
nine
Defendant 1 (prison uniform)
Lin Hu ()
10
Legal representative (defendant's mother, casual clothes)
Wang Mei ()
1 1
Defender (lawyer, wearing a suit)
Remarks: In addition to the defendant and his legal representative, other roles can be played by students with real names.
Court trial procedure
I. Pre-trial preparation procedures
The clerk shall find out whether the public prosecutor, the parties, witnesses and other participants in the proceedings appear in court.
Clerk (stands up and reads aloud): Please be quiet, and now declare court discipline:
1, minors, mental patients and alcoholics are not allowed to participate;
2. Do not walk around and enter the test area at will;
3. Don't clap your hands, make noise or make noise;
4. No smoking;
5. All pagers and mobile phones are turned off;
6. Don't talk or ask questions;
7. No recording, recording, video recording or photography is allowed without permission.
Clerk: The public prosecutor, the legal representative of the defendant and the defender appear in court.
(The public prosecutor and the participants in the proceedings are seated)
Clerk: The presiding judge, the judges enter the court and all stand up.
All the staff stood up and the presiding judge and judges took their seats. )
Clerk: Report that the presiding judge, public prosecutor, defender and legal representative have appeared in court. The defendant has been on trial in the holding cell. The pre-trial preparation has been completed and the report has been completed.
(Secretary seated)
Second, announce the trial.
Presiding Judge: Summon the defendant Lin Hu to appear in court. (After the bailiff escorted the defendant Lin Hu to court, the presiding judge sounded the gavel. The court is now in session.
Presiding Judge: Defendant, your name, date of birth, nationality, education level and home address before arrest.
Defendant Lin Hu: My name is Lin Hu. I was born in Suzhou, Jiangsu Province on February 22, 20 10. 1988+65438, Han nationality, junior high school education, and I live in Room 605, Building 99, Lianxiang New Village, the industrial park of this city.
Presiding Judge: Defendant Lin Hu, have you ever been sanctioned by law before? When, why and what kind of compulsory measures are taken? Have you received the indictment from the People's Procuratorate of Suzhou Industrial Park?
Defendant Lin Hu: I have never been punished by law. On May 1 2006, he was criminally detained by the Industrial Park Branch of Suzhou Public Security Bureau, and was released on bail pending trial on May 3 of the same year. A copy of the indictment was received on June 1 1.
Presiding Judge: The People's Court of Suzhou Industrial Park tried the case of Lin Hu, the defendant prosecuted by the People's Procuratorate of Suzhou Industrial Park. As all the defendants in this case are minors, the trial was not held in public.
Presiding judge: The collegial panel hearing this case is composed of () judges, () judges and () judges, with () as presiding judge and () as court record; Prosecutors of Suzhou Industrial Park People's Procuratorate () and () appeared in court to support public prosecution; Lawyers from Suzhou Yifa Law Firm () respectively appeared in court to defend the defendant Lin Hu. As the defendant was under the age of 18, Lin Hu's mother, Wang Mei, appeared in court as the legal representative.
Presiding Judge: According to the provisions of the Criminal Procedure Law, the defendant and his legal representative enjoy the following rights in the trial:
1, you can apply for the withdrawal of the members of the collegial panel, the clerk and the public prosecutor, that is to say, if the above-mentioned personnel are interested in the case, you can request to be replaced;
2. You can present evidence, apply to notify new witnesses to appear in court, obtain new evidence, re-identify or conduct an inquest or inspection;
3. The defendant can defend himself;
4. After the court debate, the defendant can make a final statement.
Did the defendant Lin Hu and his legal representative clearly hear the above rights?
The defendant and his legal representative answered one by one: listen carefully.
Presiding Judge: Defendant Lin Hu and his legal representative Wang Mei are considering whether to apply for withdrawal.
Defendant Lin Hu: No application for withdrawal.
Legal Representative Wang Mei: No application for withdrawal.
Third, the court investigation procedure.
Presiding Judge: Now the court investigation begins. First, the prosecutor will read the indictment.
Prosecutor: Read out the indictment (Annex 1)
Presiding Judge: Defendant Lin Hu, you can state the criminal facts charged in the indictment. Do you need a statement?
Defendant Lin Hu: The accusation in the indictment is true, so I don't need to state it.
Presiding Judge: Now the public prosecutor can ask the defendant questions.