Legal subjectivity:
(1) The role of lawyers in the investigation stage: 1. Lawyers can meet with criminal suspects, inform their families of their concerns, ease the anxiety of criminal suspects and give them psychological comfort. At the beginning of the restriction of personal freedom, many people's living environment, social status and psychological pressure suddenly changed, which many people could not bear. Under poverty, something should not have happened. 2. When a lawyer meets a criminal suspect, he can explain the alleged crime and relevant legal knowledge to the criminal suspect. Let the suspects have a clear understanding of the difficulties they face and know what to do and what not to do. 3. When a lawyer meets a criminal suspect, he can learn from the criminal suspect that he is innocent or guilty, help to do some work of fixing strong evidence, and prepare for a successful defense in the future. Evidence is in danger of being lost at any time, and a moment's carelessness may lead to the fact that favorable evidence will never be obtained. 4. Lawyers meeting with criminal suspects can avoid extorting confessions by torture to the maximum extent. Although the legal environment in our country is improving day by day, the phenomenon of extorting confessions by torture still occurs from time to time, and even the tragedy of torture, mutilation and death occurs. If a confession is extorted by torture, lawyers can lodge complaints and charges on behalf of the suspects, thus effectively reducing the occurrence of this situation. 5. By meeting with the criminal suspect, the lawyer can help the criminal suspect correctly understand his behavior, so as to gain opportunities for meritorious service, thus reducing the punishment. 6. In the investigation stage, lawyers can help criminal suspects to apply for bail pending trial according to the case, thus resolving the crisis well; 7. With the revision of the Criminal Procedure Law, lawyers will also increase their on-site work to better protect the legitimate rights and interests of criminal suspects. (2) The role of lawyers in the stage of examination and prosecution: 1. Meet with criminal suspects and provide them with the above-mentioned assistance in the investigation stage, such as getting out on bail and awaiting trial. 2. Lawyers can learn more about the relevant case from the examination organ of the procuratorate, including reading or copying the appraisal technical materials and prosecution opinions involved; 3. Lawyers can put forward defense opinions to the procuratorial organs about the innocence of the criminal suspect, the light crime and this crime and that crime; If the inspection organ adopts the lawyer's opinion, it may lead to the case being sent back for supplementary investigation or not being prosecuted. Failure to prosecute means that the suspect is acquitted in advance. 4. Even if the above objectives can't be achieved, lawyers can exchange their views on the case with prosecutors during the stage of examination and prosecution, so as to understand the prosecutor's accusation thinking and make more adequate preparations for successful defense. (3) The role of the lawyer in the trial stage: 1. Meet with the criminal suspect, understand the evidence clues of the criminal suspect (called the defendant at this stage), and collect the evidence of the crime or innocence for the defendant; 2. Meet with the presiding judge, read and copy the case files of the accused; 3. Meet with the defendant and exchange views with the defendant on the defense views initially formed by the lawyer; Teach the defendant the trial procedure and the matters that should be paid attention to during the trial, and do some cross-examination drills when necessary, so as to make appropriate cooperation in court and strive for the best trial effect. 4. Seriously study the case and make full preparations for the trial. Hire famous domestic criminal experts to provide authoritative opinions to support defense views on major problems; When necessary, you can invite influential media to supervise and appeal to ensure a fair trial; 5. Carefully respond to the trial, fully explain the defense reasons, be sensible and sensible. Try your best to win the judge's approval of the defense point of view; 6. Carefully prepare the defense and persuade the judge to make a judgment in favor of the defendant in writing again; Influence the judge's point of view in a legal way and through various channels; 7. After receiving the judgment of first instance, meet the defendant in time, inform the defendant of the advantages and disadvantages of the judgment, and put forward reasonable suggestions on whether or not the judgment is above; 8. If the defendant requests an appeal, help the defendant to appeal. (4) The role of defense lawyers in the second trial stage: 1. Read the trial materials of the first trial, review the defense plan and defense viewpoints of the first trial, and redraft the defense ideas; 2. Meet with the defendant, exchange the gains and losses of the first trial and the defense ideas of the second trial, understand the evidence clues of lightness and innocence that have not yet been discovered, and collect strong evidence; 3. Actively exchange views on the case with the judge of second instance, and strive to promote the trial of second instance (cases of second instance are usually tried in writing, which deprives the defendant of the litigation rights to some extent); 4. Carefully prepare and actively respond to the trial debate; 5. Carefully prepare the defense words, and influence the judge to change the sentence in various forms; 6. After receiving the judgment of the second instance, meet the defendant, analyze the advantages and disadvantages of the judgment, and lead the defendant to correctly understand the verdict of the judgment. If the defendant asks for a complaint, actively help the defendant to do a good job of complaint. (V) The role of lawyers as agents for complaints: 1. Meet the complainant, access the case files, fully understand the case, put forward the appeal ideas against the effective judgment, and solicit the opinions of the complainant; 2. Carefully prepare the complaint materials, submit them to the relevant authorities, and seek to influence the filing of the complaint in various ways within the legal scope. The appeal materials are very important, and the appeal is not a necessary procedure. The probability of filing a case is very small, and the appeal materials are unsuccessful, so it is impossible to enter the appeal procedure. 3. After entering the trial procedure, the agency work of the appeal lawyer is similar to that of the defense lawyer in the first instance. Finally, the successful defense of defense lawyers in the review stage of death penalty will be the last chance for the defendant. Is it necessary to hire a lawyer in criminal cases? The answer is yes, but the law does not stipulate that a lawyer must be hired at this time, so the final decision on whether to hire a lawyer is still in the hands of the parties. If you choose to hire a lawyer, you should also figure out how to hire a lawyer in advance, so as to provide substantive help for the case. Legal objectivity:
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 the innocence of criminal suspects and defendants, or to reduce or exempt them from criminal responsibility according to facts and laws, so as to safeguard the legitimate rights and interests of criminal suspects and defendants. 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, they only argue and defend criminal entity issues, whether they present materials to prove the innocence of criminal suspects and defendants, reduce or exempt their criminal responsibilities, or put forward opinions, criminal defense is only carried out around criminal entity laws. As for procedural defense responsibility, China's current criminal procedure law and relevant regulations have not clearly and fully affirmed it. The so-called procedural criminal defense refers to: "In criminal defense, on the grounds that the procedures of investigation, prosecution and trial activities of relevant departments are illegal, the opinions that criminal suspects and defendants are innocent, the crimes are light or should not be investigated for criminal responsibility are put forward, and the methods of procedural defense are required to supplement or restart the proceedings that have not been carried out according to law, and the illegally obtained evidence should be excluded." (13) At present, in the judicial practice of our country, procedural defense has not been paid enough attention, which is basically an invalid defense method. For example, for illegal evidence, it is limited to illegal verbal evidence (such as confessions obtained by torture), but the defense effect for illegal verbal evidence is also very small. For the confession made by the defendant in court by torture, the people's court often uses the evidence issued by the investigation organ (that is, the public security organ writes and seals it to prove that it has not extorted confessions by torture in the investigation activities), and considers the verbal evidence as valid because the defendant has no evidence to prove that the investigation organ has extorted confessions by torture. This is just as absurd as Zhang San borrowing money from Li Si and Zhang San's own writing proves that he didn't borrow money from Li Si. It does not include illegal physical evidence, which makes the procedural defense against illegal collection of evidence almost meaningless. This should be paid great attention by the legislative and judicial practice circles. When the criminal procedure law is revised in the future, the procedural defense responsibilities of defense lawyers and other defenders in criminal proceedings should be clearly defined. 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 in 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 roots and conditions of crimes, and promoting judicial education and the realization of sensibility. 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 lawyer can take positive actions to help the judicial organs discover the real entity from the standpoint that is not conducive to the suspects and defendants. According to the general responsibility of the defense lawyer, it seems that a positive answer should be made. However, there is actually a relationship between doing so and the direct responsibility of defense lawyers to safeguard the legitimate rights and interests of criminal suspects and defendants and the general responsibility to assist in criminal justice. Therefore, in view of the position of criminal suspects and defendants in criminal proceedings, we cannot overemphasize the responsibility of defense lawyers as criminal judicial assistants and ignore the legitimate rights and interests of criminal suspects and defendants. Because of the direct responsibility of defense lawyers, they must only help the judicial organs to discover the truth in favor of criminal suspects and defendants, and have no obligation to help the judicial organs to discover the truth and find out the truth in favor of criminal suspects and defendants. (14) Considering that the current laws in our country do not comprehensively stipulate the responsibility of defense lawyers, and the responsibility of defense lawyers in criminal proceedings is not comprehensive, and defense lawyers face many difficulties and obstacles in criminal proceedings, it is necessary for the legislature to clearly stipulate the nature, status and direct responsibility of defense lawyers to safeguard 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.