What are the litigation rights of criminal defense lawyers and the rights and obligations of defenders?
In criminal proceedings, lawyers enjoy different litigation rights from other defenders, and their rights to participate in criminal proceedings at different stages are not exactly the same.
(A) the litigation rights of defense lawyers in the stage of examination and prosecution
1. The right to be entrusted as a defender. From the date when the case is transferred for examination and prosecution, the lawyer has the right to accept the entrustment of the criminal suspect as his defender. Private prosecution cases have the right to accept entrustment at any time.
2. The right to read newspapers. Defense lawyers have the right to consult, extract and copy the litigation documents and technical appraisal materials in this case. Article 3 19 of the Criminal Procedure Rules of the People's Procuratorate stipulates that litigation documents include procedural documents made for filing a case, taking compulsory measures, investigating measures, and submitting for examination and prosecution, such as the decision to file a case, the detention certificate, the decision to approve the arrest, the arrest warrant, the search warrant, and the prosecution opinion. Technical appraisal materials include documents that record the appraisal situation, such as forensic appraisal, forensic psychiatric appraisal and material evidence technical appraisal, as well as the conclusions formed by the appraisal of people, things and other related materials by qualified personnel.
3. Right to meet and correspond. The defense lawyer has the right to meet and correspond with the criminal suspect in custody, and whether the case involves state secrets or not, it does not need to be examined and approved by the prosecution organ, and the procuratorate cannot send personnel to be present (Article 36 and Article 12 of the Regulations on Six Organs).
4. Right to investigate and collect evidence. (1) With my consent, the defense lawyer has the right to collect materials related to this case from witnesses or other relevant units and individuals; (2) Have the right to apply to the people's procuratorate for collecting and obtaining evidence; (3) With the permission of the people's procuratorate, have the right to collect materials related to the case from the victim or his close relatives or witnesses provided by the victim (Article 37 of the Criminal Procedure Law).
5. Right to express opinions. When examining a case, the people's procuratorate shall listen to the opinions of the client of the criminal suspect (article 139 of the Criminal Procedure Law).
6. Apply for bail pending trial. Defense lawyers have the right to apply for bail pending trial for detained criminal suspects (Article 39 of the Criminal Procedure Rules of the People's Procuratorate).
7. The right to request the cancellation of compulsory measures beyond the statutory time limit. If the people's procuratorate takes compulsory measures against a criminal suspect beyond the statutory time limit, the defense lawyer has the right to request the people's procuratorate to terminate it (Article 75 of the Criminal Procedure Law).
(two) the litigation rights of defense lawyers at the trial stage.
1. The right to be entrusted as a defender. A lawyer has the right to be entrusted by the defendant as his defender. No matter whether the case involves state secrets or not, the defendant does not need the approval of the judicial organ to hire a lawyer as a defender (Article 36 of the Criminal Procedure Law).
2. The right to receive notice of appearing in court. At the trial stage of a case, the defender has the right to receive a notice of appearance from the people's court no later than three days before the court session.
3. The right to read newspapers. Defense lawyers have the right to consult, extract and copy the materials of the alleged criminal facts in this case, but they are not allowed to consult, extract and copy the discussion records of the judicial committee and collegial panel and the clue materials related to other cases (Article 40 of the Interpretation of the Criminal Procedure Law).
Note: In the stage of examination and prosecution, the scope of consulting, extracting and copying by defense lawyers is the litigation documents and technical appraisal materials of this case, but in the stage of trial, the scope of consulting, extracting and copying by defense lawyers is the materials of criminal facts accused in this case.
4. Right to meet and correspond. The defense lawyer has the right to meet and correspond with the defendant in custody, and whether the case involves state secrets does not need the approval of the judicial organ; The people's court did not send personnel to the scene (Article 36 of the Criminal Procedure Law and Article 12 of the Provisions on Six Organs).
5. Right to investigate and collect evidence.
(1) Defence lawyers have the right to collect materials related to this case from witnesses or other relevant units with their consent; Have the right to apply to the people's court for collecting and obtaining evidence; With the permission of the people's court, they have the right to collect materials related to this case from the victim or his close relatives or witnesses provided by the victim.
(2) When the people's court collects and obtains evidence according to the application of the defense lawyer, the applicant may be present. The evidence collected and obtained by the people's court according to the application of the defense lawyer shall be copied and transferred to the applicant in time.
(3) During the trial, when providing evidence of the defendant's innocence or light crime, defense lawyers may apply to the people's court for obtaining the evidence materials of the people's procuratorate if they think that the evidence materials collected by the investigation organ and the people's procuratorate need to be presented in court, and they may consult, extract and copy the evidence materials in the people's court (Article 13 of the Provisions on Six Organs).
6. Apply for bail pending trial. Defence lawyers have the right to apply for bail for the defendant in custody (Article 68 of the Interpretation of Criminal Procedure Law).
7. The right to request the cancellation of compulsory measures beyond the statutory time limit. If compulsory measures are taken against the defendant beyond the statutory time limit, the defense lawyer has the right to request the people's court to terminate it (Article 75 of the Criminal Procedure Law).
8. Right of cross-examination, right of application and right of debate. Defense lawyers have the right to participate in the trial, to ask questions, debate and express their opinions, to apply for notifying new witnesses to appear in court, to obtain new material evidence, and to apply for re-appraisal or inquest (Articles 155 to 157, 159 to 160 of the Criminal Procedure Law)
9. Subordinate rights. The defense lawyer has the right to appeal with the consent of the defendant (article 180 of the Criminal Procedure Law).
Rights and obligations of defenders
1. Defenders are obliged to provide materials and opinions to prove the innocence and light crimes of criminal suspects and defendants, or reduce or exempt their criminal responsibilities according to facts and laws, and safeguard the legitimate rights and interests of criminal suspects and defendants.
2. Defence lawyers and other defenders shall not help criminal suspects and defendants to collude, conceal, destroy or forge evidence, nor shall they threaten or induce witnesses to change their testimony or commit perjury or engage in other acts that hinder judicial proceedings (Article 306 of the Criminal Law).
3. What do you mean by refusing to defend?
There are two kinds of refusal to defend in criminal proceedings. One is that criminal suspects and defendants refuse defenders to defend them. The legal basis is Article 39 of the Criminal Procedure Law. "During the trial, the defendant may refuse the defender to continue to defend him, or entrust another defender to defend him." The main body of the right of defense is the criminal suspect and the defendant, and the defender's right of defense comes from the criminal suspect and the defendant. Therefore, the criminal procedure law has no reasonable restrictions on the right of criminal suspects and defendants to refuse to defend, and it should take effect from the date of its introduction, but it should be noted that:
(1) If the defendant who does not belong to the appointed defender insists on exercising the right of defense and refuses the defender appointed by the people's court to defend him, the people's court shall allow it and file a case (Article 38 of the Interpretation of the Criminal Procedure Law).
(2) If the defendant who does not belong to a defender who should be appointed refuses to appoint a defender to defend him in court, and the people's court agrees, if the defendant refuses to appoint a defender or a defense lawyer appointed by the people's court to defend him again after the new session, the collegial panel may allow it, but the defendant may not appoint another defender, and the people's court will no longer appoint another defense lawyer, and the defendant may defend himself (Article 165 of the Interpretation of the Criminal Procedure Law).
(3) If the defendant who should appoint a defender has justified reasons to refuse the defense lawyer appointed by the people's court to defend him, the people's court shall allow it, but the defendant must appoint another defender or the people's court shall appoint another defense lawyer for him (Article 4 1 of the Criminal Procedure Law, Article 38 and Article 165 of the Interpretation of the Criminal Procedure Law).
The embodiment of defense lawyer's right to read papers
The original "Lawyers Law" did not clearly stipulate lawyers' right to read papers, but only indicated that lawyers enjoyed litigation rights in accordance with the provisions of the procedural law. Article 36 of the Criminal Procedure Law stipulates the right of defense lawyers to read papers, and article 34 of the new Lawyers Law clearly stipulates this right of lawyers. The development of this provision on the right of defense lawyers to read papers is mainly reflected in:
First, "marking papers" is clearly a legal right enjoyed by lawyers. The wording of article 36 of the Criminal Procedure Law is "the right to read papers", while the wording of article 34 of the new Lawyers Law is "the right to read papers". It can be seen that "the right to read papers" is clearly defined as a legal right enjoyed by lawyers, so the authorities have the obligation to guarantee the realization of this right of defense lawyers.
Second, defense lawyers have the right to consult the entity files in advance and expand the scope. According to the provisions of Article 36 of the Criminal Procedure Law, defense lawyers can consult, extract and copy the litigation documents and technical appraisal materials of this case from the date when the people's procuratorate examines and prosecutes the case. However, these materials are not substantive files, which are of little help to the exercise of lawyers' right to defense. According to Article 34 of the new Lawyers Law, the entrusted lawyer has the right to consult, extract and copy the litigation documents and case files related to this case from the date of case review and prosecution. In this way, the defense lawyer has the right to consult, extract and copy not only the litigation documents, but also the entity files from the date of case review and prosecution.
Do defense lawyers have confidentiality privileges?
The so-called privilege of confidentiality, also known as the right to refuse to testify, is a lawyer's right to refuse to testify according to law. Confidentiality privilege is a right enjoyed by state organs based on the confidentiality obligation of defense lawyers to the parties. Article 33 of the original Lawyers Law stipulates: "A lawyer shall keep the state secrets and the business secrets of his clients that he knows in his practice, and shall not disclose the privacy of his clients." Based on this, the right content of defense lawyer's confidentiality privilege includes three aspects: state secrets, business secrets of the parties and privacy rights. The second paragraph of Article 38 of the new Lawyers Law stipulates the confidentiality obligation of defense lawyers, that is, lawyers should keep confidential the information that their clients and others are unwilling to disclose in their practice activities. Accordingly, the situation and information that the client and others are unwilling to disclose has also become the right content of the defense lawyer's confidentiality privilege, expanding the content of the lawyer's confidentiality privilege.