A lawyer's speech in court is whether it is a defense or a prosecution. No matter what type of speech, lawyers must express their views and opinions on the case well so that the court can adopt correct opinions and make correct judgments, thus safeguarding the correct implementation of the law and the legitimate rights and interests of the parties. A lawyer's speech must be:
① Be familiar with it. Before speaking in court, a lawyer must be thoroughly familiar with the facts and legal provisions related to the case. If he wants to speak in defense, he must carefully study the indictment. The lawyer's defense statement in court is a speech made in response to the public prosecution filed by the public prosecutor, and is an attack on the defendant on behalf of the plaintiff. No matter what kind of speech is made, it is generally likely to be refuted by the other party, so court speeches are often tense debates, and the outcome can only be reached after repeated arguments. Firmly grasping the initiative in the debate will not only make the opponent invulnerable, but also "look for opportunities to defeat the enemy." If the lawyer cannot grasp the facts of the case accurately, the defense or prosecution in court will be flawed by the other party, and may even be rendered speechless and tongue-tied.
②Stay true to the standards. All remarks made by lawyers in court must strictly follow the principle of "based on facts and based on law." The language expression must be accurate, neither ambiguous nor answering questions that are not asked. The eloquence of court speeches is often not measured by "eloquence" but "to the point".
3. Seize the key. A lawyer's speech in court cannot cover everything, and he must choose the "main direction" of his speech. For example, when speaking in criminal defense, the following aspects should be determined as the focus of the defense based on the specific circumstances of the case:
First, the speech should start from the determination of facts. If all the defendants on which the indictment is based are inconsistent with the facts, they can plead not guilty; if some of the facts are inconsistent with the facts, they can plead for a reduced punishment, or request the court to postpone the trial and supplement the investigation.
Secondly, defend from applicable laws. If the crime identified in the indictment is inconsistent with the facts, nature, and circumstances (for example, the prosecution for manslaughter is intentional homicide), a defense can be made.
3. In defense of the application of penalties, consider whether the application of penalties and sentencing are appropriate based on legal provisions and the defendant’s criminal facts. If the court imposes an excessive penalty on the defendant, it may propose a reduced punishment. Defense opinions, or based on the defendant's performance and circumstances such as criminal miscarriage, surrender, repentance, etc., a defense opinion requesting a lighter, reduced or exempted criminal punishment.
4. Proportion. Lawyers' speeches in court must be objective and true to the true nature of things, without exaggerating the facts or the law, and be faithful to the true appearance of the law and facts. When lawyers speak in their own capacity in court, they must not only speak righteously, but also be reasonable, advantageous, and measured.
5 Flexible. That is to say, do not use a mechanical "scripted" approach to defense or appeal in your speech. There are many parties involved in court proceedings, and cases are often complicated. Lawyers have to prepare speeches within a limited time or scope, and their understanding of the case may have certain limitations. Through court investigation and cross-examination, lawyers have a new understanding and knowledge of the case. Even in the debate between the two parties, new opinions and opinions may be formed. Therefore, lawyers must make prompt decisions and change or revise their original views during their speeches. If they lack the necessary flexibility, their speeches will not be successful.
6 Pay attention to rhetoric. Lawyers must not only be good at using vocabulary, but also avoid deliberately showing off. Plain language is the most beautiful language, and flashy words are often annoying. The key here is that the words must strictly obey the content to be expressed. A lawyer's speech in court must be coherent, and the language must be concise, compact, clear, and vivid, and every word and sentence must be made an integral part of the defense as much as possible. In addition, pay attention to clear enunciation, harmonious voice, and moderate speed. You can restate where necessary, but avoid verbosity. Court debate is a judicial oral expression in which the presiding judge presides over the court, and the litigants directly discuss, argue, and rebut face-to-face on the key issues of the case, how to apply the law, and make fair judgments based on the law and facts. Way.
This kind of oral expression, on the premise of complying with legal provisions and being based on facts, also has the following characteristics:
① Preventive nature. Before participating in a court debate, both parties to the debate must be fully prepared mentally, with materials, and with oral expressions. In particular, the prosecutor and the debater must consult the files according to legal provisions before the debate, interrogate or meet the defendant and conduct necessary investigations, write the prosecution and defense statements, and generally have to go through collective discussions within their departments to answer the questions that the other party may raise. Be prepared to respond. The so-called "Nine Preparations" means preparing nine points in advance and only one point when speaking directly in court.
②Court. Under the auspices of the presiding judge, on special occasions, facing special objects, and in a special atmosphere, both parties elaborated, argued, and rebutted the content of the debate face to face, and put forward their respective requests and propositions to the trial court face to face.
3 Responsibilities. Both sides of the debate have clear legal responsibilities. For example, the prosecutor's duty is to expose and prove the defendant's crime and request punishment according to law. The defender's duty is to refute and defend. The prosecutor is not allowed to defend the defendant, and the defender is not allowed to defend the defendant on behalf of the prosecutor. . Everyone has their own duties and responsibilities, which cannot be exceeded.
4Equality. The law stipulates that both sides of the debate have equal opportunities for oral expression. The prosecution is allowed to speak once, and the defense is also allowed to speak once (two people on each side can send one person to speak); one side is not allowed to interrupt the other side when speaking.
⑤ Agility. Both sides of the debate must be prepared in advance to refute the other party's point of view, and they must also engage in the verbal exchanges that are reflected in reality in court. The latter requires higher agility. Agility is mainly reflected in the ability to accurately grasp the crux of the problem after hearing the other party's rebuttal, and to respond quickly, with pertinent, fluent words and a loud voice. As a party to a court debate, if you are not fully mentally prepared to "break out of nowhere" and make corresponding rebuttals, you will often be defeated in the debate.
6 is both offensive and defensive. Both sides of the socialist court debate aim to assist the judicial authorities in accurately convicting and sentencing the defendant, and their fundamental purposes are the same. Both sides are on the defensive and at the same time on the offensive. One moment the prosecution is on the defensive and the defense is on the offensive, and the next it is the opposite. If the facts of the case are clear, the evidence is conclusive, and the prosecution's indictment and public indictment are impeccable, the defense cannot attack and can only take a defensive position and ask the presiding judge to handle it in accordance with the law. If the prosecution finds that the facts are unclear, the evidence is insufficient, the characterization is wrong, the legal provisions are improperly applied, and the legal procedures are not followed, the defense will have more opportunities to attack. The opportunities for both the offense and defense are equal, and the ultimate goal of both offense and defense is the same - to accurately convict and sentence the defendant based on facts and the law.
⑦Smooth. Fluency, first of all, is logical fluency, that is, the elements of arguments, arguments, and argumentation methods must be complete, the arguments lead the arguments, the arguments support the arguments, and the argumentation methods are appropriate and logical. Fluent language expression is also reflected in the use of plain and clear legal language, clear articulation and clear organization.
General skills of court debate
General skills of both parties in the debate****, the following are commonly used in judicial practice:
①Be good at fighting for initiative. Taking the initiative is the key to winning a debate. There are two skills: one is to be good at defending the topic, which is to imagine the defense topic that the other party may have to argue. The defense topic generally considers six aspects such as facts, evidence, characterization, sentencing, applicable legal provisions, and procedures, and is good at setting up the defense topic. Take the initiative in the debate. The second is to be good at attacking, that is, while explaining your own views, you can keenly discover the other party's loopholes and mistakes, seize the key points to attack, and make the other party passive.
②The word "good" comes first. There are three commonly used methods: one is to borrow the words of others, such as the words of the court trial or the defendant, use your own words, and use a certain plot of the court investigation as the beginning of the debate, and then start the debate. The second is to raise a key question for the other party to answer, so that the other party's mistakes and omissions are clearly exposed, and then use this as a target to start the debate. The third is to get straight to the point and go straight to the crux of the debate, that is, to directly refute the other party's basic opinions.
3. Be good at using first-hand materials.
Debaters must be good at describing the facts and evidence that they have seen with their own eyes, heard with their own ears, and have been repeatedly verified during the case handling process, clearly, clearly, and concretely, including important details. Because the material is solid and has huge potential, it gives people a strong sense of conviction, which is especially beneficial to winning debates.
4. Good at citing legal provisions. The debaters are required not only to state the preamble of each legal provision, but also to memorize the first few paragraphs and the first few items of each provision, and to master its inner words and essence, as well as the relationship with the relevant provisions. Internal connections, and then clarify the relationship between these provisions and the facts of the case, so as to be accurate. By doing these things, you will be able to handle debates with ease, and it will be easier to turn "danger" into safety and "defeat" into victory.
5. Be good at finding "targets". You must listen carefully to the other party's speech, and be good at grasping the main idea of ??a certain paragraph of the other party, the loopholes in this paragraph, and the contradiction between this paragraph and your previous words, the words of the witness, and the words of the victim. In this way, you can find the "target", confront each other tit for tat, use your spear to attack its shield, so that the other party loses the energy and initiative in the debate, and achieves better debate results.
6. Be good at rejecting unnecessary debates. During the debate, if the other party insists on his own opinion or completely denies the defense issue, you can use the rejection method of debate: if the other party has already clarified the entangled issue, you only need to point out what has been said before and will not repeat it; When nagging endlessly on defense issues, you can point out: "The questions raised do not affect the characterization and sentencing of the case." If the defendant refuses to admit his guilt when the facts are clear and the evidence is conclusive, the lawyer can no longer defend him at the appropriate time. In defense, the prosecutor can declare in public that this is the end of the argument, which will bring the debate to an abrupt end, simply and effectively.
Seven, be good at the decline of one thing and the growth of the other. When the opponent asks a lot of questions at once and each question involves qualitative sentencing, the debater should only answer the main points of each question without giving detailed explanations, so as to leave room for thinking; after the opponent asks one or two questions, Then give specific answers to these one or two questions; if the other party has a lot of questions, and only one or two are key, just answer one or two questions, and "leave aside" the other questions for the time being, and it is not appropriate to talk too much; In some criminal cases, several defendants have their own defenders. The defense statement of this defender may not be able to put the defendant's guilt on another defender, and it is not appropriate for disputes between defenders in court to arise. Defendant's facts.
⑧Be good at making up for mistakes. Court debates are serious and require that inappropriate words be avoided as much as possible, and wrong things that should not be said be avoided. However, after all, the phenomenon of slipping up and saying wrong things cannot be completely avoided. In this case, the following methods can be adopted to remedy the situation: First, the non-fundamental inappropriate remarks that have been made can be made more thoroughly in the next round of speeches, or an explanation can be given to the other party during the adjournment. Second, if you say something wrong that directly affects the conviction and sentencing, you must immediately correct it. You can say: "Presiding judge, please allow me to describe what I just said more completely and accurately...". This is a tactful way of admitting mistakes in court, and the other party does not need to get entangled; third, if you said something you shouldn't have said, such as insulting the other party's personality, you should change your tone as soon as possible, try to make up for it, and take the initiative to apologize to the other party after the court.
9. Be good at relaxing your emotions. Experienced debaters are good at using reason to control their emotions and always maintain a relaxed mood. Nervous emotions are extremely detrimental to debates. How to relax? First of all, you must not be irritated by the other party's words, and your emotions must be relaxed from beginning to end; secondly, you must maintain a moderate speaking speed and use speed to suppress excitement; thirdly, you must clearly state the serial number when speaking, creating an appropriate language gap, so that you can speak clearly , and can control emotions.
Fifteen taboos on oral expression in defense
In court debates, when defending the oral expression of one party, the following 15 taboos should be avoided:
①Avoid incitement and incitement;
② Avoid turning into a political report or an academic report;
③ Avoid being unfamiliar with the case, unfamiliar with the legal provisions, and unfamiliar with the expression method of justice;
④The taboo of answering has become the defendant's "role";
⑤The taboo of finding words to answer;
⑥The taboo of wearing braids, hats, and hitting sticks;
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⑦ It is taboo to use sarcasm and satire on the other party; ⑧ It is taboo to use prose rhetorical techniques to organize speech. Use rhetorical techniques to organize language;
⑨Avoid revealing private details and confidential materials;
⑩Avoid taking credit for the defendant at will;
⑾Avoid repeating the defendant Swear words and slang;
⑿ Avoid not telling what you already know, as new things are endless; avoid not knowing what is said;
⒀ Avoid dancing with joy;
(14 Avoid sharp points Screaming in a high-pitched voice or like a mosquito, only making a buzzing sound;
(14. Avoid shouting in a high-pitched voice or making a mosquito-like sound, only making a buzzing sound. Like only making a buzzing sound;
(15) Do not violate the law or make excuses or sophistry regardless of the facts
The main skills of the public prosecutor in oral expression
The public prosecutor refers to the person who represents the country in pursuing criminal responsibility in the court. The prosecutor's side. The prosecutor's oral expression skills in court debates serve the purpose of public prosecution. This expression skill mainly has the following points:
① The prosecutor should be well prepared before the court session. Regarding the case issues raised by the defense, the defense questions and defense points are designed in advance to prevent possible rebuttals by the defense: The first is to ask questions vertically, that is, according to the order stated in the indictment ( (facts, evidence, reasons, conclusions); the second is horizontal questioning, asking questions about the elements of the crime, evidence, guilty plea attitude and the laws to be applied; the third is focused questioning, grasping key issues according to the focus of the case (For example, whether it is the first crime or the second crime, whether it is a primary crime or another crime, whether it is a surrender, etc.)
② Anticipate the defense points and preemptively attack the defender in the indictment. (such as statutory mitigating circumstances or mitigating circumstances, etc.), proactively and skillfully put the topic in front of the defender, putting the defender in a passive position.
3 Reason the defendant step by step. The facts of a person's crime should be based on common sense and legal principles, closely follow the elements of the crime, and reasoning step by step, logically and logically come to the inevitable conclusion that the defendant has committed a crime and should be subject to criminal punishment. At the same time, the crime facts and the application of the law should be closely connected; the defender can Speechless.
4. The defendant and his defender deliberately confuse right and wrong, deliberately exaggerate the circumstances that are favorable to the defendant, and seize the situation that is slightly inferior to other cross-examinations. The prosecutor carefully organizes his words and seizes the crux of the cross-examination to counterattack, leaving him speechless in the face of ironclad facts, evidence and indisputable law.
⑤ To convince people with reason, point. With a calm mind and clear thinking, the prosecutor quickly captured many core issues of the opponent's defense partners, quickly analyzed them, and refuted their core points. Other related issues were easily solved after a brief mention.
6. Calm down emotions. When the defendant's crime arouses the anger of the crowd, or when the defender's words are fierce to the people present, the prosecutor does not stick to the emotional fluctuations of the crowd, and truly controls the emotions with reason, and always uses reason. Facts and evidence should always be spoken in accordance with the provisions of our country's laws, and the prosecutor's position, views and attitude should be reflected through decisive and powerful legal language and a confident tone. Only when the rebuttal is reasonable, beneficial and measured can the prosecutor's goal be achieved.
Seven major differences, tracking and defense. In the first-instance court, due to the failure of the public prosecutor's argument and the wrong judgment, the public prosecutor's representatives in the second-instance court followed up the debate on the principled differences (such as characterization, combined punishment for several crimes, sentencing, etc.) raised orally by both parties in the first-instance debate to achieve the goal. The purpose of handling the case fairly and reasonably.
Since the object of the follow-up rebuttal is not only the defendant and his defender, but also mainly the first-instance court whose views are wrong, when rebutting, you must try to use French language, present facts, adduce evidence, and reason in a targeted manner, showing that the prosecutorial agency is We must strictly enforce the law when handling cases, and have a clear stance of not making concessions on major principled differences.
8. Use contradictions to undermine the argument. In some relatively complex cases, after the first-instance judgment, the defendant appeals, or the public prosecutor believes that the first-instance judgment was indeed erroneous and lodges a protest. During the second-instance court debate, the prosecutor makes full use of the contradiction and protest between the main criminal facts of the first instance and the defendant’s appeal facts. The differences between the crime facts or conviction and sentencing and the defendant, the inconsistencies in the cleverly organized protest statement, the inconsistencies in the content of the case, the inconsistencies in the statements of the defendant and the defendant, the inconsistencies in the statements of the defendant and the defendant, etc. By pointedly pointing out various contradictions, the inappropriateness of the first instance, the mistakes of the appellant, and the inconceivability of the defender's defense can all be corrected, thereby achieving the purpose of judicial oral expression.
9. Clarify the facts and stop when appropriate. During the court debate, the defendant's criminal facts were clear, the seven major elements were revealed in detail, and many witnesses appeared in court to testify. The evidence presented has been identified by the defendant and witnesses, but the defendant is dead and the defender is still making excuses. At this time, the prosecutor can once again confirm the key criminal facts with direct evidence and decisively announce: "This is the end of my debate. End! "Let the collegial panel discuss and decide
⑩ shoulder the dual responsibility of tactfully correcting. In court debates, the public prosecutor has dual responsibilities: he is both the state's public prosecutor and a representative of the legal supervisory authority. When the defender's remarks deviate from the law and facts and make inflammatory "court remarks" that are not conducive to the normal trial of the case, the public prosecutor should immediately, in his capacity as a legal supervision agency, advise the presiding judge to stop the defender's "court remarks" and return to the courtroom debate. Get on the right track. The public prosecutor should immediately, as a representative of the legal supervision agency, advise the presiding judge to stop the defender's "court speech" and return to the correct track of court debate.
(11) Publish the data and remove the firepower. In court debates, prosecutors use data to speak their minds to fundamentally resolve the main issues in case debate and achieve the results of the debate. There are two prerequisites for prosecutors to use this method: first, the characterization of the case is accurate, and second, the data used is reliable and the calculation method is scientific. Commonly used data include the age of the defendant, the number of criminals, the physical quantity of criminal facts, the amount of cash, the number of behavioral actions, the serial number of cited laws, etc.
(12) Borrow words in court and immediately refute. The prosecutor borrows words from others in court that are useful to the prosecutor in rebutting the other party, and immediately organizes them in his own words to cross-examine the other party or clarify his own point of view. Borrowed words include the original words of the judges’ reading materials, the defendant’s original words, and the witnesses’ original words. (13) It is fragmented and cannot be defended. In the court debate, the defender has nothing to defend in terms of characterization, facts, evidence, applicable law, sentencing, etc. He can only make some routine defenses on certain specific details or guilty plea attitude. At this time, the prosecutor can make less or no defense. , because the purpose of the prosecutor's oral expression has been achieved.
What prosecutors should pay attention to in court debates
"5 don'ts": Not good at arguing, not arguing randomly, not forcing arguments, let alone sophistry. "5 answers": Good answer:
① If you have any objection to the characterization of the case, you must answer;
② If you have any objection to the criminal facts, you must provide evidence;
③ Distortion The principles, policies, and laws of the party and the state are detrimental to the four basic principles, and we must never give in and must answer;
④ If objective phenomena are used as the main cause of crimes, they must be clearly explained and defended;
⑤ If the reasons for requesting a lighter punishment or a reduced punishment are insufficient or inappropriate, the reasons must be explained and defended in accordance with the law.
"5 No answer": No answer if it has nothing or little to do with the case; ② If the indictment and public indictment have already stated it, and the defender raises it again, no answer will be given; ③ The two parties have no differences on the principles of conviction and sentencing, and the details will not be answered. , no answer; the two parties have no differences on the principles of conviction and sentencing, and no answer will be given on the details; 4) academic and theoretical questions are not suitable for defense in court; 5) questions that have been clearly stipulated in the law, the basis will be pointed out, but no answer will be given.