How do criminal defense lawyers plead not guilty

On the innocent defense of criminal defense lawyers compared with civil and administrative cases, handling criminal cases undoubtedly requires higher comprehensive quality of lawyers; In all criminal cases, the defense of innocence is the most difficult. It requires lawyers not only to have solid professional knowledge such as criminal law, criminal procedure law and evidence law, but also to have excellent psychological quality, good language expression ability, keen adaptability, courage to argue and be good at arguing. And the life skills of good communication with the case handlers of the public security inspection law. In terms of professional feelings, we should also have a sense of social responsibility and be psychologically prepared for the cause of human rights protection. As a well-known lawyer said: "The emergence and existence of the profession of lawyer is by no means to solve the employment of some people, nor is it simply to meet people's material or cultural needs, but to meet the needs of social progress, the needs of human civilization as a whole, and the needs of human individual dignity. Only by closely combining all personal motives with these needs can we become a qualified and respected lawyer. " The most precious thing in life is human life and freedom, and the most painful thing in life is the loss of life and freedom. Innocent defense-is to defend people who should not lose their personal freedom or right to life in order to win personal freedom or right to life according to law. Innocent defense is one of the strategies and methods of criminal defense. As the name implies, it is a way of defense to fight for the innocence of criminal suspects and defendants. The core of the defense of innocence is to put forward the reasons for the defendant's innocence and demonstrate it according to law. Because the defense of innocence is related to the extremes of "crime" and "non-crime", it is also a complete denial of the preliminary work of investigation organs and procuratorial organs in a sense. Therefore, the defense of innocence is recognized as the most difficult form of defense in criminal defense. The significance of innocent defense is of great significance to citizens and criminal defense lawyers. The success of innocent defense can reflect the work value of criminal defense lawyers to the greatest extent, and the skills of innocent defense represent the highest level of defense skills of lawyers and lawyers. In the practice of criminal proceedings, the work of investigation organs is to investigate the criminal facts of criminals, especially the evidence of guilt and severity; The job of the procuratorial organ is to prosecute the criminal suspect according to law after reviewing the relevant criminal evidence. Simply put, in criminal proceedings, the procuratorial organ is the attacking party, and citizens and their defense lawyers are the defending party. A successful plea of innocence means that criminal defense lawyers completely deny their long-term investigation and procuratorial work, destroy or break through the evidence chain painstakingly managed by the prosecution, show the most brilliant value of lawyers, and represent their dreams and glory. Successful plea of innocence is also the defender and "protector" of civil liberties and life. The survival of the plea of not guilty 1. The principle of presumption of innocence is an important basic principle in criminal law today, and it has become a kind of knowledge. No one can be regarded as a criminal before being tried, let alone punished. Under this principle, the defendant's litigation rights are basically not deprived. Even if some rights cannot be exercised, the law gives the defendant the right to entrust defense from another angle, so that there is basically no obstacle to the defendant's defense of crime, and the innocent defense will gain the soil for survival. But before that, the position of the principle of presumption of innocence was occupied by presumption of guilt, and the proceedings became a criminal process. The defendant became a criminal from the beginning, and the criminal's litigation rights were basically deprived, and the defense lost its survival soil, let alone the innocent defense. Therefore, only under the principle of presumption of innocence can the defendant defend his innocence; In addition, the presumption of innocence is the primary source of survival for innocent defense. Second, the change of litigation mode Before the reform, China's litigation mode was basically similar to the ex officio mode. The status of the prosecution and the defense is not equal, and the defendant becomes the same object of prosecution for both parties. The defense in this mode can only be a form, and lawyers can not only plead not guilty, but will be regarded as accomplices of criminals. After the reform of China's judicial system, a litigation mode with China characteristics has been formed, which is based on the authoritarian mode, absorbs the reasonable factors of the confrontational mode and strengthens the debate and confrontation. The status of the prosecution and the defense tends to be basically equal; Lawyers have full rights to cross-examine and debate in court; There is also the supervision of the masses, which increases the transparency of the trial; Those who have not been cross-examined and certified in court generally cannot be used as the basis for conviction, and so on. In this way, the defender can put forward the factual evidence of the prosecution and the impermissibility of the law to a neutral judge through this kind of relatively equal's confrontation between prosecution and defense, so as to achieve the purpose of defending the defendant's innocence or light crime. Third, the time for lawyers to intervene in criminal proceedings is advanced. 1996 one of the highlights of the revision of China's criminal procedure law is that the time for lawyers to intervene in criminal proceedings is greatly advanced. It seems that the time for lawyers to intervene in criminal proceedings, especially in the pre-trial investigation stage and the examination and prosecution stage, has little to do with the innocent defense in the trial. In fact, the time for lawyers to intervene in litigation indirectly restricts the possibility and success rate of innocent defense, because the earlier lawyers intervene, the more opportunities they have to contact all parties in litigation and the more they know about the case, so that the greater the success of innocent defense, the more willing defenders are to defend innocence. If there is no lawyer involved in criminal proceedings, the facts of the case will be less, which objectively determines that the defense of innocence can only be empty talk. Moreover, lawyers should be the main force of criminal defense, and the time for lawyers to intervene in criminal proceedings is even more important. Four. Legal provisions on lawyers' liability Article 35 of China's Criminal Procedure Law and Article 28 of the Lawyers Law clearly point out that lawyers, as criminal defenders, should put forward opinions to prove the innocence and misdemeanor of criminal suspects and defendants according to facts and laws and safeguard their legitimate rights and interests. This is the basis for ensuring lawyers to exercise the right of innocent defense in legislation. Of course, on the other hand, this is also the duty that lawyers must perform. The legal basis of innocent defense There are a series of legal provisions in China, which provide a solid legal basis for lawyers to carry out innocent defense crimes. 1. Article 12 of China's current criminal procedure law stipulates: "No one shall be convicted without a judgment by the people's court according to law." This provision has changed the long-standing tendency of "presumption of guilt" in China, absorbed the theoretical essence of "presumption of innocence" recognized by the world, and well embodied the concept of human rights protection. At present, China's criminal procedure law is about to be revised, and it is believed that the "presumption of innocence" will be further affirmed and established. 2. Article 3 of China's Criminal Procedure Law stipulates: "The public security organs shall be responsible for the investigation, detention, execution and pre-trial of criminal cases. The people's procuratorate shall be responsible for the prosecution, approval of arrest, investigation and prosecution of cases directly accepted by procuratorial organs. The people's court is responsible for the trial. Except as otherwise provided by law, no other organ, group or individual has the right to exercise these powers. " It can be seen that it is the responsibility of the procuratorate to prove that the defendant is "guilty". Only when the evidence is true and sufficient and a complete chain of evidence is constructed will the people's court decide to be guilty. Defendants and their defense lawyers have no obligation to "prove their guilt by themselves", and their right can only be to prove their innocence or light guilt according to law. 3. Article 31 of China's Lawyers Law stipulates: "When a lawyer acts as a defender, he shall, according to facts and laws, put forward materials and opinions on whether the criminal suspect or defendant is innocent, the crime is light, or his criminal responsibility is reduced or exempted, so as to safeguard the legitimate rights and interests of the criminal suspect or defendant." This is the direct legal basis for lawyers to exercise their right of innocent defense. 4. Article 162 of China's Criminal Procedure Law stipulates: "After the defendant's final statement, the presiding judge announced an adjournment, and the collegial panel made the following judgments after deliberation based on facts, evidence and relevant laws and regulations: (1) If the facts of the case are clear, the evidence is true and sufficient, and the defendant is found guilty according to law, a guilty verdict shall be made; (2) If the defendant is found innocent according to law, a verdict of innocence shall be made; (3) If the defendant cannot be found guilty due to insufficient evidence, a verdict of acquittal shall be made because the accused crime cannot be established due to insufficient evidence. " It can be seen that if the facts of the case are unclear or the evidence is uncertain and insufficient, a verdict of innocence must be made. This provides a broad space for lawyers' innocent defense work. The present situation of innocent defense In judicial practice, the success rate of innocent defense is relatively low. There are many reasons for this. For example, the investigation organ and the procuratorial organ are both state organs, with inherent resource advantages and strong position. For another example, it is still difficult and risky for criminal lawyers to carry out their work in China. The crime of perjury in Article 306 of the Criminal Law is like the sword of Damocles hanging over their heads, which makes many lawyers afraid, unwilling and afraid to take evidence, and they are "willing but unable" in their work. Therefore, it will lead to a low rate of innocent defense. Although the reality is not optimistic, there are still a large number of excellent lawyers with excellent professional skills and excellent psychological quality who have achieved success in the field of innocent defense. Therefore, whether the innocent defense can be realized depends on the lawyer's ability and the client's wise choice of lawyer. According to the provisions of China's Criminal Law and Criminal Procedure Law, the defendant can plead not guilty in any of the following circumstances: 1. The defendant does not have the subjective elements of a crime. A crime consists of intention or negligence. A crime with intention as the constitutive element of a crime does not constitute an intentional crime, because the defendant has no subjective intention. A crime with negligence as the constitutive element of a crime does not constitute a negligent crime because the defendant has no negligence. It is neither intentional nor negligent, and does not constitute any crime. Second, the defendant is not the subject of the crime. Crime must also meet the main requirements stipulated in the criminal law. People under the age of 14 are not criminally responsible for committing crimes, while people over the age of 14 and under the age of 16 are not criminally responsible for committing crimes, except for eight counts of intentional homicide, intentional serious injury or death, rape, robbery, drug trafficking, arson, explosion and poisoning. Article 18 of the Criminal Law stipulates that if a completely mentally ill person commits a crime or an intermittent mentally ill person commits a crime, he shall not bear criminal responsibility. Third, the evidence of the defendant's criminal behavior is insufficient. The basic principles of law, such as "a legally prescribed punishment for a crime" and "suiting the crime to the punishment", are the basic principles of criminal trial, and the criminal procedure law determines the principle of presumption of innocence. Evidence can not form a complete chain of evidence or the chain of evidence is out of line, which will affect the determination of criminal facts and should be pleaded not guilty. Fourth, the procedure of the case-handling organ is illegal. Evidence obtained in violation of legal procedures is very likely to be wrong to prove the facts of the case, and its authenticity and impartiality are difficult to guarantee. Article 43 of the Criminal Procedure Law stipulates that "judges, prosecutors and investigators must collect all kinds of evidence that can prove the guilt or innocence of criminal suspects and defendants and the seriousness of crimes in accordance with legal procedures. It is strictly forbidden to extort confessions by torture and collect evidence by illegal methods such as threats, temptations and deception. " Article 6 1 of the Supreme People's Court's Interpretation on Several Issues Concerning the Execution of the Criminal Procedure Law clearly stipulates: "It is strictly forbidden to collect evidence by illegal means. Witnesses' testimony, victim's statements and defendant's statements obtained by extorting a confession by torture or by threatening, luring or cheating, etc., cannot be used as the basis for finalizing the case. "Therefore, the evidence obtained by failing to perform the statutory obligation of informing or violating the procedure should be resolutely denied. Five, the criminal law is not considered a crime. For example, Article 13 of the Criminal Law stipulates that "the circumstances are obviously minor and the harm is not great" does not constitute a crime; Article 16 of the Criminal Law stipulates that harmful acts caused by "force majeure" or "unforeseeable" reasons do not constitute a crime; Article 20 of the Criminal Law stipulates that self-defense is not criminally responsible; Article 21 of the Criminal Law stipulates that there is no criminal responsibility for emergency hedging. Six, the criminal law shall not be investigated. Although some acts have caused serious damage to the obligee, due to their special reasons, they are not investigated for criminal responsibility. For example, Article 87 of the Criminal Law stipulates that those who exceed the limitation of prosecution shall not be investigated, and Article 15 (4) of the Criminal Procedure Law stipulates that if the victim of a private prosecution case fails to prosecute or withdraws his prosecution, he shall not be investigated. The prerequisite for criminal defense lawyers to plead not guilty 1. Be particularly familiar with the case. Familiarity with the case requires lawyers to be particularly familiar with and master the whole case, and to be familiar with the occurrence, development and results of the case. Familiar with the facts and circumstances of the defendant's innocence. Only on the basis of being familiar with the case, can we further study the case and decide whether to defend the defendant's innocence in combination with jurisprudence and law. Second, it is not easy to fully defend the evidence of innocence. Only when the evidence is sufficient can the defense be guaranteed, the facts and reasons of the prosecution can be fundamentally denied, and the innocent opinion of the defense lawyer can be adopted by the judge. Therefore, in addition to clearly pointing out the defendant's innocent opinion and stating the innocent facts and circumstances in the defense, it is more important to provide sufficient evidence of innocence and demonstrate and clarify it in combination with relevant laws, regulations or judicial interpretations. Especially in the court debate stage, the evidence presented by the public prosecutor should be strongly refuted by the collected evidence. Third, pay attention to communication, avoid risks and pay attention to communication. Lawyers should also pay attention to communication with courts, public security organs and procuratorial organs when deciding to defend the defendant's innocence. Because our legal system is not perfect, the rights of lawyers are not fully guaranteed. Lawyers are often disturbed by various aspects in their practice. Therefore, when defending innocence, lawyers should know how to communicate with the above-mentioned organs, strive for rights, avoid troubles, and further safeguard the legitimate rights and interests of defendants. After accepting the entrustment, the criminal defense lawyer should do the following work: 1, communicate with the family members and insiders of the parties, be familiar with the case, and study whether there is a breakthrough in the case itself; 2, meet with the parties, further detailed understanding of the case, and looking for doubt, in order to find more evidence of innocence; 3, carefully consult the file, carefully consult the relevant legal basis, find out the legal reasons for innocence or criminal responsibility defense. See whether the behavior of the parties conforms to the situation of "innocence" and "no criminal responsibility" stipulated in the criminal law of our country. Try your best to collect the evidence of the defendant's innocence. When collecting risky evidence, you must apply, and the investigation organ, public prosecution organ and judicial organ will collect it, so as to protect yourself to the maximum extent. How to plead not guilty 1 There are two basic tasks in substantive defense judicial activities: one is to accurately identify the facts of the case; The second is the correct application of relevant laws. 1, the perspective of facts-facts and evidence Since the facts of the case are so important, the success of the innocent defense must firmly grasp this key and first look for opportunities from the facts. In this way, after accepting the entrustment, the defense lawyer is required to doubt the accusation of the indictment and the determination of the judgment and verify it. Only by holding a questioning attitude of both belief and unbelief can we deeply discover the truth, answer questions and check facts. If the defendant's main criminal facts are clear, the evidence is sufficient, and the charges are met, the facts shall be further ascertained for the defendant from the aspects of lightening or mitigating the crime and exempting from criminal responsibility according to law; If the defendant's main criminal facts are clear and the evidence is sufficient, but they do not meet the charges, the facts before the defense shall be verified against the charges charged in the indictment; If the defendant's main criminal facts are unclear, the evidence is insufficient, it is difficult to convict or obviously does not constitute a crime, the factual basis of innocence should be carefully checked. The facts of the case are the premise of applying the law, and the determination of the facts of the case depends on the evidence. If we want to defend successfully, we must start with the evidence and start from the standard of evidence acceptance to refute that the criminal facts accused by the prosecution do not exist or are not committed by the defendant. First of all, judging from the objectivity standard of evidence, the objectivity of evidence means that evidence must be objective factual materials, not the product of subjective speculation or subjective assumption. The objectivity of evidence is not only reflected in the fact that all traces left in the objective world are objective, but also its connection with facts is objective. This objective authenticity is the premise and basis for evidence to be used to identify facts. Secondly, judging from the relevance standard of evidence, the relevance of evidence means that evidence must be intrinsically and inevitably related to the facts of the case to be proved. Evidence must be objective facts, but not all objective facts are evidence. Only objective and case-related facts can become evidence. The existence of relevance makes the evidence have practical probative power, that is, it has probative power to the facts of the case. Relevance has become a substantial difference between evidence and other facts. In defense, it is necessary to accurately find out the evidence that seems to prove the facts of the crime, but lacks relevance in essence, and achieve the purpose of defense by denying the probative force of these evidences. Thirdly, judging from the legality standard of evidence, the materials as the basis of proof, whether legal or not, can be called evidence, but whether each piece of evidence can be used in specific judicial activities depends on whether it is legal or not. The legitimacy of evidence mainly includes two aspects, one is the legitimacy of evidence form, and the other is the legitimacy of evidence collection procedures or extraction methods. 2. From the legal point of view-the constitution of a crime is stipulated in the criminal law, which embodies the possibility of infringement of legal interests and conviction, and is an organic whole of the objective and subjective elements that a crime must have. Because the constitution of a crime is the legal symbol of illegality and responsibility, the constitution of a crime is the only legal standard to determine a crime. Specifically, the constitution of a crime is the legal standard to distinguish between crime and non-crime, one crime and another crime, one crime and several crimes, and felony and misdemeanor. Defense lawyers should pay attention to how to defend the constitution of a crime from the following aspects from a legal point of view. First, accurately grasp the seriousness of the plot. Second, grasp whether the constitutive requirements of a crime are complete. Third, grasp whether there is justifiable defense or emergency avoidance. Fourth, catch several crimes for one crime. Second, procedural defense procedural justice can ensure the realization of substantive justice on the one hand, and has its own independent value on the other. Defending the defendant and criminal suspect's innocence in procedure is to help or represent the defendant and criminal suspect to correctly exercise their litigation rights according to law. When the defendant and criminal suspect's litigation rights are found to be violated or deprived, they will put forward their opinions to the judicial organs, demand that they be stopped according to law, or lodge a complaint with the relevant units. Conclusion A good lawyer will first be fully familiar with the case and thoroughly understand the relevant laws and regulations, and then decide not to plead guilty after understanding the whole situation, which is the plea of not pleading guilty. Secondly, lawyers need to show more professional spirit, carefully look for more favorable evidence of innocence, meet the parties, consult the files and so on. However, what is more critical is the lawyer's ability to control the whole case. Some lawyers usually don't pay attention to the research and practical skills of innocent defense, and tend to miss the key points that could have been supported by innocent defense, or even if they put forward innocent defense, they can't achieve a successful innocent defense because of lack of professional ability and control ability, or even lose a good chance of sentencing defense. This situation, which you dare not mention, but can't win the case, is undoubtedly another great harm to the rights of the parties. This situation should not and cannot be repeated for you and your relatives and friends.