(A) the lawyer's intervention time
A criminal suspect has the right to entrust a defender from the day when he is interrogated for the first time by the investigation organ or takes compulsory measures; During the investigation, only lawyers can be entrusted as defenders. (Article 33 of the Criminal Procedure Law).
(2) Entrustment procedures
1. Proceedings of the accused in custody
(1) Ask the suspect's family about the suspected crime and what they know (detention notice issued by the Public Security Bureau to the family);
(2) The law firm signs a criminal entrustment contract with the client (with the Notice of Signing the Entrustment Contract for Litigation and Arbitration in triplicate, one for the client, one for the law firm and one for the lawyer handling the case;
(3) A number of power of attorney signed by the criminal suspect and his family, and photocopies of documents proving kinship;
(four) to make a list of lawyers' work confirmation;
(5) Prepare a case bag (stating the cause of the case: the name of the party and the accused crime, plus the case number).
The defendant did not go through the formalities when he was detained.
Basically the same as above, the criminal entrustment contract and power of attorney are signed by the criminal suspect.
3. Procedures for legal aid agencies to assign lawyers
Designated defense.
Second, the preparation of criminal lawyers in the investigation stage
(a) get in touch with the case-handling organ
Contact the public security pre-trial department or the investigation department of the procuratorate to communicate with the investigators of the investigation organ:
1. Understand the criminal suspect's alleged charges and the relevant situation of the case;
2. Determine the submission procedure and meeting time;
(two) to study the allegations and understand the case in advance.
1. Learn and study the constitution and arguments of crime;
2. Knowledge-based or technology-based crimes need to know professional knowledge, terminology and industry background;
3. Learn about the arrest process and the case from his family or other insiders;
4. Understand the case and background according to media reports.
Three. Meet with a criminal lawyer
(1) Pre-meeting memorandum
1. Make an appointment with the detention center by telephone;
(Note: Crimes endangering national security, terrorist activities, particularly serious bribery crimes and cases involving state secrets shall be approved by the investigation organ before the meeting, and other cases need not be approved; Most cases will be arranged within 48 hours after the request is made, and some cases will be arranged within 5 days)
2. Draw the location map of the detention center and make travel plans;
3. Information prepared in advance;
(1) power of attorney; (2) Letter of introduction from the lawyer to meet the criminal suspect in custody (the lawyer's practice license number and contact information must be indicated); (3) Lawyer's practice certificate, trainee lawyer's certificate (if trainee lawyers meet together) and their copies (in some places, lawyers are required to submit a copy of lawyer's practice certificate; In some places, the interview of intern lawyers requires the consent of the investigation organ or the detention center); (4) ID card (for travel, etc.); (5) A number of office supplies such as pens, paper and ink; (6) exchange outline; (seven) the decision issued by the investigation organ to approve the meeting with the criminal suspect in custody and the consent of the translator to attend the meeting (if any).
(2) Meeting process (taking the first meeting as an example)
1. Meeting procedure (submit a letter of introduction, a power of attorney, a copy of a lawyer's practice certificate, show a lawyer's practice certificate, and register the information of criminal suspects and lawyers in custody);
2. When a lawyer meets a criminal suspect in custody for the first time, he shall identify himself to the criminal suspect and show his power of attorney; Inform the relatives of the criminal suspect who are entrusted to provide him with legal help; Ask him if he agrees to hire this lawyer; If you agree, you should sign the power of attorney for confirmation; If you don't agree, please ask them to express their opinions in writing;
3. According to the exchange outline, learn about the case from the criminal suspect and make a record of the lawyer's interview;
4. After completing the interrogation record, give it to the criminal suspect to read or read it out to him, ask if there is any supplement or modification, and sign it by the criminal suspect after confirmation, and hold back the fingerprint;
5. After the meeting, handle the handover formalities with the detention place.
(3) Conference exchange outline
1. Lawyer introduces himself;
2. convey the greetings and concerns of relatives;
3. Sign the "Power of Attorney" with family members and ask the criminal suspect for his opinion on hiring a lawyer;
4. Understand the date of birth, working conditions, criminal punishment, charges and terms of criminal punishment, pregnancy and illness of the suspect;
5. Perceive their mental state;
6. Understand the arrest process and arrival of the case;
7. Listen to the criminal suspect's statement about the facts and circumstances of the case, and his defense about his innocence or light crime (details to be discussed);
8. Let the suspect recall every question and answer of the investigator;
9. Inform the suspected crime and possible criminal responsibility, and explain the relevant provisions of the criminal law;
10. Listen to the criminal suspect's statement about the facts and circumstances of the case, and his defense about his innocence or light crime (details to be discussed);
1 1. Understand the surrender and meritorious service of criminal suspects;
12. Inform the criminal suspect of his rights and obligations, and explain the relevant provisions of the Criminal Procedure Law (including withdrawal, truthful confession, change of compulsory measures, complaint and accusation, etc.). );
13. Understand the legal procedures of compulsory measures, including the time and types of compulsory measures, and whether relevant legal documents have been read or served;
14. Understand whether the personal rights of criminal suspects have been violated and whether investigators and supervisors extort confessions or induce confessions by torture in the process of taking compulsory measures;
15. Inform the process of investigation, prosecution and trial and the estimated time of each stage;
16. Remind to verify the interrogation record, expert opinions and other documents before signing.
(4) achieve the goal
1. The goal of the first meeting: building trust, psychological counseling, informing rights and obligations, understanding confessions, and cooperating with investigation and detention;
2. The goal of the follow-up meeting: to understand the case; Understand confession; Judge whether there is the possibility of increasing or changing the charges; Apply for changing compulsory measures; Complaint or accusation;
(5) Matters needing attention in the meeting
1. In the face of unreasonable obstruction by supervisors or investigators, you should use laws and regulations to safeguard your rights and interests, or you can take laws and regulations with you and argue with them if necessary;
2. Never argue with case handlers and supervisors in front of criminal suspects;
3. In the face of the criminal suspect's lies, there is no need to accuse him, but he should be informed of the facts proved by other evidence and that his confession will be cross-examined and verified in court;
4. The illegal demands of criminal suspects and their families, their consequences and impact on this case shall be explained by laws and regulations;
5. Abide by the laws and regulations of the lawyers' meeting;
6. When talking with the parties during the meeting, it is necessary to communicate in the most straightforward and clear language according to the comprehensive factors such as the education level and experience of the parties.
Four, the criminal lawyer work request to cancel the case
(1) Applicable circumstances
According to the understanding of the case, criminal lawyers can submit legal opinions to the public security organ that filed the case from a professional perspective and request a decision to dismiss the case.
Applicable situations include: the circumstances are obviously minor, the harm is not great, and it is not considered a crime; The crime has passed the limitation period for prosecution; Failing to tell or withdraw a crime that should be dealt with according to the criminal law; The suspect has an alibi and did not participate in the case; Wait a minute.
(2) the contents of legal opinions
1. Suspected of committing crimes and detaining criminal suspects;
2. entrustment;
3. The basic facts of the case;
4. Legal analysis;
5. Request the public security organ to make a decision to dismiss the case;
6. Evidence to prove the relevant contents of the legal opinion.
Five, the request for the work of criminal lawyers not to be arrested.
(1) Applicable circumstances
According to the understanding of the case, before the investigation organ requests the procuratorate to approve the arrest, the criminal lawyer can strive to submit a legal opinion requesting a decision not to approve the arrest to the procuratorate from a professional perspective before the case-handling personnel form an opinion, so that the procuratorate can understand the possible problems in the case and carefully consider them to avoid the possible state compensation liability after the wrongful arrest.
(2) the contents of legal opinions
1. Suspected of committing crimes and detaining criminal suspects;
2. entrustment;
3. The basic facts of the case;
4. Legal analysis;
5. Request the public security organ to make a decision not to approve the arrest;
6. Evidence to prove the relevant contents of the legal opinion.
Compulsory measures for intransitive verbs to change the work of criminal lawyers
China's criminal procedure law stipulates that there are five kinds of compulsory measures: compulsory summons, bail pending trial, residential surveillance, detention and arrest. In judicial practice, detention, arrest and bail pending trial are commonly used, while compulsory summons and residential surveillance are rarely used. The following mainly discusses the workflow of applying for bail pending trial.
(1) Application Time
From the time a criminal suspect is detained, he may apply for bail pending trial and residential surveillance.
(2) Application conditions
1. Bail pending trial:
(1) may be sentenced to public surveillance, criminal detention or independent application of supplementary punishment;
(2) may be sentenced to more than fixed-term imprisonment, and obtaining a bail pending trial will not cause social danger;
(3) Women who are seriously ill, unable to take care of themselves, pregnant or nursing babies will not be socially dangerous if they are released on bail pending trial;
(4) Upon the expiration of the detention period, the case has not yet been settled, and it is necessary to obtain bail pending trial.
2. Monitor the residence:
(1) suffering from serious illness, unable to take care of themselves;
(2) Women who are pregnant or nursing babies;
(3) Being the sole supporter of a person who cannot take care of himself;
(4) Due to the special circumstances of the case or the need of handling the case, it is more appropriate to take residential surveillance measures;
(five) the detention period expires, the case has not yet been concluded, and it is necessary to take residential surveillance measures.
Note: If the conditions for obtaining a guarantor pending trial are met, but the criminal suspect cannot put forward a guarantor or pay a deposit, he may be placed under residential surveillance.
(3) Common situations where bail pending trial is applicable.
1. Duty crime cases with small amount of crime and returned stolen money;
2 cases that undermine the market economic order and have little harmful consequences;
3. Economic compensation and other traffic accident cases reached an understanding;
There are 4 cases of minors, and the harmful results are not great;
5 cases of intentional injury (minor injury) and intentional destruction of property, such as economic compensation;
(four) to explain the situation of bail pending trial to the criminal suspect and his family.
Explanations:
1. Conditions for using bail pending trial (Article 65 of the Criminal Procedure Law);
2. Guarantee method and conditions, deposit refund (Articles 66, 67, 7 1 of the Criminal Procedure Law);
3. Obligations and legal liabilities of guarantor and guarantor pending trial (Articles 68 and 69 of the Criminal Procedure Law);
4. Difficulties in applying for bail pending trial in judicial practice;
5. Don't promise results.
(5) applying for changing the compulsory measures of obtaining bail pending trial.
The basic contents of the application:
1. Applicant;
2. The criminal suspect's alleged crime and detention;
3. Application: requesting to change compulsory measures into bail pending trial;
4. Facts and reasons;
5. Evidence to prove the relevant contents of the application;
6. Guarantee method.
(6) Relief in the application process
1. Rejection by the investigation organ
For the investigation application, a reply of approval or disapproval shall be given within 3 days. For those who disagree with the application of bail pending trial and residential surveillance, lawyers have the right to ask them to explain the reasons for their disagreement, and may apply for reconsideration or report to the relevant departments.
2. Confiscation of the deposit and the guarantor's fine.
The guarantor and the person who has been released on bail pending trial shall, within 5 days after receiving the decision to impose a fine on the guarantor and the decision to confiscate the deposit, apply to the competent authority at the next higher level of the executive organ for review. After receiving the application for review, the competent authority at the next higher level shall make a review decision within 7 days.
(seven) to apply for the release of bail and residential surveillance.
1. Term expires. According to the Criminal Procedure Law, the longest period of bail pending trial shall not exceed 12 months, and the longest period of residential surveillance shall not exceed 6 months.
2. The criminal suspect should not be investigated for criminal responsibility.
Seven, the criminal lawyer's complaint or accusation.
During the investigation, the defense lawyer may represent the criminal suspect in appealing and accusing (Article 36 of the Criminal Procedure Law).
(a) the situation of acting as an agent for complaints or accusations
1. Infringe on the personal rights and personal freedom of criminal suspects. Such as extorting confessions by torture and inaction of supervisors, leading to the criminal suspect being beaten by detainees; Failing to remove, remove or change compulsory measures at the expiration of the statutory time limit.
2. Infringe on the property rights of criminal suspects. Should be returned to the guarantor pending trial, the deposit will not be returned; Take measures of sealing up, distraining and freezing the property irrelevant to this case; Lifting the seizure, seizure and freezing; Corrupt, misappropriate, privately divide, exchange or use the seized, detained or frozen property in violation of regulations.
3. Infringe on the criminal suspect's litigation rights. Such as the right to defense; Right to know (right to inform, right to avoid, right to hire a lawyer, expert opinion, reasons for taking compulsory measures, investigation results, results after supplementary investigation).
(2) Accepting department
Complain or accuse the public security organ or procuratorate that directly accepts the case. If you are dissatisfied with the handling, you may appeal to the people's procuratorate at the same level; Cases directly accepted by the people's procuratorate may appeal to the people's procuratorate at the next higher level. The people's procuratorate shall promptly examine the complaint, and if the situation is true, notify the relevant authorities to correct it.
(three) to collect relevant evidence of infringement of the rights of criminal suspects
Collect through interviews; Pay attention to timeliness; Inform the suspect of the method of preserving evidence.
(four) the contents of the complaint or appeal
1. Basic information of the criminal suspect being represented;
2. The object of complaint or accusation;
3 illegal facts, including time and place;
4. Preliminary evidence or evidence clues;
5. Legal basis;
6. Handling requirements.