The right to defense is a basic right of criminal suspects and defendants, and it is also a basic constitutional right. In fact, the right of defense is not only the right of criminal suspects and defendants, but also the basic right of every citizen and everyone, because theoretically, everyone may be accused of a crime, so everyone needs and enjoys the right of defense.
Defense business is the main business of lawyers in handling criminal cases. According to the law, lawyers can accept the employment of defendants and their close relatives in public prosecution or private prosecution cases, provide them with legal advice, represent complaints and accusations, apply for bail pending trial, accept the entrustment of criminal suspects and defendants or the designation of people's courts, and act as defenders.
When a lawyer acts as a criminal defender, he shall, according to facts and laws, put forward materials and opinions to prove that 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.
When lawyers participate in litigation activities, they can collect and consult materials related to the case, meet and correspond with people whose personal freedom is restricted, appear in court, participate in litigation and enjoy other rights stipulated in the procedural law.
In the court debate stage, the defense opinions should be analyzed and demonstrated from different aspects such as whether the facts are clear, whether the evidence is sufficient, whether the applicable law is accurate, and whether the proceedings are legal, and put forward opinions and reasons for the conviction and sentencing of the case.
criminal defense system
First, the right to defense.
The right of defense is the most basic and core litigation right enjoyed by criminal suspects and defendants. The right of defense of criminal suspects and defendants generally includes: (1) the right of statement. When interrogating the defendant, give him the opportunity to state and defend himself. (2) the right of cross-examination. The right of criminal defendants to ask questions to witnesses and expert witnesses during the trial. (3) the right to apply for investigation of evidence. A criminal defendant may apply to the court for obtaining evidence and calling witnesses, and an expert witness also has the right to ask for confrontation with other defendants.
(4) the right to debate. Criminal defendants have the right to debate on facts and laws, the probative force of evidence and procedural issues. (5) choose to defend human rights. Criminal suspects and defendants have the right to entrust defenders to provide legal assistance and defend themselves.
(6) the right to relief. If a criminal defendant refuses to accept the court's judgment or ruling, he has the right to obtain relief. (7) the right to withdraw the application. In order to prevent judicial personnel with reasons for withdrawal from affecting the fair handling of cases, the defendant is given the right to apply for withdrawal as a relief.
Second, the types and ways of defense.
Criminal defense is generally divided into justifiable defense, entrusted defense and designated defense. The so-called self-defense is the self-defense of the criminal suspect and the defendant. This kind of defense runs through the whole process of criminal proceedings. No matter in the investigation stage or the trial stage, the defendant can defend himself. Self-defense is a very effective and frequently used defense method.
Entrusted defense means that a criminal suspect or defendant signs an entrusted contract with a person permitted by law, and others defend themselves. Other people here can be lawyers or other citizens.
Compared with self-defense, entrusted defense is more conducive to the full exercise of the right of defense by criminal suspects and defendants, thus becoming the most important defense method in modern criminal proceedings. Designated defense means that under certain circumstances stipulated by law, the court appoints a defense lawyer to defend the defendant who has not entrusted a defender.
Third, defenders and the scope of defenders.
In criminal proceedings, the right of defense can be exercised by others, that is, defenders, in addition to the criminal suspects and defendants themselves. Defender refers to a litigant participant who is entrusted by a criminal suspect or defendant or appointed by the court to help the criminal suspect or defendant exercise their right of defense and safeguard their legitimate rights and interests according to law.
The establishment of the defender system makes up for the defects of the defense ability of criminal suspects and defendants; It makes up for the deficiency of national judicial personnel in protecting the litigation rights of criminal suspects and defendants; It promotes the realization of litigation justice, plays an exemplary role in society and promotes legal publicity and education.
In China, the range of defenders is very wide: lawyers, people's organizations or people recommended by criminal suspects and defendants, guardians of criminal suspects and defendants, relatives and friends can all be entrusted as defenders, except those who are deprived of personal freedom according to law and those who are being executed.
Fourth, the responsibility of the defender.
Defenders shall bear the responsibility of providing materials and opinions to prove the innocence and light crimes of criminal suspects and defendants or to reduce or exempt their criminal responsibilities according to facts and laws, and safeguard the legitimate rights and interests of criminal suspects and defendants.
Fifth, the litigation rights and obligations of defenders.
In order to ensure that defenders can fully perform their defense functions and duties, the law gives defenders a series of litigation rights. It mainly includes the rights of independent defense, marking papers, meeting and communication, investigation and evidence collection, access to judicial documents, information, inquiry, debate, accusation and refusal.
While enjoying the right of appeal, defenders should undertake the following litigation obligations: the obligation to abide by their duties and safeguard the legitimate rights and interests of the parties; Obligation of confidentiality; The obligation of proper practice; The obligation to abide by the rules of the court; Legal aid and other obligations of lawyers.