The content of the defense consists of preface, text and conclusion. The specific writing methods mainly include the following points:
There is no uniform and fixed format for defense words, but the structure is roughly the same.
First of all, the first part
1. Title, indicating the name of the document, namely "defense statement" or _ _ _ _ _ _ (cause of action) case defense statement.
2. Address form, written as "presiding judge, judge (or people's jury)".
Two. foreword
The legal status of a defender refers to the legality of appearing in court according to law, such as "according to the provisions of Article 32 of the Criminal Procedure Law of People's Republic of China (PRC)" or "according to relevant laws", "I accept the entrustment to act as the defendant's defender, or I accept the entrustment of the court to act as the defendant's defender and defend him in court."
2. The lawyer's work before appearing in court and his participation in the trial are described in combination with his defense opinions, not in the preface, nor in the preface, for example, "As the defendant's defender, I carefully reviewed the relevant files, investigated the relevant materials, met with the defendant, talked with him and listened to the trial investigation just now". This passage mainly shows the work done by the defender in this case to show the comprehensiveness of his work.
3. The basic views on this case can be written or not. If you don't write, you can write a sentence "Now make the following defense opinion" and lead it directly to the text. If you write, you can write: "According to the court investigation, the facts of the crime in this case are basically clear. Now, we only accuse the defendant of robbery and theft in the indictment. In terms of qualitative and related circumstances, according to facts and laws, we put forward the following defense opinions. "
Second, the text
The text is the main part of the defense, and it is the gist that the defender wants to clarify in order to safeguard the legitimate rights and interests of the defendant. Based on the facts and evidence of this case, the opinions and reasons that the defendant is innocent, the crime is light or the criminal responsibility should be reduced or exempted should be demonstrated in comparison with the relevant laws and regulations. Therefore, it is usually around whether it constitutes a crime, or what kind of crime it belongs to, whether there are legal conditions for lightening or exempting punishment, etc., and draw your own correct conclusions.
1. Defend the criminal facts alleged in the indictment. This is the center of defense, usually from the following aspects:
(1) The fact exists, but it confuses the boundary between crime and non-crime, and regards innocence as guilt;
(2) Some facts exist, but they are exaggerated and distorted. For example, self-defense is accused of intentional homicide, petty theft is accused of theft, and misdemeanor is regarded as a felony;
(3) The main facts are unclear, and the evidence is insufficient or there is no evidence, which mainly proves the existence of criminal facts from the evidence;
(4) Facts should not exist at all;
(5) The facts are clear and the evidence is conclusive. If there is a lighter or mitigated circumstance, it can be defended from the aspects of lighter or mitigated circumstances.
2. Defend the improper application of the law in the indictment. There are usually three situations:
(1) Take innocence as guilt. If the circumstances are minor, but do not constitute a crime, it shall be deemed as a crime, and self-defense shall be deemed as intentional injury;
(2) determine the crime is improper. Theft is defined as robbery and negligent injury as intentional injury.
(3) There are deviations in sentencing, but the minor circumstances identified by the corresponding children have not been identified, such as surrender, suspension of crime, attempted crime, juvenile delinquency, no serious consequences, little social harm, and good guilty attitude.
3. Defend any substantive violation of the proceedings. If it should be avoided, the evidence has not been verified.
4. If the facts identified in the indictment are clear, the evidence is conclusive, the applicable law is correct, the nature is accurate, and the procedure is legal, the defense can be conducted reasonably, mainly from the following aspects:
(1) Defend on the grounds that the harmful consequences caused by the defendant's behavior are not serious;
(2) Defend from the specific circumstances such as the defendant's behavioral purpose and criminal motive;
(3) Defend from the specific circumstances of the defendant's crime and whether there are objective factors that can be considered;
(4) Defend from the defendant's guilty attitude and the victim's situation.
Three. Concluding remarks
Generally speaking, there are two contents: one is to summarize or retell the basic points of defense, and the other is to put forward opinions on handling the defendant from the perspective of conviction and sentencing.
Fourth, the tail
The signature of the defender, indicating the work unit and position, and indicating the date of making the defense.
Five, the problems that should be paid attention to when making defense words.
The defense is an important document for lawyers to handle criminal cases. Judging from a series of work such as investigation and court appearance after accepting entrustment or assignment, the quality and ability of lawyers are also reflected in defense. Therefore, we should pay attention to the following points when making defense words:
1. We must strictly follow the principle of "taking facts as the basis and taking law as the criterion". The facts of the case are objective and must be
We must focus on objective facts on the basis of investigation; The law is the best. We should stick to the facts, defend against the provisions of the law, and let the factual evidence speak in accordance with the provisions of the law.
2. Clear-cut views and strong pertinence. What we advocate and oppose must be justified, and we must avoid ambiguity, ambiguity, innuendo and exaggeration.
3. Insist on the argument and demonstrate it in depth. Whether it is a positive argument or a rebuttal argument, we should closely focus on the argument, grasp the key substantive issues of the case, make in-depth analysis and fully demonstrate.
Positive reasoning or rebuttal argument are two common ways to write defense words. The so-called positive explanation means that the defender puts forward his own views and opinions on this case according to facts and laws by way of proof, and then proves that his views are correct by putting facts and reasoning, analyzing and demonstrating, focusing on argumentation and reasoning; The so-called rebuttal argument refers to the method of rebuttal. Defenders make tit-for-tat refutation of the views held by the public prosecutor, and pay attention to clarifying their own views in the process of refutation, but they mainly refute.
Generally speaking, defense words are both proof and refutation, and positive explanation and negative refutation are organically combined, with "breaking" and "standing".
4. The language is sincere and has a sense of proportion. Put facts and make sense, be reasonable and well-founded, and avoid exaggeration.
Problems that defense lawyers should pay attention to when using defense words in court;
First, show the best mental state to those who appear in court. "A good beginning is half the battle", I think, as a lawyer, you should make a good first impression when you enter the court, which includes not only dressing neatly and appropriately, but also matching the right expression and body language at the right time. Avoid slouching and appearing timid. It is best to keep smiling before the formal trial, give yourself and the parties confidence and show respect to the judges and prosecutors.
2. Abide by the rules of criminal procedure and obey the reasonable arrangement of judges. Cross-examine when it is time to cross-examine, and debate when it is time to debate. In this competition, I had the honor to meet Mr. Zheng Jianmin, one of the contestants. Why do you call Lawyer Zheng Jianmin a teacher? A few days ago, I participated in the intensive training of Shenzhen intern lawyers in 2008. Lawyer Zheng is one of the speakers, and his topic is criminal litigation practice. In class, I was first attracted by lawyer Zheng's witty and humorous language expression, and then I was impressed by lawyer Zheng's thoughtful and endless teachings. In the mock trial, lawyer Zheng is still witty and humorous, skillfully quoting various legal provisions, with concise language but to the point. Moreover, compared with other participating lawyers, Lawyer Zheng's Putonghua is a rare relative standard. However, Mr. Zheng made a simple mistake. He should not claim that there is no correlation between the evidences during cross-examination. According to the rules of the competition, lawyers only need to admit or deny the legality and authenticity of the evidence in cross-examination. Lawyer Zheng's strength is undoubtedly strong, but because of these simple mistakes, lawyer Zheng has entered the top ten criminal defense lawyers but his score is not high.
Third, the speech is reasonable, cadence, taboo speaking too fast and too slow. The so-called rationality means that lawyers should be concise and not repetitive when arguing. In order to highlight the key points, questions and rhetorical questions can be used appropriately, and at the same time, they can be adjusted to an appropriate tone. In criminal court, prosecutors and lawyers are rivals, but the purpose is not to fight, but to persuade judges to adopt their own opinions through debate. Some players are very eye-catching in this competition. After the admission, the two sides expressed their opinions for the first time and kept fighting. Every time the prosecutor, that is, the prosecution, presents evidence, the defense, that is, the lawyer, must refute the relevance of the evidence. In this case, if the prosecution is a smart person, he will say that the defense's speech just now has nothing to do with the authenticity and legality of the evidence, and he will respond in detail at the debate stage. But the prosecutor didn't do that. Not to be outdone, he immediately refuted the lawyer's speech. At that time, the rules of the competition were: in the cross-examination stage, the lawyer spoke for five minutes and the prosecutor spoke for 15 minutes. Until the lawyer ran out of five minutes, the host forbade her to speak again. She seemed to be still unfinished and could only watch the prosecution continue to give evidence. Before the prosecutor produced the evidence, the host said that it was time for prosecution, and the prosecutor's half sentence had to be stuck there. During the debate stage and the conclusion stage, the two were still biting each other until the host said it was time to stop. In fact, their speeches have basically the same meaning, which seems endless, but it is difficult for people to grasp the key points.
Fourth, neither humble nor supercilious. To sum up, the prosecutors who participated in this competition are generally young and energetic, and some of them can be said to be awesome. In contrast, the participating criminal defense lawyers are older, more senior and more experienced. When an old lawyer's opponent in the prosecution contest was a fledgling prosecutor, I guess the lawyer didn't take his opponent seriously at all. I don't know whether it is because of inexperience or carelessness or nervousness. The young prosecutor made a low-level mistake in the application of the law, which made the older lawyers more complacent, more and more excited during the debate, and more and more careless about the wording of their speeches. They not only bluntly denounced the professional standards of the prosecution opponents, but even attacked the judicial organs of the public security and procuratorate one by one. It made me look a little dumbfounded off stage. In court, this way of speaking can win the trust and goodwill of the client, but it will undoubtedly disgust the judge. Prosecutors and lawyers are their own masters, and they are antagonistic in court, but this kind of opposition is not the kind of contradiction between the enemy and ourselves, just doing their own jobs and jointly promoting the progress of the socialist legal system. I think lawyers and prosecutors should respect and improve each other. When a prosecutor is knowledgeable and experienced, as a lawyer, he should not feel inferior. On the contrary, he can make up for his own shortcomings by confronting others in court and learning from others. When prosecutors are young and inexperienced, as lawyers, they should respect the old and love the young.
Fifth, talk about the matter, don't label yourself, and don't praise yourself. As mentioned above, prosecutors and lawyers only perform their respective duties in court, and promote judicial justice. Because the two sides have different opinions on the trial of the case, it is necessary to argue and reason in court and let the judge decide which opinion to adopt according to the specific case. So lawyers only need to tell the truth in court. This practice of belittling the professional level or personality of prosecutors in order to achieve their goals, or "selling melons and boasting" and saying that they "have made a full, comprehensive and in-depth argument" will not only help, but also arouse the resentment of judges and prosecutors.
Sixth, slow and steady. Lawyers are professionals, so they should try their best to show their professional image, avoid mystifying for the sake of showing off, and had better not shake their heads.
Seven, keep eye contact with the judge when speaking. This will not only keep the judge distracted, but also really listen to his own speech, and also get a general understanding of whether the judge has listened clearly to what he wants to express.
Eight, appropriate and flexible use of common sense of life and professional skills, so that debate and reasoning more fully.