1. Precautions for lawyers before investigating evidence
(1) Consider the legality of investigation and evidence collection.
The Criminal Procedure Law stipulates that the close relatives of the victim and the witnesses provided by the victim shall obtain the consent of the procuratorate and the people's court before obtaining the evidence. Therefore, before obtaining evidence, we should consider whether it belongs to the witness provided by the victim, especially the witness who has testified in the public security organ. It is a prerequisite for filing an application with a procuratorial organ or a people's court. Other witnesses, if they can apply to the procuratorate for investigation and evidence collection, also suggest to apply to the procuratorate first. Although Article 4 1 of the Criminal Procedure Law stipulates that defense lawyers only need to obtain the consent of witnesses, the author suggests that they can apply to the people's procuratorate or the people's court to collect and obtain evidence first, not in a very urgent situation. In some cases of the author, after applying for evidence from the procuratorate, the quantity and quality of evidence obtained by the procuratorate exceeded my expectation; Another result is that the reply of the procuratorial organ can be investigated and collected by lawyers. In this case, it is more natural for lawyers to investigate and collect evidence. In particular, it should be reminded that in some cases where criminal reconciliation is considered, it is not recommended to contact the victim privately. It is suggested that a settlement agreement be reached with the victims under the auspices of the judicial organs, especially in rape cases.
(2) Consider the subject of investigation and evidence collection.
Investigators must be lawyers with professional qualifications and should also be entrusted defenders. When the author handled a case of producing and selling fake and inferior products, the prosecutor questioned that a defender was not the defender of this case. The number of witnesses must be at least two. If only one person takes evidence, its legality is easily questioned. The other investigator is at least a trainee lawyer. If there is no assistant with lawyer qualification to participate in evidence collection, his identity is illegal. If the defendant's family provides witness clues and goes to collect evidence with the lawyer, this method of obtaining evidence is even more undesirable and easy to induce witnesses. If you are a female witness, you can consider matching with female investigators, which can narrow the psychological distance and facilitate the handling of emergencies.
(3) Do a good job in investigation and evidence collection plan.
Before investigation and evidence collection, it is necessary to analyze the purpose of investigation and evidence collection, prepare a detailed investigation outline, prepare questions and questioning methods, and avoid rambling when asking questions; Secondly, it is necessary to plan the location of investigation and evidence collection reasonably, avoid crowded and noisy places, try to choose a safe and secret environment to start conversations and dispel the scruples of witnesses.
2. Problems that lawyers should pay attention to when investigating evidence
(1) Attention should be paid to witness psychology in investigation and evidence collection.
Attention should be paid to establishing an atmosphere of cooperation, gaining trust and narrowing the psychological distance with witnesses; Inform the witness of the legal obligation to testify truthfully before obtaining evidence, that the witness will be kept confidential, and that the contents of the evidence will not be disclosed to those who have nothing to do with the case, and that the witness can apply for witness protection when necessary to dispel the concerns of the witness; In the process of investigation, pay attention to the psychological changes of witnesses and ensure the authenticity of their testimony. Finally, find out whether the witness is willing to testify in court.
(2) Pay attention to the legality of investigation and evidence collection.
Do a good job of synchronous audio and video recording to ensure that the content of evidence collection is consistent with the content of the transcript; Questions in investigation and evidence collection should avoid induced questions and preset questions, and prevent the contents of evidence collection from being illegal. When witnesses take evidence, avoid the presence of others, especially other witnesses. Finally, the transcript should be signed by the witness page by page, and the altered places should be corrected by fingerprinting. If the witness refuses to sign, the explanation will not relieve his worries. Two lawyers can explain the reasons why the witness refused to sign after recording, and the lawyer will sign and indicate the time. The transcript was then submitted to the court as a reason for applying for witnesses to testify in court.
(3) Reasonably plan the investigation and evidence collection process.
At the beginning of questioning witnesses, we can know the identity of witnesses concisely, show what lawyers want to know after telling legal obligations, guide witnesses into the topic as soon as possible, and control the topic relevance and duration of the conversation. After completing the transcript, re-check the transcript to avoid omissions.
(four) the handling of other evidence in the process of investigation and evidence collection.
When investigating and collecting evidence, witnesses often provide physical evidence, documentary evidence and e-mail. First of all, there should be a list of evidence extraction, indicating the types, characteristics, quantity, originals and copies of evidence; Secondly, according to different evidences, different extraction methods are considered. For documentary evidence, you can consider asking the witness to provide a copy, which will be signed and verified by the witness, and then apply to the procuratorate and the court in time to obtain the original evidence; In case of special circumstances, it is really necessary to obtain the original evidence immediately. The notary office can take the method of obtaining evidence. The witness holds the original evidence, takes photos regularly, and makes a list of evidence extraction. Witnesses indicate the types, characteristics, quantity and other information of evidence on the list. For electronic evidence, take photos and print it out, indicating the extracted media, media registration number, extractor and extraction time. The witness wrote, "This electronic data was provided by myself and checked correctly with the original data." If necessary, please also ask the notary office to notarize the extraction.
3. Matters needing attention after lawyers investigate evidence
Provide copies of evidence and audio-recorded materials for obtaining evidence to the judicial organs in time, and apply to the judicial organs for obtaining the original evidence; If there is a witness safety problem, it shall apply to the judicial organ for witness protection; When applying for a witness to appear in court as a defense witness, properly inform the witness of the purpose of testifying in court, the facts that he should testify and the relevant legal responsibilities.
After Bian Xiao's introduction, it is clear how lawyers investigate the evidence. Obtaining evidence from various preventive measures before, during and after the investigation is a very complicated and professional knowledge, which requires very professional people and rich professional knowledge to handle the relevant evidence. But if you need to investigate evidence, it will be safer to ask professionals to help protect relevant evidence.