(a) determine the angle of the defense argument
determine the angle of the defense argument, that is, from which aspects of the defense for the defendant, defense arguments are generally put forward from the following aspects:
from the determination of the fact
1. prosecution of the factual basis of whether all match, or the nature of these factual basis at all does not Constitutes a crime. For example, "self-defense", "the circumstances are significantly less serious, less harmful behavior" and general violations of the law as a criminal prosecution, the defense should be not guilty.
2. Prosecution of the facts in the determination of the main circumstances of the major discrepancies, for the defense of mitigation, mitigation, such as the accessory as the main prosecution.
3. Prosecution of the facts are not clear, there is insufficient evidence, you can put forward to the court to supplement the investigation.
4. From the qualitative aspects of the defense, the nature of the crime is directly related to the application of criminal penalties, prosecution of the facts are clear, the qualitative error. Defense lawyers should start from the theory of criminal composition and the characteristics of each crime to delineate the boundaries of crime and non-crime, from the qualitative aspects of the defense.
Defense from the application of penalties
For the defendant's defense, should be put forward from the application of penalties, mainly:
First, the law within the mitigating, mitigating and exemptions from the circumstances.
Mitigating circumstances, that is, the application of a lighter sentence within the statutory range of penalties and exemptions from the sentence, mitigating circumstances, that is, the imposition of penalties lower than the statutory minimum sentence. Exempted from punishment, that is, the defendant to make a declaration of guilt, but exempted from the penalty punishment. Statutory mitigating, mitigating and exempting circumstances, stipulated in the "General Provisions" of the Criminal Law, the contents of which are intersecting and overlapping.
1, both mitigating and extenuating circumstances are: the person who has reached the age of 14 and is less than 18 years of age commits a crime; the person who is abetted does not commit the crime of abetting the abettor.
2, both mitigating and exempting circumstances are: but in foreign territory, according to the criminal law of China shall be responsible for criminal responsibility, but in foreign countries have been punished by criminal penalties, self-defense or emergency shelter, play more than the necessary limit, resulting in undue damage, coercion, there is an inducement to participate in the crime.
3, both light, and mitigating or exempting circumstances are: deaf and mute people or blind people commit crimes, preparatory crimes, *** with the perpetrators of crimes, after the crime of surrender. For the defendant's criminal behavior of the existence of the statutory mitigating, extenuating circumstances, must be clearly stated.
Second, does not belong to the statutory aggravating circumstances.
Not *** with the main criminal activity; not recidivism; does not belong to the state workers to use the convenience of their positions, the crime of smuggling, speculation; does not belong to the state workers on the implementation of torture to extort confessions, and the physical punishment of people with disabilities; was raped by the young girl has reached the age of 14 years old, does not belong to the gang-rape; unlawfully detained another person, does not come with the assault and humiliation of the circumstances.
Third, discretionary mitigating circumstances.
Discretionary mitigating circumstances are not statutory, but in judicial practice, mainly refers to: the motive for the crime is not bad; the means of the crime is not particularly cruel; the results of the damage caused by the crime is not serious (not practiced in an attempt); the object of the crime is special; the perpetrator has always been a better performance, serious and white confessions.
Fourth, whether it applies to several crimes.
V. The use of legal provisions.
The indictment specified the terms, but cited improper.
VI. Defense from the procedural aspects.
Defense lawyers found that the public security, procuratorial staff in the investigation and prosecution process of illegal behavior, the correct sentencing of the case has an impact and must be raised in court, can also be raised.
Seventh, from the defense of the defendant's legitimate rights and interests of other aspects.
For example, the seizure of goods without formalities, incidental civil lawsuit request is unreasonable; no illegal gains; involving other people's property.
(B) to determine the defense should pay attention to the problem
Belonging to the following cases, the contractor lawyer must be submitted to the director of the law firm or the head of the criminal group of lawyers to organize a collective discussion and study.
1, need to do not guilty defense, change the nature of the crime or deny the indictment of the main facts of the case.
2, the case is significant and complex or controversial, more typical cases.
3, in the region, the system has a greater impact on the case.
4, foreign cases.
5, the contracting attorney asked for collective discussion of other difficult cases.
For *** with the crime, the defendant invited more than one defense counsel, defense counsel in determining the defense opinion, but also to focus on the study in due course, to prevent the occurrence of large differences of opinion between various defenders.
(C) to write the defense
The preparation of the defense is the last work in the preparation stage of defense lawyers appear in court.
Preparation of the defense for defense lawyers, the importance of their work is equivalent to the prosecutor's office of the indictment and the court's verdict, must be carefully produced, the formation of written materials.
The concept of the defense
The defense is a defender in the criminal proceedings in accordance with legal procedures, in order to perform their duties, to the court for the maintenance of the legitimate rights and interests of the defendant's speech. Each case has the characteristics of each case, each person's style, the structure and content of the defense speech can not be the same. But the basic content should be the same, generally divided into three parts: preamble, reasons and conclusions.
First, the preamble
The preamble is the beginning of the part, also known as the introduction. This part of the requirements of the wording is concise, clear, to prevent formulaic, different cases, there should be a different preamble. The content of the preamble requires the indication of the basis of appearance and the main public disagreement with the public prosecutor.
Second, the facts and reasons for the part
Facts and reasons for the part of the defense is the heart of the part, according to determine the defense, a comprehensive and systematic planning. Specific requirements are:
1, the reasons for the defense part of the statement, we must adhere to the "facts as the basis, to the law as a guideline" principle. Determination of the facts of the case should be realistic, for the defendant unfavorable facts and evidence, not baseless denials; for the defendant favorable to the determination of the facts, have a basis.
2, the reasons for the defense, to comply with the relevant provisions of the law and policy, and properly safeguard the legitimate rights and interests of the defendant.
3, the defense of the defense of the reason part of the narrative, to highlight the argument, the argument is sufficient, hierarchical, logical.
The language of the defense to use, accurate, concise, persuasive arguments.
Third, the conclusion of the part
The conclusion of the part is also known as the end of the part of the lawyer's opinion of the entire defense work. Requirements for defense lawyers to summarize their own defense views, and how the court ruled on the specific requirements. For example, for does not constitute a crime, request acquittal; For meet the exemption from criminal responsibility, request exemption from criminal responsibility; For should reduce the punishment, request to reduce the punishment; For can be mitigated punishment, propose mitigated punishment. But generally do not propose a specific sentence.
After the drafting of the defense, the defense counsel should also be around the defense, set out a specific outline of the questioning.
Second, the court defense
The defense is the key stage of the defense lawyer for the defendant's defense. Defense counsel before the preparation of good or bad, to be tested in the defense stage. Therefore, the defense counsel must seriously do a good job of defense work.
(a) the trial preparation stage of the lawyer's work
The trial preparation stage, mainly to ensure that the court in order to ensure the smooth progress of the criminal proceedings of the preparatory work done. Including the announcement of the court composition, verification of the parties, witnesses, experts and the defendant, the due rights of the litigation, not to the case for specific hearings. Lawyers to this stage of the work are:
1. Look at the organization of the court whether or not care about the provisions of the law. If it is not legal, should be raised to the court.
2. The defendant is a minor, to see whether the court in accordance with the provisions of the criminal procedure law to notify their guardians to the court. If not, the defense believes that it is necessary, you can ask the court to notify.
3. See whether the key evidence in favor of the defendant to the court. If not to the court, the witness did not appear in court, the defendant on the grounds of the correct decision has a direct impact, the court asked the court to court date.
4. Meet the conditions of the application for disqualification, the defense counsel to suggest the defendant to apply for disqualification.
(B) the court investigation stage of the lawyer's work
The court investigation stage is the most important stage of the court hearing, the panel should be through the court interrogation of the defendant, verification of evidence, to identify the facts of the case, the circumstances, from the factual aspect of laying the groundwork for a correct judgment.
I. Defense lawyers should focus on all aspects of the trial investigation stage of the activities, seriously do the following aspects of the work;
1. Listen to the presiding judge, jurors, the public prosecutor's questioning of the defendant's facts whether to find out.
2. Listen to the defendant's confession of the facts in his favor or not.
3. Listen to the focus of the prosecutor's questioning to understand the content of the prosecution.
4. Listen to the victim's account, the witnesses of the conclusion of the lawsuit there is no contradiction, the facts in favor of the defendant is confirmed.
II. In response to the above heard unclear issues, timely questioning.
1. Ask the defendant.
For the court did not confess clearly, the facts in favor of the defendant, by asking the defendant, so that the defendant consciously confessed clearly. For the facts found in the indictment and the confession of contradiction, through questioning, the contradiction and differences in favor of the defendant exposed.
2. Questioning the witnesses.
For witnesses in favor of the defendant, through questioning, the witnesses to confirm in detail the facts in favor of the defendant, for witnesses unfavorable to the defendant questioning, should pay attention to the review of the source of the evidence, to prove that he proved the facts is to listen to other people's legends or see with their own eyes. If there are contradictions in several testimonies, they should be allowed to make explanations.
3. To the expert questioning.
For the inaccurate, incomplete, unscientific conclusions, lawyers should be through the questioning, let the appraiser explain the basis and reason. For the appraiser can not make a correct explanation, to draw the court's attention to the unreliability of this conclusion, apply for reappraisal.
4. In the case of the physical evidence produced in court, the reading of the witness testimony of the witnesses who did not appear in court, the expert's conclusions, investigation records, as evidence of the paperwork on the basis of cross-examination, and request the court to read out the evidence in favor of the defendant.
Read out the materials formed during the investigation visit. The evidence provided by the lawyer, to be used as the basis for the case, must also be cross-examined in court.
5. Enrichment and modification of the defense. Through the court investigation, the defendant will show favorable and unfavorable factors, defense counsel will appear contradictory and discrepancies in the original proposal, the defense lawyer should be based on the process of court investigation, confirmed the facts of the case and evidence of changes, enrichment, modification of the defense, so that the defense is more in line with the facts confirmed by the court investigation, more targeted.
(C) the court debate stage of the work of lawyers
The court debate stage is at the end of the court investigation, the prosecution and the defense according to the court investigation, the facts and evidence of the case to the court to express their own concluding remarks. Defenders want to make the court to adopt their own views, to achieve the purpose of the defense, it must be through the court debate. Therefore, the court debate stage is the most important stage of the defense lawyer. In this stage of the lawyer should pay attention to do the following work.
The first round of defense speech
1, listen carefully to the indictment.
Lawyers in the court debate stage can not speak first, in the case of the prosecutor is not willing to speak first, but also to insist on letting the public prosecutor first published indictment. The indictment is the prosecutor's view of the case in general, defense lawyers should listen carefully to understand the main content of the indictment, and the indictment for comparison, pay attention to the facts of the charge has changed, the indictment of some of the views of the error, and timely revision of the statement of defense.
2, published defense.
Defense attorneys to make their own opinions accepted by the court, published defense speech, the spoken word to be clear, the voice should be loud, fast and slow to highlight the necessary places can be restated. But should avoid unnecessary verbosity, in order to allow the panel to hear prevail.
3, the correct defense.
After the defense attorney issued a defense, in general, the public prosecutor in order to support the prosecution, to refute the defense, which will inevitably give rise to the first theory of speech after the mutual debate process.
The second round of defense speeches
1, the correct handling of the first round of defense speeches and the relationship between the defense later. The defense after the first round of speeches, to debate the views that have been put forward, do not arbitrarily change the defense, so that the panel is not good to grasp the defense point of view.
2, to seize the substantive differences in the case for debate, do not dwell on side issues
3, to dare to defend according to law. For the controversial case, the lawyer must not be swayed by external energy reasons, we must defend according to the law, to the court clearly expresses different opinions, and ask the court to pay attention to.
4, debate speech to have a legal basis, do not disregard the facts, not according to the law unreasonable sophistry.
5, defense counsel to speak objectively, but not one-sided emphasis on objective reasons.
6, the lawyer's defense speech, civilized and courteous, not only to adhere to the principle, but also to make the other side acceptable, not allowed to use harsh language, the prosecutor for cynical, not allowed to use the tone of lecturing, sarcastic each other, and not allowed to be angry. Otherwise, even if the violation of the principle of defense, lost the meaning of determining the defense system.
(D) the court sentencing stage of the lawyer's work
At the time of sentencing, the main work of the defense lawyer is:
1, listen to the content of the court's decision, to understand the defendant, the public prosecutor's opinion of the verdict in court.
2. After issuing the judgment, meet with the defendant and seek his opinion on the judgment. The verdict found that the main facts of the crime has a major discrepancy or improper conviction and sentence, the defendant is not satisfied with the appeal, the lawyer to accept the commission, continue to act as a second instance defense lawyer; such as the defendant insisted on not appealing, the lawyer can not be reluctant to do the work of the people's court of the original trial or the higher people's court to reflect the views of the people's court.
Third, after the court summarizes the archives
After the conclusion of the case, the lawyer should be written in a timely manner, summarize the case experience, lessons learned, and put forward future improvements, and timely filing. File materials should be arranged in accordance with the objective order of the proceedings, the formation of the natural order of the purpose of the time of the instrument. Criminal defense volume requires a case a volume, a lawyer bound with string. Volume for sixteen paper, larger than the volume of material, to control the volume size folded neatly; Smaller than the volume of material, to add lined paper, volume to remove the material on the metal, in order to cheap storage, access.