What is a defense?
The defense refers to the statement that the defendant and his defenders refute the contents of the indictment and defense in part or in whole in the course of litigation, in order to prove the defendant's innocence and light crime, or to make statements that should reduce or even exempt the criminal responsibility.
Content and writing method
The title is "Defense Words"; You can also add the name of the party, which consists of additional words, such as "Zhang Xx's defense of theft".
foreword
The preface consists of the following four parts:
1. First, write the title: at the beginning of the defense of the first-instance case, write the title "presiding judge, jurors:"; The title of the defense of the second instance case begins with "presiding judge, judge:"
2. State the legal basis and legal procedures for accepting the defendant's entrustment and being appointed by the law firm to appear in court.
3. Briefly describe the work done by the defender for the defense before the defense and the impression of participating in the trial.
4. Show your basic views on this case. Usually, one can be chosen as the defender's concluding opinion from four aspects: the defendant is innocent, the crime is light, the punishment is mitigated and the criminal responsibility is exempted.
Defense reasons
This is the main part of defense. Its main contents are as follows:
1. Analyze the defense from the identified facts. Find out the improper identification of facts in the indictment by understanding the facts in all aspects. If the facts are inaccurate and the evidence is inconclusive, it is not enough as a basis for conviction.
2. cite legal analysis to defend. Find out the improper use of law in the indictment, and point out what the legal basis should be, so as to explain that the charges identified and the application of criminal law are not allowed.
3. Analyze the defense from the litigation procedure. Find out the influence of the illegal acts of the relevant case-handling personnel in the process of investigation and prosecution on the correct judgment.
4. Rational analysis of defense. Find out the reasons why we should be lenient with the defendant's consistent performance, the external conditions that caused the crime, and the repentance after the crime.
final result
Summarize his own defense briefly, so as to put forward the opinion that the defendant is innocent and the crime is light, and the punishment should be mitigated and exempted from criminal responsibility. Then use "my words are finished, thank you, presiding judge and jurors!" " Make an ending.
The names of the sender and the recipient written on the picture.
Indicate the unit and name of the defender, and indicate the date.
Example 1
Defense words in Wen ×××× injury case
The presiding judge and jurors:
According to Article 41 of China's Constitution: "The defendant has the right to defense." Entrusted by the director of XX Law Firm, I acted as a defender for the defendant Wen XX and attended today's criminal trial court to defend.
Before the trial, I consulted the investigation and pre-trial materials of this case and made necessary visits. According to the results of investigation and verification, I made a careful analysis and research on the indictment of this case by the XX District People's Procuratorate. After listening to the court's investigation again today, I think that the fact that the people's procuratorate of XX District accused the defendant Wen XX is incorrect. According to the provisions of Article 10 of China's Criminal Law, if the circumstances are obviously minor and the harm is not great, it is not considered a criminal act. Therefore, should be acquitted, my defense reason is:
First, the facts identified in the indictment are inconsistent with the facts of the case.
According to the indictment, Kang XX and Wen XX fought with each other: "The two of them pulled it up." This is not true. According to the defendant Wen Xx's repeated pleadings, the testimony of Comrade Li Xx, a policeman of Xx railway station police station, the testimony of Han Xx, the diagnosis certificate provided by the defendant's family, and the materials written by Jia Xx, Zhang Xx and Kang Xx, it can be proved that Wen XX was in a harmonious state at night on 2000 10+09. At the same time, the indictment only recognizes Kang XX's body shape, but does not recognize that Wen XX can't directly see things half a meter away with his eyes and the damage consequences caused by the invagination, turbidity and congestion of his left eardrum after being beaten, which is extremely unfair. Article 33 of China's Criminal Procedure Law stipulates: "When the public security organ approves the arrest, the people's procuratorate files a lawsuit and the people's court makes a judgment, it must be faithful to the facts." In this regard, please correct it when the court decides.
Second, the indictment found that the defendant Wen XX's behavior constituted a crime of serious injury, which was inconsistent with the relevant provisions of the penalty.
Judging from the consequences of the defendant Wen XX's injury to Kang XX, it did not destroy Kang XX's appearance and cause serious injuries, but only caused general damage to Kang XX's face. According to the criminal law of our country, disfigurement in the crime of serious injury refers to causing disgusting and ugly appearance to others, which can not be restored. According to Kang Xx's injured face, it is not disgusting, let alone ugly. In this regard, the court considered the key plot that Kang XX's face was not "destroyed" in its deliberation.
Third, judging from the cause and effect of this case, although the defendant Wen XX's behavior is illegal, it does not constitute a crime.
Judging from the reasons why Kang XX hurt Wen XX and Wen XX hurt Kang XX, it was because Kang XX suspected that the defendant Wen XX did not accept the payment from the customer Meng XX. According to the evidence obtained in this case, Kang XX has no other reliable evidence to prove that the defendant Wen XX received the payment. In public, he insisted that Wen XX "just didn't accept the customer's money", but when Wen XX went out twice and didn't get the customer back, many onlookers claimed: "That's how the salesman lost money." Kang XX's behavior has greatly exceeded the authority of mutual supervision between sales staff, which constitutes an insult and slander to Wen XX's personality. When Moon Hee was angry with Kang, Kang ××× typed the text first. It can be seen that Wen Xxx cut Kang Xxx's face with a broken wine bottle when his personality was insulted, slandered and violated. Subjectively speaking, each has his own intention to hurt the other, and Kang XX's intention is more obvious. Judging from the nature of fighting between the two sides, it is illegal.
Presiding Judge and Juror: Looking at all the circumstances and causes and effects of the whole case, I think the nature of the case has not reached the level of crime, and it belongs to anti-Europe. The losses caused by both sides are not serious. Based on the principle of correctly handling contradictions among the people, the competent administrative unit can take necessary administrative measures to solve them, which can completely achieve the purpose of education. The indictment unilaterally accuses Wen XX of assault, which does not reflect the principle of "everyone is equal before the law" and is not conducive to adjusting contradictions among the people. On this basis, I suggest that the court declare the defendant Wen XX innocent, release him and hand him over to the unit for handling.
In addition, Kang XX filed a lawsuit with the court, demanding that the defendant Wen XX compensate her for the bonus, nutrition allowance, lost time and other expenses totaling 5,000 yuan during the period of accompanying her children. According to the relevant regulations, she only retorted as follows:
After approval, Kang XX has enjoyed work-related injury treatment. According to Item A of Article 12 of the Labor Protection Regulations, all medical expenses, hospitalization expenses, meals and wages of Kang×××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××
As for the bonus proposed by Kang Xx, there is no reason to claim compensation because it belongs to the excessive remuneration of workers for providing various wealth to the society and does not belong to the scope of civil damages.
About the nutrition subsidy proposed by Kang XX. Wen's lover once took the initiative to take nutrition to see Kang XX. At that time, Kang refused to accept it. Now it is proposed that the rules should prevail and the rationality should be limited.
According to the records of the hospital, Kang belongs to the third-level care, and the hospital has not asked his relatives to accompany him, so there is no reason to compensate his children for the wage difference.
In addition, regarding civil compensation, the defendant Wen XX also filed a counterclaim, requesting the court to consider a joint judgment.
I ask the court to consider my defense reasons and give it enough attention.
Xx law firm
Lawyer: Wang XX
2000 1 1 5th of the month
Example 2
In the defense of robbery and murder
The presiding judge and judge:
According to the provisions of Articles 26 and 27 of the Criminal Procedure Law of People's Republic of China (PRC), Hangzhou No.1 Law Firm was entrusted by the Hangzhou Intermediate People's Court to act as the defender of the defendant Yu in this case and participate in the litigation in this case.
After accepting the case, the defender consulted the case materials, understood the case, met with the defendant Yu, and listened carefully to the court investigation and public prosecution statement just now. According to the provisions of Article 28 of the Criminal Procedure Law of People's Republic of China (PRC), the following defense opinions are put forward.
1. The indictment accused the defendant of robbery and murder, which has been proved by evidence. This defender has no objection to this.
Second, this case is the intentional crime of the defendants Wu, Hu and Yu. Based on this fact, the defender thinks it is necessary to analyze the specific criminal facts of the defendant Yu in the whole process of the crime in this case according to the facts ascertained in this case, so as to accurately identify the role and responsibility of the defendant in crime stage.
First of all, as an accomplice, it is of practical significance to investigate the defendant's accomplice's intentional filing, evaluate the defendant's subjective malice and confirm the defendant's role in the accomplice's crime.
It was found that the robbery in this case was not committed by the defendant Yu. According to the confessions of defendants Wu, Hu Zhisheng and Yu, it is proved that when defendants Wu and Hu first mentioned robbing other people's property, defendant Yu was not involved at that time. Later, because the defendant Wu Hehu felt understaffed, he needed to find a reliable sailing partner. When committing the crime,
Secondly, the defendant Yu played a relatively light role in the preparation of criminal tools, which belongs to the joint crime preparation act stipulated in Article 19 of the Criminal Law. According to the investigation, the criminal tools prepared by the defendant in this case include daggers, axes, shotguns, bullets, explosives and motorboats. Defendant Yu has nothing to do with the preparation of other crime tools except a dagger he originally owned and a shotgun borrowed from Fang Deyi together with defendant Wu.
Third, although the defendant Yu once put forward the idea of sinking a ship to kill the mouth, the murder plan originally conceived by the defendant Yu failed because the ship's fire fighting system failed to open the water surface. The direct reason why the three defendants in this case were finally able to kill people after robbery was that the defendant Wu put explosives into the bottom bin three times, and after the two explosions still failed to achieve the purpose of killing people, he poured gasoline into the bottom bin, causing violent burning, causing the victim to smoke and barbecue. The process of attempting to kill people with explosives was carried out by the defendant Wu himself. As for the process of causing death by burning gasoline, it was proposed by the defendant Wu Temporary personally, and the defendant Yu did not know it in advance. Defendant Wu asked Defendant Hu to transfer gasoline from the speedboat to Defendant Wu to pour gasoline into the speedboat to cause burning, but Defendant Yu did not take any positive action.
In addition, on the ship "Hai Rui", the defendant Yu fired a shot at the bottom of the ship, but after forensic identification, the victim had no traces of trauma, indicating that the defendant Yu fired at the bottom of the ship without causing casualties, and his rushing behavior had no causal relationship with the death result of the bottom of the ship.
3. Defendant Yu had no criminal record before this case, and was a first-time offender.
4. After the defendant Yu was brought to justice, he was able to truthfully confess his crimes through education and seriously cooperated with the judicial organs to find out the case in time. It should be "I can really confess my crimes" and have a good attitude towards confession. In addition, the defendant Yu showed remorse for the serious consequences caused by his participation in the same crime.
To sum up, the Defender's Appeal Law fully considered the above-mentioned circumstances of the Defendant Yu in this case when determining that the Defendant loved the army.
The above defense opinions are for the reference of the collegial panel.
Xxx law firm: XXX.
Year, month and day, 19.