Generally speaking, the judicial organs or administrative organs have the right to investigate and collect evidence, and the average person does not have the right to investigate and collect evidence, but if he is a lawyer, he can apply for investigation and collect evidence with the lawyer's practice certificate and the certificate of the law firm. 1. What are the procedures for defense lawyers to investigate and collect evidence? 1. When a defense lawyer applies to a people's procuratorate or a people's court for the collection and collection of evidence, he shall submit it in writing, explain the reasons, and state the basic information of the applicant, the contents of the evidence materials to be collected and collected or the outline of the problems to be investigated. 2. An application for investigation and evidence collection is made in duplicate, one for the people's procuratorate or the people's court and the other for the law firm. Basic procedures for defense lawyers to investigate and collect evidence by themselves: 1. When investigating and collecting evidence, a defense lawyer must show the respondent a special letter of introduction, a power of attorney and a lawyer's practice certificate issued by a law firm, and it shall be conducted by two or more people. It may include lawyers from other law firms who are working on this case. 2. When investigating and collecting evidence, the defense lawyer may make audio and video recordings with the consent of the respondent. 3. When investigating and collecting evidence, the defense lawyer shall make an investigation record, which shall be signed by the investigators, witnesses or representatives of relevant participants such as grass-roots organizations, units and judicial organs. 4. When the defense lawyer investigates and collects evidence, it is best to have witnesses present, but the following persons shall not be used as witnesses for investigation and collection: those who are physically or mentally defective or young, do not have the corresponding discrimination ability or cannot express correctly; People who have an interest in the case and may affect the fair handling of the case; Staff members of public security and judicial organs who exercise the functions and powers of criminal proceedings such as inquest, inspection, search and seizure, or personnel employed by them; 5. Persons who are not competent for witness work due to objective reasons shall be noted in the recording materials, and relevant activities shall be recorded. Second, the characteristics and significance of lawyers' right to investigate and collect evidence. Lawyers' investigation of evidence is not legally mandatory. 2. The lawyer's right to collect evidence in criminal investigation focuses on collecting evidence beneficial to the client. 3. The evidence obtained by the lawyer's investigation must be verified by the court before it can be used as evidence. (II) Meaning: Protecting lawyers' right to investigate and collect evidence is the need of building a country ruled by law. A country without a lawyer system and lawyers is not a country ruled by law. It is of great significance to improve the right of defense lawyers to investigate and collect evidence. Its perfection is not only conducive to safeguarding the substantive rights of defense lawyers and safeguarding the legitimate rights and interests of the parties, but also conducive to promoting the balance between prosecution and defense and realizing judicial justice and fairness. Three. Principles of investigation and evidence collection 1. The principle of litigation around the rights advocated by the parties. Civil litigation aims to solve the disputed facts between the original and the defendant, and to solve the dispute, it must be proved by evidence. Only by investigating and collecting evidence around the disputed facts, and the evidence thus obtained has a direct causal relationship with the disputed facts, can it be proved. Otherwise, it is useless evidence. 2. The principle of objectivity and timeliness Because the facts of the case exist objectively, the evidence to prove the facts of the case should also be objective. As evidence in litigation, it must be an objective fact. No matter physical evidence, documentary evidence or witness, fictional facts and statements made after speculation and hypothesis can be written as evidence. Therefore, in the process of investigation and evidence collection, lawyers must pay attention to collecting and collecting evidence that is directly causal or objectively related to the disputed facts. 3. The principle of legality and prudence (1) is legal, which means that the entrusted lawyer shall collect evidence in accordance with the relevant provisions of the Lawyers Law, the Civil Procedure Law and other laws and regulations. Collecting evidence legally is the premise to ensure the probative force of evidence. Illegally collected evidence cannot be used as the basis for finalizing the case. The legality of collecting evidence mainly includes the following aspects: First, when an attorney investigates and collects evidence from relevant units or individuals, he should show the lawyer's practice license, lawyer's investigation letter or special certificate for lawyer's investigation to the investigated unit or individual, explain the purpose, and at the same time, he must inform the investigated person that he should provide evidence truthfully. Secondly, the investigation record should record: name, gender, age, occupation, address, contact information, etc. The respondent's; The name, gender, age and law firm of the investigator; The year, month, day and place of the investigation; The investigation record shall be submitted to the respondent for verification, and finally signed or sealed by the respondent. Thirdly, copying the materials of the investigated unit should be verified by the competent person and stamped with the official seal of the unit: indicate, year, month and day; And attach the certificate of the investigator (attorney). Finally, investigation and evidence collection from witnesses should not be carried out by threats, deception, torture and other illegal means. (2) Meticulousness means that in the process of investigation and evidence collection, the attorney should be meticulous and serious, and not careless, and collect or extract all kinds of evidence that have a direct causal relationship with the case. For example, when the content of the witness's answer to the inquiry is ambiguous, the attorney should carefully examine the question, ask the content that has a direct causal relationship with the case, and make a simple and clear record. When investigating and extracting evidence, the original materials should be given priority to; If it is really difficult to extract the original, you can extract a copy; Corresponding preservation measures shall be taken for the material evidence that may deteriorate or be destroyed. The original documents should also be collected and extracted; When submitting to the court, a copy should be submitted first, and the original documentary evidence should be submitted at the trial. According to the law, it can be known that investigation and evidence collection is a relevant compulsory measure taken by the state organs with the right to investigate and collect evidence, and the notary organs also have the right to investigate and collect evidence.
Legal objectivity:
With the consent of witnesses or other relevant units and individuals, defense lawyers may collect materials related to the case from them, apply to the people's procuratorate or the people's court to collect and obtain evidence, or apply to the people's court to notify witnesses to testify in court. With the permission of the people's procuratorate or the people's court, and with the consent of the victim or his close relatives or witnesses provided by the victim, the defense lawyer may collect materials related to the case from them. "the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of the Criminal Procedure Law of People's Republic of China (PRC)" The defense lawyer applied to collect materials related to this case from the victim, his close relatives and witnesses provided by the victim. If the people's court deems it really necessary, it shall allow it and issue a written investigation license. When a defense lawyer collects and collects materials related to this case from witnesses or other relevant units or individuals, he applies to the people's court for collection and collection because the witnesses, relevant units or individuals disagree. If the people's court deems it necessary, it shall agree. The defense lawyer directly applies to the people's court to collect and obtain evidence. If the people's court considers it inappropriate or impossible for a defense lawyer to collect or obtain evidence from witnesses or other relevant units or individuals, and it is really necessary, it shall agree. When the people's court collects and obtains evidence according to the application of a defense lawyer, the applicant may be present. The evidence collected and obtained by the people's court according to the application of the defense lawyer shall be copied and transferred to the applicant in time. The defense lawyer's application shall be made in writing, and the reasons for the application shall be explained, and the outline of the problems to be investigated shall be listed. Provisions of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of National Security, the Ministry of Justice and the Legislative Affairs Commission of the National People's Congress Standing Committee (NPCSC) on Several Issues Concerning the Implementation of the Criminal Procedure Law ""With the consent of witnesses or other relevant units and individuals, defense lawyers may collect materials related to this case from them, or apply to the people's procuratorate or people's court for collecting and obtaining evidence, or apply to the people's court for notifying witnesses to testify in court. "If a defense lawyer applies to the people's procuratorate or the people's court for collecting and obtaining evidence, and the people's procuratorate or the people's court deems it necessary to investigate and collect evidence, the people's procuratorate or the people's court shall collect and obtain evidence, and shall not issue a decision allowing lawyers to collect and obtain evidence.