First, the lawyer's risk when submitting the formalities. According to the law, under normal circumstances, lawyers can hold three certificates when meeting criminal suspects and defendants. Then, does it mean that lawyers can go directly to the detention center with three certificates without submitting formalities to the case-handling organ?
In practice, according to the provisions of the new criminal procedure law, lawyers should inform the case-handling organs in time after accepting the entrustment. Therefore, after accepting the entrustment, the lawyer should first submit the power of attorney signed by the client, the official letter of the law firm and the copy of the lawyer's certificate to the case-handling organ, and then arrange the meeting. According to the law, lawyers can learn about the case from the investigation organ and the place where the criminal suspect is detained. If they don't go to the case-handling organ to go through the formalities, they won't be able to understand these situations. As long as the lawyer has fulfilled the obligation to submit the formalities, the case-handling organ and the detention center should arrange for the lawyer to meet in the detention center. There is a risk that the guard refuses to meet with the lawyer on the grounds that the lawyer has not informed the case-handling organ of the entrusted matters.
Second, when lawyers meet, there is a risk of being monitored. According to the law, lawyers will not be monitored when they meet. But this does not mean that lawyers can talk to criminal suspects about everything. Can these conversations lead to consequences that are not conducive to protecting the rights of criminal suspects? Therefore, lawyers should be aware of being monitored when they meet.
Although the law stipulates that "lawyers will not be monitored when meeting", lawyers can't know whether there is monitoring or being monitored in fact. Therefore, lawyers are obliged to tell the truth to the interviewee during the interview. When providing advice, lawyers should consciously accept the constraints of law and professional ethics, and at the same time inform the parties to ask questions carefully. The risk is that lawyers and criminal suspects talk about everything, and the parties may suspect that lawyers do not abide by the professional ethics of confidentiality and loyalty, thus being complained by the parties.
Third, lawyers provide suspects with risks. Lawyers can't say anything, answer any questions or agree to any requirements when meeting criminal suspects and defendants.
In practice, lawyers can only explain the entities and procedures of crimes involved to criminal suspects and defendants in the process of consulting criminal suspects in the investigation stage, and should allow them to truthfully state the facts of the case according to the provisions of the law, instead of teaching criminal suspects and defendants how to state them. Lawyers who instigate others to make false statements will be complained and punished. 4. The lawyer's answer in the interview is risky. When criminal suspects and defendants ask clear questions, such as "Can I say this", "Should I say this" and "Should I confess", lawyers generally answer with the following sentence: "Your question involves subjective aspects, which is stipulated by law …" and "Your question involves the criminal object. This is the law ... ","Your question involves the principle of ascertaining the facts of a crime, that is, the principle of excluding reasonable doubt. Regarding this principle, the law and practice are as follows. In other words, lawyers should use legal provisions and their explanations, legal principles and their explanations, basic jurisprudence, practical rules and so on to answer the questions of criminal suspects. Do not guide or instigate criminal suspects or defendants to make false excuses. If the criminal suspect or defendant acts according to the lawyer's clear answer and causes adverse effects, he shall complain to the lawyer; Lawyers who instigate and seduce criminal suspects and defendants will also be punished.
Verb (abbreviation of verb) lawyers are at risk in investigating and collecting evidence. Wang, a famous criminal defense lawyer, said: "Article 306 of the Criminal Law is like the sword of Damocles hanging over the lawyer's head, which is undoubtedly one of the sources of the practice risks of criminal defense lawyers and the chief culprit for many lawyers to be cautious in criminal defense. "
In the investigation stage, as a defender, can a lawyer investigate and collect evidence? Do you have the right to extract the tools provided by the criminal suspect and refuse to provide them? In practice, in the investigation stage, defense lawyers may not investigate other evidence except "the suspect is not at the scene, has not reached the age of criminal responsibility, and is a mental patient who is not criminally responsible". If the defense lawyer can also conduct a comprehensive investigation in the investigation stage, it will conflict with the investigation power of state organs. If a lawyer obtains evidence of conviction or serious crime, but fails to produce it, it belongs to concealing evidence, which is likely to be suspected of helping to forge, conceal or destroy evidence as stipulated in Article 306 of the Criminal Law. If the circumstances are serious, he will be investigated for criminal responsibility. If the evidence against the criminal suspect is provided, it will violate the provisions of the Lawyers Law that "the lawyer's responsibility is to provide materials and opinions that the criminal suspect and defendant are innocent, lighter and exempted from punishment", which is against professional ethics and will also be punished by the industry.
6. What can and cannot be delivered to the close relatives of the criminal suspect or defendant in danger in the family book? Can a lawyer bring a "letter from home" to a criminal suspect or defendant? Can everything unrelated to the case be passed on? Is it possible for him to sign any materials?
In practice, lawyers are not allowed to bring family members' letters and articles into the detention center without permission, nor are they allowed to pass on the "code words" that criminal suspects and their families want to bring to each other, nor are they allowed to sign legal documents such as power of attorney and power of attorney related to their conviction and sentencing. The Criminal Procedure Law expands the right of lawyers to meet, and at the same time strengthens the constraints on lawyers, and the monitoring and inspection of lawyers entering and leaving the detention center will be stricter. Some detention centers stipulate that lawyers are not allowed to pass letters and articles to criminal suspects, and those who violate them can send punishment proposals to the judicial administrative department. Some words may be code words with special meanings, and lawyers should also pay attention to them. They should not spread them, otherwise there will be suspicion of collusion. Some legal documents, which involve the criminal suspect's possible transfer of property, money and stolen goods, and concealment or destruction of evidence, cannot be signed, otherwise it may be suspected of helping to forge, conceal or destroy evidence, and concealing and concealing crimes.
Seven. The risk of lawyers receiving family members As the family members of clients, they have the right to know about their work from the entrusted lawyers.
Will the lawyer tell his family all the facts he knows, or not at all? The details of the case cannot be disclosed to the client, let alone to anyone other than the client. The Law of People's Republic of China (PRC) on Guarding State Secrets stipulates that the criminal investigation activities of the state are state secrets. Lawyers who reveal the criminal investigation activities of the state may be considered as illegal or even criminal acts of revealing state secrets and be punished. At the same time, if the lawyer informs the client of the details of the case, it may make the client commit illegal and criminal acts such as collusion, forgery, destruction and concealment of evidence because he is eager to save people, thus hindering the lawsuit. Once the result happens, lawyers can't escape their responsibilities.
8. Lawyers may consult, extract and copy all the files when examining and prosecuting cases. Are there any rules in the use of these materials? Can you copy a set to the client? Can all the suspects be examined? Can it be made public online or by other means?
Lawyers can copy files by copying and taking photos. In principle, it should be copied in full. Before the trial is made public, the case files cannot be made public through the Internet, nor can they be copied to the client; After the trial is made public, the part involving state secrets, commercial secrets and personal privacy shall remain confidential and shall not be made public to the parties or on the Internet. Before the public trial, the case file should be a state secret and copied to the client, which is a leak. After the trial is made public, it can be made public. If the case is not tried in public, it is still not allowed to be made public after the trial. Contents and plots involving state secrets, commercial secrets and personal privacy shall not be made public before decryption. Otherwise, you will be punished and investigated for criminal responsibility.
Nine, the lawyer to verify the evidence is risky. How to verify evidence from criminal suspects and defendants? Can I show them all? In practice, when verifying evidence from criminal suspects and defendants, lawyers can directly show their confessions, excuses, documentary evidence, physical evidence and expert opinions to criminal suspects and defendants for verification.
The oral evidence such as the confession of an accomplice and the testimony of a witness shall be verified orally in case of objection. If criminal suspects and defendants directly examine oral evidence such as confessions and excuses of accomplices and witness testimony, it may lead to false excuses. Once the confession is retracted, the lawyer is suspected of being induced.
X. Risks of lawyers appearing in court to defend themselves During the trial, lawyers and judges often disagree. During the trial, lawyers should standardize their defense behavior, obey the judge's instructions and avoid unnecessary conflicts.
If you disagree with the judge, you should obey the command of the presiding judge after expressing your opinion and not confront the presiding judge on the spot. If there is any violation of the law in the trial procedure, it shall be put forward in writing after the trial. If you don't obey the judge's instructions, it may be regarded as disturbing the court order, leading to expulsion from the court, fines, judicial custody and suggestions for administrative punishment.
Any enterprise has risks, but the risks of criminal defense business are very different from other risks. It can make an excellent criminal defense lawyer lose his practice license, and it can also make a famous barrister become an inferior prisoner. There may be some problems in the current relevant regulations, but before they are changed, lawyers should pay attention to avoiding this risk. Of course, this does not mean that you should not invest in criminal cases. You need to be involved, thoroughly understand the case, and even know every detail. You can't do it well without input. But you should keep a certain distance and pay attention to self-protection. If you put yourself into it, how can you protect your client? Therefore, I think that criminal defense lawyers should guard against the risks of criminal defense business while developing their business.
First of all, I think it is meaningless for criminal defense lawyers to offend prosecutors and judges in criminal proceedings. I handle nearly 100 criminal cases every year. Every year, five or six cases are acquitted or rejected by the procuratorate. Up to now, no one has been sentenced to death. But I never offend prosecutors and judges, because I understand that although the prosecution and defense have different positions in court, and even the prosecution and defense are tit for tat, the goal pursued by * * * is to "protect human rights and justice". Therefore, there is no need for criminal defense lawyers to offend prosecutors and judges in order to exercise their right to defense. This avoids the possibility of professional retaliation caused by mutual attacks.
(2) Correct Mentality Criminal defense lawyers should not aim at attacking the other side in court, but should take persuading the judge as their main task. As long as you convince the judge in court, enough is enough, and you don't have to argue with the prosecutor. Reason and tide wait for no man. After the trial, the criminal defense lawyer should take the initiative to shake hands with the public prosecutor and express his understanding of the behavior of the public prosecutor in exercising his powers. So as to eliminate the public prosecutor's objection and prevent the practice risk caused by fierce tit-for-tat in court trial. In the process of criminal proceedings, both criminal defense lawyers and criminal suspects or their families should be psychologically prepared when defending. Nothing in the world is absolute. Only by putting one's mind and position in order can one avoid and reduce the risk of criminal defense to the maximum extent.
The duty of defense lawyers stipulated in Article 35 of China's Criminal Procedure Law mainly focuses on defending criminal suspects and defendants from the substantive aspects, that is, only debating and defending criminal entities, whether presenting materials to prove the innocence of criminal suspects and defendants, reducing or exempting them from criminal responsibility, or giving opinions, criminal defense is only conducted around criminal entity laws. Regarding the procedural defense responsibility, China's current criminal procedure law and related regulations are not clearly and fully affirmed.