The content of the defense by the preamble, body, conclusion of the three parts, the specific writing method has the following main points:
The defense has no uniform provisions of the fixed format, but there is a generally consistent structure.
A, the first
1. Title, write the name of the instrument, that is, "defense" or _________ (cause) a case defense.
2. Address, write "presiding judge, the trial (or people's jurors)".
Second, the preamble
The legal status of the defense, indicating the legitimacy of the appearance in accordance with the law, such as: "According to the Chinese People's **** and the State Criminal Procedure Law," the provisions of Article 32, or briefly write "according to the relevant provisions of the law ", "I accept the commission to act as the defendant's defender, or I accept the court's designation to act as the defendant's defender, to appear in court for his defense."
2. Lawyers in the court before the work and participate in the trial of the situation, some combined with the defense of the opinion together, not in the preamble part of the narrative, and some of them in the preamble part of the expression, such as "as the defendant's defense, before the court, I carefully and in detail to consult the relevant case file materials, combined with the investigation of the relevant materials, and met with the defendant, and with his conversation, and just now listened to the court, and the defense of the accused. I also met with the defendant and had a conversation with him, and just now I listened to the trial investigation. This paragraph mainly indicates the work done by the defense of the case to show the comprehensiveness of its work.
3. The basic view of the case, can be written or not. If you do not write, you can write "now published the following defense," a sentence directly out of the text, such as writing, you can write: "According to the court's investigation, the facts of this case have been basically clear, and now only on the indictment alleging that the defendant has committed the crime of robbery, burglary, in the qualitative and relevant circumstances, according to the facts and the law, to put forward the following defense". Law, put forward the following defense opinions".
Second, the body
The main body is the main part of the defense, is the defense to defend the defendant's legitimate rights and interests of the main idea should be articulated, should be from the facts of the case and the evidence, against the relevant provisions of the law, arguing that the defendant is not guilty of a lesser crime or should be mitigated or exempted from criminal responsibility of the opinions and reasons. Therefore, it is usually centered around the question of whether it constitutes a crime, or belongs to what kind of crime, with or without mitigating or exempting from the statutory conditions and other issues to debate, and to draw their own correct conclusions.
1. Defense against the facts of the crime charged in the indictment. This is the center of the defense, usually the following aspects to start:
(1) the fact that there is, but confuse the boundaries of crime and misdemeanor, the innocence as guilty of prosecution;
(2) the fact that part of the existence of the facts, but has been exaggerated, distorted, such as self-defense accused of intentional homicide, petty theft accusations for theft, misdemeanors as felonies;
(3) the main fact that it is not clear, the evidence is insufficient or no evidence, the main conclusion. Insufficient or no evidence, mainly from the evidence to argue the existence of the facts of the crime;
(4) the facts to simply do not exist;
(5) the facts are clear, the evidence is conclusive, such as mitigating, extenuating circumstances, can be defended from mitigating, extenuating aspects.
2. Improper application of law to the indictment for the defense. Usually there are three cases:
(1) the innocent as guilty. If the circumstances are minor, does not constitute a crime but found to be a crime, self-defense identified as intentional injury, etc.;
(2) to determine the crime is not appropriate. Theft as robbery, negligent injury as intentional injury.
(3) sentencing bias, should be determined by the son of the mitigating circumstances but did not determine, such as surrender, criminal suspension, criminal attempt, juvenile delinquency, did not cause serious consequences, the social harm is small, good attitude towards confession.
3. There is a major violation of the proceedings and defense. Such as should be recused but not recused, the evidence has not been verified, etc.
4.
4. If the indictment alleges that the facts are clear, the evidence is conclusive, the applicable law is correct, accurate characterization, procedural law, can be defended from the rationale, mainly from the following aspects:
(1) from the defendant's behavior caused by the harmful consequences of the defense is not serious;
(2) from the defendant's behavioral purposes, motives, and other specific circumstances are not very poor Defense;
(3) from the defendant's specific circumstances of the crime, whether there are objective factors that can be taken into account in the defense;
(4) from the defendant's guilty attitude in conjunction with the victim's defense.
Third, the concluding remarks
Generally, you can talk about two things: one is to summarize or restate the basic points of the defense, and the second is from the point of view of the conviction and sentencing of the defendant's views.
Fourth, the end
The defense signed, indicating the work unit and position, write the date of production of the defense.
Fifth, the production of the defense should pay attention to the problem
Defense is an important instrument for lawyers in criminal cases, from accepting the entrusted or assigned to the investigation and a series of work in court, the final implementation of the defense, the lawyer's qualities and abilities are also reflected in the defense. Therefore, the production of the defense should pay attention to the following points:
1. Must strictly follow the "fact-based, to the law as a guideline" principle. The facts of the case is objective, must
Must be based on the investigation focus on the objective facts; the law is the degree of exhaustion, to follow the facts, the defense against the law, so that the fact that the evidence and the legal provisions speak.
2. Clear views, targeted. Advocates of what, against what, must be justified, based on evidence, avoid ambiguity, ambiguity, catching the wind, pompous and unrealistic.
3. Tighten the argument, in-depth argumentation. Whether it is positive reasoning, or rebuttal arguments, must be tightly focused on the argument, to seize the case of the key substantive issues, in-depth analysis, full argumentation.
Positive reasoning or rebuttal argument is a common defense of the two ways to write. The so-called positive statement, refers to the method of proof, the defender according to the facts and the law, the case put forward their own views and claims, and then through the facts and reasoning, analysis and argumentation, to prove their own point of view is correct, in order to reasoning; the so-called rebuttal argument, refers to the use of rebuttal method, the defender of the views of the public prosecutor to tit for tat, in the process of rebuttal to pay attention to clarification The so-called rebuttal argument refers to the use of rebuttal method, the defense of the views held by the prosecutor tit-for-tat rebuttal, in the process of rebuttal, pay attention to clarify their own ideas, but to rebuttal.
The general defense is often proof and rebuttal of the two methods of both, the positive and negative refutation of the organic combination of together, there is a "broken", there is a "stand".
4. Language earnest, mastery. Facts, reasoning, so that the words are reasonable, the words have evidence, avoid rendering exaggerated, overstatement.
Defense attorneys in the court using the defense should pay attention to the problem:
One, to show the best state of mind to all the people in court. "A good start is half of success", I think, as a lawyer, it is necessary to enter the courtroom to create a good first impression, which not only includes neatly dressed, in line with the image of lawyers, should also be appropriate with the appropriate expression and body language. Avoid listlessness, timid eyes. Before the formal opening of the court is best to maintain a smile, to give themselves and their clients to confidence, but also to show respect for the judge and the public prosecutor.
Two, exemplary compliance with the provisions of criminal procedure, listen to the judge's reasonable arrangements. The time to question the evidence on the questioning, the time to debate on the debate. In this prosecution and defense competition, I have the honor to meet Mr. Zheng * Jian * Min is exactly one of the contestants. Why call Zheng * Jian * Min lawyer as a teacher? A few days ago, I participated in the Shenzhen City in 2008 internship lawyer training, Zheng lawyer for one of the speakers, he lectured on the subject of criminal procedure practice, in the classroom, I was first Zheng lawyer witty and humorous language expression attracted, and then for Zheng lawyers to put down the heart of the knowledge of all the words, all the words of the teaching and the feelings of admiration. In the moot court, Mr. Zheng was still witty without losing his humor, and he was skilled in quoting all the legal provisions, with concise language but hitting the nail on the head. Compared with other participating lawyers, Mr. Zheng's Putonghua was rare and relatively standard. However, Mr. Zheng made the simple mistake that he should not have claimed that there was no correlation between the various pieces of evidence during the cross-examination. According to the rules of the competition, lawyers are only required to admit or deny the legitimacy and authenticity of the evidence during cross-examination. Mr. Zheng's strength is undoubtedly strong, but it is because of these simple mistakes that Mr. Zheng scored poorly even though he was among the top ten criminal defense lawyers.
Three, the speech is reasonable, rhythmic, avoid too fast and too slow. The so-called reasonable degree, refers to the lawyer in the reasoning to be concise, not repeated. In order to highlight the focus, you can use appropriate question and rhetorical questions, while adjusting to the appropriate tone of voice. In the criminal court, the prosecutor and the lawyer for each other, the two tit for tat, but the purpose is not a big fight, but through the debate to persuade the judge to adopt their own views. The prosecution and defense race on a pair of contestants is very conspicuous, after the entrance by the two sides for the first time to express the views of the prosecution and defense, the two are constantly at each other's throats. Prosecutor that is, the prosecution presented every piece of evidence, the defense that is, the lawyer has to refute the relevance of the evidence. In this case, if the prosecution is a smart person, he will say that the defense has nothing to do with the authenticity and legality of the evidence, to the debate stage, he will make a detailed elaboration in response. But this prosecutor did not do so, he was not willing to show weakness, and immediately rebutted the lawyer's statement. At that time, the rules of the game, in the phase of questioning, the lawyer's speech time is five minutes, the public prosecutor's speech time is 15 minutes. Until the lawyer to the five minutes are used up, the moderator prohibited her to speak again, she still appeared to be not yet finished, can only watch the prosecution continue to produce evidence. The prosecutor's evidence had not yet been presented, and the moderator said that the prosecution's time was up, so the prosecutor's half-sentence had to be stuck there. In the debate stage and the summary stage, the two are still biting each other, are only until the moderator said time is up shouting stop, only reluctantly shut up. In fact, their speeches said pretty much basically the same thing when all was said and done, seeming to ramble on and on, just making it a struggle to catch the point.
Four, not too humble. I summarized, the prosecutors in this competition is generally young, energetic, some can be said to be fearful. In contrast, the participating criminal defense lawyers on the whole are older, qualified and experienced. When an older lawyer's opponent in a prosecution and defense match was a fledgling prosecutor, I guess that lawyer did not take his prosecution opponent into account at all. I do not know because of inexperience or momentary carelessness or nervousness, the young prosecutor actually made a low-level error in the application of the law, which makes the older lawyers even more complacent, the debate is more and more exuberant, the speech is more and more do not pay attention to the wording, not only frankly denigrate the prosecution opponent's professionalism, and even emotional to the public security, the procuratorate of the two major judicial organs one by one to carry out the attack. This makes me look a little jaw-dropping on the stage. In court, such a way of speaking can win the trust and favor of the client, but will undoubtedly make the judge disgusted. Public prosecutor and lawyer for their own masters, in the court for each other, but this kind of opposition is not the kind of opposition of the enemy and I conflict, just each of their duties, *** with the socialist legal system to push the progress of the time. I think lawyers and prosecutors should respect each other, *** with the improvement. When the face of the prosecutor is learned, experienced, as a lawyer should not be inferior, on the contrary, through the court of law can take the long to make up for their own shortcomings; when the face of the prosecutor is young and inexperienced, as a lawyer should be respect for the old and the temperament of the young.
Fifth, on the matter, not a hat, not self-praise. As mentioned above, the public prosecutor and lawyers in the court just do their jobs, **** with the promotion of justice. Because both sides of the trial of the case of different opinions, the need for a debate in court, for the judge to listen to the specific circumstances of the case and then decide to adopt which opinion. Therefore, lawyers in the court only need to discuss the matter, the kind of purpose, and disparage the prosecutor's professional level or personality, or "sell the melon, boast" that they "has been fully, comprehensively, in-depth argumentation" practice, not only unhelpful, but will also Invite the judge and the public prosecutor's disgust.
Sixth, solid and steady. Lawyers are professionals, should strive to show their professional image, avoid for the publicity and make a fuss, it is best not to shake their heads.
seven, the speech process to maintain eye contact with the judge. This can make the judge is not distracted, really listening to their own speech, but also can probably understand whether the judge has heard the meaning of their own expression.
Eight, the appropriate flexibility to use common sense and expertise, so that the debate more fully reasoned