Is it necessary to have a defender or duty lawyer present to sign the affidavit? According to the practice of the pilot system of quick adjudication and the pilot system of pleading guilty, this is an important issue that should be paid attention to in the implementation of this article.
In the pilot practice, there are disputes about whether it is necessary for every criminal suspect to sign a statement and whether there should be a guardian or lawyer on duty. The view that it is not necessary for all lawyers to attend is mainly based on the following two reasons; First, objectively, there are not enough defense lawyers or duty lawyers, so it is impossible to guarantee that every criminal suspect who pleads guilty and admits punishment has a defender or duty lawyer. In practice, the number of practicing lawyers in some places, especially remote counties and districts, is relatively small. Even in areas with a relatively large number of lawyers, the number of lawyers who specialize in or are willing to engage in criminal proceedings is very limited, and the number cannot meet the requirement that every criminal suspect has a lawyer. Second, subjectively, it is not necessary to think that every criminal suspect has a defender or a lawyer on duty. Cases of confession and punishment, especially those applying summary procedure, are all misdemeanor cases with clear facts and sufficient evidence. Among them, drunken dangerous driving crimes, which account for a high proportion of summary procedures, are all seized on the spot, and the suspects have no excuse to commit crimes. After empirical investigation, most of the suspects themselves think that they don't need legal help, and there is no need to hire a lawyer. In this case, insisting on providing lawyers' help violates the principle of seeking truth from facts and the basic legal spirit of party autonomy. For the above reasons, in some pilot areas, if a criminal suspect claims that he does not need legal help and has a written statement, he will no longer be assigned a defense lawyer or a lawyer on duty.
On the surface, the above viewpoints and practices have certain realistic rationality. However, if we deeply study the legislative intent of this article and the basic requirements of the lenient system of pleading guilty, we will find that there are two risks in the above view: First, the case-handling organ may try its best to make the criminal suspect write a statement without legal help, thus greatly exempting the task of assigning a defense lawyer or a lawyer on duty, and only providing legal help to a few criminal suspects who strongly demand legal help, that is, turning not providing legal help into the norm and turning providing legal help into an example. As a result, the judicial practice completely deviates from the original intention of legislation. The so-called "a levee of a thousand miles collapses in an ant's nest", the law stipulates that legal aid should be provided, so it becomes a mere formality. Second, in the absence of a defense lawyer or a lawyer on duty, the case-handling organ may use the situation of asymmetric information and unequal status to force the criminal suspect to plead guilty against his will through incomplete and insufficient information or other means. In the words of scholars, "in the face of helpless defendants, prosecutors have obvious psychological advantages. They usually threaten, seduce and deceive defendants because they don't understand the case and can't get timely and effective lawyer help, forcing them to accept a sentencing plan that may be unfair. " ① The pilot practice shows that the above concerns of scholars are not completely unnecessary. In fact, the above risks include greater and deeper risks, that is, unjust, false and wrong cases, including those against one's will and those voluntarily retracted, which should be avoided in judicial practice. Preventing unjust, false and wrong cases is the bottom line that criminal judges must adhere to. The system of pleading guilty and leniency should not lower the standard of evidence, and the criminal suspect should have a defender or a lawyer on duty when signing the confession and punishment statement, which is to adhere to this bottom line. Therefore, in practice, the law should be strictly enforced, and the participation of defenders or lawyers on duty should be regarded as a necessary condition for cases of confession and punishment.