First, we should be good at summarizing accurately and find out the legal reasons for defense.
Article 21 of China's Lawyers Law stipulates: "When a lawyer acts as a defender of a criminal case, he shall, according to facts and laws, put forward materials and opinions to prove the innocence, light crime or reduce or exempt his criminal responsibility, and safeguard the legitimate rights and interests of the criminal suspect and defendant". The Criminal Procedure Law also stipulates the same content, but this provision applies not only to lawyers, but also to other non-lawyer defenders. For the legal reasons for lawyers' defense, I have summarized the following four categories.
1. Legal reasons for the defense of innocence or no criminal responsibility.
2, lighter, mitigated or exempted from punishment defense reason is legal.
As far as the criminal responsibility ability of the criminal subject is concerned, there are: intermittent mental patients, physically deaf people, blind people, etc. Subjectively, the less vicious ones are: excessive defense, excessive emergency avoidance, preparation of crime, attempted crime, and suspension of crime. In terms of criminal functions, there are: accomplice and coerced accomplice; After committing a crime, the performance of the crime is: surrender, meritorious service, etc. In addition, there are some special regulations.
3. Legal reasons for the defense of misdemeanor.
Through the argument between this crime and that crime, the nature is changed, and the felony is argued as a misdemeanor, and finally the viewpoint that crime is lighter than defense is put forward. Mainly: First, subjective felonies become misdemeanors, such as manslaughter; Second, a single subject becomes a misdemeanor, such as a public official being convicted as a non-public official; Third, a single subject becomes a dual subject. For example, crimes committed by natural persons are divided into unit crimes. The punishment for unit crimes in China is to apply property punishment to units, while the punishment for natural persons is reduced by one grade, especially without the death penalty. .
4, pay attention to the defense reasons and heavier punishment.
Second, don't ignore the discretionary circumstances in favor of the defendant.
Compared with statutory circumstances, discretionary circumstances refer to circumstances that are not expressly stipulated by law, but can be considered as a lighter or mitigated punishment for the defendant according to jurisprudence and judicial practice. With the general improvement of the quality of public prosecutors, the level of prosecution and accusation is getting higher and higher, and some people even regard it as a battle to declare war on criminals.
For some legal situations that can or should be given a lighter or mitigated punishment, such as being under 18 years old, being an accessory, having rendered meritorious service, etc. Indictment and indictment can generally be objectively identified, and the public prosecutor also took the opportunity to present the case to the court before the lawyer spoke in the court debate stage, which tends to prevent the lawyer from being a "good person" alone.
Many lawyers feel more and more that the prosecutor should say the legal circumstances that are beneficial to the defendant first, and lawyers have nothing to say in court except "thank you" to the prosecutor. I don't think so. In my opinion, when encountering the above situation, we can simply acknowledge the statutory plot in favor of the defendant announced by the prosecutor (but never say "thank you" to the prosecutor), and free up more defense time and space to say more discretionary plots in favor of the defendant.
Below, I briefly list the discretionary circumstances that are often debated in the defense, and illustrate them with the help of the precedent of the court's judgment on the extraordinarily large smuggling and bribery case.
1, depending on the nature.
Legally speaking, indirect intention, relative to direct intention, omission and relative to positive action are all discretionary circumstances that are often considered in judicial practice. For example, in judicial practice, the punishment for bribery is often lighter than that for bribery, and the punishment for indirect intentional homicide is also lighter than that for direct intentional homicide.
2. Subjective and malignant discretionary circumstances.
Compared with accidental crime and premeditated crime, sudden crime has different punishment compared with unprovoked crime.
3. Discretionary circumstances formed by pleading guilty or returning stolen goods after committing a crime.
4. Discretionary circumstances on the number of crimes. Even criminals, compared with recidivists and first-time offenders, are discretionary circumstances of lighter punishment.
5. Any situation in terms of realized benefits.
6. Discretionary circumstances in sentencing balance.
7. Discretionary circumstances that can avoid jail.
Third, we should dare to argue, be eloquent and argue clearly.
Dare to argue, be eloquent and argue clearly are not contradictory, but complement each other. Dare to argue without eloquence will make the defense unacceptable; Being eloquent and not daring to argue will make people feel that the defense point of view is not fluent enough; Good at arguing without knowing what to argue about, and the result of defense makes people wonder what to say and what to refer to.
If you combine the courage to argue, the eloquence and the open debate, people will feel that your defense is independent, with appropriate words and clear goals. As far as I know, the most important thing for the parties to the defense lawyers is that they dare not argue. The most common complaint is that they can't argue clearly, and the most important thing is that their eloquence is not good. Speak first and dare to argue.
Fourth, avoid fallacies, confusions and mistakes.
The so-called fallacy is a defense that distorts facts, misinterprets laws and reverses right and wrong. For example, in a major smuggling case, the prosecutor accused the defendant of smuggling, which impacted the domestic market and caused great damage to similar domestic enterprises.
However, a defense lawyer actually said that the closure of the domestic market is not conducive to the international competition of China enterprises, and the defendant's smuggling behavior enables the people to get preferential prices and buy more things with less money, so this kind of smuggling is beneficial and harmless in a sense, even ahead of the open market. The defense of "smuggling meritorious service" by defense lawyers is obviously a fallacy.
This distorted statement is unacceptable not only to prosecutors and judges, but also to defendants and their relatives. So, what is disorderly argument? In short, inconsistency, self-defense of hitting the mouth is disorderly debate.
Five, lawyers should respect the opinions of the client or the defendant.
The common cases of defending against the defendant's will are: the defendant asks for an innocent defense, and the defender insists on a guilty but light defense; The defendant asked for a plea of the nature of revision, while the defender insisted on a plea of misdemeanor according to the charges charged. In the eyes of some lawyers, the lawyer's defense status is independent and can not be bound by the will of the defendant or client. I think this view is one-sided.
Because the lawyer's right to defense arises from the entrustment of the defendant or the defendant's close relatives (which is finally confirmed by the defendant), and Article 29 of the Lawyers Law stipulates that "the client may refuse the lawyer to continue to defend him or entrust another lawyer to defend him", but "after accepting the entrustment, the lawyer shall not refuse to defend him without justifiable reasons"; Article 39 of the Criminal Procedure Law stipulates that "during the trial, the defendant may refuse the defender to continue to defend him or entrust other defenders to defend him".
In practice, it is often professional lawyers who provide criminal defense for criminal suspects or defendants, because they know how to defend and master defense skills better than ordinary lawyers. It is very advantageous for such people to defend criminal suspects or defendants.