Ma Cheng Lawyer Group ｜ Talking about the evidence related to the evidence of the defense in criminal trial

We often say that "lawsuits are evidence". In civil lawsuits, people are used to the original defendant. What people pay more attention to whether the prosecution accuses the evidence of crime is indeed and sufficient, whether it has met the standards of proof, whether it is to exclude reasonable doubts, and the attention of the evidence of the defense is relatively weak. Especially during the court trial stage, the evidence presented by the defense in the trial, whether in court or in the referee documents, rarely judged the judge.

The author believes that the evidence of the defense should also be valued in criminal trials, especially the evidence related to the qualitative and important torture circumstances of the case cannot be ignored. The author is only here to talk about several issues related to the evidence of the defense in criminal trials in combination with the experience of handling cases.

1. Why do referees often avoid evidence of defense?

In the case of the illegal absorption of public deposits by the author's team, around the identity and status of the parties in the case, the defense lawyer submitted to the court and presented hundreds of pages of evidence, especially one of the "Advisory Agreement", which clearly showed that it was clearly displayed. The parties are just listed consultants hired by the company, not internal employees. Although the trial chief in court also organized the prosecution to conduct a qualification certificate, the collegial panel did not certify in court, and there was no explanation of these evidence in the judgment.

We know that certification is the review and confirmation of the referee after the evidence evidence. It is the result of proof and qualifications. Only after certification can the proof and qualification evidence have the final legal significance. As long as the prosecution's evidence is verified and qualified by the court, the referee in the judgment either accepts the letter or does not accept the letter, and will always make a certification. However, the treatment of the defense evidence is often not so good. Many times, just like in the above cases, the referees have almost no words, and they often forget to organize the same case of the same case defendant and defender.

Obviously, the status of the defense evidence and the status of the prosecution is not equal. The author believes that the root cause of the problem is that the referee does not pay attention to the defense opinions, and often does not comment on defense opinions. Evidence is a argument that supports the defense views and opinions. The evidence of the defense is also bound to the defense opinion. Since the defense opinions can not be responded, the defense evidence naturally does not need to respond alone. For the defense lawyer, what was rejected than the defense opinion was more difficult to accept that the defense opinions were avoided, the defense opinions were avoided, and the evidence of the defense was naturally avoided.

I believe this phenomenon is not an example in judicial practice. In view of this, in July last year, the Hubei Provincial Higher People's Court issued the "Opinions on Giving full play to the role of lawyers to strengthen trial power to restrict supervision to ensure justice (trial)", which clearly stipulates: whether the judges have adopted the relevant evidence proposed by the lawyer and defended Whether the agency opinion is adopted should explain the reasons in the referee documents. If it is not accepted or admitted, it shall not be used directly as a conclusion that "no factual and legal basis, the court will not adopt" is directly used as a conclusion assertion. Essence Whether the referee should seriously respond to the opinions of the lawyer should be an important part of the case quality review.

It is believed that as the judicial organs have strengthened the protection of lawyers' defense rights, the opinions of defense lawyers and the relevant evidence put forward will be valued.

2. How to avoid the evidence of the defense from being avoided by the referee?

Although the author believes that the status of defense evidence in criminal trials will inevitably increase, this also requires a process. In the case of currently accusing the status of unequal dialectics, how to avoid the evidence of the defense intentionally or unintentionally, the author believes that "transforming the evidence of the defense into the prosecution evidence" is a method.

Specifically, the defense can submit evidence materials to the case handling authority before entering the court's trial and request the scroll. Especially during the investigation stage, the evidence material investigation authorities submitted by the defense often put in dumplings, and they will follow the case to enter the subsequent stage and become the material of the case. Show the court. The evidence materials submitted by the defense are transformed into the case of the prosecution, and the referee may not be so easily avoided.

3. Does the defense have the obligation to provide evidence to the court?

Since the referees are not waiting to see the evidence of the defense, and the Criminal Procedure Law clearly stipulates that the responsibility for the proof is in the prosecution, as long as the defense is rational doubt, is it necessary to work hard to obtain evidence and proof?

The author believes that the prosecution's proof liability is unavoidable to the defense's proof obligation or the necessity of proof. In criminal proceedings, "ghost defense" often appears, that is, the defense proposes a factual proposition but has no evidence to prove that like "ghost", the defense cannot prove its existence, and the prosecution cannot prove that it does not exist. Then In this case, who should bear the adverse consequences? In practice, it will basically fall on the defense. If the defense does not submit evidence, not only does it not be supported, but the referee will not ask the prosecution to prove that the defense facts are not established because of the responsibility of proof.

Unless the defense proposes evidence that the facts formed a "contest" in the referee's mind, the referee will ask the prosecution to propose a counter -evidence at this time. The "dispute" here can also be understood as "reasonable doubt". In other words, it is not that any suspicion raised by the defense needs to be ruled out. Only those referees are recognized as "reasonable", can this treatment be enjoyed. Therefore, the key is how to make your claims "reasonable doubt", which obviously needs to be proved by certain evidence. If the evidence cannot be proposed to make his claims "reasonable doubt", the referee will not prove the responsibility to the prosecution in this matter. Although the defense does not have the obligation of self -evidence, in this case, "forcing" the defense must put forward certain evidence, otherwise it must bear the unfavorable consequences of their own claims. It has become a de facto "burden" or "obligation". Therefore, from the perspective of practice and "pragmatic", the defense cannot lie on the principle of "sleeping" in principle where the liability of the prosecution and prosecution proof. Essence

Fourth, the defense evidence should apply illegal evidence exclusion rules?

In court, a sentence that the prosecution often said in the evidence of the prosecution is "the source of evidence is unknown and the legitimacy cannot be confirmed." Indeed, many times the explanation of the lawyer's explanation of the source of the evidence is also a simple sentence "Family provided" or "provided by the parties", and the further source of the source is difficult to clarify. Then, does it mean that the defense cannot explain the "legitimacy" or the evidence that it is not obtained through legitimate means should be excluded like the prosecution evidence, and the rules of illegal evidence are eliminated? The author believes that it is not so.

First of all, the rules of illegal evidence exclusion in my country's criminal procedure law are aimed at the prosecution evidence and the requirements of the regulatory procedures of the prosecution. The procedures for the criminal proceedings of the criminal procedure law only stipulate that the evidence collection provided by the victims and the victims shall be permitted by the case handling authority. There is no regulation that the evidence obtained by the defense lawyer's violation of the evidence obtained can be evaluated through illegal evidence exclusion rules.

Secondly, the evidence of the defense is illegal, especially the defense lawyer's evidence is illegal, and the defendant should not bear the adverse consequences. Assuming that an evidence that can prove that the defendant is not at the crime scene was stolen or robbed by him, it is obviously unacceptable to exclude it. It is obviously unacceptable. I believe no referee dares to be convicted directly.

Finally, the defense evidence does not apply illegal evidence exclusion rules does not have the effect of encouraging the defense to obtain evidence. "Procedural sanctions" do not legal collection of defense without legal evidence does not mean that no sanctions are required. Assume that the evidence of the defense is stolen and robbed, it can be pursued by relevant laws to pursue the administrative or criminal responsibility of theft, robbing, and robbery. If it is implemented by a defense lawyer, you can also punish them through industry specifications. These sanctions can obviously play a strong deterrent effect.

Conclusion

"Evidence is the king of litigation". Under the trial of the confrontation, the importance of the evidence of the defense is self -evident. In some major cases, we also see that more and more defense evidence has appeared in court. However, in theory or practice, there are actually many discussions that can be carried out around the evidence of the defense, such as the issue of evidence collection of lawyers. It is believed that with the continuous deepening of the reform of the judicial system centered on trial, the evidence of the defense will be more valued in criminal trials, and will also play a more important role in the process of safeguarding the rights and interests of the parties.

Ma Cheng Lawyer Group (Author) Introduction:

Ma Cheng's lawyer team is a senior partner of Beijing Dacheng Law Firm, Deputy Director of Dacheng Criminal Committee, Director of the 11th Shenzhen Law Association Financial Crime Defense Committee, and the 12th Guangdong Provincial Law Association Economic Crime Defense Committee Lawyer Ma Cheng was founded in 2012. There are 18 members of the team, and they have graduated from well -known legal colleges in China. The team partners Quan Zhebin, Cao Jidong, Shi Yang, Ren Wei, Li Ruijie, Li Maoyang, and team business backbone Wu Guanglin, Bi Zheping, Kong Yuxue legal knowledge, The academic theory is profound and is good at handling various major, difficult, and complex criminal cases.

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