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How to prepare and conduct a plea of not guilty in China

作者:周玉忠 浏览: 发表时间:2022-06-08 16:05:08 来源:原创

       

   How to prepare and conduct a plea of not guilty in China

                               

                                   Speech at the 20th anniversary of the practice of lawyers

                    Zhou Yuzhong

 

First, the effective defense of not guilty is one of the pillars to build the social bottom plate, and the whole society should be committed to the construction


Not guilty defense is the most traditional and important field of lawyer's practice, and it is also the original intention of lawyers.Not guilty defense is the basic remedy to stop the wrong criminal proceedings that Devouring everything of the citizens.The effectiveness of not guilty defense marks the reliability of criminal justice.From the individual case, ensuring the life, freedom and innocence is the foundation for the establishment of a safe and stable social order.Otherwise, the bottom line of the relationship between the state and its citizens cannot be guaranteed, the social ideal of fairness and justice cannot be realized, and other social relations will be or be in an unstable state.

Corresponding to the verdict of not guilty, innocent defense includes two categories: first, if the defendant is found innocent according to the law, There should be an absolute plea of not guilty; second, If the evidence is insufficient and the defendant cannot be found guilty, There should be a relatively innocent plea that the evidence is insufficient and the alleged crime cannot be established..

Just as courts cannot just make a guilty verdict, lawyers cannot just make a plea for leniency..Lawyers with paper, keyboard, saliva, with their own legal experience to achieve the goal of innocence, this is the "highlight moment" of lawyers' practice, but also the flash of the national rule of law.Ensuring that innocent people are not prosecuted is the bottom board of the country, and its importance can not be overemphasized, and the defense of not guilty is one of the pillars to strengthen the bottom board. Improving the effectiveness of the defense of not guilty deserves the efforts of the whole society.How to prepare and plead not guilty is an important topic, which is worth discussing deeply.

Second, how to rationally treat the 0.03% innocent verdict rate and nearly 20% innocent treatment rate

In theory, China implements the whole-process criminal precision case handling mode. The case can be acquitted at all stages of investigation, prosecution and trial, and the lawyer can plead not guilty.

1. According to the SPP's report, 29,000 cases were withdrawn under supervision in 2021, Add the case that public security organ cancels voluntarily, the total number will be a little more.

2、The SPP reported that 348,000 people were not prosecuted in 2021, up 1.5 times from 2018.According to the China Procuratorial network, in non-prosecution cases, there are many common cases, especially the crime of dangerous driving, which is related to the new criminal policy of lenient punishment for this crime.However, it is undeniable that the procuratorial organs are strengthening their efforts to filter innocent cases to avoid trial risks, which requires the defense to move the threshold of innocent defense as far as possible.

3. The innocence rate at the trial stage is less than 0.03%, but the innocence treatment rate is 65 times that of 1.92%.

According to the work report of the Supreme People's Procuratorate and the Supreme People's Court, 1,748,962 people were prosecuted in 2021, sentenced 1.715 million criminals, acquitted 511 defendants, and about 33,500 people are "unaccounted for". (For the sake of analysis, the effect of multi-year data is not taken into account, since the data is stable in recent years.).These 33,500 people should legally include two cases of rejection or withdrawal of prosecution, but it is rarely difficult for the procuratorate to file a case in the court, which can be fully counted as the withdrawal of prosecution.It can be seen that the acquittal rate is less than 0.03%, but the rate of withdrawing the prosecution is 65 times that of the acquittal. Overall, the rate of innocent treatment in the trial stage reached 1.92%, up 86% from the historical high of 1.029% in 1998.It may be because the 2005 Procuratorial Organs' Evaluation Measures for Handling Public Prosecution Cases (Trial) stipulates that " after the acquittal verdict rate does not exceed 0.2%, the withdrawal of the prosecution has become the main alternative to the acquittal verdict.Although this strange assessment system has been cancelled, the acquittal verdict in the world's lowest state has not changed.

The withdrawal of an indictment usually means that the prosecution and the court have jointly decided to terminate the lawsuit, the acquittal verdict or reflects the prosecution is not willing to withdraw the lawsuit..In the overall protest rate is less than 1%, for the first trial verdict of innocent, the data points out that the prosecution protest rate is more than 40%.

4. The verdict was commuted to acquittal during the trial supervision processl.

According to the report, none of the 20 major unjust cases in recent years were settled by normal appeals.In 2021,2,215 criminal cases, accounting for 0.17%, were retrial in accordance with the trial supervision procedure. It is not clear how many of the cases were acquitted, but they should be very few.Other data show that only 125 cases were acquitted with the trial supervision procedure in eight years, and based on 1.715 million people sentenced per year, In the trial supervision procedure, the proportion of unjust, false and wrong cases being cleared is less than 0.001%.

In the trial stage, the innocence treatment rate of 1.92% and the innocence verdict rate of 0.03% is at a very low level in the world.But the total of 382,000 people, accounting for one of about 20% of the total criminal cases, seems to be not low.It can be seen that the defense of innocence is extremely difficult, and the success of  the trial supervision procedure is basically impossible. The defense of not guilty should be carried out as soon as possible from the investigation, the more difficult the follow-up procedure, the more passive, the more difficult it is obvious.

3. Main factors to be considered when defending not guilty

Compared with the defense of leniency, the defense of not guilty is in the absolute priority.In other words, lawyers should first exclude the possibility of innocence in a criminal case . The workload of the two and the impact on the defendant are very different, which should be fully considered when determining the entrusted relationship and be improved along with the case process.Of course, there is also a gradual process in the investigation of the case.Not a sudden change of direction unless a major change.In addition to the case itself, the other factors affecting the defense of not guilty are:

1. The handling of similar cases nationwide and the possibility of lawyers to normally exercise their right of defense.

2. The handling of similar cases in this Municipality, this province, the court and the members of the same collegial panel.

3. Is it an unjust case caused by the illegal handling of cases such as extorting confessions by torture, or is it caused by the normative documents or appraisal opinions of the superior judicial organs.

4. Record and ability of the judge and the court to make an acquittal judgment.

5. Whether the case handling organ has hyped the case, whether it has reported the case as the performance of the meritorious service award, and whether the leader has given the instructions as the guilt.

6、Is it an absolute acquittal or a relative innocence of insufficient evidence.If the former, should go all out to fight for, like  Wangguoqi's case, it took seven years and 14 legal proceedings to end in innocence,clients and defendants are also easy to agree with the lawyer.In the latter case, there is also a dilemma that conflicts with the lenient punishment system.He may lose the chance to plead guilty to a lesser punishment if he fails to plead not guilty..According to the SPP's report, the application rate of guilty plea in 2021 exceeded 85 percent, and the adoption rate of sentencing recommendations exceeded 97 percent.This requires lawyers to comprehensively and rationally analyze the case and related factors to determine the defense strategy, and inform the risks.In the case of the defendant pleading guilty, lawyers should be more cautious in choosing to independently plead not guilty.

7. Length of detention of the defendant.The longer the detention period, the more difficult it is to treat the innocence for state compensation and accountability.

8. Whether it is part of a recent campaign of justice or determined joint crime. If there is a trend of heavier punishment, or because the co-perpetrator has been convicted, it is more difficult to plead innocence.

Four, the strategy choice of not guilty defense

The defense of not guilty should follow the principle of freedom before innocence, and full defense as early as possible.

(1) Not guilty in the investigation stage (before arrest): "fast" to withdraw the case.

For those who can be acquitted through interviews, they should request the public security organ in the first time (within 37 days before the arrest) to withdraw the case or obtain bail pending trial, or apply for the supervision of the procuratorate to cancel the case or not to arrest, so as to avoid the passive situation that it is more difficult to deal with innocence due to the prolonged detention time.Without access to files at this time, lawyers write legal documents with leeway to avoid contradictions later.

(2) Not guilty at the stage of prosecution: Opinions on non-prosecution should be accurate and opinions exchanged should be candid.

At this stage, the  case file can be reviewed and have been met for many times. On the basis of the preliminary work, a relatively complete opinions of the lawyers should be made, and the procuratorate should be required to make a decision not to prosecute.At this stage, in principle, defense opinions should be freely exchanged freely,.However, the exclusion of illegal evidence should be avoided as an unintentional guide to the investigation work, especially for the evidence that can be easily corrected through supplementary investigation

(3) For cases where the evidence is not obvious and there is a prospect of fair trial, the defense should be emphasized.

At present, the court for unclear facts, insufficient evidence of fair trial ability is relatively prominent, but also more attention.For example, in the case of Tang selling drugs, we believe that Tang denied that 412.59 grams of heroin is related to it, and there are major contradictions in relevant evidence, which should not be recognized by the court.

(4) For cases that may be "argued in vain" and "decided before trial", emphasize "whole", "consumption" and "fight".

From the perspective of law, common sense and logic, Cases of “real crime with fake guns are absolutely innocent cases and should be acquitted, but because they are caused by the internal documents of the Ministry of Public Security and the stock is very large, such cases are the most difficult cases to be innocent.To plead not guilty, we must be fully and reasonably made full use of all legal defense means.

The successful cases are as follows:

1. After seven years, seven trials and fourteen legal procedures by the fourth level courts, Wang Guoqi, who sold 18 BB guns, received 434,000 yuan in state compensation from the Guangzhou Intermediate People's Court.

2. Song , who bought and sold 10 BB guns and held four BB guns, was sentenced to nine years in prison. The retrial was changed from nine years to probation, and another chengguan was exempted from punishment to keep public office.

3. Former judge gets free sentence for buying 2 BB guns to save his career..

4. Two college students were not prosecuted for involving BB guns.

5. Huang who bought and sold BB guns case that public prosecution asked for 11-13 years, was sentenced toonly three years and three months of judgment..Nine of the BB guns were not identified due to lack of evidence.

6.Liangwho mailed 17 BB guns was sentenced to probation.

7. A young scientist who bought two BB guns was exempted from punishment in the second trial.

8. Anshan: In the "keychain gun case", 12 people were exempted from punishment and 3 others were sentenced to sentences below statutory penalties.

9.ShenzhenOne man gets off and 10 others get probation for BB gun case.

10.Guangzhou:Mo Jianbo holding 6 BB gun case of the first instance judgment exempted from punishment, is the appeal of innocence.

11.PuTian:On March 30, 2022, ma Huan was sentenced to four years and nine months in the retrial of illegally manufacturing guns, instead of eleven years and six months, to continue to pursue innocence.

The effective defense of similar cases not only restored nearly 200 years of freedom, but also created the conditions for the Supreme People's Court and The Supreme People's Procuratorate to issue new regulations on low-specific kinetic energy gun cases in March 2018.

(5) To contribute to the wisdom and strength of the defense to the justice of the trial.

1. For cases with major disputes and uncertain judgment prospects, the defender should make legal documents with exquisite binding, detailed content, rigorous logic and good perspective. At the same time, submit the electronic version of defense words and other documents to the court, so as to reduce the work intensity of the court and assist the court to achieve justice.

2. Apply for the exclusion of illegal evidence, apply for appraisers, investigators or expert witnesses to appear in court, try to help the court find out the truth of the case.

3. It is suggested to live broadcast the trial and contact the media to create favorable external conditions for the judges to eliminate interference and realize independent and fair handling of the case.

4. For serious violations of lawyers' right to practice, we should have the courage to complain, safeguard the rights and interests of the parties and lawyers, and maintain the normal judicial order.


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