Author
Lawyer Li Zemin: Executive Director of Guangqiang; Director of Economic Defense Center; Chief Defense Lawyer for pyramid scheme cases
Li Meng: Researcher of Guangqiang Economic Crime Defense and Research Center
Research on related issues in trial confrontation (Part 2)
—How to do confrontation?
Keywords: Trial confrontation, Criminal defense
In the previous article, we introduced what confrontation is and the current provisions of my country's laws on the confrontation system. However, the law is not enough to do it yourself. If you want to fully understand the confrontation in court, you must also observe the current operation status of the confrontation system in judicial practice, and formulate the best confrontation strategy for the parties based on this reality.
1. Current status and reasons for the operation of the confrontation system
In recent years, one of the key points of my country's modification of the Criminal Procedure Law is to emphasize the trial center, and in judicial practice, it is constantly promoting the reform of the trial-centered criminal prosecution system , striving to build a standardized, reasonable and substantial criminal trial procedures. However, the judicial practice focusing on the court trial confrontation system is not ideal.
(I) The application rate of confrontation is low
From the general situation of court trials, court trials still basically follow the provisions of the "Interpretation of Criminal Procedures", and the inquiries are basically limited to the defendants in the same case. Taking a branch of the Chongqing Procuratorate as an example, from 2018 to 2019, that is, the two years after the implementation of the "Criminal Cases Regulations", a total of 274 criminal cases were filed in 484 people, and the court trial was initiated for questioning procedures of only 3 cases and 6 people, accounting for 1.24%.
(II) The questioning is led by the court, and the other subjects have limited roles
In practice, the questioning is basically initiated by the presiding judge and implemented by the presiding judge, and used it as a means for the court to conduct evidence investigation according to its authority. The prosecution and defense rarely apply for questioning and rarely participate in questioning. Therefore, the prosecution and defense basically do not use the questioning as their own means of evidence investigation.
From the perspective of specific criminal litigation practice, the presiding judge will first verify the substantive differences in the words, and then ask the conspiracy subject to explain the differences. During this period, the presiding judge often asks certain questions about the evidence contradictions, and finally asks the prosecutor and defense lawyer if there are any additional questions. Because the trial party led and carried out the inquiry, the prosecution and defense were not motivated to participate.
Even if you participate, the presiding judge will stop the additional inquiries of the prosecution and defense from the prosecution and defense, or ignore the additional inquiries, so the additional inquiries of the prosecution and defense have little impact on the effectiveness of the personal evidence investigation. Therefore, in judicial practice, questioning and inquiries inevitably become a "one-man show" for the presiding judge.
(III) There are many confrontations between the defendants and
As mentioned above, the subjects of confrontation include the defendant, witness, and victim, but the witness appearance rate in criminal proceedings is very low. Constrained by this fundamental condition, although the substantive trial has been promoted and the number of people who appear in court to testify has increased compared with the past, my country has neither established the principle of word litigation nor lacks effective procedural guarantees for witnesses to appear in court. In addition, legislation recognizes the investigation of personal witnesses conducted by reading records, making it still normal for judicial authorities to replace witnesses to appear in court with written words.
The confrontation between the defendant and the witness is based on the premise that the witness appears in court. The low witness appearance rate makes it difficult to achieve "face-to-face" between the witness and the defendant. The first direct personal witness investigation cannot be achieved, not to mention the second investigation on this basis, that is, the confrontation. Therefore, court trial confrontation can usually be carried out between co-defendants in joint crime cases.
(IV) Analysis of objective causes
In addition to the current scope of the confrontation subjects we mentioned earlier, which are different and narrow, and lack specific confrontation operation specifications - such as startup conditions, initiation procedures, confrontation procedures, etc., we believe that the negative attitude of the litigation participants has also become partly an obstacle to the operation of the confrontation system.
1. The judges fail to apply
. The complexity of the questioning procedure and the diversity of the question-and-answer subjects' questions and answers make the confrontation process uncontrollable, which puts higher requirements on the judges' ability to control and control the court. In order to reduce trouble and improve work efficiency, judges are often more willing to conduct personal witness investigations using the traditional simple method of separate inquiries without having to question.
2. Both prosecutors and defenses are not familiar with the use of questioning and are concerned about
Compared with the written testimony of evidence and cross-certification, the investigation of direct personal evidence is more difficult, and unforeseeable and uncontrollable situations are prone to occur. At the same time, because witnesses rarely appear in court in practice, the prosecutor and defense lawyer generally lack training in investigating direct personal witnesses, and they are more familiar with the questioning technology and are more worried about the effectiveness of investigating conflict testimony (confession), so they rarely apply for the use of questioning.
can be seen that although witnesses provide witness testimony by appearing in court, the prosecution and defense will cross-examine their testimony by cross-examination. This is not only an effective way to distinguish the authenticity of testimony, but also a litigation right that the defendant should enjoy, and has become a common practice in criminal trials in a country ruled by law.
However, for a long time, in my country's criminal trial practice, witnesses (especially prosecution witnesses) have hardly appeared in court, and cross-examination of their testimony can only be carried out by reading the transcript of the testimony. In addition, there is a lack of specific confrontation operation standards, and the judges, defense lawyers, and prosecutors are incompetent and unable to organize effective confrontation procedures. Therefore, the cross-examination between the defendant, witness and victim is almost extinct. The cross-examination procedures and questioning between the defendants are firmly dominated by the judges, and the role that the prosecution and defense can play is minimal.
2. How to conduct court confrontation at present - Trial confrontation between defendants
In the criminal proceedings where witnesses (victims can be regarded as special witnesses), how to conduct court confrontation between defendants has become the focus of our attention to court confrontation.
First of all, we should clearly see that the premise of confrontation between the defendants is also the "contradictory" or "substantive differences" between the confessions of the two parties. For example, the confessions of the two defendants on who is the chief conspirator are inconsistent. Defense lawyers can usually find these substantial differences by reviewing the file materials (such as the defendant's confession and defense).
followed by . For inquiries, you should apply to the court. The court interrogation of the defendant was conducted separately, and even if there were conflicts in the confessions of both parties, they could not be "confronted from the air". Therefore, if the confrontation is met, it is necessary to apply to the court to achieve confrontation.
and , we should distinguish the situation and grasp the degree to avoid the negative effects of the parties involved in confrontation. Rhetorical evidence has a variety of interpretations and is technical for questioning. Therefore, it is easy for the parties to fall into the trap of the other party in confrontation, which will lead to the loss of gain. Therefore, the following issues should be paid attention to during operation:
(I) Prepare for the future, and respond to Ziru
Defense lawyers should predict and list the possible problems in the question based on the characteristics of the case and the personality characteristics, understanding ability, expression ability, mutual relationship and content of the confrontation personnel, and formulate corresponding response plans.
(II) Pay attention to asking questions in advance, pay attention to fixed evidence
Generally speaking, the question of confrontation is the first question of the applicant.At this time, you should pay attention to fixing the favorable information to our parties through questions and answers in a timely manner, so as to avoid changes in the evidence due to inappropriate impact during the inquiry.
Of course, in judicial practice, there will be cases where the presiding judge first asks questions. At this time, attention should be paid to remind the parties to be realistic and answer in a relatively conservative manner. The defense lawyer should record the judge's questions and the parties' answers, and provide necessary supplements to these contents in subsequent questions.
(III) Pay attention to the content of questions and answers
Defense lawyers should pay attention to the way of questioning participants, and promptly apply to the court to stop questions and answers that are not related to the case, which may undermine judicial justice and improper questions and answers that are confronted with the personal dignity of the confronter.
(IV) Note: Prevent improper effects under information asymmetry
In some cases, the "substantive difference" is formed by information asymmetry. At this time, pay attention to the order of asking questions.
If the confronter A has mastered some information due to his own experience, he has made a statement that there is a certain factual situation, while the confronter B denies a certain factual situation because he does not have such experience, which creates a difference between "existence" and "non-existence".
In this type of questioning, the questioner should in principle arrange for the negative to state first, the affirmative to state A and then follow up. Because if the negative is asked first, it is difficult to add immediately due to the lack of relevant information: if the affirmative states first, because the relevant information is provided, in the subsequent inquiry, the negative state may be affected by it and the phenomenon of "climbing the rod" or the statement is inconsistent, it will be considered by the court to be a confession. This order of inquiries can reduce the improper impact in confrontation and avoid problems such as being considered by the court as "collusion of confessions" and "reversal of confessions" against the facts.
That is to say, you should pay attention to the order and individuality of the inquiry content, ask questions in chronological order around the focus of the confrontation, and you should first ask what is related to yourself and then ask others.
Conclusion
Overall, there are indeed many shortcomings in the current confrontation system, such as the difficulty of witnesses appearing in court and the low appearance rate, which leads to the inconvenience between the defendant and the key witnesses being unable to be achieved, the cross-examination procedure is controlled by the court, the defendant and defense lawyer are limited in their questions, and the confrontation skills need to be improved.
But as the saying goes, "If you don't have a butcher, you won't eat pig ." Even if the specific measures are incomplete and the right to cross-examination is blocked, the defense lawyer should try his best to strive for the parties to realize the pledge, submit a confrontation application in a timely manner, and make a response plan in the confrontation procedure, so as to obtain the greatest legitimate rights and interests for the parties through the trial confrontation procedure.
#Criminal defense#
