In criminal cases, the "second prosecutor" is often criticized by lawyers, defendants and their families. When the defendant himself insists on his innocence, some defense lawyers find the defendant guilty on the basis of their own judgment or because they are influenced by other factors, and even do the defendant's "ideological work" together with the judge and prosecutor, and vigorously demand that the defendant admit guiltWhat is more, in cases of joint crimes, especially cases involving organized crime and vice, some defense lawyers not only persuade the defendant they are responsible for defending to admit guilt, but also cooperate with the prosecutor to prove that other defendants in the same case have committed crimes, directly acting as the "second public prosecutor".
The Criminal Procedure Law stipulates that the responsibility of a defender is to "submit materials and opinions on the innocence of the criminal suspect or defendant, the minor crime, or the mitigation or exemption of criminal responsibility in accordance with the facts and law, and to protect the procedural rights and other legitimate rights and interests of the criminal suspect or defendant". materials and opinions on minor crimes or mitigating or exempting them from criminal responsibility", so as to achieve the defense purpose of "preserving the procedural rights and other lawful rights and interests of criminal suspects or defendants".
As a defense lawyer, the law has actually made it clear that all of his actions must be beneficial to the defendant, or at least not cause damage to him, and the defense lawyer who acts as the "second prosecutor" often leads to the defendant's expectation of "sending charcoal in the snow" to "making matters worse", which not only clearly violates the provisions of the law, but also violates the lawyer's professional ethics, seriously damages the lawyer's image, and undermines the criminal trial system constructed by the prosecution, defense, and trial.
Even if the opinions of the "second prosecutor" are consistent with the facts of the case in some cases and may not substantially harm the rights and interests of the defendants, in the long run, once this phenomenon spreads, it will inevitably lead to damage to the rights and interests of a larger number of defendants, and even cause the defense system to exist in name only, especially after the full coverage of criminal defense and the system of leniency for those who admit guilt and admit guilt are fully implemented, it is all the more necessary to be vigilant against the generalization of the "second prosecutor".
In this case, must a lawyer not be a "second prosecutor"?Not really.
Generally speaking, lawyers in criminal cases are more likely to appear as "defenders", and most ordinary people think that criminal lawyers also refer to criminal defense lawyers. But in fact, in criminal cases, the work of lawyers is not limited to providing criminal defense for criminal suspects and defendants, but also includes providing criminal compliance and other non-litigation legal services for victims, providing criminal compliance and other non-litigation legal services for enterprises, and actually covers a variety of businesses such as criminal defense, criminal law, criminal compliance and criminal non-litigationThe role of the "second public prosecutor".
Criminal litigation cases include public prosecution cases and private prosecution cases, in which the accusations against the defendant and the presentation of evidence are mainly borne by the procuratorate, while the work of criminal defense lawyers is to point out the procuratorate's errors in the admissibility of evidence, the determination of facts, and the application of law on the basis of facts and law, so as to assist the court in discovering problems, preventing the occurrence of unjust, false and wrongly decided cases, and safeguarding the lawful rights and interests of the defendant.
At the same time, in public prosecution cases, there are a considerable number of specific victims, and the defendant's actions have caused them personal or property losses. For the victims in these cases, they may not understand the relevant legal provisions, let alone how to file compensation for losses to protect their rights and interests, so they need to entrust a professional lawyer as a litigant to file a civil lawsuit alone or an attached civil lawsuit when the procuratorate initiates a public prosecution.
Whether in a separate civil lawsuit or in a civil lawsuit attached to a criminal case, the lawyer needs to submit a corresponding claim based on the facts alleged by the procuratorate or the facts determined by the court judgment in a case involving a public prosecution, so whether the procuratorate's accusation can be established will directly affect the rights and interests of the victim.
In private prosecution cases, the lawyer can accept the entrustment of the victim or the legal ** person to directly file a lawsuit with the court, and needs to directly present evidence with the victim in the trial to prove the facts of the defendant's crime and the harmful consequences caused, in fact, directly playing the role of a "public prosecutor".
From the perspective of legal provisions, the rights of lawyers, as "second public prosecutors" and even "public prosecutors", have been relatively fully protected in reading the case file, applying for collection, collecting evidence, expressing ** opinions, participating in pretrial conferences and trials, conducting court questions, applying for re-appraisal or inquest, and applying for relevant personnel in the case to appear in court, so as to better "cooperate" with the public prosecutor in the course of the trial to accuse or directly accuse the defendant.
In some public prosecution cases involving joint crimes, sometimes lawyers will shift the relevant responsibility to other co-defendants in order to help the defendant in charge of defense get rid of criminal responsibility or reduce responsibility, and sometimes even the defendant will "make something out of nothing" because of the influence of other factors, and identify other unrelated persons as constituting a joint crime, resulting in confusion of the facts of the case. Under such circumstances, the defense lawyers of the other co-defendants may need to "cooperate" with the prosecutor to clarify the facts of the case to a certain extent, so as to protect the rights and interests of the corresponding defendants.
In criminal cases, the statutory duty of the judicial organ requires that it must be faithful to the truth, but as a lawyer, its primary duty should be to protect the procedural rights and legitimate rights and interests of the parties in accordance with the law, and the facts of the case are the basis of defense and defense, but should not become the main or even the only purpose, neither can the interests of the parties be ignored because of moral judgments, nor can they only ignore the law for the interests of the parties.
For the parties, whether as a defendant or a victim, choosing a suitable lawyer to provide criminal defense or criminal law can better protect their corresponding legitimate rights and interestsFor lawyers, whether as a defender or a litigant, ethics and cognition should only determine whether they choose to accept the commission, and the law and profession determine how they should perform their duties.
A lawyer is not necessarily unable to be a "second prosecutor", but the lawyer must make a choice based on the role of the lawyer.
Criminal Procedure Law of the People's Republic of China
[Article 37The defender's responsibility is to submit materials and opinions on the criminal suspect's or defendant's innocence, the minority of the crime, or the reduction or exemption of criminal responsibility on the basis of the facts and law, and to preserve the procedural rights and other lawful rights and interests of the criminal suspect or defendant.
[Article 46, Paragraph 1].Victims of public prosecution cases and their legally-designated persons or close relatives, and parties to attached civil litigation and their legally-designated persons, have the right to retain a litigant from the date on which the case is transferred for review for prosecution. The private prosecutor and his or her statutory ** person in a private prosecution case, and the parties to an attached civil lawsuit and their statutory ** person, have the right to retain a litigant at any time.
[Article 51].The people's procuratorate bears the burden of proof of the defendant's guilt in a public prosecution case, and the burden of proof of the defendant's guilt in a private prosecution case is borne by the private prosecutor.
[Article 53].Public security organs' applications for approval of arrest documents, people's procuratorate indictments, and people's court judgments must be faithful to the truth. and where the truth is intentionally concealed, responsibility shall be pursued.
[Article 101, Paragraph 1].Where the victim suffers material losses as a result of the defendant's criminal conduct, he has the right to initiate an attached civil lawsuit in the course of criminal proceedings. Where the victim dies or loses capacity, the victim's legally-designated person or close relatives have the right to raise an attached civil lawsuit.
[Article 104].Attached civil litigation shall be tried together with criminal cases, and only in order to prevent excessive delay in the trial of criminal cases may the same trial organization continue to hear attached civil litigation after the trial of a criminal case.
[Article 173, Paragraph 1].When reviewing a case, the people's procuratorate shall interrogate the criminal suspect, hear the opinions of the defender or duty lawyer, the victim and their litigants, and record this in the case file. Where defenders or duty lawyers, victims, and their litigants submit written opinions, they shall be attached to the case file.
[Article 187, Paragraph 2.], paragraph 3Previously, adjudicators could convene the public prosecutor, parties, defenders, and litigants to understand the situation and hear opinions on issues related to the trial, such as recusal, the list of witnesses appearing in court, and the exclusion of illegal evidence.
After the people's court determines the date, it shall notify the people's procuratorate of the time and place, summon the parties, notify the defenders, litigants, witnesses, evaluators, and translators, and the summons and notice shall be served at least three days before the date. In cases where the trial is open, the cause of action, the defendant's name, and the time and place shall be announced in advance three days in advance.
[Article 190.]The first paragraph**, the presiding judge ascertains whether the parties have appeared in court and announces the cause of action;Announce the names of the collegial panel's members, clerks, prosecutors, defenders, litigators, evaluators, and translatorsInform the parties that they have the right to apply for recusal against the members of the collegial panel, clerks, prosecutors, evaluators, and translators;Inform the defendant of his right to a defense.
[Article 191, Paragraphs 1 and 2].After the public prosecutor reads the indictment in court, the defendant and victim may make statements about the crimes charged in the indictment, and the public prosecutor may interrogate the defendant.
Victims, plaintiffs, defenders, and litigants in attached civil litigation may, with the permission of the chief judge, question the defendant.
[Article 192, Paragraph 1].Where the public prosecutor, parties, defenders, or litigants have objections to the testimony of witnesses, and the testimony of the witnesses has a major impact on the verdict or sentencing of the case, and the people's court finds that it is necessary for the witnesses to appear in court to testify, the witnesses shall appear in court to testify.
[Article 194.]The first paragraphWhen a witness testifies, the adjudicators shall inform him of the legal responsibility for truthfully providing testimony and for intentionally giving false testimony or concealing criminal evidence. With the permission of the chief judge, the public prosecutor, the parties, the defender, and the litigant may question witnesses and evaluators. When the chief judge finds that the content of the questioning is unrelated to the case, it shall be stopped.
[Article 195].Public prosecutors and defenders shall present physical evidence to the court for the parties to identify, and shall read out the testimony records of witnesses who have not appeared in court, the evaluators' appraisal opinions, inquest records, and other documents that are used as evidence. Adjudicators shall hear the opinions of the public prosecutor, parties, defenders, and litigants.
[Article 197.]Paragraphs 1 and 2During the course of court proceedings, the parties, defenders, and litigants have the right to apply for notification of new witnesses to appear in court, to collect new physical evidence, and to apply for a new appraisal or inquest.
Public prosecutors, parties, defenders, and litigants may apply to the court to notify a person with specialized knowledge to appear in court and submit opinions on the evaluation opinions made by the evaluator.
[Article 198, paragraphs 1 and 2.]During the course of court trial, the facts and evidence related to the conviction and sentencing shall be investigated and debated.
With the permission of the presiding judge, the public prosecutor, parties, defenders, and litigants may express their opinions on evidence and the circumstances of the case, and may debate with each other.
[Article 210].Private prosecution cases include the following cases:
1) Cases that are handled only upon complaint;
2) Minor criminal cases in which the victim has evidence to prove it;
3) Cases where the victim has evidence showing that the defendant's conduct violating his or her own rights in person or property shall be pursued for criminal responsibility in accordance with law, but the public security organs or people's procuratorate do not pursue the defendant's criminal responsibility.