Lawyer Zhang Hongqiang's research on gambling crimes, prohibiting copying and plagiarism.
1. If you are arrested, you confess to doing it, and you admit your guilt, is it possible to be innocent?
2. Is it possible to reduce the amount of money and keep the property by admitting the amount of the gambling confession and the amount of illegal gains?
The answer is: it is entirely possible, the confession is only one of the evidence, and the key depends on whether the defendant's confession is corroborated by other evidence, otherwise, even if the defendant admits guilt and admits an amount of illegal gains, it may not be established in the end.
Today, I will talk about how to fight for innocence and reduce illegal gains from the perspective of confession.
There are often some gambling **, after being arrested, in order to be released on bail pending trial, or because they were induced to confess, misled and other reasons, in the first few confessions, they admitted that they had done ** against their will, and arbitrarily admitted the amount of illegal gains, and then retracted the confession after their minds came to their senses.
Many lawyers believe that just the amount of the confession will be true, which is not true, for example, in several cases I have handled
Case.
1. The confession admits guilt, admits that the profit from the pumping is more than 150 yuan, the retraction of the confession is established, and the court does not find the guilty confession.
Let's look at the confession first: The confession admits to doing **, and the profit from the pumping is more than 150 yuan.
The opinion of the public security organ is that during the interrogation, there was no torture to extract a confession from the defendant, the defendant voluntarily pleaded guilty, and there is sufficient evidence to prove that the defendant made a profit of more than 150 yuan from gambling ***.
In the end, the court adopted our lawyer's opinion, holding that although the defendant confessed to it, because the evidence collection procedure was illegal and the evidence was insufficient, the confession was finally retracted, and the court did not find the facts of the crime of more than 1.5 million yuan.
Case 2: The confession admitted that he had made a profit of more than 200 yuan, and later retracted his confession, and finally the procuratorate determined that the amount of illegal gains was 40,000 yuan.
Confession:
Screenshot of the procuratorate's opinion: The final determination of the illegal gains was 41,060 yuan, not more than 200 yuan as stated in the confession.
Case 3: The defendant confessed that he had made a profit of more than 150 yuan from the pump, and the public security bureau and the procuratorate determined that the defendant had made a profit of more than 300 yuan, and then the defendant retracted his confession, and the court of first instance originally determined that the defendant had withdrawn more than 250,000 yuan of illegal gains.
Defendant's confession: admits to pumping more than 150 yuan.
The procuratorate determined that the defendant had illegal gains of more than 300 yuan.
The original court of first instance found that the defendant's illegal gains amounted to more than 250,000 yuan.
Case 4: The suspect confessed that he made a profit of more than 200 yuan, but because the ** server was overseas, there was no other evidence to prove it, so it could not be verified and identified.
1. On the issue of confessions and how to deal with retracted confessions.
When handling a case, our lawyers will review the following aspects of the confession:
1. Whether there is any situation of being tortured to extract confessions, inducing confessions, or fatigue interrogation.
2. Whether the confession has formed stability.
3. Is there any other evidence to corroborate the confession?
4. Whether there is any contradiction between the confession and other evidence.
Contradicting the testimony of witnesses and other confessions of co-defendants.
Contradictory to bank statements.
Contradicts electronic data.
There are contradictions with other evidence.
The following principles and legal provisions should be taken into account:
If you don't believe a confession, you can't be convicted if you confess your guilt.
Legal basis: Article 55 of the Criminal Procedure Law: Do not believe confessions.
Article 55 of the Criminal Procedure Law:In sentencing all cases, emphasis should be placed on evidence, investigation and study, and confessions should not be easily believed. Where there is only the defendant's confession and there is no other evidence, the defendant cannot be found guilty and punished; Where there is no confession from the defendant and the evidence is credible and sufficient, the defendant may be found guilty and given a punishment.
The evidence is credible and sufficient, and shall meet the following requirements:
1) The facts of conviction and sentencing are all supported by evidence;
2) The evidence on which the verdict is based has been verified to be true through legally-prescribed procedures;
3) Summarizing all the evidence in the case, reasonable doubt has been eliminated as to the facts ascertained.
and review whether the process and procedures for obtaining a confession are lawful.
The following content shall be emphasized in the review of the defendant's confession and justification:
1) Whether the time and place of the interrogation, the identity and number of interrogators, and the methods of interrogation comply with laws and relevant provisions;
2) Whether the drafting or revision of the interrogation record complied with laws and relevant provisions, whether the specific start and end time and place of the interrogation were indicated, whether the defendant was informed of the relevant rights and legal provisions during the first interrogation, and whether the defendant checked and confirmed;
3) When interrogating juvenile defendants, whether they are notified that their legally-designated persons or appropriate adults are present, and whether relevant personnel are present;
4) Whether female staff members were present during the interrogation of female juvenile defendants;
5) Whether there are circumstances in which the defendant's confession was collected by torture or other illegal methods;
6) Whether the defendant's confession is consistent, whether there are repetitions, and the reasons for the recurrence;
7) Whether the defendant's confession and justification were all transferred with the case;
8) Whether the content of the defendant's defense conforms to the facts of the case and common sense, and whether there are any contradictions;
9) Whether the defendant's confession and justification can corroborate each other with the confession and justification of the defendant in the same case, as well as other evidence, and whether there are any contradictions; If there is a contradiction, can it be reasonably explained. When necessary, a review of the defendant's confession and justification may be conducted in conjunction with on-site law enforcement audio recordings, audio and video recordings of interrogations, records of the defendant's health examinations entering and leaving the detention center, and records.
Legal basis: Articles 93 and 94 of the Judicial Interpretation of the Criminal Procedure Law.
and how to deal with retracted confessions.
Review of the defendant's confession and defense shall be conducted in conjunction with all evidence provided by the prosecution and defense, as well as all of the defendant's confession and defense.
Where the defendant retracts his confession at trial, but cannot reasonably explain the reasons for the retraction or his argument contradicts the evidence in the entire case, and his pretrial confession is mutually corroborated with other evidence, his pretrial confession may be accepted.
Where the defendant's pretrial confessions and defenses are repeated, but they confess at trial and are mutually corroborated with other evidence, their trial confessions may be admitted; Where the defendant's pretrial confessions and defenses are repetitive, and they do not confess at trial, and there is no other evidence to corroborate the pretrial confession, their pretrial confession must not be accepted.
Legal basis: Article 96 of the Judicial Interpretation of the Criminal Procedure Law.
II. Some basic issues and precautions regarding confessions.
In online gambling cases, there are often cases where the defendant's confession goes back and forth, in fact, they don't know how to deal with it, and they don't know the relevant laws and regulations.
1) The content of the confession.
I have summarized in detail the content of confessions in such cases, and the scope of interrogation by the public security organs generally does not exceed the scope of my summary.
2) Things to look out for.
1. Pay attention to the common interrogation tactics of the investigative organs, know how to deal with them, don't talk casually about things that you can't get or remember clearly, and seek truth from facts. If you do not know the relevant legal provisions, you have the right to request a lawyer.
2. Don't admit some facts against your will in order to be released on bail pending trial. Release on bail pending further investigation is not the goal, and after release on bail pending further investigation, if there is sufficient evidence, how should it be sentenced.
3. About **account: whether you have **account, whether it is **account or player account. In practice, most of the identity of online gambling criminal subjects is determined through interrogation of criminal suspects, but if the criminal suspect denies the facts of the crime or has a vague memory due to the excessive use of online identity, the same identification of the criminal subject will fall into passivity.
In the case of uncertainty about the specifics, do not sign on some screenshots or ** casually. In particular, the screenshot of the account, the screenshot of the bound bank card, the screenshot of the registration information, the screenshot of the chat history, etc.
Pay special attention to the identification of mobile phone numbers, QQ numbers, bound bank cards, etc. in the ** account. In particular, there is a problem with the bound bank card.
In the case of Liu, a certain platform, the confession initially admitted that 4 bank cards were bound, and the 4 cards flowed in a total of more than 600 yuan, and the procuratorate believed that the defendant could not give a reasonable explanation for the more than 600 yuan, and determined that Liu had obtained more than 600 yuan through gambling.
The defendant retracted his confession in court, saying that he only bound a bank card, and that the rest of the money was money for virtual currency and server rental, but he could not provide account information for speculating virtual currency.
The court of first instance did not adopt the procuratorate's public prosecution opinion, but adopted the opinion after retracting the confession, and finally determined that Liu's illegal gains were more than 290 yuan, case number: (2019) Gan XX Xingchu No. 79.
4. Whether there is any promotion, and whether the promotion is aimed at Chinese nationals or citizens of foreign countries. This was the case of one of the five gambling platforms I'm working on, where the ad link was linked to a ** in Denmark rather than in the country**.
5. About the offline issue: whether there are offline members and gamblers, whether there are test numbers, empty **, zombie numbers, robot numbers, gift numbers, etc. among the offline members, and whether there is a number registered with the information of relatives and friends.
In Hu's case, he confessed during the investigation stage that he had recruited more than 1,000 members to participate in gambling, but retracted his confession at the court stage, saying that the members were distributed by the main station, and that he had not recruited many members, and that the public security organs could not verify the details of gambling funds and the details of members; Therefore, the court held that the public prosecution's accusation of more than 1,500 people was not established. The retraction was established. Case No.: (2018) Ji XX Xingchu No. 774.
6. On the issue of gambling funds: whether to accept bets, whether to score up and down on behalf of others, whether they have bet amounts, whether there are double counting, two-way flow problems.
In the case of a platform **, the defendant admitted in the previous confessions that the gambling funds involved in his own development were more than 6.94 million yuan, and later retracted his confession, and finally the court adopted the opinion after retracting the confession.
7. On the issue of illegal gains:
You must distinguish whether your income is won by gambling by yourself, or the margin of developing downlines.
In the case of a platform ** I handled in 2019, the ** initially admitted that he had made a profit of more than 179 yuan, and later retracted his confession that he was also involved in gambling and won more than 150 yuan, and the pumping only drew more than 100,000 yuan, and finally the retraction was established.
Whether there is a rebate for the upper and lower lines, preheating gold, etc.
Whether there is a rebate generated from betting on an account under your control.
Whether you can have some reasonable explanation for your income, whether you do virtual currency trading, virtual trading, other businesses, etc.
In many cases, there are cases where the defendant retracts his confession and says that he has lawful income, and in many cases, the opinion after the retraction of the confession is adopted.
If you are not sure about the specific situation, do not sketch your bank statement casually.
When we handle cases, we often encounter situations where the defendant himself sketches out his bank statements and confirms them as illegal gains and then retracts his confession. The two ** cases I encountered this year were both cases where bank statements were drawn, and confessions were retracted to say that they were sketched indiscriminately, not that the flow of money will definitely be recognized.
Online gambling ** suspected of opening a casino criminal case, confession is not the most important evidence, our lawyer in the handling of the case, do not fall into the misunderstanding, think that like many traditional cases, confession can decide everything, in the case of online gambling ** open casino crime, electronic evidence is the most critical evidence for conviction, its role is greater than the confession, if there is no problem with electronic evidence collection, even zero confession can be convicted, so our lawyers want to protect the legitimate rights and interests of suspects in this kind of case, It is necessary to master the experience and skills of cross-examination of electronic evidence.
I will talk more about the experience and processing thinking of this part in the next article.
Zhang Hongqiang's lawyer**Other articles:
Research on Online Gambling Crime (1): Striving for Innocence from the Account
Research on Online Gambling ** Crime (2): Striving for Innocence from the Confession".
Research on Online Gambling Crime (3): Striving for Innocence from Electronic Evidence
Research on Online Gambling Crime (4): Striving for Innocence from the Reasons for Being Caught
Research on Online Gambling Crime (5): Striving for Innocence from the Promotion and Drainage".
Research on Online Gambling Crime (6): Reducing the Amount of Gambling Funds and Illegal Gains - Preserving Property
Online Gambling ** Crime Research (7): Reducing the Number of Downlines".
Research on Online Gambling Crime (8): Qualitative Issues of Brushing Water and Brushing in Gambling
Author: lawyer Zhang Hongqiang, ** copying is prohibited. Mr. Zhang Hongqiang focuses on the research of gambling live streaming cybercrime.
Lawyer Zhang Hongqiang's all-round research on gambling crimes, if you are interested, you can search for lawyer Zhang Hongqiang's personal **.
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