In criminal cases, a very crucial right for criminal defense lawyers is the right to read the case file, and only through reading the case file can the lawyer understand the situation of the entire case and facilitate the defense opinions for the criminal suspect or defendant. So when can a criminal defense lawyer exercise the right to read the file?
1. When can a criminal defense lawyer exercise the right to read the case file?
Criminal cases are divided into three stages: investigation, review for prosecution, and trial, and it is not allowed to read the case file during the investigation stage. The lawyer can only ask the judicial organ orally about the facts of the case, and the judicial organ shall tell the lawyer the charges and the progress of the case. Only when a case is reviewed for prosecution can a lawyer have the right to apply for access to the case file.
It should be noted that during the investigation period, when the public security organ applies to the procuratorate for approval of arrest, the case file will be transferred to the procuratorate for a short time, but it is not allowed to read the case file during this time.
According to article 40 of the Criminal Procedure Law, defense lawyers may consult, copy, and reproduce the case file materials from the date on which the people's procuratorate reviews the case for prosecution. With the permission of the people's courts and people's procuratorates, other defenders may also consult, copy, or reproduce the materials described above.
In other words, when the investigation of the entire case is concluded, the public security organs will transfer the case to the procuratorate, and the people's procuratorate will examine and decide on all cases that need to be prosecuted. From the date on which the case is transferred for review for prosecution, the defense lawyer shall promptly contact the people's procuratorate or people's court to handle matters such as reviewing, copying, and reproducing case file materials.
Under normal circumstances, if a criminal case has been returned for investigation twice, the lawyer needs to read the case file more than three times, and if other evidence needs to be collected, it will be more than three times.
If the case file is not read when the case is reviewed for prosecution, and the case reaches the trial stage, the lawyer needs to go to the court to read the case file.
2. What can I do after grading?
The main tasks after marking are:1interviews to check evidence; 2.collecting, collecting, or excluding illegal evidence; 3. Submit legal opinions and make an appointment with the procuratorate.
1.interviews to check evidence;
After the lawyer reads the case file, on the one hand, he needs to check with the criminal suspect if he has any doubts about the evidence; On the other hand, it is necessary to inform the parties of the evidence in turn, and then the parties should raise them with the lawyer if they have doubts about the evidence, and if there are omissions in the evidence, they need to apply for collection. In practice, there is still controversy over the scope of evidence that lawyers can verify with their clients, but basically there is no dispute that lawyers verify objective evidence and the transcripts made by the parties themselves, but there are still disputes about other verbal evidence such as the confessions of co-defendants and witness testimony.
2.collecting, collecting, or excluding illegal evidence;
After reading the case file and meeting with them, where there are doubts about the evidence, it is necessary to collect or collect evidence or apply for the exclusion of illegal evidence. If there is any doubt about the scene of an individual case, we will also go to the scene to find out the problem. For example, if the client says that the content of the transcript is not what he said, then the lawyer can apply to obtain the simultaneous audio and video recording of the interrogation, check whether it is true, and decide whether to apply for the exclusion of illegal evidence. Where no evidence has been collected, the suspect may provide relevant clues and apply to the procuratorate to collect them.
3. Submit legal opinions and make an appointment with the procuratorate.
The initial communication before reading the case file has a general view on the indictment opinion or the determination of relevant charges, laying the foundation for subsequent communication. At this time, the communication tends to be more general than specific to evidence and details.
After reading the case file, lawyers and prosecutors are gradually on an "equal footing". At this time, two things should be done: first, summarize the focus of the prosecution opinion and communicate and resolve it as much as possible; Second, discover the hidden dangers in the case and avoid aggravating or increasing the charges.
China's Criminal Procedure Law stipulates that if a lawyer applies in writing to meet with a procurator, the procuratorate shall arrange time to hear the defender's opinions in person in the reception room of the procuratorate. Then, if the case is disputed, there are no facts of the crime, or it falls under one of the circumstances provided for in Article 16 of the Criminal Procedure Law, it is necessary to make an appointment with the procurator to express their opinions.
Supplemental Investigation Communication:1After clarifying the focus of the case with the undertaker, further communicate whether the evidence is sufficient, and find out whether the undertaker has the idea of supplementing the investigation and the direction of the investigation, and the lawyer may also submit relevant opinions. 2.Attention should be paid to promptly conducting a review and analysis of supplementary investigative evidence. 3.Where the evidence is still insufficient, an attempt may be made to communicate a decision not to prosecute.