Viewpoint... Research on the right of lawyers to investigate and collect evidence under trial centrism.
Published:
2020-12-28
Abstract: With the advancement of the rule of law in China, the trial of criminal cases in judicial practice has gradually replaced the traditional investigation-centered way of handling cases. The change in the way of hearing cases has put forward higher requirements for the defender's right to defend, especially the lawyer's right to investigate and collect evidence. This article is divided into four parts, the first part mainly describes the necessity of trial centrism and the meaning and content of the lawyer's right to investigate and collect evidence. The second part mainly discusses the higher requirements of trial-centered case trial methods for the equality of prosecution and defense and effective defense. The third part mainly analyzes the difficulties encountered in the practice of the lawyer's right of investigation and evidence collection. Finally, the fourth part mainly puts forward two ways to protect the lawyer's right to investigate and collect evidence.
Keywords: trial centrism investigation and evidence collection right equality of prosecution and defense
Overview of 1. Trial Centrism and Lawyers' Right to Investigate and Obtain Evidence
(1) Overview of trial centrism
Trial centralism means that all procedures of criminal proceedings should be trial-centered, that is, members of a special collegial panel of the people's court preside over the evidence in court after both parties cross-examination and authentication before it can be accepted, and the judgment is formed in the court. In the early years, our country focused on cracking down on criminal activities. For a considerable period of time, it followed the "investigation centrism". The conviction and sentencing of criminal cases was centered on the investigation agency. Under the influence of "investigation centralism", judges will inevitably implement case file centralism when trying criminal cases by investigating criminal activities and collecting criminal evidence. The so-called "case file centralism" means that the judge takes the case file as the standard, which leads to the formalization of the trial. Before the trial begins, the judgment of the case is often made. Investigation agencies often use cracked cases as indicators for assessing business, so investigators tend to be guilty of criminal suspects, and will ignore or not submit evidence that can prove the innocence of criminal suspects to the prosecution agency when collecting evidence involved in the case. Investigation centralism makes the public power of investigation organs not supervised, which can easily infringe on the private rights of citizens and cause unjust, false and wrong cases. With the passage of time, more and more scholars put forward "trial centrism". Only in this way can the judge, as a neutral judge, protect human rights while cracking down on crime.
(2) Overview of the lawyer's right to investigate and collect evidence
In order to exercise the defendant's right of defense, the lawyer's defense strategy is mainly two methods, first adduce evidence in favor of the defendant, and then refute the prosecution's claim, so that the neutral judge can make a fair judgment. Evidence is the focus of the argument between the accusing party and the defending party, and the lawyer must go to the scene of the case to investigate and collect evidence. Unlike investigative agencies, lawyers, as an individual, have limited rights to exercise, and it is difficult to collect many evidence that is beneficial to the defendant.
The Requirement and Significance of 2. Trial Centralism for Lawyers' Right to Investigate and Obtain Evidence
(1) Trial-centrism requires equality of prosecution and defense
In order to realize that the trial process is not a mere formality, the accusing party and the defending party should be able to engage in substantive confrontation. The premise to achieve this goal is to protect the defense lawyer's right to investigate and collect evidence. Evidence is the core of the debate, and all defense is carried out around the evidence. The strength of the prosecution and the defense is very different. The prosecution, which represents the public power, has legal effect in the investigation and collection of evidence. The witnesses and organs that do not cooperate will receive legal sanctions. Defense lawyers should not only worry about the non-cooperation of witnesses and organs, but also worry about witnesses going back on their word in court and making opposite testimony to shift the responsibility to lawyers.
(2) Trial-centrism requires an effective defense
The defense that the defendant has the right to obtain refers to the effective defense. The so-called effective defense, that is, the evidence presented by the defense lawyer in court, has the same effect as the evidence collected by the investigation organ, and can be accepted by the judge. To be effective, lawyers need to do a lot of preparation, including gathering evidence and issuing legal opinions for their clients. Most importantly, defense lawyers can obtain key evidence that can affect the judgment of the case, so it is very important to ensure that defense lawyers have effective access to evidence.
The Realistic Dilemma of Lawyers' Right to Investigate and Obtain Evidence under 3. Trial Centrism
(1) The right to investigate and collect evidence at the investigation stage is not clear.
After the revision of the Criminal procedure Law, it is determined that criminal suspects can entrust lawyers as defenders at the stage of investigation, and defense lawyers have the right to meet and communicate with criminal suspects. however, the right of defense lawyers to investigate and collect evidence is not given a mandatory attribute. There are two main types of academic disputes. The former view is that according to the understanding of Article 41 of the Criminal Procedure Law, defense lawyers naturally have the right to investigate and collect evidence during the investigation stage. The latter view holds that defense lawyers only have the right to meet and communicate at the investigation stage, and do not have the right to investigate and collect evidence. The author believes that since the "Criminal Procedure Law" clarifies the identity of the lawyer's defender at the investigation stage, the defender has the right and obligation to collect witness testimony that can prove the suspect's innocence or misdemeanour. The right of investigation and evidence collection of defense lawyers is both a right and an obligation. From the perspective of pursuing fairness and justice, it is necessary for the state to stipulate the right of investigation and evidence collection of lawyers to better balance the power of both the prosecution and the defense. From the point of view of the client, the defense lawyer of the criminal suspect has the obligation to investigate and collect evidence in the investigation stage in order to safeguard the interests of the criminal suspect. The lawyer's right to investigate and collect evidence in the investigation stage can be regarded as an extension of the criminal suspect's right to defend. Because personal freedom is enforced, the criminal suspect cannot collect evidence that is beneficial to him, so he can grant his defense right to the defense lawyer and entrust the lawyer to exercise the right to investigate and collect evidence.
(2) Difficulties in exercising the right to investigate and collect evidence
Defense lawyers will not interrogate every witness for a criminal case, nor can they go to the authorities involved in the crime to collect evidence, nor can they guarantee that witnesses will not temporarily rebut their confessions. Although they can apply to the people's Procuratorate and the people's court for investigation of relevant evidence, it is not as good as ideal. As the prosecution organ for cracking down on crimes, the purpose of the people's Procuratorate in court is different or even opposite to that of the defense lawyer. Therefore, even if the lawyer applies to the people's Procuratorate to obtain evidence related to the case, the people's Procuratorate usually does not cooperate. The people's court is a full-time organ for hearing cases, and judicial resources are in short supply, and it is unlikely to set aside manpower and material resources to facilitate lawyers' investigation and evidence collection.
The Protection of Lawyers' Right to Investigate and Obtain Evidence under 4. Trial Centrism
(1) Clarify the lawyer's right to investigate and collect evidence
The "Criminal Procedure Law" and the "Lawyers Law" regarding the exercise of defense rights, investigations and evidence collection by defense lawyers do not give a certain amount of coercive force. In the final analysis, the law does not provide for legal consequences. For legal rights, when the other party hinders the exercise of their rights, the other party will bear certain legal consequences, that is, the other party has the obligation to cooperate with their own exercise of rights. The lawyer's right of self-investigation does not have this attribute. If the relevant unit or individual refuses to cooperate with the lawyer's investigation, the relevant unit or individual will not bear certain adverse consequences. Therefore, the author thinks that the legal consequences of not cooperating with the lawyer's right to investigate and collect evidence and the remedies for the right to investigate and collect evidence should be clearly defined in the Criminal Procedure Law. Of course, some scholars will worry that once such rules are implemented, lawyers' right to investigate and collect evidence will have the nature of public power, and they are worried that defense lawyers who are non-state staff will use this right where they should not be used. In the author's opinion, as a legal person, the duty of care of lawyers themselves is not much lower than that of prosecutors and judges. The threat of revoking the lawyer's professional certificate makes lawyers use this right of investigation and evidence collection cautiously.
(2) Introduction of investigation order system
Investigation orders were first used in civil enforcement cases. Due to limited judicial resources, it is impossible for the court to carefully screen the property of each person subject to execution. Therefore, when the lawyer finds clues about the property of the person subject to execution, the lawyer can apply to the people's court for an investigation order. Then rely on the investigation order to request the relevant units or individuals to cooperate. The author believes that the investigation order system can also be applied to the investigation and evidence collection of criminal cases. Many scholars are concerned about whether the investigation order system is suitable for application in criminal cases, mainly because of the great influence of criminal cases. If the defense lawyer of the defendant is allowed to apply for the investigation order, it is difficult for the victims and their families and even the public to accept it. Therefore, the author believes that the investigation order system can be tried out in some negligent crime cases or cases with little social harm, such as traffic accident crime, environmental pollution crime and so on.
Of course, the system of investigation orders is not an abuse, and the application of this right should be reduced at the same time that a lawyer is allowed to apply for an investigation order. For example, only evidence or testimony that has a significant impact on the case can a lawyer apply to the people's court for an investigation order through a specific form, and the people's court should conduct a substantive review of the application form for an investigation order submitted by the lawyer and strictly examine the circumstances under which the investigation order was issued.
Conclusion
The inherent requirement of a State governed by the rule of law is the materialization of the trial, and the inherent requirement of the materialization of the trial is to guarantee the exercise of the defense rights of defense lawyers. Compared with the national prosecution agency, both the criminal suspect and the defense lawyer belong to the weak party. How to carry out the precise system design, so as to achieve the substantive equality through the formal inequality is a subject worthy of scholars' research. I hope that through the author's shallow opinion, more legal people will pay attention to this point.
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