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The Lecture¡±Prosecution-Defense Skills in Court from the Perspective of a Judge¡± was Successfully Held

On the afternoon of November 21, Senior Judge Jin Changwei from Beijing No.2 Intermediate People¡¯s Court was invited by the professor Liu Jihua, the associate director of Centre for Criminal Jurisprudence Renmin University of China, to give a lecture about the prosecusion-defense skills at trial from a judge¡¯s perspective.

At the beginning of the lecture, Judge Jin said it was an honor to exchange ideas with students from Renmin Law School. He was also willing to share with participants his practical experience at the court, with the hope that it will help us combine theory with practice and think thoroughly.

Judge Jin introduced the duty and position of a defender under article 37 of Criminal Procedure Law of the People¡¯s Republic of China as a lead-in. He noted that some common mistakes in practice usually result from the misunderstanding of the duties and position of a defender. Judge Jin expressed his opinion based on the ¡°rigidly sticking to procedure¡±phenomena which arises heated attention and controversies among practice field. It is the defender¡¯s right granted by the law to raise objection to the procedures such as jurisdiction and disqualification, which improve the judicial procedures and the rule of law. But the defender should not transgress laws, regulations, and rules of conduct for lawyers, going to extreme and continuously objecting. That does no good to the trial. Meanwhile, the judge should strengthen his or her control over the court, improve the understanding of the spirits of legislation, laws and relevant judicial interpretation, and prepare well for the trials to appropriately handle the emergencies in court.

Later, Judge asked the students whether a defender can put forward a defense opinion opposite to that of the defendant. Specifically there are three circumstances : (a) expressing defense opinions of guilt when the defendant does not plead guilty; (b) expressing defense opinions of innocence when the defendant pleads guilty; (c) expressing defense opinions of aggravated guilt whether or not the defendant pleads guilty. The first two circumstances are common and do not transgress article 37, because in criminal defense, the defender has an independent position during proceedings and can express different views from the defendant. The third one apparently goes against the duty of defense lawyer, but it does exist in practice under the circumstances of equipping all criminal cases with defense lawyers. The lawyers working in criminal defense are not all well qualified and competent. Some lawyers, especially those who have never practised in criminal defense service, are lacking in professional knowledge and skills. They may read case files carelessly, and do not catch up with current laws and regulations, so in reality they express defense opinions of aggravated guilt.

Subsequently, Judge Jin talked about three sets of rules and procedures of criminal court trials issued by the Supreme People¡¯s Court earlier this year to illustrate the prosecution-defense in court from his perspective.

The first set is the pretrial conference rules and procedures. First of all, as for whether a defender should apply for a pretrial conference, Judge Jin thought that in some situations it is necessary for a defender to initiatively apply for the pretrial conference. On one hand, in the collateral civil suit of personal injuries or destruction of property, the defender can positively advise the defendant and the family to compensate for the damages in order to earn the forgiveness of the victim and the family. This can be served as evidence of lesser sentence and is one of the primary functions of defense lawyers. On the other hand, when there are lots of disputes over the evidence and there is a need to another verification and obtaining of evidence, the judge, prosecutor and defender can together express their opinions at a formal and serious pretrial conferences. It improves the efficiency of court trial and benefits the concentrated hearing by avoiding a second hearing resulting from the application of the defender at the first hearing. Next, Judge Jin gave answers to questions about whether a defender can attend a pretrial conference and whether the content of it can be disclosed. According to the set of rules and procedures, prosecutors and defenders ought to attend pretrial conferences. The defendant should be permitted to attend if he applies. Judge Jin mentioned that, in practice the defendant usually attends the pretrial conference to ensure better results. In regard to the way the pretrial conference is held, it is usually held private since it¡¯s not a formal hearing. But exceptionally the family will be allowed to sit in, such as the hit case of Zhang Koukou. Thirdly, in terms of the way to present evidence at pretrial conference, Judge Jin answered the questions about whether a list or detailed content of evidence will be disclosed. In practice, simply displaying a list of evidence cannot fulfill the purpose of presenting evidence. It is difficult for the defendant to give his opinions if he knows nothing about the evidence. Therefore, in general, the evidence will be read out and then the opinions are expressed by the two parties. If there is no objection, only the list of evidence and the point it proves will be presented at trial. If there is objection, the two parties will further express their dissent and cross-examine at the formal trial. The last question was about the validity of pretrial conferences. The set of rules and procedures stipulates that the parties of pretrial conference should endorse the transcript of the conference, including the prosecutor. As for whether the defense can overturn the agreed items at pretrial conferences, it depends on concrete situations. If the defender calls back procedural items without new reasons, the court will usually dismiss his application. If he expresses dissent to relevant evidence and asks to present it in detail, normally the court will approve because issue about evidence is a substantive matter at trial.

The second set is the exclusion of illegally obtained evidence. First, how can a defender assist the defendant in starting the procedures for exclusion of illegally obtained evidence? Under the set of rules and procedures, the defense should provide relevant clues and materials to start the procedure. In practice, for concerns about adequately protecting the proceeding rights of the defendant, normally the defendant only has to provide tractabale clues or prove the doubtful points of illegally obtaining evidence. The court only conducts a formal examination of the clues and materials but not a substantial one. The second part deals with the scope of exclusion of illegally obtained evidence. It focuses on the evidence obtained by the investigation organ through illegal methods and procedures, and centers around the legality. To be specific, the scope includes the confession of the defendant, the statement of the victim, witness testimony, physical and documentary evidence, etc. Basically, objections to the verification matters will not be considered. As for the illegal methods, the set of rules and procedures defines it as methods of violence, threat and illegal restriction of personal freedom, but does not stipulate other illegal methods such as seduction, deception and fatigue interrogation. Does this mean that they are not illegal methods? What is the boundary between interrogation strategy and illegal interrogation? These are all controversial problems that are worth discussion. Thirdly, what¡¯s the burden of proof for the two parties? It is stipulated that the People¡¯s Procuratorates bear the burden of proof for the legality of obtaining evidence, not the defense. In practice, some prosecutors use the absence of strong evidence to prove illegal methods of obtaining evidence as excuses. But according to in the view of Judge Jin, the People¡¯s Procuratorates should bear unfavorable legal consequences if they failed to prove the legality of obtaining evidence. Fourth, how can a prosecutor prove the legality of obtaining evidence? The main methods are as follows: presenting interrogation records, physical examination records, legal documents for taking coercive or investigative measures, verification materials on the legality of interrogation before the end of investigation; purposefully playing the recording and video of interrogation; investigators explaining the situation in court, etc.
The third set is about the rules and procedures for investigations in court. The first is the pretrial procedures, including reading case files, pretrial meetings, and application for procedural matters. Second, the trial procedure, including court investigation and debate. Judge Jin pointed out that at the stage of court investigation, the prosecutor should interrogate about alleging the facts of crime, asking more objective facts and less subjective qualitative ones, because the statement of the defendant is quite subjective and somewhat based on the instinct of seeking advantages and avoiding harm. Prosecutors should seek after objective facts which reflect the subjective attitudes of the defendant. The purpose of questioning for the defender is different from that of the prosecutor, because the defender aims at presenting evidence of innocence or minor guilt to the judge when asking questions. In terms of the cross-examination of evidence, Judge Jin proposed that it should focus on the alleged facts of crime, and doesn¡¯t have to present the weak or less relevant evidence concerning the crimes one by one. At the stage of court debate, Judge Jin believed that the prosecution opinions should be comprehensive. It should allege the crime with convincing evidence, determine the nature of crime according to the constitutive elements of crimes, and give suggested sentence based on the sentencing factors. The defense opinions should give reasons of innocence or minor guilt based on previous stages of questioning and cross-examination. Someone asked that whether a defender can make defense of both innocence and minor crimes. Purely under the provisions of law, it is not prohibitive. But the outcome of the defense may not be favorable, for reasons that the questioning, cross-examination will be less targeted with a vague purpose of defense. The last is about the post-trial procedures, including the submission of defense documents and meeting after judgment. A comprehensive illustration of defense document, such as those citing guiding cases or similar cases, will help the judge clarify the facts and apply the law. Post-trial meeting and answering questions about the interpretation of the law will help the defendant and his family understand the law and avoid unnecessary litigation.

In the end, Judge Jin concluded that the reforms of trial-centered criminal procedure system should center around court trial. Up to now, the reform of judicial systems in China has made initial progress. Law students should have faith in China¡¯s rule of law and devote themselves to promoing the rule of law.

(Editor: QIN Siqian)

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