Criminal defense, methodology first, if the defender has no methodology, it is like a driver without a sense of direction, going around in circles, it is easy to get lost...... In the process of practice, he constantly learns from experience and lessons, constantly thinks and refines, extracts the essence and wisdom of China's local defense from a large number of defense phenomena, and summarizes the defense methodology rooted in China from similar cases, in order to be able to precipitate some of his own thinking for the industry and illuminate the way forward for latecomers......
Criminal defense, only by writing - writing, in order to measure the length of their thinking, only by speaking - speech, in order to measure the depth of their thinking, horizontal and vertical coordinates extend and staggered points, is their own accurate positioning, so repeated self-examination, criticism, correction, in order to continue to surpass, just like the computer software system can continue to upgrade, upgrade, upgrade......
Defenders, for fear of being automated in the comfort zone of defense, repeatedly, and constantly degenerating; The defender, for fear of being narcissistic in the blind spot of the defense, entertains himself and constantly ossifies...... Taking the mirror as a mirror, here is a half-moon reflection - 13 golden rules of criminal defense for colleagues and friends:
Rule 1: Slice the details – make the impossible possible
At present, in China's investigation mode of giving priority to "objective evidence", each criminal case has been examined by three judicial filters: public security investigation, procuratorate review and prosecution, and court judgment in accordance with the law. Therefore, this period of life for the family members is heavy, thrilling and challenging...... It is necessary for the defender to use legal techniques to review, reconstruct, and deduce - trembling, walking on thin ice, as if he is trembling, trembling, walking on thin ice, and then the defender needs to disassemble, subdivide, exhaustively think to the extreme, and then arrange the slices of factual details one by one, and salvage the shimmering slices "in the cracks" and submit them to the judge, showing the "warmth of the law" with argumentation, the defender makes the seemingly impossible possible, and the defender makes it absolutely impossible to shake, so that the family can feel the "warmth of the law and the dawn of freedom". It's like the hard road surface seems indestructible, and the grass has done its best to evolve the miracle of life - breaking through the ground!
Rule 2: It is better to teach a man to fish than to teach him to fish
In a robbery case, the facts are unclear, the evidence is insufficient, the suspect has been detained in the detention center for 4 years, and the case has been remanded for retrial twice, but there is still no conclusion. I've seen 11 lawyers......" After the accurate analysis and argumentation, the family said the second sentence: "Lawyer Tian, please defend me according to the law, some lawyers are really not as professional as me, because I have memorized all the provisions of the Criminal Law and the Criminal Procedure Law in the detention center for 4 years, which is equivalent to studying for a graduate student." In my life, I want to appeal to the Supreme People's Court, and I want to redress my grievances, so I ask Lawyer Tian to do his best to redeem me, please. ”
Late at night, I repeatedly pondered the words of the family members of this "suspenseful and difficult case", in fact, the master is not "repeatedly do one thing" can be forged and cultivated, otherwise people who play mahjong every day are estimated to be able to "break the Guinness record", the real master is to do one thing repeatedly on the basis of "repeatedly pondering, refining, and nurturing methodology", the same thing pondered out 3 or 5 kinds of methodology, this is the advanced road of forging masters, as long as you learn how to look up the dictionary, there is no need to memorize all the Chinese dictionary...... In this case, he has met 11 lawyers, and there must be duplicate defense strategies and plans, if the defense strategies and plans I have formulated and the defense breakthroughs I have proposed are similar to those of the previous lawyers, I will certainly not be able to convince the family members, how can I talk about an effective defense?
Rule 3: Preconceived Ideas - Judicial Delusional Disease
At the beginning of a certain case, the co-defendant's defender raised 13 major doubts, which were interrupted 6 times by the judge, and the judge said, "Defender, this is all speculation, please bring evidence to ......" "Defender: I am ...... reasonable doubt" After the trial, the court phenomenon was dissected as follows: reasonable doubt and groundless speculation are twin brothers, but there are substantial differences between the two. All reasonable doubts are based on evidence, and suspicions that are not supported by evidence or weak and sporadic evidence will slide into groundless speculation, and the legislative spirit behind it is "preconceived". Lawyers should be objective, rational and speculative, and the preconceived guilt of the prosecutor or the preconceived innocence of the defender is a judicial "delusional disease" -- otherwise, it will slide into "pseudoscience", which can easily lead to unjust, false and wrongful convictions, reasonable doubt is the spirit of scientific empirism, and groundless speculation is evidence nihilism. Therefore, if there is no evidence to support it, there is no logical penetrating argument, and I would rather choose to remain silent in court than to put on a catwalk......
Rule 4: Steal the concept - fall into the black hole of delusional worry
In one case, the family was overly worried, sending dozens of WeChat messages or constantly calling every night...... Question: Lawyer Tian, if the four lawyers of the co-defendant are all guilty pleas, and we do not plead guilty, will the judge have a bad impression of us? Aggravate the punishment for us?
We often encounter the worries of family members, in fact, to summarize the "100 kinds of worries" of family members, the commonality lies in "secretly changing concepts - falling into delusional worries", and family members are secretly changing concepts by themselves. Of course, as defenders, we can understand the anxiety of the family's deep predicament, but we must not be led into the ditch by the family - we must think rationally and objectively. Answer: If the case has a factual and evidentiary basis, and we have rationally and carefully argued, and the not-guilty defense strategy has a fulcrum and basis, then the judge will appreciate the defender who thinks at the same frequency and at the same level as him, which provides a reference system for his fair judgment, so how can the punishment be increased? If the defender is quibbling = vexatious, the judge is bound to despise it and may give a negative score to the verdict...... Therefore, the family's concern is "vexatiousness" rather than "rational defense of innocence". Failing to distinguish between the logical premise and the essence of the two will cause the family to fall into a "black hole of worry......
Rule 5: Weigh the evidence in a few pounds and taels - clarity is more powerful
For criminal defense lawyers, the ability to analyze evidence is hard work, and they must have the core ability to grasp the focus of the dispute. For example, when a case receives consultation from a family member, it is necessary to have intuitive thinking, quickly capture what the core evidence of the case is, and then, analyze it in detail, what is the objective evidence in the case, and first look at the objective evidence; Putting aside all the subjective evidence, can it still be convicted? What is the evidence in favor of this case? What is the evidence against the law, and what is the weight of each? Is there any relevance to each of them to the point of controversy? What conclusions can be drawn in the end? Is the standard of proof met? In defending a case, we must find out where the weakest point in the case is, where the hardest point is that is difficult to overcome, and where the inconsequential point is, so that we can achieve a definite goal and get twice the result with half the effort.
Rule 6: Ask questions and respond – the facts are indisputable
Questioning in court is to tell a story, reconstruct a more real and credible story, so as to shake or completely overturn the facts of the alleged crime...... Just like a river, which direction the defender digs, how deep and how wide he digs determines the direction and speed of the river, and ultimately determines whether it can flow to the sea.
However, the above is only an ideal situation, in the defense, our cases are often flawed, therefore, in the process of defense, facts, logic, skills and luck are in order, not reversed and confused, talent, skill, and logic are not as strong as facts, questions are based on facts, and logic is its soul. No skillful questioning can counter the power of facts. The general principle is: if there is no solid facts, it depends on logic, if there is no rigorous logic, it depends on skill, and if there is no flexible skill, it can only rely on luck...... Therefore, asking questions requires flexibility, instant capture, and clever responses.
Rule 7: Comparative Thinking - Civilization of Criminal Cross-examination
Criminal defense lawyers must not only have criminal defense thinking, but also civil and commercial thinking in order to get through. In practice, the procurator of the vast majority of criminal cases will not give the defender an outline of the list of evidence presented in advance, however, in civil cases, there is a clear objective of evidence (the name of the evidence, the content of the proof, and the form of evidence). In this case, if there are no conditions, we must create conditions, before the trial, we should anticipate the evidence catalogue (summarize the rules of similar cases), extract the core evidence items of the case, and then list and compare them one by one, and make a catalogue and summary of evidence. The purpose of this is to assist our court hearings, so that our court hearings are more accurate and efficient, therefore, the above needs certain standards, in my opinion, to do: general reading + intensive reading + point reading. The so-called general reading is to browse the dossier, intensive reading is to read one by one, and point reading is to read the major evidence in detail and split.
Rule 8: Split the details – enhance the picture
Questioning is the basic skill of criminal defense, and asking questions is to tell a story, that is, to surface the facts of the defense target through one question after another, so that the listener of the story feels more credible, and the defense is one-third successful. For example, in response to the focus of controversy on "did Zhang San use violence in rape", if the defender directly asked Zhang San whether he used violence? She replied in the affirmative, a dead end. However, in a different way of thinking, we should break it up and ask in a roundabout way: Is there any resistance? Scratches? Are the clothes torn? Sheets and quilts? Is the bed broken? Are there any scars on the vulva? Has the other person been scratched by you? Which part of the other person's body has you left a mark on? In this way, you are one step closer to the goal of defense, step by step...
If you close your eyes, let the audience feel the lake, the breeze, the ripples, the boat pulp, the distant mountains, the floating clouds, and the people with the mood...... Asking questions is a little, wired, and faceted; There are details, skeletons, and shapes; There are hierarchies, sequences, and gradients; There are logical lines, logical points, and logical surfaces; In short, an advocate can make the person listening to the story – immersive. In this way, the judge will not be moved, but will also be moved, and the defense goal will also emerge unconsciously......
Rule 9: Push yourself and others - jump to the other person's perspective to prepare
For example, in the stage of approving arrests, the work of the procurator is characterized by "urgency, urgency, and urgency", and there is no time to read the entire file. Prosecutors will grasp the focus of the controversy, compare the relevant evidence, and if there is evidence, the vast majority will approve the arrest. Therefore, the defender should know his opponent and confidant, clearly distinguish the characteristics of the work of the prosecutor at this stage, and then adopt the most effective defense strategy: as long as he tells the prosecutor 1 or 2 points - grasp it tightly, analyze it carefully - if he is full of confidence, even if he returns for supplementary investigation, he will not find anything, and directly tell the prosecutor the outline of the withdrawal investigation, which is probably the professional confidence flowing in the defender's heart.
Another example, any judge is to the point, what about empathy? In fact, defense lawyers should also have the quality of hitting the nail on the head, which is the core competitiveness of defense lawyers. In other words, the defense lawyer must have a heart-shooting mindset - what is the core focus of the dispute in this case, and the others do not need to be too much - to grasp the focus of the dispute, meticulously scrutinize the corners and corners of the core dispute, so as to achieve "conquest" and extreme realization of the case. Otherwise, what is the use of the defender exhausting the minutiae of "the case is irrelevant"?
Rule 10: At a glance – the minimum standard of persuasion
Persuasion is the core of criminal defense, and the core skill of a defender lies in persuasion. However, the premise of persuasion is to form a basic consensus, and the premise of forming a basic consensus is to reduce the workload of the other party and make it clear to the other party at a glance. Through reading the case file, we can confidently tell the prosecutor and judge: "I found that the facts alleged in the indictment are different from the evidence in the existing file, and in summary, there are the following three differences: 1.2.3......." This expression is clear and clear, reasonable, evidence-based and restrained.
Furthermore, the highest level of a defender is to read 20 files with a total of 5,000 pages in detail, accurately extract a 50-page summary of the case file and submit it to the judge and prosecutor, who will sincerely admire the lawyer from the bottom of his heart, and I think the prosecutor will too. At this point, even if all opinions are not adopted, what does it matter? Who says that an opinion that is not adopted is an invalid defence? After all, discretion lies in people's hearts......
Rule 11: Exhaustiveness – the blind spot of judicial interpretation
In a certain case, suspected of "prostitution", 7 family members came to our company, and each family member's face was full of doubts, and asked, "Lawyer Tian, we asked other lawyers, we have no specific and clear judicial interpretation of this case, and it should be innocent, what do you think?" ”
Defenders specialize in their professions, and there are different defense plans, and there is no distinction between superior and inferior. However, I replied that not every sub-provision of the Criminal Law requires a clear judicial interpretation. Because, according to this logic, we defense lawyers will not be able to handle cases without judicial interpretations, and judges will not dare to adjudicate cases without judicial interpretations, then there will be a problem with the judiciary. For example, the Supreme People's Court did not have a clear explanation for "mouth explosion and chest push", but the lower court still made its own judgment; For example, there is no judicial interpretation of whether the illegal operation of diesel fuel constitutes a crime, and the provisions are very vague, and there are not guilty precedents in Hunan Province, but there are also a large number of guilty precedents in other provinces - different judgments in the same case, however, the above does not affect the judge to judge the case according to law, and the judge can combine the literal interpretation of the mainland criminal law, system interpretation and other interpretation methods to understand and apply the law, as long as it does not violate the spirit of the legislation, which is also the "judge makes the law" - the deep experience and wisdom of the judicial creation law in China.
Rule 12: Equivalence proposition transformation – open another window
In the actual defense practice, the defender must have the idea of equivalent proposition transformation, which will open another window for the defense to explore the light. For example, in a fundraising fraud case, the defendant talked in court for 10 minutes, in fact, I summed it up and he only said one point: I was also deceived by them = I was not aware of their fundraising fraud = there was no subjective intention; For example, in a case of forced trading, I did not force the transaction = everyone is very free in the market.
However, learning to transform the thinking of equivalent propositions is only the first step, according to the principles of logic, after the transformation of equivalent propositions, as long as one of the propositions is proved to be true or false, the equivalent proposition must be true or false. However, to prove which proposition is more conducive to a breakthrough in the case, it requires not only the wisdom and experience of the defender, but also the argumentation skills of the defender. Therefore, many cases seem to have reached a "dead end", and when we use legal technology to "transform the proposition", who says that it will not be another village?
Rule 13: The Lawyer's Parental Heart - Another Expression
When we communicate with family members, we need to say more affirmative words. If there is a mistake in the logic of the family members, and we do not agree with the views of the family members, we should change the rhetoric or method, express it concisely and concisely in another way, and do not directly deny the other party, after all, the family members are ordinary people and have not received training in legal logical thinking, how can it be difficult for the family to think at the same level of thinking as the lawyer.
Therefore, when the defender disagrees with the family's point of view, he can say, "I agree with you, but I have a few points to add......" or "Let's summarize, what we just said is only one and two...... Third...... "Maybe this can make the family feel the warmth of the law, after all, the family members in the predicament are here to find experts and professional technical help, not to "refute", which invisibly gives them a kind of courage and confidence.
Source: Criminal Practice