Research On The Verification Of Evidence By Defense Lawyers

The system of proof verification by defense lawyers is an important provision made by our country in strengthening the protection of the right of defense,which is not only helpful for defense lawyers to find some defects,doubts and contradictions in the prosecution evidence,but also to find some evidence that has been artificially screened,concealed or even forged.However,due to the lack of legislation and the absence of legal interpretation,the practice of verification evidence system is not smooth.Therefore,this paper,on the basis of combing and verifying the dispute of evidence theory,interprets the current legislative provisions and combines the current situation of practice and existing problems,and explores the perfect path of verification evidence system.In addition to the introduction,conclusion,references,thanks,there are four parts,a total of more than 30,000 words.The first part combs the existing theoretical dispute that the defense lawyer verifies the evidence.It mainly includes three aspects: one is to verify the claim of evidence.First of all,there are two theories in the subject of the right to verify evidence,that is,the "legal right theory" holds that the defense lawyer is the subject of the right to verify evidence,while the "derivative right theory" claims that the right to verify evidence should be one of the right of defense of the accused;secondly,there are two camps in the right to verify whether the right of evidence is equal to the recognition of the right of the accused to read papers.The second is to verify the scope of the argument.First of all,to interpret the meaning of "relevant evidence ",there are four kinds of theoretical explanations,that is," whole case evidence theory "," doubtful evidence theory "," physical evidence theory "," guilty physical evidence theory ";secondly,combing witness testimony,victim statement and the theoretical dispute whether the confession of the accomplice can be verified.Third,the way to verify the evidence dispute.First,there are two positive and negative views on whether the evidence can be verified by delivery reading;secondly,the influence of the type of evidence on the verification method is combed.The second part,based on the legislative text,interprets and evaluates the legal provisions of "verifying evidence ".First of all,from the legislative background of the right to verify evidence,analysis and demonstration of the purpose of verifying evidence,one is to determine the reliability of evidence materials,the other is to better prepare the defense.Secondly,it is pointed out that the existing legal provisions only grant the defense lawyer the right to verify the evidence.Thirdly," relevant evidence " refers to all evidence relevant to the case and necessary,but such a provision is ambiguous and prone to adverse effects.Again,in the way evidence is verified,it is considered that the legislator does not limit the way it is verified,and that the defense counsel and the accused are flexible in the way they verify the evidence,but it is necessary to limit the way in which the detained accused verifies the evidence.Finally,in the stage of verification of evidence,it is considered that the stage of examination and prosecution prescribed by the legislator is reasonable,but it ignores the legitimate need and necessity of the defense lawyer to verify the evidence in the investigation stage.The third part examines the practice of verifying evidence.In practice,defense lawyers will basically verify the case evidence with the accused,mainly to verify the physical evidence,appraisal opinion,there are more concerns about the verification of verbal evidence,the type of case also affects the scope of verification to a certain extent.In the way of verification," question " and " general notification " is more commonly used,and the procuratorial organs are also more recognized.Some detention facilities have severely restricted the right of lawyers to meet lawyers.In addition,defense lawyers face a risk of discipline and criminal responsibility in verifying evidence.The fourth part puts forward the suggestion to perfect the verification evidence system.First,set up the concept that should be: first,set up the idea of equal emphasis on guarantee and norm;second,carry out the idea of equal confrontation between prosecution and defense in an all-round way;third,adhere to the concept of the subject position of the accused person’s defense.Secondly,perfect the legislative provisions: first,maintain the subject status of the accused,give the right to verify evidence;second,make a negative list,clear the scope of verification;third,distinguish the status of the accused,standardize the way to verify evidence;fourth,give the investigation stage of the defense evidence verification power.Finally,we should improve the supporting measures: first,reduce the risk of practice and maintain the practice environment;second,make clear the obligation of assistance and set up the responsibility for breaking the law;third,maintain the equality of the law and establish the system of limited marking rights for the accused without a lawyer’s defense.