An Empirical Study On The Adoption Of Lawyers’ Defense Opinions In The Second Criminal Trial

Under the system of the final trial of the second instance,the criminal second instance procedure carries the dual responsibility of "correction of errors" and "relief".At the same time,as the most direct embodiment of the exercise of lawyer’s right to defend,Whether it is adopted or not is an important index to measure the effectiveness of lawyers’ defense.Therefore,the adoption of correct defense opinions in criminal second instance is not only related to the legitimacy and finality of criminal second instance decisions,but also to the protection of the defendant’s right to appeal and the function of lawyers.However,in recent years,There are numerous cases of wrong-doing that have been identified,and it reflects the indifference and neglect of lawyers’ defense opinions,in our country,the low adoption rate of the defense opinion and the limited influence on the decision.In fact,there are many laws or documents in our country to the judge to listen to the defense opinions,but due to the relative generality of the content,resulting in many measures in the criminal second instance stage can not be implemented,the lawyer’s defense opinions to adopt the difficult problem has never been solved.Based on this,the article research is based on the existing legal framework,to extract and comb the key elements of the court’s criminal second instance judgment as the main research method,and combined with questionnaires and interviews,the adoption of criminal second-instance lawyers’ defense opinions to carry out quantitative and qualitative analysis,in order to uncover the lawyer’s defense opinions in the whole criminal second-instance procedure,analyze the main problems and reasons,and devote itself to providing the evidence basis for the adoption of criminal second-instance lawyers’ opinions.The body is divided into four parts.The first part is the practical investigation of lawyers’ defense in criminal second instance.This paper makes an empirical study on the mechanism and adoption results of lawyers’ defense opinions of criminal second instance along the thinking of "how to argue" and "how to argue".In the aspect of coming up with mechanism,it is found that the main body of putting forward defense opinions is entrusted lawyers,the occasion of putting forward opinions is based on trial,the content of putting forward opinions is the main direction of substantive sentencing,and the way of putting forward opinions is written as the carrier In terms of adoption results,from four dimensions: defense subject,defense type,defense strategy and trial mode,it is found that the adoption rate of lawyer and non-lawyer defense cases confirms the theoretical view that lawyers’ defense opinions are more likely to be adopted;The overall adoption rate of entrusted defense is higher than that of appointed defense,but there is not obvious distinction between the two;The distinction between the adoption results of conviction and sentencing defense is obvious,and the opinion of conviction defense is obviously lower than that of sentencing defense;Compared with non-trial cases,the adoption rate of trial cases is higher,and there is a big gap in the adoption of defense opinions put forward by different defense subjects under different trial methods.The second part is the combing of the adoption of defense opinions by lawyers in criminal second instance,which is analyzed from three aspects: substantive mechanism,high-quality defense opinions and rational judgment documents.The investigation found that:first,the mechanism of putting forward the defense opinions of lawyers in criminal second instance has nothing in name,which is manifested as follows: the writing of trial evidence strengthens the illusory trial,and the nihility of trial defense cuts off the connection between trial and referee;Second,the quality of lawyers’ defense opinions of criminal second instance is poor,which is manifested as follows: uneven distribution of defense opinions,modeled defense reasons,single presentation occasion,lack of defense skills,very few lawyers applying for witnesses to appear in court or giving evidence to defense opinions,and weak evidence support;Third,the feedback of judgment documents is insufficient,which is manifested as follows:(1)the response is not high,and there are neglects and omissions of defense opinions;The rationality of content theory is not strong,and it is insufficient and not standardized;The degree of opinion rejection is obvious,which attaches importance to the prosecution’s opinion and rejects and contradicts the lawyer’s defense opinion.The third part is the analysis of the reasons for the adoption of defense opinions by lawyers in criminal second instance.According to the investigation,the lawyer’s defense opinion of criminal second instance played a certain role,but the judge’s recognition of lawyer’s defense opinion was very limited.The first is the limitation of non-substantialization of trial,the pursuit of mutual confirmation of evidence compresses the debate space,weakens the court investigation,reverses the court investigation by relying on the case file materials,and the connection between trial and judgment is separated;Second,the lawyer’s effective defense can not be guaranteed,the quantity and quality of legal aid can not be guaranteed,the lawyer’s professional level can not be reached,and the right to investigate and collect evidence is also restricted;Third,there are defects in judgment reasoning,mainly including the vague standard of reasoning,the lack of legal consequences of non-standard reasoning,and the ineffectiveness of procedural relief,which makes the judge’s reasoning on whether to adopt lawyers’ defense opinions arbitrary and selective.The fourth part is the perfect suggestions on the adoption of the defense opinions of lawyers in criminal second instance,which focuses on three aspects: the materialization of the proposal mechanism,the quality of the defense opinions and the standardization of the judgment reasoning.First,implement the materialization of the proposal mechanism,learn from the principle of direct speech,attach great importance to the pre-trial meeting,the role of to the trial to the extreme,strengthen the relevance between the trial judge and the evidence,promote the correlation between the trial content and the formation of the judgment,and then ensure the smooth flow of the defense opinion and suggestion mechanism;The second is to ensure the quality of defense opinions,establish a criminal second designated defense system to improve the number and effect of designated defenses,Raise the standard of lawyers’ defense and protect the right of lawyers to practice;Third,we should improve the standardization of referee reasoning,clarify the "appropriateness" of reasoning and the standard of focusing reasoning on appeal opinions and defense opinions,clarify the legal consequences of inadequate response and irregular analysis,and improve the relief procedures for unreasonable refusal to adopt and refuse reasoning.