|
Arabic
Bengali
Chinese
English
French
German
Hebrew
Hindi
Italian
Japanese
Korean
Malay
Polish
Portuguese
Spanish
Turkish
Ukrainian
Vietnamese|
Lecture notes, cheat sheets
Advocacy and notary office. Participation of a defense attorney in the court of first instance in a criminal case (lecture notes)
Directory / Lecture notes, cheat sheets Table of contents (expand) LECTURE No. 6. Participation of a defense counsel in a court of first instance in a criminal case 1. Activities of a defense counsel in a court of first instance in a criminal case Consideration of a criminal case in the court of first instance consists of several parts: preparatory, judicial investigation, debates of the parties, the last word of the defendant, the decision and pronouncement of the verdict. The listed parts predetermine the features of the criminal procedural activity of a lawyer at each of the named stages of the trial stage. During the judicial investigation, built on the basis of competition and equality of the parties, the lawyer has a real opportunity to actively participate in the study of circumstances and evidence that justify or mitigate the responsibility of his client: the testimony of witnesses, expert opinions, material evidence, documents. Preparation of a lawyer for a hearing involves his participation in the process of proving in a criminal case. The defense counsel at the stage of consideration of the case in the court of first instance has the right to collect information, ask the court by filing appropriate petitions for the interrogation of witnesses, the request for additional evidence, etc. According to Art. 274 of the Code of Criminal Procedure of the Russian Federation, the evidence of the prosecution is first examined, and then the defense. In the first part of the trial the defender, participating in the study of the evidence of the prosecution, checking their relevance, admissibility and reliability, must substantiate his position if he considers that the evidence presented is unacceptable. The defense then presents its evidence. During the trial the defender's position must be active. He needs to participate in the study of evidence. It is especially important to ensure the immediacy of the examination of evidence in court proceedings (Article 240 of the Code of Criminal Procedure of the Russian Federation). Immediacy implies the duty of the court to personally perceive, consider and examine the evidence available in the case and submitted to the court, on the basis of which the presence or absence of circumstances to be proved in a criminal case will be established. This approach of the legislator makes it possible to exclude distortion and manifestation of subjectivism. At the stage of judicial consideration, the defense counsel must seek the interrogation of the victim and the witness in the following cases: 1) if during the preliminary investigation they gave evidence incriminating the defendant in the commission of a crime, if their reliability is in doubt, and the defense counsel expects to refute them by interrogation and verification of the testimony; 2) if the witness has given or may give evidence that justifies or mitigates the guilt of the defendant. Naturally, the lawyer during interrogation will ask questions in favor of the defendant. Therefore, it must be taken into account that the prosecution can use the right of cross-examination, that is, it is desirable to prevent questions that are unfavorable for the defense so that the most favorable and least vulnerable answers are given to them. The procedure for interrogating a witness established by the Code of Criminal Procedure of the Russian Federation provides the defense side with the most opportunities to clarify the circumstances that testify in favor of the client. In this case, success consists of four components: knowledge of law, logic of thinking, psychological approach and oratory. During the interrogation, the lawyer has the following goals and objectives: 1) obtaining from a witness in accordance with the requirements of the Code of Criminal Procedure of the Russian Federation full, truthful, objective evidence; 2) an explanation of the reasons for the contradictions in the testimony of the same witness during interrogations conducted at different stages of the investigation; 3) revealing the inconsistency of the testimony of the witness with the materials of the criminal case, as well as the testimony of the accused, the victim and other participants in the process; 4) obtaining evidence from a witness that justifies the client, mitigating his responsibility; 5) selection of materials for defensive speech. During the interrogation, it is necessary to establish psychological contact. A lawyer has no right to encourage a party’s desire to confuse the court or give false explanations. Therefore, pre-trial preparation of the defendant and the defense witness can be reduced to counseling on how to give an answer without damaging the defense tactics, but within the framework of the law. When interrogating witnesses on the part of the defense, the lawyer should also actively participate in the proof. When pronouncing a sentence, the court evaluates the evidence according to its inner conviction, which depends on certain circumstances. So, inconsistency, confusion, falsity of the testimony of a witness can affect the conviction of the judge in a better way for the defense. Thus, with the right tactics and attentiveness of the lawyer, the witness may be distrusted. In this case, the defender must repeat what the witness has already said during the trial, then turn to his testimony at the pre-trial stages. The revealed contradictions will eventually serve the defense side. However, the contradictions themselves should not be announced immediately, it is better to resort to them in the debate. 2. The content of the defense speech After the end of the judicial investigation, the court proceeds to hearing judicial debates, the content and procedure of which are defined in Art. 292 Code of Criminal Procedure of the Russian Federation. The current legislation regarding the content of the debate indicates only that they should not be present (part 4 of article 292 of the Code of Criminal Procedure of the Russian Federation). Зdefense speech of a lawyer consists of two concepts: the generally established concept of "speech" and the legal concept of "protection". According to the Explanatory Dictionary of the Russian Language by S. I. Ozhegov speech is the ability to speak; conversation, conversation; public speaking. In turn, the defense, according to the same dictionary, is the defending party in a lawsuit. Thus, the judicial speech of a lawyer in a criminal process is a public speech by the defender of the accused (maybe also the representative of the victim, civil plaintiff, civil defendant), delivered in court and addressed to the court in order to psychologically and legally influence them when presenting the conclusions of the defender in favor of the citizen he is protecting. The content of the lawyer's speech is determined by the position on the case. According to established practice There are three main defensive positions that determine the volume and structure of speech in a particular case: 1) position on mitigation of punishment. Its practice is possible when the defense attorney and his client have no grounds to challenge the evidence of the accusation and the qualifications of the offense. Here, the main place in the defensive speech is given to the characterization of the personality of the defendant and the circumstances mitigating responsibility, as well as the causes and conditions that contributed to the commission of the crime. In this case, the lawyer must challenge the aggravating circumstances, question the need to apply additional punishment to the defendant, and also challenge certain provisions of the charge. In the final part, the lawyer must clearly formulate the request addressed to the court to impose a particular type of punishment; 2) position on changing the classification of the offense. This position occurs if the defendant admits that he has committed a crime, but the defense does not agree with the qualification. Here the lawyer’s attention is focused on analyzing the evidence from the point of view of qualifications. At the conclusion of the speech, the defense attorney must proceed to characterize the defendant’s personality, focus the court’s attention on circumstances mitigating responsibility, etc.; 3) position on the acquittal of the defendant. Her lawyer accepts it if the crime has not been established or there is no element in it, and the participation of the defendant in the commission of the crime has not been proven. In all cases, the lawyer is obliged to ask the court to acquit the defendant if he denies the event itself or his participation in the commission of the crime. The defender must follow the position of the defendant. The purpose of the defense speech of the lawyer doubly. On the one hand, it is necessary to substantiate your position on the case, on the other hand, to convince the court that you are right. The speech in the debate should be pre-planned and composed. The main characteristics of a successful speech are its brevity and richness. The defensive speech consists of an introductory (descriptive) part, analysis and evaluation of evidence and data on the personality of the defendant, analysis of the reasons that contributed to the commission of the crime, as well as a conclusion. Analysis and evaluation of evidence are carried out according to a certain scheme: 1) each evidence is analyzed separately, and then - in conjunction with all the others; 2) the analysis and evaluation of the testimonies of witnesses depend on whose side he spoke. Here it is necessary to convince the court of whether or not it is worth trusting one or another testimony of witnesses; 3) in relation to the testimony of the victim, tact and restraint must be shown; 4) when evaluating the expertise, it is worth paying attention to the personality of the expert, the data that were presented to him, the technical and legal justification for his conclusions. In conclusion, it is necessary to emphasize the key points of the defense position. At the same time, the weakness of the accusation cannot be directly emphasized. Protective speech has certain features in the production of a criminal case with the participation of jurors. In this case, citizens who are not professional lawyers act as judges. Therefore, the lawyer should focus on the emotional side of his speech when characterizing the personality of the defendant. During the presentation of evidence, it will be advisable to use visual aids, diagrams, photographs, etc. This will help them recreate a picture of what happened. When speaking, the lawyer must look at the jury without losing eye contact. However, it is necessary to control your facial expressions and gestures, to prevent their immoderation. Speech should be decisive, confident, using analogies and vivid examples. Author: Nevskaya M.A. << Back: Participation of a defense attorney in a criminal case at the preliminary investigation stage (Strategy and tactics of a lawyer’s work at the stage of preliminary investigation of a criminal case. Rules for accepting the defense and admitting the defense lawyer to participate in the case) >> Forward: Participation of a defense lawyer in the stages of appeal, cassation and supervisory proceedings in a criminal case (Activities of the defense attorney in the courts of appeal, cassation and supervisory proceedings in a criminal case. Participation of the defense attorney at the stage of execution of the sentence)
▪ Social Pedagogy. Lecture notes
The existence of an entropy rule for quantum entanglement has been proven
09.05.2024 Mini air conditioner Sony Reon Pocket 5
09.05.2024 Energy from space for Starship
08.05.2024
▪ SilverStone ECU01 expansion card will add 4 USB 3.0 ports ▪ Lavo home hydrogen batteries ▪ Biometric tattoo monitors health ▪ Found a trace of the impact of the largest meteorite in history ▪ Telomere lengthening for life extension
▪ site section Computer devices. Article selection ▪ article saber rattling. Popular expression ▪ article How is ice cream made? Detailed answer ▪ citrus article. Legends, cultivation, methods of application ▪ article RS-232-TTL converter. Encyclopedia of radio electronics and electrical engineering ▪ article Candle and flame. Focus secret
Home page | Library | Articles | Website map | Site Reviews
www.diagram.com.ua |
We recommend interesting articles Section 
See other articles Section 
Latest news of science and technology, new electronics:
All languages of this page