Checking the legal scope of evidence during the interview [Prosecutor’s prosecution stage]

Article 39, paragraph 4, of the Criminal Procedure Law of the People's Republic of China stipulates:

Defense lawyers can meet with criminal suspects and defendants in custody to learn about the relevant circumstances of the case , provide legal advice, etc .; from the date the case is transferred for review and prosecution , they can verify relevant evidence with criminal suspects and defendants. Defense lawyers are not monitored when meeting criminal suspects or defendants.

This provision solves to a certain extent the long-standing problem of lawyers being afraid to disclose evidence to suspects and defendants during interviews. The process of defense lawyers verifying evidence is an interactive exchange of information between lawyers and clients. The parties shall verify the evidence based on the content of the existing evidence, and the defense lawyer may confirm the authenticity, relevance, and legality of the evidence or put forward rebuttal opinions. The purpose of verifying evidence is to confirm or eliminate the inner doubts that lawyers have about the facts of the case after reviewing the files or interviewing them. Obviously, only when the defense lawyer has doubts about the case and evidence will the motivation and necessity for verification arise. If the lawyer has no doubts about the evidence, then there is no need for verification and it is not within the scope of evidence verification. This shows that the scope of the lawyer's verification of evidence is limited, and the scope and extent of the suspect's knowledge of the evidence depend on the scope and method of the defense lawyer's verification of the evidence.

The essence of defense preparation by defense lawyers is to ensure effective defense. For lawyers, by reviewing the files at the prosecution stage, they can verify any doubtful evidence against the criminal suspect. Evidence verification will not only promote the realization of lawyers' defense rights and protect the relevant rights of criminal suspects and defendants, but also involve many value issues such as ascertaining the truth. This greatly expands the right of criminal suspects and defendants to know the evidence, and at the same time protects the right of defense lawyers to defend themselves. However, judging from the legislative intention, the subject of the right to verify evidence is only the defense lawyer, not the criminal suspect or defendant, and the law does not grant the suspect or defendant the right to review the case. According to my country's independent defense theory, it cannot be inferred that criminal suspects and defendants also have the right to review papers from the fact that defenders have the right to review papers. In order to avoid situations such as recantation of confessions, collusion of confessions, leakage of confidential information, etc., it is necessary to restrict the right of defense lawyers to verify evidence. However, when defense lawyers exercise their right to verify evidence, they should not be restricted by the type of evidence. Defense lawyers should abide by the principle of "verification in doubt" and exclude confidential information from verification. It is recommended that oral communication be used to verify relevant evidence.