what's the matter with the lawyer asking the witness to make a poison oath? As a professional lawyer, don't even have this professional quality? Because of the alleged bribery of 350000 yuan, Jiang Yongrong, the former deputy director of the vehicle management department of the traffic police corps of Guizhou public security department, stood in the defendant's seat for the fifth time. Previously, he has experienced two first instance of Nanming District Court of Guiyang city and two revoking judgments of Guiyang intermediate court and remand them for retrial.
On April 8, 2018, Jiang said in the second retrial that the previous guilty confession was illegal evidence of extorting a confession by torture and asked the court to exclude it. The investigators of Nanming District procuratorate denied, and Zhou Ze, the defense lawyer of the defendant, asked: "witness, do you dare to swear in court? If you lie, the whole family will die. The presiding judge stopped it immediately and said it was idealistic.
The court is a special place for the people's court to try all kinds of cases on behalf of the state according to law. The words and deeds of the participants in the proceedings must conform to the procedure and rules of the court. According to articles 119 and 120 of the interpretation of the Supreme People's Court on the application of the Civil Procedure Law of the people's Republic of China, the people '. That is to say, the witness only needs to sign the letter of guarantee, and has no legal obligation to swear in court.
In fact, the affidavits signed are mostly 'standard' contents, such as' I, as a witness in this case, guarantee to provide testimony to the court truthfully. If you intend to give false evidence or conceal criminal evidence, you are willing to bear legal responsibility, and hereby guarantee. "If we say falsehood, the whole family will die", which goes far beyond the scope of statutory oath and guarantee, and can only be classified as "poison oath", not only has no legal effect, but also because of the sharp wording and the potential threat tone, which may affect the order of the trial, the judge stops the legitimate situation in court.
However, back to the special case situation, it is not difficult to understand the urgency and helplessness of defense lawyers. First of all, in the process of the original trial and the retrial, the court only convicts and measures the penalty by relying on the 'guilty confession' of the parties and the testimony of the briber who has changed many times. In violation of Article 53 of the criminal procedure law, the sentence of all cases should be heavy on evidence, heavy on investigation and research, not belittling the oral confession 'and' only the confession of the defendant, if there is no other evidence, the defendant cannot be found guilty and punished '. ?
Secondly, there are still some flaws in some important evidences recognized by the court. For example, Jiang Yongrong's confession at the detention center of Xiuwen County, Guizhou Province, on January 23, 2014, the synchronous recording and video only have pictures, but no sound. This is obviously contrary to the provisions of the supreme law "on the establishment and improvement of the working mechanism for the prevention of criminal unjust, false and wrong cases" that "statements obtained in the whole process of interrogation by synchronous recording and video recording shall be excluded in accordance with the law and relevant provisions". Why did both the original trial and the second retrial affirm that evidence collection is legal? As a case handler, don't you know that illegal evidence 'the fruit of poison tree' will seriously affect judicial justice?
Look at Jiang Yongrong's record in the people's Procuratorate of Nanming District on January 22. At the time of the original trial, this record was excluded because it had been interrogated for a long time before being detained and cannot be excluded from the case of making a guilty statement due to the suppression of its spirit. However, the court of retrial found that the reason was that the procedures of arrest, video and record materials of the Procuratorate on that day were mutually verified, the legal procedures were complete, and the place of interrogation and other procedures were legal. The question is whether there is a long interrogation. The criminal procedure law clearly requires that 'interrogation shall guarantee the necessary rest time for the suspect'. The supreme law once pointed out in the case of Wu Yi and Zhu Beiya's embezzlement that this kind of behavior is enough to force the suspect and the defendant to make a confession against their will, which is a kind of "disguised corporal punishment", and should be recognized as an illegal method such as "extorting a confession by torture". In this case, the guilty confession obtained is illegal evidence.
This is not the only reason for the dispute between the two sides. Jiang Yongrong said he had been threatened by investigators when he was in the detention center, causing pointy bruises on his elbow. Of course, it is very difficult for investigators to prove their crimes. At the retrial on April 3, several investigators said they did not extort a confession from Jiang Yongrong by torture. As for the specific details, they had "too long to remember clearly". In the retrial on August 8, the investigators denied again.
There are flaws in the whole recording and video, but they are ignored. If there is a long time of questioning, the defendant's wound has already healed. The case handling personnel refused to answer the questions. No wonder the defense lawyer made the "swear" decision.
Conviction and sentencing depend on evidence. However, the defendant is in a weak position in the litigation structure, and there are inherent deficiencies in the proof of illegal evidence. At the same time of finding out the truth of a case and presiding over justice, we should establish the principle of "inversion of burden of proof" as soon as possible, which can not only crack down on extorting a confession by torture more effectively, but also regulate the process of handling a case, abandon illegal evidence and less embarrassment of making a poison oath.
The court witnesses denied extorting confessions by torture, and the lawyer urgently asked the witness to make a poison oath, which was stopped by the judge. On April 8, 2018, Jiang Yongrong, former deputy director of Guizhou Public Security Traffic Police Corps, tried the bribery case for the second time. Jiang said that the previous guilty confession belonged to the illegal evidence of extorting confession by torture and asked the court to exclude it. The investigators of Nanming District procuratorate denied, and Zhou Ze, the defense lawyer, asked: "witness, do you dare to swear in court? If you lie, the whole family will die. The presiding judge stopped it immediately and said it was idealistic.