Lawyer's character

"Important! Very important! Because the facts of the case that Xu Chungen told me will affect the court's sentencing of him. If the facts of this case are confirmed to be true, then the defendant Xu Chungen's sentence will most likely be reduced to less than three years in prison; if this The facts are false, and Xu Chungen's sentence will most likely be between three and ten years in prison.

It involves my client's major personal interests. As a defense lawyer, I feel that I have the responsibility and obligation to verify the relevant situation. "Guo Wenzhi said eloquently.

"After you greeted the witness, which one of you told me first about what happened on the night of the crime?" Fang Yi then asked.

"Shi Dali took the initiative to tell me. At that time, after I went to Xu's house, I asked Shi Dali what he was doing at the time of the incident. He told me that he was drinking with Xu Chungen, and Xu Chungen didn't go home until very late.

Later, I asked him if he was willing to testify in the Xu Chungen theft case and tell the judge what he had just said. He said there was no problem. Then I wrote a transcript for him. It's that simple. "Guo Wenzhi said.

In the eyes of the prosecutor, the conversation just now was more like Fang Yi and Guo Wenzhi acting, an extremely realistic drama, a pair of drama queens.

"Presiding judge, the defender has finished asking questions." Fang Yi looked at the presiding judge.

"Do the prosecutors, defenders, and appellant have any new evidence to submit?" the presiding judge asked.

"No!" All three parties said.

…

"The court investigation is over and the court debate is now underway. Before the debate, the court draws the attention of both the prosecution and the defense that the debate should mainly focus on determining guilt, sentencing and other controversial issues.

The appellant is first asked to defend himself. "said the presiding judge.

Before the trial, Fang Yi went to see Guo Wenzhi, so the latter was very familiar with Fang Yi's defense plan. Guo Wenzhi's self-defense opinions were all based on the defense plan that Fang Yi told him before.

"Now the defender of the appellant Guo Wenzhi will speak." the presiding judge said in a routine manner.

"Presiding judge, judge: The defender believes that the appellant Guo Wenzhi does not commit the crime of obstructing testimony. The specific reasons are as follows:

Paragraph 2 of Article 306 of the "Criminal Law" on the crime of obstructing testimony stipulates that witness statements or other evidence provided, presented, or cited by the defender are untrue and are not intentionally forged, and are not forged evidence.

In the Xu Chungen theft case, the appellant Guo Wenzhi, as the defense lawyer, did indeed quote inaccurate witness statements, but the appellant did not intentionally do so subjectively.

The defender believes that the 'intentional' in the second paragraph of Article 306 of the Criminal Law should be limited to direct intention. That is to say, the defender should know that his behavior of obstructing testimony will hinder the normal conduct of criminal proceedings and actively pursue the occurrence of this outcome. Apart from this, the defender should not be found to have the intention to obstruct criminal proceedings.

In this case, it can be seen from the following two aspects that the appellant had no subjective intention to obstruct criminal proceedings:

First, the appellant went to the witness to inquire about the relevant case facts out of the defender's duties and obligations, and to verify the case facts stated by Xu Chungen.

In this case, the appellant Guo Wenzhi submitted the investigation record about Shi Dali to the court, which objectively did hinder the normal trial activities of the Xu Chungen theft case (this is an objective fact and cannot be avoided). However, subjectively, Guo Wenzhi did not have the right to Direct intention to obstruct trial activities.

Moreover, judging from the existing evidence in this case, when Xu Chungen retracted his confession in the first instance, there was no evidence to prove that the defender Guo Wenzhi knew or should have known that Xu Chungen's retracted statement about his last theft was false, and there was no evidence to prove that Guo Wenzhi knew that Xu Chungen and Shi were on the night of the crime. Dali did not drink together.

In other words, Guo Wenzhi did not know and could not know that Xu Chungen's confession statement was contrary to the facts. There is also insufficient evidence to prove that when the appellant Guo Wenzhi asked witness Shi Dali to collect evidence, Guo Wenzhi knew or should have known that Shi Dali's testimony was false.

Second, judging from the behavior of the appellant Guo Wenzhi, there is no possibility of ‘knowingly’.

Judging from the behavior of the appellant, the appellant Guo Wenzhi introduced the situation of Xu Chungen's theft case to Xu Chunming and Shi Dali, and explained the importance of Shi Dali's testimony. It is not illegal. Even if there is misconduct, it cannot be concluded that the appellant directly and intentionally induced Shi Dali committed perjury.

The appellant Guo Wenzhi deliberately made records about the location and investigators of the investigation that were inconsistent with the actual situation, which was not enough evidence to prove that Dali committed perjury during Guo Wenzhi's seduction.

In addition, the appellant Guo Wenzhi told Xu Chungen the details of Shi Dali's testimony when he met with him in the detention center. It cannot be inferred that Guo Wenzhi knew that Shi Dali's testimony was false before that and when he met with Shi Dali to verify the case.

Through the above analysis, the court of first instance determined that the appellant Guo Wenzhi had direct intention to obstruct testimony based on the existing evidence alone, and the evidence was insufficient.

The existing evidence submitted by the procuratorate cannot rule out that Shi Dali's testimony is inconsistent with the facts. This is due to the improper way of investigation and evidence collection by the appellant Guo Wenzhi, or because the witness Shi Dali's memory is blurred and he adopts a laissez-faire attitude towards the authenticity of the testimony.

In summary, based on the existing evidence and ascertained facts, it is difficult to conclude that the appellant Guo Wenzhi had direct intention to obstruct testimony. The defender suggested that the court revoke the original verdict and acquit the appellant Guo Wenzhi instead. complete. "

After Fang Yi finished his defense opinion, he looked at the presiding judge, hoping to catch a hint of information from the latter's eyes, but the latter's eyes were calm and Fang Yi failed.

"The prosecutor will now speak." The presiding judge said expressionlessly.

"Presiding judge, judge: ... We believe that the factual evidence determined by the court of first instance is sufficient and the applicable law is appropriate. We recommend that the court reject the appellant's claim in accordance with the law. Over." The female prosecutor said with a cold face.

"The prosecutor can respond to the defender's defense opinions," the presiding judge said.

“In response to the defender’s defense opinions, our views are as follows:

It is not difficult to see from the evidence in this case that after accepting the entrustment of Xu Chunming, the appellant Guo Wenzhi acted very actively in order to obtain evidence favorable to the defendant Xu Chungen, and met with the defendant Xu Chungen many times. Messages were sent back and forth.

The appellant's active and abnormal behavior is the manifestation of the appellant Guo Wenzhi's unscrupulous efforts to excuse the defendant Xu Chungen and reduce his guilt. The appellant participated in forging evidence and other behaviors that hindered testimony.

It can be seen that the appellant Guo Wenzhi knew that the testimony of witness Shi Dali and the retraction of defendant Xu Chungen were contrary to the facts, and there was a suspicion of collusion. The appellant Guo Wenzhi had direct intention, which constituted the crime of obstructing testimony. complete. "The female prosecutor responded.

"The appellant's defender can respond to the prosecutor's opinion." The presiding judge raised his eyelids and glanced at Fang Yi.