1. What did the defendant say in his final statement?
The right of final statement is an important litigation right enjoyed by criminal defendants in court trial. Its theoretical basis mainly lies in the legislation's special attention to the weak position of criminal defendants and the embodiment of the principle of words. Finally, the setting of the statement procedure helps the judge to better discover the truth of the case, and at the same time, it also highlights the respect for the defendant's personality and has a special educational function for the audience. In nature, the right of final statement is mainly the right of defense, and it is also reflected as a right of emotional catharsis.
2. The right of final statement-theoretical basis-the defendant's right of final statement
In the process of criminal trial, the normal operation of the litigation mechanism is inseparable from the relative balance between the prosecution and the defense, especially in today's transformation of China's criminal litigation mechanism. Because the relative balance of power is the premise of confrontation. However, it is a common understanding that there is a serious inherent inequality between the prosecutor and the defendant who represent the country in litigation. Some people vividly describe criminal proceedings as a war waged by prosecutors on behalf of a powerful country against a weak defendant. The prosecution holds the state coercive power and can implement various coercive measures, while the defendant seems to be only the object of coercion. Therefore, countries have to adopt legislative strategies to balance the litigation status of both the prosecution and the defense. One of the most important strategies is to give the defendant a series of special procedural guarantees or privileges, so that he can gradually approach or catch up with his prosecutor's "opponent" in terms of participation ability and litigation status, and make the prosecution and the defense form a confrontational trend. Privileges granted to defendants can be divided into two categories-substantive rights and procedural rights. The former, for example, does not have the principle of presumption of innocence and no doubt, while the latter, for example, has the provisions of the defendant's right to silence in some countries. It can be considered that giving the defendant the right of final statement in the trial is also a manifestation of this privilege in procedure. This point can also be verified in the comparison with civil litigation: the natural equality of both parties in civil litigation doomed that the civil defendant could not enjoy the special right of final statement.
In addition, the defendant's right of final statement must be exercised by oral statement in court as the only form, and any other form such as writing can not replace oral statement. Therefore, the right of final statement is regarded as the natural embodiment of the principle of words. The so-called verbal principle means that the court must try the case by oral statement, that is, oral form. It is an important development for the litigation system to move towards modern civilization that the open direct verbal trial replaces the secret indirect written trial. Unless otherwise provided by law, all evidence materials that have not been investigated in court shall not be used as the basis for judgment. Therefore, the submission of written defense and other written materials cannot be a reason to deprive or restrict the defendant's right to make a final statement. It can be seen that the verbal principle, as one of the modern trial principles, is also a theoretical basis for the defendant's right to make a final statement.
3 Final Statement Right-Function-Final Statement Right in Trial
First, as an integral part of the court trial process, the defendant's final statement helps the judge to find out the truth of the case. In a specific criminal case, the defendant is often the person who knows the case best, so his statement is of great value to the trial of the case. The defendant's final statement can often show the defendant's subjective personality characteristics most intensively and obviously. Through court investigation and court debate, the defendant's final statement often has new contents compared with the previous statement. Therefore, the defendant's final statement has important reference value for the judge to make a correct judgment. If new evidence or other new circumstances are found in the defendant's final statement, the judge should take further measures instead of adjourning the court. The Supreme People's Court stipulated in his judicial interpretation: "If the defendant puts forward new facts and evidence in his final statement and the collegial panel thinks that it may affect the correct judgment, the court investigation shall be resumed; If the defendant puts forward a new defense reason, the collegial panel may resume the court debate if it deems it necessary. "
Second, the final statement procedure can highlight the respect for the defendant's personal dignity. If the above is based on the consideration of accurately punishing crimes, it can be considered as the consideration of protecting the defendant's human rights. With the continuous advancement of the rule of law, people pay more and more attention to procedures. In the past, the view that procedural law is a vassal of substantive law is no longer the mainstream view in academia and even in practice. People realize that the procedure has its intrinsic value, and this value is diversified. Among them, the value that the procedure can reflect the dignity of the parties has aroused full concern. "The procedural guarantee system stipulated in the procedural law emphasizes the personal dignity of the parties and the dominant position of legal relations, embodies the concepts of justice, democracy and the rule of law, and makes litigation have the image of rational activities." Regardless of whether the defendant's final statement has a substantial impact on the final judgment, the final statement procedure can still release the defendant's repressed feelings to a certain extent. Although the defendant's dominant position has been established, no one can deny that the defendant is in an embarrassing position in criminal proceedings, which will inevitably have some negative effects on his psychology. Therefore, it is not unnecessary to build a platform for the defendant to release his emotions. Of course, in the final statement, the defendant can't be infinite and inexhaustible, but he will still be subject to certain restrictions, which will be discussed in detail below.
Third, the defendant's final statement also has a certain educational function, that is, in the form of a case, it declares the law to the audience and exhorts the public not to commit crimes. Originally, the function of education should be said to be a function of the whole trial and even the whole criminal procedure. However, the defendant's final statement often has a stronger and more direct educational color. The defendant will show people his inner feelings emotionally from his own personal experience, which has the nature of "the last parting words". Some statements may have nothing to do with finding out the facts of the case, so they may not be made in other proceedings. However, the restrictions on the defendant's final statement in various countries' legislation are generally "related to the case" or "not irrelevant". Although this statement has nothing to do with finding out the facts, it should be said to be "related to the case" and "not irrelevant". And this statement will also be related to the guilty attitude when sentencing. Compared with other court proceedings, the final statement may be more touching to the audience, and it can better reflect the function of persuasion and education. Of course, the judge cannot guide the defendant's final statement in this regard. After all, the final statement is the defendant's right, and it also bears the function of embodying the defendant's personal dignity.
From the most essential point of view, it should be said that the defendant's right of final statement belongs to the right of defense. The so-called right of defense refers to the right given by law to criminal suspects and defendants to defend and refute the contents of charges in order to safeguard their legitimate rights and interests. Simply put, it is the right to defense against charges. It is generally believed that the right of defense has three characteristics: specificity, defensiveness and absoluteness. The right of final statement also has the nature of the above three aspects. The exclusiveness of the right of final statement means that it belongs to the criminal defendant completely. Even if there is a lawyer to defend him, the defendant cannot be restricted from making a final statement. For example, Article 258 (2) and (3) of the German Criminal Procedure Law stipulates: "(2) The defendant shall make a final statement. (3) Even if the defender has made a statement for him, he should still ask the defendant whether he has any statement to defend himself. " Defensively, the right of final statement is more obvious. It was originally a line of defense attached to the defendant in order to balance the litigation ability of both the prosecution and the defense, and it was also reflected as the last line of defense in form. The absoluteness of the right of final statement should be reflected in the fact that citizens should enjoy the right of final statement as long as they are subject to criminal investigation and criminal trial, regardless of the nature and severity of their crimes. We can't think that there is no need for a final statement on the grounds that the crime is light, so as to limit the deprivation of the defendant's right to a final statement. For example, when Article 523 of the Italian Code of Criminal Procedure stipulates "making a final statement", it says "final statement".
The right of defense is a basic right of the defendant, which runs through the whole litigation process and is extremely rich in content. Compared with the general right of defense, the right of final statement is unique: first, the subject of the right of final statement is only the defendant, which is irreplaceable and cannot be exercised by the defender, which is obviously different from other rights of defense; Second, in the final statement, there is no direct confrontation between the prosecution and the defense as in other defense rights. At this stage, only the defendant makes a statement, and without the rebuttal of the prosecution, he can fully present his opinions.
In addition, the right of final statement is not entirely the right of defense. Finally, the right of statement has the function of highlighting the defendant's sense of dignity and releasing the defendant's inner feelings. The right to defense has a premise, that is, it must first be embodied as confrontation. In some cases, the defendant's final statement is not antagonistic, but only a lyrical expression, and the right of final statement will be reflected as a right to vent emotions. The nature of the right of final statement is also determined by the special status of the defendant being prosecuted by the state, which means that the defendant is under greater psychological pressure than anyone else in criminal proceedings. Of course, the release of the defendant's emotions is not endless and should be related to the case.