2. Prove that the distribution of responsibilities is unreasonable. As a procedural issue, the distribution of burden of proof directly affects the substantive conclusion, and different rules of burden of proof distribution may lead to different substantive results. In criminal trial practice, the unreasonable distribution of burden of proof is highlighted in the exclusion of illegal evidence. Judicial interpretations in the Supreme People's Court and the Supreme People's Procuratorate stipulate that verbal evidence obtained by illegal means such as extorting a confession by torture should not be used as the basis for accusation and finalization, which initially established the exclusionary rule of illegal evidence in China. The lawyer's defense content has also changed from substantive defense such as conviction and sentencing to procedural defense. In recent years, there are more and more cases in which defense lawyers ask for the exclusion of "illegal evidence" on the grounds that investigators use illegal means such as extorting confessions by torture, but it is rare to really adopt lawyers' opinions to exclude "illegal evidence". The reason is that in the absence of the distribution mechanism of illegal evidence collection in China's law, the judge improperly imposes the responsibility of proving that "the evidence was obtained illegally" on the defense, and unless the defendant and his defender produce strong evidence to prove it, it is difficult to adopt their defense opinions. According to the relevant empirical investigation, the adoption rate of defense opinions based on extorting confessions by torture is only 8.7%. In 28.6% of the cases in which lawyers applied to exclude evidence obtained by torture, but were eventually rejected, the court asked the defense lawyer to give evidence, and the lawyer could not give evidence, so the court found that the lawyer's application could not be established. The distribution of burden of proof should consider fairness, evidence distance, convenience and criminal policy. In China, defendants are generally detained, detention centers are not neutral, lawyers have no right to be present for interrogation, and the right to interview and investigate and collect evidence is restricted. The judge imposes the burden of proof on the defense, which is not only not conducive to protecting the rights of the defendant, but also makes it difficult for the lawyer's reasonable opinion on excluding illegal evidence to be adopted by the court.

(D) the psychological reasons of judges

1. Psychological imbalance. Under the current conditions in China, the salary of judges is relatively low, and the overall economic income of lawyers is generally higher than that of judges, especially in economically developed areas. In the face of the same case, judges may spend more energy and labor than lawyers in defense activities, but they only have a fixed income of several thousand or even several hundred yuan per month, and lawyers can get tens of thousands of yuan in compensation for a lawsuit. This contrast in income can easily make some judges feel unbalanced. Once the mentality is out of balance, it needs to be corrected and compensated to achieve psychological balance. Therefore, in the trial, it is the usual way for judges to find psychological balance by interrupting lawyers at will, limiting lawyers' speaking time and turning a blind eye to lawyers' correct defense opinions. Many judges subconsciously think that "lawyers can't feel too good about themselves, being rich and decent". When adopting lawyers' reasonable defense opinions, they often show a "unwilling attitude", even if they know that the defense opinions are well-founded, they are unwilling to adopt them or express them easily in the judgment.

2. Exclusion psychology. In court judgments, we often find such an intriguing phenomenon: obviously, the defense opinions of lawyers have been considered in the judgment results, but the judgment claims that the defense opinions will not be adopted in theory. According to a survey, among the 13.62 cases handled by lawyers, 0.85 cases were explicitly rejected, accounting for 6.2%, but actually the defense opinions were absorbed. This treatment does not seriously harm the rights of the parties, but it reflects the complicated attitude of a considerable number of judges to lawyers' defense, that is, judges still clash with lawyers subconsciously, intentionally or unintentionally belittling the role of lawyers. ⑦ In the words of some judges, it means "Don't let lawyers speak out if there are reasons". It seems that lawyers' opinions are adopted too much, and judges are not as knowledgeable as lawyers. In judicial reality, judges always feel "superior (lawyer)", can be "equal" with prosecutors, have a natural sense of closeness with prosecutors, hold an invisible rejection attitude towards defense lawyers, and lack basic respect and recognition for lawyers. Simply regard the lawyer's defense as a form, a procedure, and even regard the lawyer's legitimate defense function as an obstacle to the trial. As a result, the judicial reality of "debate and non-debate" and "you argue, you argue and I judge me" appeared.

The second is the harm that lawyers' correct defense opinions are difficult to be adopted.

(A) Deviation from substantive justice

One of the theoretical foundations of the existence of the right of defense is the theory of power balance, which restricts power through rights and prevents arbitrary and abuse of power. Restricting and restricting the right of public prosecution with the right of defense will have a positive impact on the subject of judicial power, prevent "favoritism and favoritism", base the judgment conclusion only on the evidence and opinions of the prosecution, so as to "listen to different voices", find out the truth in the confrontation and debate between the two sides and make a comprehensive and accurate judgment. "For judges, the value of the defense system lies in upgrading the judge's personal ability to a certain stage, so that he can see the truth through the eyes of others, be as selfless as possible within the scope of' human jurisprudence', and get rid of the shackles of prejudice." (8) The judge directly listens to the arguments of both the prosecution and the defense, which helps the judge to form a correct inner conviction and prevent the judge's understanding from being subjective, one-sided and arbitrary and deviating from the objective truth. Pet-name ruby this can undoubtedly promote the realization of substantive justice. In judicial practice, judges pay insufficient attention to lawyers' defense opinions, and have no patience to listen to and carefully analyze defense evidence and reasonable opinions, which is not only not conducive to true discovery, but also often the root cause of misjudged cases. Chen Yongsheng, an associate professor at Peking University Law School, studied 20 typical unjust, false and misjudged cases in China in recent years, and found that in 17 cases (85%), the defense lawyers did their duty, correctly pointed out the problems existing in the investigation, the accusation of the procuratorate and the court decision, and proved the suspects and defendants innocent (these defense opinions were later proved to be correct). However, due to various reasons, the investigation, procuratorial organs and courts did not accept the letter, leading to misjudgment of cases, and some were even delivered for execution. Attending the psychological law shows that as long as the referee listens to the voice on the one hand, it is easy to cause cognitive bias and mistakes; Listen to the opinions of both sides, especially the opposing views of both sides, and be much more cautious when finding out the facts and making judgments. In fact, the most effective way to prevent mistakes is to allow different or even opposite voices to appear at the same time to avoid the danger of misjudgment caused by unilateral contact. Especially in the case that the judge has been exposed to the information provided by the police and the prosecution in various ways before the trial, listening to the voice of the defense lawyer can almost be the only effective way to prevent the mistake of fact finding. ( 1 1)

(B) the loss of procedural justice

Modern judicial justice has dual connotations. It is not only the realization of substantive justice but also the maintenance of procedural justice. It not only attaches importance to the authenticity and correctness of the results, but also emphasizes the independent value of the realization process of the results. Huang Dongxiong, a scholar in Taiwan Province Province, China, said: "The Criminal Procedure Law pursues substantive justice and procedural justice. Substantive justice is achieved through criminal proceedings, while procedural justice is achieved in the process of criminal proceedings. " (12) Golding, an American scholar, put forward nine standards of procedural justice on the basis of the principle of "natural justice": (1) People who have relations with themselves should not be judges; (2) The result should not include the personal interests of the dispute solver; (3) The dispute solver should not be biased towards the supporting or opposing party; (4) Pay fair attention to the opinions of all parties; (5) The dispute solver should listen to the arguments and evidence of both parties; (6) The dispute solver shall listen to the opinions of the other party only in the presence of the other party; (7) All parties should have a fair opportunity to respond to the arguments and evidence put forward by the other party; (8) The conditions to be solved should be based on rational deduction; (9) Inference should cover all arguments and evidence put forward. (13) Professor Chen Ruihua, a Chinese scholar, pointed out that procedural justice has two remarkable characteristics: first, procedural justice is mainly reflected in the process of judicial judgment, and whether people who are interested in the outcome of the case are treated fairly; Second, procedural justice is mainly reflected in giving interested parties the opportunity to fully and effectively participate in the adjudication process. The core concept of procedural justice theory is "participation". (14) Based on the above-mentioned standards and characteristics of procedural justice, we can see how the mechanism that lawyers' defense opinions are difficult to be adopted in China undermines the realization of procedural justice. First of all, as a dispute solver, judges are neither independent nor neutral. He (she) is influenced and interfered by various forces inside and outside the law in the referee, and has obvious tendency of prosecution. Secondly, the judge failed to treat both the prosecution and the defense fairly and equally, but held a certain prejudice against the defense lawyer, failing to pay equal attention to the opinions of the complaint and the defense, and paying more attention to the public prosecution than the defense. Thirdly, the dispute solver listens to the opinions of the prosecution in the absence of the other party (defense lawyer) and decides the fate of the defendant. For example, the procuratorate and the court "exchanged opinions" to handle cases, and the "three long meetings" of the public, the procuratorate and the law held by the Political and Legal Committee were all attended by no defense lawyers. The trial and the prosecution unilaterally contact and negotiate to discuss the disposal of the defendant, which lacks legal basis and often reaches a compromise that meets the requirements of the prosecution. (15) finally, the court's judgment did not fully explain the reasons, did not respond to the defense lawyer's claims and opinions, and did not give corresponding explanations for refusing to accept defense evidence. Its reasoning rarely discusses the defense's arguments. Therefore, although lawyers also participated in the trial and defense and expressed their defense opinions, this is only a formal participation, far from reaching the level of "full and effective" participation. Because they can't exert fruitful influence on the judgment conclusion by participating in court defense, the judgment result is often not produced from the evidence, opinions and opinions adopted after investigation and debate in court. Therefore, the defense lawyers in our country actually exercise only the "formal right of defense", not the "substantive right of defense".