Zhiheng explains his doubts | Can a lawyer record it in court?

Author | Lawyer Zhang Dengfeng

When a lawyer is in court, he may be suddenly asked by the judge: Is the defender making a trial record in court? The defender is not allowed to make a record in court, but can copy the trial transcript after court. If you need a court record, you must ask the presiding judge for instructions and obtain the consent of the presiding judge. Faced with such a situation, how should the defender respond?

First, let's look at whether the law (broadly speaking) explicitly prohibits or restricts lawyers' court records.

Among the relevant laws and regulations of our country, there is no direct, clear and specific law that stipulates whether lawyers can record in court, but there are clear provisions in many laws, regulations and rules that lawyers have the right to review documents.

1. Civil Procedure Law of the People's Republic of China

Article 64: Lawyers and other ad litem agents acting for litigation have the right to investigate and collect evidence, and may consult relevant materials in this case. The scope and methods for accessing relevant materials in this case shall be prescribed by the Supreme People's Court.

2. Provisions of the Supreme People's Court on the Consultation of Civil Case Materials by Agents ad litem

Article 1 Lawyers and other agents ad litem who represent civil litigation have the right to consult the relevant materials of the cases they represent, but to consult the case materialsIt must not affect the trial of the case；

Article 5: An agent ad litem's access to case materials during litigation is limited to the main volumes of the case trial volume and the execution volume, including the indictment, the defense,Court transcriptAnd various evidentiary materials, etc., after the conclusion of the case trial, you can check the case trial file.

Article 7: Agents ad litem may extract or copy case materials upon inspection. Case materials involving state secrets shall be handled in accordance with relevant state regulations.

3. "Provisions of the Supreme People's Court on the Disclosure of Trial Process Information by People's Courts through the Internet": Article 10 provides for court hearings, cross-examination of evidence, exchange of evidence, pre-court meetings, investigation and evidence collection, investigation, interrogation, sentencing, etcTranscript of litigation activitiesIt shall be made public to the parties and their legal representatives, agents ad litem, and defenders through the Internet.

4. Criminal Procedure Law of the People's Republic of China

Article 40 The defence counsel may consult, extract or copy the case file materials of the case from the date when the people's procuratorate examines and prosecutes the case.

5. Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China (Legal Interpretation [2021] No. 1)

Article 53 Where the defence counsel may consult, extract or copy the case file materials, the discussion records of the collegial panel and the judicial committee and other materials that are not made public according to law may not be consulted, extracted or copied, and the defence counsel may consult, extract or copy the case file materials, the people's court shall provide convenience and ensure the necessary time.Copying case file materials can be done by copying, taking pictures, scanning, electronic data copying, etc。

6. "Provisions on the Legal Protection of Lawyers' Right to Practice"

Article 2: People's courts, people's procuratorates, public security organs, state security organs, and judicial administrative organs shall respect lawyers, improve the system for protecting lawyers' rights to practice, and, in accordance with the provisions of the Criminal Procedure Law, the Civil Procedure Law, the Administrative Procedure Law, and the Lawyers Law, within the scope of their respective duties, protect lawyers' rights to information, application, appeal, and interview.markingThe right to practice in collecting evidence and questioning, cross-examination, debate, etc., shall not hinder lawyers from performing their duties of defense and representation in accordance with the law.Lawyers' legal rights must not be infringed.

7. Rules of the People's Courts of the People's Republic of China

Article 17: All personnel shall obey the command of the presiding judge or sole judge during court hearings, respect judicial etiquette, and abide by court discipline, and shall not commit the following acts:

(1) Applause and noise;

(2) Smoking and eating;

(3) making or receiving calls;

(4)Recording, videotaping, photographing, or using mobile communication tools to disseminate trial activities.

(5) Other acts that endanger the safety of the court or interfere with the order of the court.

Prosecutors and litigation participants shall speak or ask questions with the permission of the presiding judge or a sole judge.

Observers are not allowed to enter the trial activity area, are not allowed to stand or move around at will, and are not allowed to speak or ask questions.

Media reporters who are authorized to commit the acts stipulated in Paragraph 1 (4) shall do so within the designated time and area, and shall not affect or interfere with court proceedings.

The above legal provisions do not explicitly stipulate nor explicitly prohibit lawyers from recording in court, but by reviewing the above legal provisions, we can see that:

(1) Lawyers enjoy the right to review documents.

(2) The scope of the lawyer's access to the relevant materials in the case file includes the court transcripts (which are part of the case file materials);

(3) Lawyers' exercise of the right to review documents shall not affect the trial of the case.

(4) The law does not stipulate that the time for viewing the court transcript must be after the court hearing (court records are allowed);

(5) The method of copying case file materials can be photocopying, photography, scanning, electronic data copying, etc. (handwritten or computer typing records are a method of copying case file materials);

(6) No audio recording, video recording, photography, or the use of mobile communication tools to disseminate court proceedings shall be allowed.

(7) Lawyers shall not be hindered from performing their defense and representation duties in accordance with the law, nor shall they infringe upon the legal rights of lawyers.

Second, the lawyer's court record is a legal act of exercising the right of marking normally.

Since lawyers have the right to review the records according to the law, and the court transcripts are part of the case file materials, lawyers certainly have the right to copy the court transcripts. The content of the lawyer's court records (the main points and details of the trial process) is in nature a summary of the court transcripts, which is part of the court transcripts. The lawyer's court records are copied by handwriting or computer typing, and do not violate the prohibitions of the law, so the lawyer has the right to record in court.

Third, the behavior recorded by lawyers in court is the basic guarantee for exercising the right of representation and defense according to law.

Why do lawyers need to record in court?The first is to accurately grasp the content of the trial. There are many links in the trial process, such as the statements of both parties, the testimony of witnesses, and the questioning of the judge. Through the record, it can ensure that key details will not be missed, including the views and evidence put forward by the other party, so that the lawyer can make targeted rebuttals or responses in the follow-up trial (such as the debate stage).

The second is to facilitate post-trial review. After the trial, lawyers can review the entire trial process according to the records, analyze the performance of their own and other parties in the trial, evaluate whether the trial strategy is effective, and also provide a reference for possible appeals or the next trial. The third is used to write legal documents. For example, representation, defense, appeal, etc., the trial records of the court records help lawyers organize their ideas, quote evidence and opinions in the trial, and make the content of the legal documents more accurate and convincing.

Therefore, court records are the basic skills and rights of lawyers to prevent lawyers from exercising their professional abilities in representation and defense during court sessions. If lawyers are restricted or prohibited from court records, it is equivalent to soldiers losing their weapons on the battlefield, and it is a right that lawyers must defend.

lawyer

brief introduction

Lawyer Zhang Dengfeng

Senior Partner of

Deputy Director of Zhiheng Marriage and Family Affairs and Wealth Inheritance Legal Affairs Center

Zhiheng Company Legal Affairs Center Business Consultant

Zhang Dengfeng has been specializing in criminal defense and corporate consulting for many years. He used to be a court clerk in Shenzhen and has many years of experience as a company legal manager.

This article and its content are shared by Zhiheng lawyers, for communication purposes only, and do not represent the legal opinions, suggestions or decision-making basis issued by the law firm or lawyers. If you need legal advice or legal professional analysis, please contact the professional lawyers of

, or leave your contact information in a private message WeChat official account. If you need to reprint this article, please contact the official account editor in the background.

Zhiheng · Introduction