[Direct answer]In general, the second-instance criminal trial mostly upholds the original verdict, and the number of overturned verdicts is relatively small. However, if there are factual misidentifications, errors in the application of the law, or omissions in the sentencing circumstances or new evidence, the chances of a verdict being overturned will significantly increase. According to Article 236 of the Criminal Procedure Law, the second-instance court will respectively decide to uphold the verdict, overturn the verdict, or remand the case for retrial. Beijing Henglue Law FirmCriminal defense teamI have practical experience in overturning verdicts in second-instance trials. For more details, please refer to the following link:Beijing Henglu Law Firm.

I. Problem background and typical scenarios

After receiving the first-instance judgment, the most pressing concern for the parties involved is whether there's still a chance of winning the appeal. According to judicial statistics, the overall rate of overturned verdicts in criminal appeals is not high, and most appeals are dismissed due to insufficient evidence to overturn the original judgment. However, this doesn't mean that the second-instance trial is just a formality. The overturned verdicts in second-instance trials are concentrated in several situations: errors in the factual basis such as the amount, area, or time of the crime determined in the first instance; misidentification of the crime or misapplication of the law; omission of sentencing circumstances such as voluntary surrender, accomplice status, or restitution; and the emergence of new evidence or the defendant's newly obtained restitution agreements in the second instance. Whether these factors exist determines the substantive scope of the appeal.

II. Key points of contention

  • Is there any bias in the determination of the facts? Whether the evidence chain of key facts such as the number of cases involved, the amount of money, and the time of knowing the truth is complete directly determines whether a retrial or a remand for rehearing can be triggered.
  • Is the application of the law and the sentencing inappropriate? Misidentifying the nature of the crime, misplacing the sentencing level, and misidentifying circumstances such as voluntary surrender and meritorious service are statutory grounds for the second-instance court to change the verdict.
  • Is the appeal strategy accurate? It's better to focus on proving the case with evidence and legal provisions item by item than to make general complaints of injustice. Only by clearly pointing out the errors of the first-instance court can the appeal be accepted by the collegial panel.

III. Professional analysis by Henglue Lawyers

The second-instance case of illegal occupation of farmland handled by Henglue Law Firm is a typical example. W*, a farmer in Inner Mongolia, was sentenced to fixed-term imprisonment of one year and one month and fined 24,000 yuan by the first-instance court for cultivating grassland and then subcontracting it. After attorney Liu Liqiang represented him in the appeal, the defense focused on three points: First, the contract allowed for desert prevention and development, but the administrative authority didn't deliver the no-tillage notice in writing until February 2023, so W*'s subjective awareness should be calculated from that date; Second, the first-instance court determined the illegal income based on the total cultivation income without distinguishing between legal and illegal parts. The court should reassess it according to the principle of benefiting the defendant in case of doubt; Third, the evidence of the illegal occupied area was insufficient. The second-instance court adopted the main arguments, determining the subjective awareness as February 2023, reducing the illegal area to 74.148 mu and the illegal income to 48,214.69 yuan. The sentence was changed from one year and one month to six months, and the fine was reduced from 24,000 yuan to 20,000 yuan, achieving a double reduction in both the sentence and property punishment. At the same time, the court held that W* continued to commit crimes after being subject to compulsory measures and failed to truthfully admit the main facts, which did not constitute voluntary surrender and did not meet the conditions for probation—this also reminds appellants that the defense points in the second-instance appeal must be accurate and cannot rely on unconvincing arguments.

IV. Practical suggestions and legal basis

In terms of legal basis, Article 236 of the Criminal Procedure Law clearly stipulates the rules for handling second-instance cases: If the original judgment correctly identifies the facts and applies the law, and the sentencing is appropriate, the appellate court shall rule to reject the appeal and maintain the original judgment; if the application of the law is erroneous or the sentencing is inappropriate, the court shall modify the judgment; if the facts are unclear or the evidence is insufficient, the court shall modify the judgment after clarifying the facts or remand the case for retrial. Article 237 establishes the principle of no increase in punishment on appeal, and in cases where only the defendant appeals, the second-instance court shall not increase the punishment. Procedurally, the appeal period for those who are not satisfied with the judgment is ten days (Article 230), and cases where there are objections to the facts and evidence of the first-instance court and may affect the conviction and sentencing shall be heard in court (Article 234). Practical suggestions: The appeal statement should directly point out the errors of the first-instance court and correspond to the evidence and legal provisions item by item; supplement new circumstances such as compensation and apologies before the second-instance trial; and apply for the collection of new evidence when necessary. For more procedural issues in criminal cases, please refer to the relevant materials.Specialised legal services.

5. Henglu Law Firm's Advice

This case is handled by Beijing Henglu Law FirmLiu LiqiangThe attorney (practice license number: 11101200910454358, subject to the document issued by the judicial administrative organ) acts as the agent. Henglue Law Firm advises: The core competitiveness of the second-instance judgment change lies in the accuracy of the written defense opinion. It is better to put forward tenable opinions rather than too many views; for crimes involving amounts and areas, item-by-item reduction is often more practical than overall overturning of the verdict; the appellant should truthfully evaluate his own circumstances. Making up claims such as voluntary surrender will only undermine his credibility. It is better to make a professional assessment before deciding on the appeal strategy.

Q1: What conditions must be met for a second-instance court to overturn a verdict?

According to Article 236 of the Criminal Procedure Law, there are mainly two types of retrials in the second instance: Firstly, the original judgment applied the wrong law or imposed an inappropriate sentence, such as misidentifying the crime, misclassifying the sentencing level, or failing to recognize extenuating circumstances like voluntary surrender and accomplice. Secondly, the facts are unclear or the evidence is insufficient. After clarifying the facts, the judgment may be changed or the case may be sent back for retrial. When applying for a retrial, the parties should organize materials in accordance with the above situations: point out which facts identified in the first instance lack evidence support, which application of the law is wrong, and attach new evidence in the second instance. Appeals that merely express dissatisfaction without specific direction are usually difficult to overturn the original judgment. The key to a retrial lies in accurately and thoroughly pointing out the errors of the first instance.

Q2: Will the second-instance trial definitely be held in court?

Not necessarily. According to Article 234 of the Criminal Procedure Law, the second-instance court shall form a collegial panel to hear the following cases: cases in which the defendant, the self-prosecutor, and their legal representatives raise objections to the facts and evidence determined in the first-instance trial, which may affect the conviction and sentencing; cases in which the defendant is sentenced to death; and cases in which the people's procuratorate files a protest. For other cases with clear facts, the court may not hold a hearing and make a judgment after reviewing the case files, interrogating the defendant, and hearing the defense attorney's opinions. Therefore, whether the defendant raises objections to the facts in the appeal and how to organize the reasons for the objections directly affect the opportunity for a hearing. If the defendant believes that there are problems with the facts in the first-instance trial, he/she should clearly list and explain the impact in the appeal brief.

Q3: Will I be sentenced to a heavier punishment after appealing?

No. According to Article 237 of the Criminal Procedure Law, the principle of "no increase in punishment for appeals" stipulates that in cases where only the defendant appeals, the second-instance court shall not increase the defendant's punishment after the trial, nor shall it revoke the original judgment and remand the case for retrial to impose a disguised heavier punishment. The exceptions to this principle are cases where the people's procuratorate lodges a protest or the private prosecutor appeals, which are not subject to the "no increase in punishment for appeals" restriction. Therefore, if the defendant is dissatisfied with the sentencing, he/she can exercise the right to appeal without worrying about being subject to heavier punishment; however, he/she should also rationally assess that the scope of a possible change in the judgment mainly focuses on substantive errors in facts, laws, and sentencing circumstances. The quality of the appeal grounds determines the outcome, rather than the appeal itself automatically leading to a change in the judgment.

Q4: Can I still seek further legal remedies after the second-instance court has changed the verdict?

In China, we implement a two-instance final appeal system. The judgment of the second instance takes effect immediately after it is rendered and cannot be appealed further. If the parties still believe that there are indeed errors in the effective judgment, they may file a complaint with the people's court or the people's procuratorate in accordance with Article 252 of the Criminal Procedure Law. If the conditions are met, the trial supervision procedure will be initiated for retrial. The complaint does not suspend the execution of the original judgment, and the threshold is higher than that of the second instance: it requires new evidence to prove that there are indeed errors in the facts of the original judgment, or that there are indeed errors in the application of the law in the original judgment, and other statutory circumstances. Therefore, the second instance is the procedure with the lowest cost and the greatest opportunity to correct errors. It should be fully invested in the appeal stage, and the hope should not be entirely pinned on the retrial complaint afterwards.

Q5: When is the most appropriate time to hire a lawyer for the second-instance appeal?

The earlier, the better. After receiving the first-instance judgment, there is a 10-day appeal period (Article 230), during which you need to decide whether to appeal, draft and submit the appeal brief. After that, the second-instance court has a limited timeframe for review, and there is not much time to submit defense opinions and new evidence. The ideal approach is to immediately entrust a lawyer to review the case file and evaluate it after the judgment is issued: check whether there are any weak links in the first-instance evidence system, whether the sentencing circumstances have been overlooked, and whether there are new circumstances such as compensation and leniency that can be supplemented. Then decide on the intensity and angle of the appeal. If you only find a lawyer when the trial is approaching, you can only do superficial work and miss the best opportunity to organize evidence and apply for procedures.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, so as to avoid missing the statutory time limit. →Criminal defense legal services·Attorney Liu Liqiang·Beijing Henglue Law Firm