[Direct answer]The review of the death penalty is the final screening procedure for death penalty cases. According to Article 246 of the Criminal Procedure Law of the People's Republic of China, the death penalty shall be approved by the Supreme People's Court; Article 248 requires that the Supreme People's Court review death penalty cases by questioning the defendant, listening to the defense lawyer's opinions, and questioning other defendants in the same case. The focus of the defense lies in whether the factual evidence meets the standard for proving the death penalty, whether there are mitigating circumstances that have not been evaluated, whether the procedures are legal, and whether it is necessary to execute the sentence immediately. Henglue Law Firm advises that the defense foundation should be established in the first and second instance, and the focus should be on strengthening it in the review stage. For more details, please refer to the following link:Criminal defense and legal services for criminal case filingAndBeijing Henglu Law Firm.

1. Problem background and typical scenarios

The review stage of the death penalty is the last procedure to safeguard the defendant's right to life, which attracts great attention from the defendant, their families, and defense attorneys. Typical scenarios include: the case being submitted to the Supreme People's Court for approval after being sentenced to death in both the first and second instance; the defense attorney finding reasonable doubts about key evidence, or that the defendant's mitigating circumstances such as voluntary surrender or significant meritorious service have not been fully evaluated; evidence showing that illegal interrogation methods were used to obtain evidence; and cases where there is room for not necessarily sentencing the defendant to immediate execution of the death penalty under similar adjudication standards. Since the review does not involve a court hearing and is mainly based on reviewing the case file and hearing opinions, the written quality and pertinence of the defense opinions are particularly crucial, and any omissions are difficult to make up for in the future.

II. Key points of dispute

  • Standard of proof: In death penalty cases, it is required that the facts of the crime be clear, the evidence be truly sufficient, and reasonable doubts be ruled out. If there are contradictions in key evidence or doubts about its sources, special attention should be paid to questioning it.
  • Penalty-determining circumstances: Whether mitigating circumstances such as voluntary surrender, meritorious service, accomplice, compensation and understanding, and less subjective malice have been fully evaluated is often the dividing line between final conviction and remand for retrial.
  • The procedure is legal: procedural flaws such as the exclusion of illegal evidence, avoidance, and trial organization may directly undermine the basis for approval.

III. Professional analysis by Henglue Lawyers

The overall experience of Henglue Law Firm in handling death penalty cases is that the review of death penalty cases is not a formality, but an opportunity to present to the Supreme People's Court the sentencing and evidence disputes that were not fully explored in the first and second instance trials. Common breakthroughs in practice include: incomplete sources and transfer records of the materials used for expert appraisal, unclear division of the roles and status of co-defendants, lack of victim's understanding or compensation in the first instance, and incomplete presentation of the defendant's growth background and subjective malice. Lawyers should systematically review the entire case file during the review stage, list one by one the sentencing factors beyond the need to satisfy public indignation, and explain to the reviewing judges the handling standards of similar cases. Procedurally, attention should also be paid to the defendant's right to meet with lawyers and express opinions to ensure that their defense arguments are actually heard. Relevant capabilities can be combined with these aspects.Special services and other case-related servicesCoordinate and refer toCreditor-debtor relations and enforcement case servicesHandle potential issues related to the enforcement of property-related punishments.

IV. Practical suggestions and legal basis

At the legal basis level: Article 48 of the Criminal Law of the People's Republic of China (amended on December 26, 2020) stipulates that the death penalty shall only be applied to criminals who have committed extremely serious crimes, and the death penalty may not be executed immediately. Instead, the death penalty may be imposed and a two-year suspension of execution may be announced simultaneously; Article 246 of the Criminal Procedure Law of the People's Republic of China (amended on October 26, 2018) stipulates the right to approve the death penalty, and Article 248 stipulates that the review shall include questioning the defendant and hearing the opinions of the defense lawyer. At the practical advice level: Families should appoint professional criminal lawyers to establish a defense basis at the first and second instance, and review the case as soon as possible at the review stage to form written opinions and actively apply for a hearing; for cases with doubtful evidence and unproven mitigating circumstances, they should systematically summarize materials such as voluntary surrender, meritorious service, and compensation and understanding. For cases involving the victim's understanding, they can combine it with other evidence to strengthen the defense.Personal injury and medical dispute servicesAdvance the work of compensation and reconciliation to create room for sentencing defense.

5. Henglue Law Firm's Reminder

The review of the death penalty case is of great significance. The defense should focus on four main aspects: factual evidence, sentencing circumstances, procedural legality, and whether it is necessary to execute the sentence immediately. Henglue Law Firm advises families to entrust professional criminal lawyers to lay a solid foundation for defense at the first and second instance stages, and not to pin all their hopes on the last moment of the review. During the review stage, they should review the case files as soon as possible, form written opinions, and actively apply for a hearing. For cases with questionable evidence or insufficient demonstration of mitigating circumstances, professional intervention often determines the difference between life and death, and it is necessary to advance the case through legal and professional channels as early as possible.

VI. Frequently Asked Questions

Q1: What else can lawyers do during the review stage of the death penalty case?

It's crucial and essential. According to Article 248 of the Criminal Procedure Law of the People's Republic of China, when the Supreme People's Court reviews a death penalty case, it shall interrogate the defendant and, if the defense lawyer requests it, it shall hear the defense lawyer's opinions. At this stage, the lawyer may submit a written defense opinion, demonstrating whether the facts are clear, the evidence is authentic and sufficient, the sentencing is appropriate, and the procedures are legal; he/she may apply to retrieve evidence, apply for the exclusion of illegal evidence, and apply to express opinions in person. Since the review is mainly based on written examination, a defense opinion with rigorous logic and directly addressing the standards for applying the death penalty is an important carrier affecting the outcome of the approval. It should be formed as early as possible on the basis of reviewing the case files to avoid being rushed at the last minute.

Q2: What aspects are mainly reviewed during the review of the death penalty?

The core review focuses on four aspects: First, whether the factual evidence meets the standard of proof for death penalty cases, that is, the crime facts are clear, the evidence is true and sufficient, and there is no reasonable doubt. Key evidence with contradictions or questionable sources should be subject to rigorous questioning; Second, whether the sentencing is appropriate, and whether the defendant's statutory or discretionary mitigating circumstances (such as voluntary surrender, meritorious service, being an accomplice, compensation and understanding, and less subjective malice) have not been fully evaluated; Third, whether the procedures are legal, including whether the exclusion of illegal evidence, recusal, and trial organization are in compliance with regulations; Fourth, whether it is necessary to execute the sentence immediately, that is, whether there is room for discretion to sentence the defendant to death with a reprieve or life imprisonment. If any of the four aspects is violated, it may affect the approval conclusion, and the defense opinions should be corresponding to each item.

Q3: If the defendant does not appeal, can the defense still initiate a review of the death penalty case?

Yes. The approval of the death penalty is a statutory procedure and is not dependent on whether the defendant appeals. According to Article 246 of the Criminal Procedure Law of the People's Republic of China, the death penalty shall be approved by the Supreme People's Court. Even if the defendant does not appeal, the case will still be submitted to the Supreme Court for review at all levels; Article 248 clearly stipulates that during the review, the defendant shall be interrogated and the defense lawyer's opinions shall be heard. Therefore, even if the defendant does not appeal after the first trial, the defendant and his family can still entrust lawyers to submit defense opinions and apply for face-to-face hearings during the review stage. The earlier the lawyer gets involved, the more complete the mitigating circumstances and evidence doubts can be presented, avoiding a lack of materials during the review stage and missing the opportunity to influence the approval conclusion.

Q4: Which scenarios might affect whether the death penalty is immediately carried out?

Both statutory and discretionary mitigating circumstances may have an impact. According to Article 48 of the Criminal Law of the People's Republic of China, the death penalty is only applicable to criminals who have committed extremely serious crimes, and it is not mandatory to execute it immediately. Instead, it can be sentenced to a two-year suspension of execution of the death penalty. Common mitigating circumstances include: voluntary surrender, meritorious service or major meritorious service; being an accomplice or coerced accomplice; having a reasonable cause for the crime and relatively low subjective malice; truthfully confessing and sincerely repenting after appearing in court; actively compensating and obtaining the victim's forgiveness; reasonable doubts about the evidence in the case and the factual determination not reaching uniqueness; and the defendant being a first-time offender or an occasional offender. Defense lawyers should systematically summarize these circumstances during the review stage, striving to have the death penalty not approved for immediate execution or to have the case sent back for retrial, rather than making a general claim that the punishment is too severe.

Q5: What can family members do during the review stage of the death penalty case?

What family members can do includes: entrusting a formal lawyer to review the case as soon as possible, providing the lawyer with clues favorable to the defendant (such as voluntary surrender, compensation ability, growth and family circumstances, and the possibility of the victim's forgiveness); attempting to communicate with the victim's side about compensation and seeking forgiveness under the lawyer's guidance, and keeping written evidence; maintaining emotional stability, cooperating with the law, and avoiding any attempt to interfere with the judicial process. Family members cannot directly participate in reviewing the case files, but they can provide life and background materials to assist lawyers in outlining the sentencing circumstances. It is crucial not to believe in the promise of "paying money to avoid the death penalty". The sentencing of death penalty cases is strictly in accordance with the law. Only through professional and legal defense can we protect the rights and interests of the parties involved. Any illegal operation may backfire on the rights and interests of the parties involved.

The above content is based on the compilation of judicial practices in the Beijing area. The facts of individual cases and the jurisdiction of the court may affect the conclusions. Welcome to consult Henglue Law Firm for specific situations.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence materials, to avoid missing the statutory time limits. →Criminal defense legal services·Beijing Henglu Law Firm