scholarly journals PROBLEMS IN THE EXERCISE OF THE INDEPENDENCE OF JUDGES IN ASSESSING AN EXPERT OPINION IN A CRIMINAL CASE

2020 ◽  
Vol 16 (4-2) ◽  
pp. 115-129
Author(s):  
Ирек Гизатуллин
Keyword(s):  
Law Enforcement ◽  
Expert Opinion ◽  
System Analysis ◽  
Judicial Independence ◽  
Criminal Case ◽  
Specialized Knowledge ◽  
Expert Opinions ◽  
The Status ◽  
Expert’S Opinion ◽  
Special Knowledge

The article analyzes some procedural and non-procedural factors that prevent the judge from assessing the expert's opinion in a criminal case freely. The article states that, in the existing law enforcement realities, the expert's opinion acquires the status of an absolute evidence having a pre-determined value. This is due to the de facto lack of competition between the parties in the procedures for appointing and producing an examination, as well as to the difficulty of assessing this type of evidence by a judge in the absence of special knowledge for that. Purpose: to develop theoretical provisions justifying the need to improve the procedures for the appointment and production of expert opinions, as well as the assessment of expert opinions by the court, in order to ensure judicial independence. The paper uses the methods of system analysis, synthesis, sociological polling and generalization. The author concludes that ensuring the freedom of judge’ inner conviction when assessing an expert's opinion directly depends on expanding the possibilities of using an alternative opinion of another person with a specialized knowledge in the same area - the expert's opinion and testimony. In this regard, it is proposed that the law should make it mandatory to grant requests by parties for expert opinions to be admitted and examined in court, and that the results of such research should be reflected in the text of the court decision on the case.

scholarly journals REVIEW OF THE CONCLUSION OF A COURT EXPERT AND THE WRITTEN EXPLANATION OF THE SPECIALIST: SIMILARITY AND DIFFERENCE

2020 ◽  
pp. 52-63
Author(s):  
M. Shcherbakovskyi
Keyword(s):  
Expert Opinion ◽  
Validity And Reliability ◽  
Scientific Validity ◽  
Procedural Law ◽  
The Status ◽  
Expert’S Opinion ◽  
Special Knowledge ◽  
Court Proceedings ◽  
Similarity And Difference ◽  
Court Expert

Reviewing the conclusions of forensic experts is regulated by the procedure developed by the Ministry of Justice of Ukraine. The immediate purpose of the review is to establish the conformity of the study to the approved expert methods, to draw up an expert opinion on the procedural and departmental requirements. The ultimate goal of reviewing is to determine whether the conclusion form complies with the requirements of the law, the scientific validity of the expert opinion as a source of evidence, and the competence of a forensic expert. External reviewing is carried out in accordance with the plans of the Ministry of Justice for experts preparing to receive or confirm their qualifications. Internal peer review is carried out in expert institutions as ongoing quality control of examinations. Gross violations in expert studies have been identified, and organizational and procedural consequences are being drawn, which include sending a court notification about the inaccuracy of the examination. The use of reviews of expert conclusions in court proceedings as a source of evidence is unacceptable, since this document is not provided for by the procedural law, there are no guarantees of the independence and disinterest of the reviewer, reviews do not contain data on the actual circumstances of the dispute or offense. The purpose of providing reviews that are not compiled by the staff of expert institutions is to discredit the authority and professional reputation of forensic experts, leveling their conclusions. At the same time, there is an objective desire of the court to involve knowledgeable persons in the assessment of expert research. This is due to the fact that the parties and the court do not have special knowledge, which make it possible to assess the validity and reliability of the expert’s opinion. The procedural form for establishing these circumstances is to use the help of knowledgeable persons who may be involved as specialists to provide clarifications on issues within their competence. The specialist research the scientific and methodological side of expert examination. A written explanation of a specialist is a procedural document that is prescribed by law, but it does not have the status of a source of evidence. If the specialist provides an explanation that contains a negative response to the expert’s opinion, the judge must invite the expert and expert for interrogation to provide explanations. After hearing a specialist and expert, the court may come to the conclusion that the forensic examination was carried out correctly or, conversely, there are doubts about the reliability of the study and the grounds for appointing a new or repeated examination.

METHODOLOGY AND OBJECTS OF ASSESSMENT OF THE EXPERT’S OPINION BY THE STATE PROSECUTOR

2020 ◽  
Vol 10 (3) ◽  
pp. 164-169
Author(s):  
ELENA PAVLOVA ◽  
Keyword(s):  
Research Methods ◽  
Expert Opinion ◽  
Cognitive Process ◽  
Practical Experience ◽  
Expert Opinions ◽  
Analysis And Synthesis ◽  
Expert’S Opinion ◽  
Special Knowledge ◽  
Definition Of ◽  
A Charge

Purpose of the study. Consideration of the problems existing in the practice of analysis, assessment and use of expert opinions by public prosecutors, and their causes. The study of the methodology for the implementation of this activity as a combination of:a) theoretical principles and practical methods, research methods that the prosecutor applies to assess the relevance, admissibility, reliability of the expert’s opinion; b) a system of principles and methods for studying the laws in accordance with which the process of this assessment proceeds. The author briefly considers the principles of: a) legality; b) science; c) systemic; d) objectivity included in the set of principles on which the assessment of the expert’s opinion is based. The author proposes the sequence of the prosecutor’s decision to analyze and evaluate the expert’s opinion, considered as the most rational way of this activity. The set of questions clarified in this case is considered both as a task and as a set of objects of assessment. These objects are divided into two groups, depending on the nature of the main issues to be solved; 1) concerning the assessment of the possibility of using one or another expert opinion as evidence of a charge in court; 2) relating to the definition of tactics of their submission to the court and participation in their research. The article provides examples of the use of individual research methods and assessment of expert opinions: comparative legal, analogy, analysis and synthesis. The results of the study . The analysis and assessment of the expert’s opinion is a complex cognitive process that requires legal and special knowledge, practical experience, knowledge of the methodology of this work from prosecutors. Its use in compliance with the principles that it is based on is one of the ways to increase the professional level of public prosecutors.

Reliability evaluation of a forensic expert's opinion: World practices and Ukrainian realities

2021 ◽  
Vol 28 (2) ◽  
pp. 252-261
Author(s):  
Volodymyr A. Zhuravel ◽  
Violetta E. Konovalova ◽  
Galina K. Avdeyeva
Keyword(s):  
Expert Opinion ◽  
Forensic Analysis ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
Expert Opinions ◽  
Expert’S Opinion ◽  
General Scientific ◽  
Special Knowledge ◽  
The Subject ◽  
Modelling And Forecasting

Improving the activities of pre-trial investigation and judicial review largely depends on the increased use of special knowledge in forensic investigative practice and, above all, the involvement of an expert and their analysis. The relevance of the subject matter is explained by the need to introduce new forms and approaches to evaluating the reliability of expert opinions, in particular with the involvement of independent specialists of the corresponding speciality. The purpose of this study was to provide arguments regarding the expediency of attracting knowledgeable persons as reviewers to evaluate the objectivity and completeness of forensic analysis, the correctness of the methods and techniques applied by the expert, and the validity of the opinion. To achieve this purpose, the following general scientific and special research methods were used: Aristotelian, comparative legal, functional, sociological, statistical, system and formal legal analysis, legal modelling, and forecasting. It was established that in the vast majority of countries of the world, except Ukraine, an independent, knowledgeable person with special knowledge in the corresponding field is involved to help evaluate the reliability of an expert opinion. It was proved that contacting knowledgeable persons to evaluate the objectivity, validity, completeness of expert research helps establish the causality between the identified features of the object of analysis and the fact that is subject to establishment, and also gives grounds for determining the affiliation, admissibility, reliability, and sufficiency of the expert opinion. At the same time, a specialist's review cannot serve as a source of evidence, but only has an auxiliary (advisory, technical) nature and can serve as a basis for appointing a second (additional) forensic analysis or a cross-examination of the expert and the reviewer. To exercise the rights of individuals to fair justice, it is proposed to introduce this procedure for evaluating the reliability of expert opinions in Ukraine, with the necessary changes in the current procedural legislation of Ukraine to provide an opportunity for participants in criminal proceedings and the victim to attract knowledgeable persons as reviewers of expert opinions

scholarly journals Powers of the prosecutor during pretrial proceedings to protect the rights of victims of crimes

2021 ◽  
Vol 7 (3) ◽  
pp. 89-93
Author(s):  
Lilia R. Komarova ◽  
Mikhail V. Kolesov
Keyword(s):  
Law Enforcement ◽  
Positive Impact ◽  
Preliminary Investigation ◽  
Criminal Case ◽  
Law Enforcement Agencies ◽  
The Status ◽  
The Right ◽  
The Impact

The article substantiates the need to change the criminal procedural legislation that regulates the powers of the prosecutor and the status of the victim and gives the prosecutor the right to initiate a criminal case. The proposed changes in the procedural powers of the prosecutor are also considered through the prism of organizing the activities of law enforcement agencies and the impact of statistical reporting indicators on their activities. The experience of prosecutorial and investigative practices and the opinion of distinguished domestic legal scholars are analyzed. The changes proposed by the authors could have a significant positive impact on the work of preliminary investigation bodies and reduce the number of violations committed during preliminary investigation stages. In addition, bringing the status of the prosecutor and the preliminary investigation bodies into a logical procedural position could eliminate unnecessary and inherently harmful corporate competition.

Profiler as an expert – selected issues

2017 ◽  
Vol 298 ◽  
pp. 69-75
Author(s):  
Karolina Olszak-Häußler ◽  
Keyword(s):  
Literature Review ◽  
Present Article ◽  
Expert Opinion ◽  
Criminal Procedure ◽  
Criminal Profiling ◽  
Media Attention ◽  
Expert Opinions ◽  
Current State ◽  
Special Knowledge ◽  
Criminal Profile

Despite the fact that criminal profiling attracts massive media attention, our knowledge about the process of elaborating expert opinions containing criminal profiles is very limited. Based on the literature review, the author attempts to answer the questions: what is the objective of appointing an expert in the field of criminal profiling? and, which criteria should be applied to the evaluation of expert opinion?. Based on the content of the present article, it can be concluded that the current state of knowledge does not allow to determine unequivocally whether the profiler needs special knowledge, nor what should be the scope of such knowledge. Moreover, it cannot be clearly determined, whether the profile provides information of relevance to the resolution of the case. However, there is no doubt that wherever criminal profile takes the form of an expert opinion, it should be subject to very careful control, in accordance with the provisions of the Code of Criminal Procedure and doctrine recommendations regarding this matter.

scholarly journals Illegal circulation of digital currencies: features of criminal investigation

2021 ◽  
Vol 10 (45) ◽  
pp. 252-264
Author(s):  
Lydiya Voskobitova ◽  
Tatyana Vilkova ◽  
Sergey Nasonov ◽  
Maxim Khokhryakov ◽  
Yuri Reshetnikov
Keyword(s):  
Law Enforcement ◽  
Digital Technology ◽  
Legal Regulation ◽  
Present Stage ◽  
Criminal Cases ◽  
Digital Currency ◽  
Analysis And Synthesis ◽  
The Status ◽  
Special Knowledge ◽  
Illicit Trafficking

The purpose of the study is to analyze the international and national legal regulation of the digital currencies circulation at the present stage, to assess the state of crime with the illegal use of these assets, to identify the features of the investigating such crimes and to substantiate proposals aimed at improving legislation and law enforcement practice. The following methods were used in the research: normative and comparative legal – in the analysis of legislation and practice of seizure and confiscation of digital currencies in different states, to identify the strengths and weaknesses of national approaches, to assess the possibility of their unification and harmonization; phenomenological – in considering the criminal trafficking in digital currency as a phenomenon that requires special methods of detection and investigation; general logical methods of analysis and synthesis, induction and deduction, methods of empirical research and analysis. It was shown that with the rapid growth of crime involving cryptocurrencies, the legislation of various states is at the stage of formation of legal regulation of the fight against its illicit trafficking: only some countries have established the status of digital currency as property, provided for the specifics of seizure, storage and sale of digital currency in criminal cases. The need to recognize digital currencies as property has been substantiated. It is shown that the seizure and confiscation of cryptocurrencies should be carried out only by court decision. The lack of special knowledge in the field of digital technology among the investigator, prosecutor and the court requires the mandatory involvement of a specialist in the proceedings on cases of crimes committed with the use of digital currency.

scholarly journals Initiation of a Criminal Case for an Offence in the Field of Computer Information: Russian and Foreign Experience

2021 ◽  
Vol 16 (12) ◽  
pp. 156-166
Author(s):  
M. V. Zhizhina ◽  
D. V. Zavyalova
Keyword(s):  
Information Technology ◽  
Law Enforcement ◽  
Criminal Case ◽  
Criminal Cases ◽  
Law Enforcement Agencies ◽  
Legal Entity ◽  
Foreign Experience ◽  
Forensic Practice ◽  
Special Knowledge

The paper examines the theoretical and practical foundations of the initiation of criminal cases for crimes in the field of computer information. The stage of pre-investigation verification of a crime report is quite difficult due to the need to identify and consolidate the trace picture, requires the involvement of special knowledge in the field of information technology, the performance of certain actions, including of a technical nature, etc. Based on the analysis of domestic and foreign sources carried out by the authors, generalization of forensic practice and procedural regulation, an algorithm has been developed for conducting a pre-investigation check of reports of a crime of this type. Particular attention is given to tactical recommendations for interviewing a victim, namely an individual and a legal entity. Other verification and investigative actions are presented, depending on typical versions and situations. The operational search measures used to establish the fact of a crime are considered separately. At the same time, the generalization of the forensic practice of investigating crimes in the field of computer information and the questioning of representatives of law enforcement agencies made it possible to identify certain problematic points related to the pre-investigation verification of reports on these crimes, including the procedure for the treatment of victims with reports of incidents, with information from open sources of cyberspace within the framework of operational-search activities, etc. Based on the results of the research conducted by the authors, effective foreign practices are proposed, the transfer of which to domestic soil will help reduce the latency of these crimes, increase the efficiency of investigation and disclosure of this category of criminal cases.

scholarly journals Problems of Using Special Knowledge in Criminal Proceedings and Ways to Solve Them

2018 ◽  
Vol 5 (3) ◽  
pp. 106-110
Author(s):  
O Yu Antonov
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Special Knowledge ◽  
The Russian Federation ◽  
Improvement Of Legislation

In article actual problems of using of the conclusions and evidence of specialist parties and the court, appointment of judicial examination before initiation of criminal case, including problems realization of related innovations of the Criminal Procedure Code of the Russian Federation; the proposals on improvement of legislation, law enforcement practice.

scholarly journals Submission of items and documents as a way of gathering evidence in preliminary investigation of a criminal case

2021 ◽  
Vol 15 (2) ◽  
pp. 210
Author(s):  
Sergey B. Rossinskiy
Keyword(s):  
Law Enforcement ◽  
Local Governments ◽  
Preliminary Investigation ◽  
Third Parties ◽  
Criminal Case ◽  
Law Enforcement Agencies ◽  
Scientific Publications ◽  
Expert Opinions ◽  
Legislative Regulation ◽  
Material Evidence

This article is devoted to the consideration of the representation as a simpler, in comparison with investigative actions, a purely «technical» method of collecting objects and documents to be attached to a criminal case as material evidence, other documents, expert opinions, the results of operational investigative and administrative activities of law enforcement agencies for the purpose of subsequent use to substantiate enforcement decisions. Methodologically, starting from his previous scientific publications devoted to the issues of criminal procedural proof in general and the collection of evidence in particular, the author investigates the phenomenon of the presentation of objects and documents, defines the circle of subjects initiating this procedure, considers the procedure for its implementation, notes the shortcomings of its legislative regulation. Particular attention is paid to the practical issues of the presentation of objects and documents in pretrial proceedings in a criminal case. The most acceptable methods and applied technologies of acceptance and transfer of potential evidence presented to the bodies of inquiry and preliminary investigation by suspects, accused, victims are analyzed and other interested participants, materials of operational-search activities, as well as items and documents submitted by «third» parties, that is, various government bodies, local local governments, their officials, enterprises, institutions and individuals.

scholarly journals The Issues of Expert Opinion Evaluation on Forensic Transport Examinations

2020 ◽  
Vol 15 (4) ◽  
pp. 66-73
Author(s):  
N. N. Il’in
Keyword(s):  
Traffic Accident ◽  
Insufficient Information ◽  
Forensic Evidence ◽  
Specialized Knowledge ◽  
Expert Opinions ◽  
Technical Errors ◽  
Expert’S Opinion ◽  
Probable Form ◽  
Effective Use

One of the factors adversely affecting the quality of crime investigations is the misuse and misapprehension of forensic evidence in proving. An essential part of solving this problem is a more effective use by investigative bodies of specialized knowledge in the form of forensic examinations. In particular, when investigating crimes concerning the violation of traffic rules and transport operation, an investigator should thoroughly evaluate an expert’s opinion in the field of transport and technical forensic examinations. The author studied the expert practice on these forensic examinations, indicating the existing significant number of expert opinions in the “probable” form. In the author’s opinion, the main reasons for such opinions are the presence of probable conclusions about the causes of the traffic accident in the materials of the internal investigation submitted for examination and the insufficient information content of the initial data. The analysis of the errors made by experts on forensic transport examinations indicates the need to study the received conclusions thoroughly, look closely not only into the conclusions themselves but also into the content of the research part, which will allow to timely recognize the incompetence of the study, detect technical errors, as well as the inconsistency with the conclusions on other circumstances established in a criminal case.

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