Whither, hither and thither, Res Gestae? A comparative analysis of its relevance and application

In Singapore, the common law doctrine of r es gestae (‘RG’) risks becoming extinct given the statutory inclusions of hearsay evidence. Further, the test for RG is unsettled. This article thus argues that RG is still relevant but must be applied principally. It is relevant because first, it is unwise to uproot a doctrine existing since 1808. Second, comparative analysis of cases from United Kingdom, India, New Zealand and Australia evinces the residual need for RG. Third, a modified approach to applying it can in fact exclude inadmissible evidence. This article further proposes a three-strand test. First, as a preliminary requirement, objectively, there was no concoction involved. Second, the evidence must relate to a fact-forming part of the same transaction but was not contemplated in s. 32(1) of the Evidence Act. Third, the evidence must have sufficient probative value to outweigh its prejudicial effect.

Material and Procedural Criteria for Inadmissibility of Evidence Obtained as a Result of Provocation: European Court of Human Rights Standards and Russian Jurisprudence

The question of the inadmissibility of evidence obtained as a result of provocation remains debatable in the science of the criminal process and largely uncertain in the practice of the Russian courts. The institution was accepted by the Russian legislator on the basis of the recommendations of the European Court of Human Rights but has not yet received proper legal regulation. As a research task, the authors attempted to assess two criteria used in assessing the quality of operational and investigative activities: material and procedural measures and to propose ways to consolidate the latter in the Criminal Procedure Law. An analytical method of research, generalization, comparison and systematization of scientific data, as well as an empirical method of analyzing decisions of the European Court of Human Rights and Russian jurisprudence, was used to solve this problem. It is proposed to legalize the actual duty of the courts to exclude from the evidence the data obtained as a result of provocation by supplementing the principle of presumption of innocence with the provision of the presence of the prosecution the duty to prove the absence of provocation, as well as to put the relevant basis on the list of inadmissible evidence contained in art. 75 CPC of the Russian Federation.

Expert's Subscription and the Procedure for its Registration when Assigning a Forensic Examination

Currently, due to the principle of adversarial proceedings, almost every expert's opinion is accompanied by its review by a specialist engaged by one or another party to the process. One of the shortcomings reflected in the reviews is a violation of the procedure for subscribing to the expert's warning of criminal liability for giving a deliberately false conclusion under article 307 of the Criminal code of the Russian Federation. Failure to comply with this very important procedure may result in the recognition of the expert's opinion as inadmissible evidence. In our opinion, the analysis of judicial practice and procedural rules governing this procedure, as well as the proposed recommendations, will help law enforcement entities in assessing the expert's opinion and its admissibility as evidence in the case.

Documenting Current Practices of Accommodating Linguistic Needs of Deaf Defendants

Deaf defendants are an underexamined population in criminal justice research, and very few studies have examined their involvement in the criminal justice system. In addition, research on accommodating the linguistic needs of deaf defendants is sparse. Failure to accommodate the linguistic needs of deaf defendants presents several concerns, including disparate treatment and violations of ADA-guaranteed rights that may lead to inadmissible evidence, dismissals of cases, and not-guilty verdicts, as well as lawsuits and litigation, all of which create additional strain on an already overburdened system. The current study combines previous research on deaf defendants with the findings of data gathered from courtroom practitioners nationwide to gain an understanding of the current practices used to facilitate communication during criminal trials involving deaf defendants.

RELEVANCE AND RELIABILITY OF AN EXPERT CONCLUSION AS A CRITERIA FOR EVALUATING FORENSIC EXAMINATION

Based on the analysis of special literature, regulations and forensic expert practice, the article considers the main provisions related to formation of criteria for evaluating a forensic expert report as a source of evidence in terms of their relevance and admissibility. Arguments are provided regarding the fact that if objects investigated by a forensic expert or solved tasks do not relate to materials of criminal proceedings, then, accordingly, a forensic expert report should be recognized as an irrelevant source of evidence. When assessing admissibility of a forensic expert report, it is crucial to establish whether a forensic examination was appointed and conducted in accordance with the procedural order. Such an evaluation criterion is supported by regulations of Article Four of the Fundamental Law of Ukraine: “On Forensic Science”, according to which independence of a forensic expert and validity of his findings are ensured by the procedure for appointing a forensic expert determined by law. It is argued that calling on a forensic expert as a witness for the purpose of clarifying and supplementing his report may lead to his withdrawal from the criminal process by means of recusal. An expert who has conducted forensic examination, interrogated as a witness, will not be able to participate in this criminal proceeding as a forensic expert in the future. If a forensic expert interrogated as a witness will carry out, for example, an additional forensic examination in this criminal proceeding in the future, then it may be recognized as inadmissible evidence, since it was conducted by a witness in this criminal proceeding, which is prohibited by law. That is, based on the regulations of the current criminal procedural legislation of Ukraine, a forensic expert can provide clarifications on the issues of forensic examination carried out by him in criminal proceedings only as a forensic expert and not as a witness.

Examination and the State of Intoxication: Features of Legal Regulation and Observance of Human Rights and Freedoms

The author of the article examines the state of alcohol, drugs or other intoxication, as well as the influence of drugs that reduce the attention and speed of reaction, as a measure to ensure the proceedings in cases of administrative offenses, and features of legal regulation of its use during documentation of administrative offenses, as well as the admissibility of using the obtained data as evidence in proceedings on administrative offenses. The examination of the state of intoxication is not just a measure to ensure the proceedings in cases of administrative offenses, but a necessary procedural action, which allows to assert the presence in the actions of a person of an administrative offense. It is alleged that an examination of the state of intoxication, in particular of drivers, is possible only if they are detained administratively. It is applied to the documentation of other administrative offenses, the proof of which requires the establishment of a state of intoxication. In other circumstances, such an examination of intoxication should be considered inadmissible evidence in an administrative offense case, since it was obtained in substantial violation of human rights and freedoms, including the right to liberty and security, as well as a number of other rights, which the detained person failed to exercise. It is appropriate that such a security measure as the removal of a driver from driving the vehicle had a procedural form, in this regard, we consider it necessary to supplement the Art. 266 of the Code of Administrative Offenses with Part 8 of the following wording: «On the removal of persons from driving vehicles, river and small vessels authorized officials execute the minutes». We are confident that the offered amendments to the legislation will contribute to the development of administrative tort law, its institutions, which positively affect both the legal system and legislation of independent Ukraine, raising the prestige of its legal system in the world, and serve as a convincing argument for citizens to become victims of arbitrariness of authorities.

Inadmissibility of Evidence in Criminal Proceedings in Ukraine

The aim of the article is to analyze the problematic aspects of finding evidence inadmissible in criminal proceedings, as well as to formulate, according to the Criminal Procedure Code of Ukraine (CCP of Ukraine) and the case law of the European Court of Human Rights (ECHR), proposals for elimination of existing shortcomings on the issue raised. In the article used general scientific and special methods that enable to obtain scientifically sound conclusions and proposals. In particular, scientific methods, such as dialectical, comparative-legal, system-structural, modelling, abstraction, generalization and logical, are applied. The problematic issues of the procedure for finding evidence inadmissible in the criminal proceedings of Ukraine are studied. The significant violations and shortcomings in collecting evidence by the pre-trial investigation bodies are under focus. The authors clarify grounds for the inadmissibility of evidence and the types of inadmissible evidence. The analysis of investigative practice and case-law enables to conclude that a violation in taking one piece of evidence in criminal proceedings may lead to finding a number of other pieces of evidence inadmissible (the doctrine of the fruit of the poisonous tree). The authors argue that the court should be proactive in resolving the issue of inadmissibility of evidence either on its own motion or on the motion by parties to criminal proceedings. The utilization of the case law of the ECHR in national law application activities are analyzed from legal perspective. The study establishes that ratio decidendi of the ECHR with regard to finding evidence inadmissible is that the issue of its inadmissibility is subject to regulation at the level of national law. The assessment of inadmissibility of evidence is the responsibility of national courts, and the ECHR is obliged to ensure that the means of taking evidence are fair.