Cognitive dissonance as factor of influence in American courtroom discourse

The article reveals the specificity of cognitive dissonance in courtroom discourse as one of the mechanisms of communicative influence on the recipients. Two types of the phenomenon in question are grounded: dissonance caused by real-life facts, which include the nature of the crime itself, and dissonance artificially created by the prosecutor and the defense lawyer to persuasively influence the jury and the judge. Common is the use of a narrative as a persuasive, arousing the associative activity of the recipients by contrasting the axiological features of the concepts; combining elements of rational and emotional communicative influence. Distinctive features include the communicative strategies and tactics used by speakers and the choice of concepts around which communicative influence is modeled. The speeches of the prosecutor and the defense lawyer represent a kind of battle of narratives and a contest of cognitive dissonance. The research results in the following findings: the narrative that not only causes cognitive dissonance but also implicitly presents a way to overcome psychological discomfort and harmonize elements of the cognitive structure in the minds of the recipients wins.

Problematic issues of replacement or waiver of the right to accept a defense lawyer's services who provides free secondary legal aid in criminal proceedings

The paper raises the issue of waiver (replacement) of a state defense lawyer by a suspect (accused) who provides free legal aid in criminal proceedings. The author analyzes the provisions of the current legislation in Ukraine, which regulates the provision (replacement) of a lawyer, compares and analyzes the practice of courts in the application of the law, focuses on the issue of determining the criteria for the quality of services provided by a lawyer, studies the view on this problem through the decisions of the ECHR (European Court of Human Rights), and also suggests ways to solve this problem by amending the current legislation and presents a fundamentally new approach to the procedure of waiver (replacement) of a lawyer in criminal proceedings. In the paper, the author notes the problem in the legislative definition of the possibility of waiver (replacement) of the lawyer and, as a result, the uneven application of the law occurs in practice by the courts; it is proposed to amend the specific procedural rules that regulate these relations, namely, to detach the issue of waiver (replacement) of the lawyer into a separate process, the author justifies the need for such detachment and decision-making by the investigating judge. The author notes that the issue of refusal (replacement) of a lawyer during a pre-trial investigation with a legally defined adversarial proceeding is decided by the prosecution-the investigator (prosecutor), which is in itself wrong and can affect the choice of a lawyer, his tactics and methods of defense. The proposed changes, in the author's opinion, solve the problem of inconsistency in the application of the law in terms of waiver (replacement) of a defense lawyer by a suspect (accused), determine the unity of approach in solving these issues, preserving the defendant's right to choose freely a lawyer and protecting him from disclosing the chosen line of defense to the prosecution.

Ensuring the right to protection at the stage of appeal proceedings in criminal case: problems of theory and practice

Introduction. The right of the accused to a defense in criminal proceedings is a prerequisite for the effective administration of justice, since it minimizes possible errors in the final decision in a case, which may result in the conviction of innocent persons, which contradicts the purpose of criminal proceedings and undermines citizens confidence in the judicial system. The purpose of the article is to identify systemic problems that impede the effective implementation of the right to defense at the stage of appeal, as well as to suggest ways to resolve them. Main results. The authors come to the conclusion that the structural and logical elements of ensuring the right of the accused to a defense at the stage of appeal proceedings in a criminal case are: subjects defending the accused; duties of a defense lawyer to exercise the right of the accused to defense at the stage of appeal proceedings in the case; subjects who, in accordance with the requirements of the criminal procedure law, are obliged to ensure the right of the accused to defense; the duties of the courts of first and appellate instances imposed on them by the criminal procedure law, corresponding to the rights of the accused, his defense lawyer and legal representative and forming in their totality a system of interim measures necessary for the realization of the accuseds right to defense; the powers of the accused, his defense counsel and legal representative, through which the constitutional right to defense is exercised; guarantees of the accuseds right to defense. The only ground for limiting the right to defense is abuse of the right by the defense. The fact of abuse of the right can only be established by the court, the abuse of the right cannot be evidenced exclusively by the external expression of the actions of participants in the process. The question of the presence or absence of abuse of the right to defense should be decided by the court on the basis of the totality of factual circumstances and procedural features of each individual situation. The system of powers that make up the content of the defendants right to defense at the stage of appeal proceedings in the case consists of two interrelated elements, including powers exercised at the stage of filing an appeal and before the start of the court session of the court of appeal, as well as the powers that the defense side has directly in consideration of a criminal case in a court session of the court of appeal. Conclusion. Thus, the effective provision of the right to defense at the stage of appeal proceedings requires a change in approaches on the part of legislator and law enforcement officers.

IMPLEMENTATION OF THE RIGHT TO PROTECTION IN THE PROCEEDINGS OF THE INQUIRY IN AN ABBREVIATED FORM

The article deals with the problems of ensuring the right to protection of suspects in criminal proceedings on crimes investigated in a reduced form of inquiry. The authors draw attention to the need to exclude the formal approach in ensuring the right to a defense in the production of an inquiry in a shortened form, since subsequently the criminal case is considered in a court session in the order of chapter II. 40 of the Code of Criminal Procedure of the Russian Federation, in which there is no judicial investigation, in connection with which the accused, who does not understand the subtleties of the procedural form, becomes its hostage, the defender must ensure the protection of his rights. The authors substantiate the need for mandatory involvement of a defense lawyer to resolve the issue of conducting an inquiry in a shortened form and its subsequent mandatory participation in the criminal proceedings. The position on the inadmissibility of making a decision on the use of an inquiry in a shortened form in the presence of a lawyer on duty, in the presence of a lawyer by agreement, if the latter could not appear for the first interrogation of the suspect, is defended. The authors propose a procedure for admission to participation in the case of a defense lawyer in the course of conducting an inquiry in a reduced form, making a decision on the possibility of conducting an inquiry in this form, and highlight the features of exercising the right to a defense when familiarizing with the materials of a criminal case.

The Meaning of the Favorable Motives Category for Appeal from Judgement

The article discusses cases of compulsory appeal of the sentence by defense lawyer if there are grounds for canceling or changing the sentence for favorable reasons for the client. As a result of the analysis of legislation and judicial practice the author proposed approaches to determine favorable motives, given a non-exhaustive list of situations where such motives may be present.

Familiarization with the Materials of the Criminal Case as a Guarantee of Protection of the Rights of the Accused

Introduction: the paper discusses the procedure for familiarizing the accused with the materials of the criminal case. The paper identifies the main problems that arise in the practice of resolving petitions filed after the familiarization with the materials of the criminal case. In the paper, the author analyzes the procedure for familiarizing the accused and his defense lawyer with the materials of the criminal case, which is one of the important stages in the pre-trial proceedings. In the course of the study, it was found that the accused has more opportunities to exercise their right to submit petitions than other participants in the criminal proceedings. In the course of the research, the author investigated the theoretical and practical problems that arise when familiarizing the accused with the materials of the criminal case. In this paper, the author sets the goal of the study: to analyze the procedural order for familiarizing the accused with the materials of the criminal case. Methods: the methodological framework for the research is the general scientific system method, which examines the issues related to the activities of the investigator at the stage of familiarization of participants in the criminal proceedings with the materials of the criminal case. It is necessary to emphasize the use of some specific scientific methods in the research, such as the comparative legal and formal logical methods. Results: the need to introduce a separate rule in the Criminal Procedure Code of the Russian Federation related to the issue of the procedure for filing a petition by the accused and his defense lawyer. Conclusions: the study revealed that it is necessary to improve the process for filing petitions, the rules for their consideration by the investigator, and ensuring that the parties to criminal proceedings guarantee the protection of their rights and legitimate interests. In particular, it is necessary to make additions to Article 217 of the Criminal Procedure Code of the Russian Federation in the paragraph on the need to fix the reasons for the inability to get acquainted with the material evidence and their further specification in the investigator’s decision.

Problematic aspects of the defender’s participation in the process of proving criminal cases against minors

The article deals with the most problematic aspects of the participation of a lawyer-defender in the process of criminal proceedings on a crime committed by a minor. The author emphasizes the specifics of the preliminary investigation and consideration of criminal cases in the courts in relation to juvenile accused and suspects. An in-depth analysis of the conceptual differences in the position of the defender as a procedural figure in Russian and Swiss legislation is carried out. Attention is focused on the need for further research to optimize the participation of a defense lawyer. Special attention is paid to the problem of gender consideration when choosing such an important procedural figure in cases of crimes committed by minors as a lawyer.

The problems and solutions of the defense lawyer in criminal court: digital time challenges

The article discusses the rules of appointing a defense lawyer in criminal proceedings. The author analyzes the regional chambers of lawyers practice; based on the analysis of the disciplinary practice, the author identifi es the main problems that appear in the activities of defense appointed lawyers while using the automated systems for distributing assignments between appointed lawyers by the bodies of inquiry, investigation or court, and possible ways to solve them. The article draws attention to the fact that the introduction of automated systems for appointing lawyers as defenders in criminal proceedings by regional chambers of lawyers have generally resolved such problems as transparency, efficiency, fair and even distribution of cases between lawyers appointed by the bodies of inquiry, investigation or court, as well as providing a defender by appointment under the control of the lawyers’ self-government bodies at any stage of the proceedings. Based on the analysis of the disciplinary practices of the chambers of law, the author identifi es the problems in using digital technologies during the process of appointing a defender in criminal proceedings. In particular, attention is drawn to the lingering problem of «double defense», the emerging problem of initiating the conclusion of a defense lawyer agreement for one procedural action by the prosecution in order to circumvent the procedure for appointing a defense lawyer established by regional chambers of lawyers, as well as the problem of formation of the several applications in one criminal case against one person in the automated system made by the bodies of inquiry or investigation in order to be able to choose the most «convenient» lawyer. The solution to mentioned problems is possible by introducing the functionality into the automated information systems for the appointment of a lawyerdefender that obliges initiators (interrogators, investigators or the court) to enter information about the presence or absence of a lawyer by agreement and / or about previously appointed participating) lawyers, as well as indicate the reasons for the formation of an electronic application during fi lling out an electronic application. The article substantiates the need for constant monitoring of the work of automated systems for appointing a lawyer-defender based on the analysis of disciplinary practices of lawyer’s chambers in order to unify the use of digital technologies for appointing a lawyer in criminal proceedings and minimize the abuse of the right both by lawyers and by the bodies of inquiry, investigation or court.

ON THE POSSIBILITY OF RECALLING AN APPEAL OR CASSATION COMPLAINT OF THE DEFENDER TO THE ACCUSED, CONVICTED

The problems of litigation stages become ever more pressing for their participants, as amendments to the criminal procedural legislation in effect are very frequent. The developing a legal position on one or the other law-related situation, to say nothing about exclusive legal issues, is not something that can be done in a day, and the situation where the judges do not have the same position on an issue is especially upsetting. The legal issue of ability (inability) by the accused, by the convicted to withdraw the appeal or cassation appeal of the defense lawyer is one of those. The fact is obvious and undeniable that in the court practice, this issue was already being resolved multiple time, yet no clear single legal position was developed for the problem. Thus, the panel of judges of the Second Judicial Chamber of the Court in its decision as of 10.05.2018 in case No. 462/4125/16к (proceedings No. 51-357км17) concluded that, by virtue of the requirements of Part 1 of Art. 403, Art. 432 of the Criminal Procedure Code of Ukraine, the petition of the convicted person to refuse the cassation appeal of the defense lawyer cannot be considered in the court of cassation, since another person applied, and not the person who filed the complaint. At the same time, the decision of 03.07.2018 of the panel of judges of the First Court Chamber of the Cassation Criminal Court of the Supreme Court (case No. 448/208/15к, proceedings No. 51-3132км18) contains the opposite conclusion. In particular, that the suspect, the accused or the convicted person has the right to carry out procedural actions and refuse a complaint filed in his interests, unless the participation of a defense lawyer is mandatory or the person is in such a vulnerable position that calls into question the voluntariness of such actions. Similar legal positions have been expressed in other judgments of the Court. Due to the disagreement of the panel of judges of the Second Judicial Chamber with such conclusions, on September 17, 2020, the decisions of this situation were submitted to the Joint Chamber for consideration, and a corresponding appeal was sent to the members of the Scientific Advisory Council. My own considerations, as a member of the Scientific Advisory Council at the Supreme Court, were set out in the scientific opinion of 25.12.2020, so I will try to share them also with the scientific community and a wide range of practicing lawyers. Based on the results of the scientific and practical search, it was proved that the current statement of Part 1 of Art. 403 of the Code of Criminal Procedure of Ukraine requires immediate alignment with the procedural rights of a suspect, accused, convicted person, acquitted person. As well as a defense attorney and with the requirements of such principles of criminal proceedings as discretion, ensuring the suspect, the accused have the right to defense, the adversarial nature of the parties and the freedom to present their evidence and in proving their credibility before the court. The criminal procedural law cannot and should not provide for the obligatory refusal of a cassation appeal by a defense attorney, presented in the interests of an accused, a convicted person, exclusively by the same person - a defense attorney. The participation of a defense attorney in criminal proceedings does not limit the procedural rights of both the suspect, the accused, and the convicted, acquitted. The accused, the convicted person has the right to withdraw the appeal or cassation complaint of the defense lawyer. Restriction of the right to withdraw an appeal or cassation complaint of a defense attorney by an accused or a convicted person may take place in two cases. In particular, if there are grounds for the mandatory participation of a defense attorney in criminal proceedings. And/or if the defense attorney proves that he/she has a justified conviction about the fact of self-incrimination by the accused or convicted , which gives him grounds to take a position that will be different from the will of the accused, convicted, including when appealing court decisions in the appeal and cassation procedure.

Scientific and Practical Aspect of Legal Regulation of the Institute of Defense Lawyer in the Criminal Process

In the article, the authors analyze scientific and practical aspects of legal regulation of the institution of the defender in criminal proceedings, referring to various grounds laid down in the characteristics of this institution. The authors consider the legal positions regarding the participation of professional and non-professional defense lawyers in criminal proceedings, characterize their powers within the possibility of their participation in procedural actions, and pay attention to the moral aspects of their activities.