Involvement of a Specialist in Criminal Proceedings: A Defense Party’s Duty, Right or Opportunity
https://doi.org/10.30764/1819-2785-2020-4-82-89
Abstract
The article reviews the contradictions between the procedural law and an attorney’s professional duty to use an opinion of a knowledgeable person in the system of criminal procedure protection. The paper provides an analysis of the problems and difficulties arising in the implementation of this right in the criminal process leading to violation of the equality and adversarial principles: the optionality of the defense’s right to involve a specialist; the biased attitude of law enforcement agencies to the expert presented by the defense; the desire to diminish the probative value of the specialist’s conclusion and testimony; the absence of an obligation for an investigator and court in all cases to attach the expert’s opinion to the case. The author emphasizes how important it is for all the participants in the criminal process to understand the expert’s opinion and testimony’s independent evidentiary value. Proposals that contribute to the legal specificity and further development of the specialist institution within the framework of the fundamental principles of competition and equality of the parties are presented.
About the Authors
A. P. Bozhchenko
S.M. Kirov Military Medical Academy of the Ministry of Defense of the Russian Federation
Russian Federation
Russian Federation
Bozhchenko Aleksandr Petrovich – Doctor of Medicine, Associate Professor, Professor at Department of Forensic Medicine and Medical law of the S.M. Kirov Military Medical Academy of the Ministry of Defense of the Russian Federation
Saint Petersburg 198013
I. M. Nikitin
Attorney’s Consultation No. 82 of the St. Petersburg City Bar Association
Russian Federation
Russian Federation
Nikitin Igor’ Mikhailovich – Candidate of Law, Attorney of the St. Petersburg City Bar Association
Saint Petersburg 198329
References
1. Pashin S.A. Adversarial Criminal Proceedings. Moscow: R. Valent, 2006. 200 p. (In Russ.)
2. Zinov’ev A.A. Gaping Heights. Book 1. Moscow: PIK, 1990. 320 p. (In Russ.)
3. Darovskikh S.M. Some Debatable Questions of Implementation of the Adversarial Principle in Trial. Bulletin of South Ural State University. Series “Law”. 2008. No. 28 (128). P. 37–42. (In Russ.)
4. Logvinets E.A. Expert Opinion (Problems of Use in Proof). Expert-Criminalist. 2008. No. 1. P. 33–36. (In Russ.)
5. Altynnikova L.I. Adversarial System and Legal Equality of the Parties in Criminal Proceedings of Appeal and Elements of Fair Trial: Position of the European Court of Human Rights. Actual Problems of Russian Law. 2016. No. 9 (70). P. 122–130. (In Russ.). http://doi.org/10.17803/1994-1471.2016.70.9.122-130
6. Kovler A.I. The Results of the European Court on Human Rights in 2011. Russian Judge. 2012. No. 4. P. 6–14. (In Russ.)
7. Manova N.S. Expertise and Expert Evidences: Experience and Prospects for Applying in Investigation of Criminal Cases. Pravovedenie. 2011. No. 2 (295). P. 214–221. (In Russ.)
8. Safonova T.A. Drug Trafficking in the System of the Shadow Economy – the Global Threat to Economic Security. Problematic Issues of Economic Security of Russia: Materials of the International Scientific and Practical Conference (Moscow, January 28, 2020). Moscow: IP “Chernyaeva Yu.I.”, 2020. P. 152–160. (In Russ.)
9. Glushkov M.R. On The Difference of an Expert`s Report from a Specialist`s Report. Expertcriminalist. 2020. No. 3. P. 9–11. (In Russ.)
10. Shchepot’ev A.V., Safonova T.A. The Legal Status of a Forensic Expert and a Specialist in a Criminal Procedure. Expert-criminalist. 2020. No. 3. P. 35–37. (In Russ.)
11. Fedotov I.S. The Evaluation of an Opinion and Testimony of an Expert, Opinion and Testimony of a Specialist As Evidence in a Criminal Case. Criminal Law. 2014. No. 3. P. 107–114. (In Russ.)
12. Al’shevskii V.V. The Activity of Forensic Medical Experts and Specialists under the Provisions of the New Version of Article 159 of the Code of Criminal Procedure of the Russian Federation. Forensic Medicine: Questions, Problems, Expert Practice. (Novosibirsk, October 18-20, 2017). 2017. No. 3. P. 10–14. (In Russ.)
13. Bozhchenko A.P., Ismailov M.T., Nikitin I.M. Elements of a Crime As a Factor Defining the Circumstances Subject to Proving and the Subject of Forensic Examination in Cases on Offences Committed by Healthcare Professionals. Medical Law. 2018. No. 2. P. 7–11. (In Russ.)
14. Filippov S.V. Specialist and Expert as a Reflection of Equality in Criminal Proceedings. 21.10.1018. (In Russ.). http://pravorub.ru/articles/84127.html (date of access: 07.09.2020).
15. Chernyavskaya M.S. The Tendency of Forensic Science Development. Forensic Examination. 2020. No. 2. P. 18–26. (In Russ.). http://doi.org/10.25724/VAMVD.NIJK
Review
For citations:
Bozhchenko A.P., Nikitin I.M. Involvement of a Specialist in Criminal Proceedings: A Defense Party’s Duty, Right or Opportunity. Theory and Practice of Forensic Science. 2020;15(4):82-89. (In Russ.) https://doi.org/10.30764/1819-2785-2020-4-82-89
Views:
1004
Email this article 