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Theory and Practice of Forensic Science

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Vol 14, No 3 (2019)
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THEORETICAL ISSUES

6-14 1112
Abstract
When examining legal, organizational and methodological issues of forensic expertise for the protection of intellectual property the most common forensic examinations are authorship investigation, computer forensic examination, phonoscopic, linguistic, engineering, patent examinations as well as examination of documents. Comparative analysis of the procedural status of an expert in various types of process and in the federal law “On State Forensic Expert Activities in the Russian Federation” is given. Specialist’s procedural position and the evidentiary value of the results of his participation in various types of proceedings in the cases of this category are analysed. Attention is paid to organizational and legal issues of conducting forensic examinations in non-state expert organizations. Based on the analysis of an array of expert opinions, specialists’ opinions and advice on issues related to intellectual property performed in more than 50 nongovernmental organizations positioning themselves as forensic and on monitoring of the websites of these organizations on the Internet, it has been established that the quality of opinions and consultations has little to do with the information provided on the sites. Scientists and specialists for whom forensic expert activity is not the primary one are often involved in conducting forensic examinations in these organizations. They do not know the basics of substantive and procedural law; they do not always realize the legal consequences of their opinions for the participants in court proceedings and exceed their competence. In context of a specific example typical mistakes in cases related to the protection of intellectual property often made by non-state experts are shown. Although the legislator declares the unity of the scientific and methodological approach to expert practice, professional training and the specialization of experts, these requirements often are not met. There is no unity of forensic expert techniques developed in different departments. For other participants in legal proceedings these techniques are practically inaccessible and their testing and implementation are still not often done at the interdepartmental level. The importance of the activities of the Technical Committee for Standardization TC 134 “Forensic examination” is emphasized.
15-25 1184
Abstract
A controversial issue of the demarcation between a linguistic expert’s and an authorship investigator’s competencies when conducting forensic examinations in cases related to copyright and related rights violations is considered. In this category of cases there is mainly a need to deal with the task of ascertaining particularities of texts related to the fact of plagiarism that is the comparison of texts to reveal matching fragments, presence of borrowing, its direction which is the task of a linguistic expertise. Tasks which fall under the authorship investigator’s purview are associated with the examination of written language skill and aim to determine the authorship and text drafting conditions. Formerly researchers did not separate the tasks of linguistic and authorship investigations indicating the lack of methodological development of the issue. The article suggests some methodological approaches to solving the main tasks of linguistic expertise on cases involving copyright and related rights violations developed as a result of an overview of the practice of conducting such examinations in the Russian Federal Centre of Forensic Science of the Russian Ministry of Justice.

FORENSIC CASEWORK

26-33 1150
Abstract

When considering land disputes, a court examines a large amount of evidence. In this forensic land survey expertise has taken a special place since its findings often form the basis of the court decision. The correct and prompt consideration of the dispute depends on the quality work of an expert.

The paper reviews a range of problems emerging when appointing a land survey expertise, preparing materials for the forensic examination, assessing forensic expert opinions and other evidence by the court. Inter alia, it is essential to correctly determine the type of examination, the list of necessary documents to conduct it, to estimate the duration of the study. The author reveals the possibilities of expansion of a specialist’s advisory activities at the expertise appointment stage to reduce the time of its conduct.

34-39 1018
Abstract
The article considers the characteristics of targeting when identifying the signs of incitement in extremist materials: in texts, commentaries to articles, videos, audios etc. on the Internet. The methods of linguistic analysis (lexical-semantic, stylistic analysis, semantic analysis, communicative-pragmatic analysis) were used in the study. As a result, the following forms of targeting expression in the aspect of linguistic signs of incitement were identified: 1) an appeal to a specific interlocutor (to a specific person, group of persons); 2) through the components of the communicative situation in general (focus on the mass, public addressee and even on the self which is transformed into a focus on the own group). Complicated cases of the implementation of the targeting category in texts with a pronounced or hidden language game are noted. The definition of the targeting category is shown to be an important component when identifying the linguistic signs of the “incitement” meaning, the speech (text) purpose depends on it. Targeting is closely related to the types of incitement: direct/indirect, explicit/implicit. To identify the linguistic features of the “incitement” meaning it is necessary to conduct a multidimensional analysis considering the general communicative situation, the category of targeting and its implementation in the statement.
40-45 1045
Abstract

Valuation of objects of intellectual property can be important when considering civil disputes, criminal cases of copyright and related rights infringements, criminal bankruptcies, cases of administrative offenses (violations of copyright and related rights, inventor’s and patent rights). At present, there is no generally accepted and accessible methodology of forensic valuation of intellectual property items.

The main aspects of the forensic valuation of intellectual property are reviewed. It is shown that when assessing the value of intellectual property special knowledge should be applied in the field of forensic merchandising expertise, forensic economics, as well as other kinds and types of forensic expertise according to the characteristics of the intellectual property in question: forensic trace evidence analysis, computer forensics, forensic linguistics, forensic materials analysis, etc. It is necessary to develop and implement a new type of forensic examination in the forensic institutions of the Ministry of Justice of the Russian Federation - forensic examination of intellectual property which will also include the value assessment of such objects.

46-53 960
Abstract
The article discusses the key issues of cost evaluation of damage to the environment. This is a problem of legislative regulation arising from the lack of clear criteria of harm materiality to environmental objects; the problem of regulation of the content of ecotoxicants in various environments; the problem of methodological support. The difficulties of determining the “initial” state of the violated environmental objects, as well as fundamental differences in approaches to the calculation of economic damage to environmental objects are also analysed. It is shown that a possible resolution for these issues is environmental forensics involving the application of specialized knowledge of natural sciences, ecology in particular, to specify the consequences of an environmental offence, causal relationship and economic damage to the environmental objects. Forensic environmental experts have integrated knowledge of natural sciences and law.

METHODS AND TOOLS

54-62 796
Abstract
The paper compares the effectiveness of identifying low-count land marking patterns using the method of consecutively matching striations (CMS method) and the probabilistic method. The study was conducted on 48 pairs of matching toolmarks and 66 pairs of non-matching toolmarks. The criterion for assigning a positive match that was determined using the CMS method yielded one false positive in the analysis of known non-matches. Approximately 50% of matching pairs of toolmarks identified by the expert were omitted in the analysis. The application of the probabilistic method showed that out of the same 16 pairs of matches identified by the expert, no pair will be missed if the probability value of 5 х 10-3 is taken as the identification criterion. No false positive statement will be made either. Thus it is shown that the probabilistic method of toolmark identification is more effective. It was demonstrated to be practically impossible to justify elimination when comparing low-count toolmark patterns.

STANDARDIZATION AND QUALITY MANAGEMENT

63-71 1147
Abstract
The purpose of the study is to reflect differences in approaches to determining the competence of experts and specialists in domestic forensic expertise and based on international standards for forensic examination. According to the international standard, ISO/IEC 17025:2017 “General requirements for the competence of testing and calibration laboratories”, competence is determined by the demonstrated ability to apply knowledge and/or skills and personal qualities. An attempt has been made to adapt this formulation to the realities of the Russian forensic activities. Also – based on a standard approach – consideration has been given to the issue of specialized knowledge in the field of trades and crafts, as well as opportunities to determine the level of expertise have been discussed considering two possible professional situations: individuals who have passed state certification procedures relating to their trades or crafts, and individuals working in their trades or crafts without having received such certification. International standards for forensic examination and comments thereto, foreign expert practice, publications on domestic forensic expertise and the procedural codes of the Russian Federation have served as materials for the research. The methods of the general theory of forensic examination have been used in the process of research, which are comparative analysis, abstraction and modeling and legal analysis. Regarding people with special knowledge the international standard ISO/IEC 17025:2017 “General requirements for the competence of testing and calibration laboratories” demonstrates the breadth and universality of an approach to their competent activity. What is important here is the demonstrated ability to apply knowledge and/or skills, as shown by a specialist or expert at the time of competence assessment or verification within the framework of forensic laboratory accreditation. A situation when there is equality of knowledge and/or skills and personal qualities can be adapted (to some extent and without significant adjustments) to the Russian realities in forensic activities. For example, in areas of application of specialized knowledge such as skilled trades or crafts or in narrowly specialized or rare spheres of human activity. The various formulations of the term “competence” contain one unchanging feature – the obligatory verification of the level of knowledge and skills. The mechanisms that have been developed through practice to verify the competence of experts and specialists can be supplemented by the capabilities provided by standards. Assessing an expert’s competence taking into account the processes of standardization in forensic activities, currently pending updates to legislation on forensic activities in the Russian Federation and also foreign experience in the application of specialized knowledge in courts of the USA, will contribute to the formation of an integrated position of the Russian expert community and a better implementation of standardization into domestic science, as well as of the unification of rules for the forensic expert activity.
72-77 1054
Abstract
The article addresses social significance of the issues of a Head’s of a forensic expert organization professional ethics, its fundamentals. The importance of law and morality synergy in regulation of social relations is emphasized. An approach to the systematization of professional and ethical norms for the Heads of forensic expert organizations is suggested as well as additional principles for the legislation on forensic expert activities regarding the Head’s ethical competence. Drawing on the research of foreign experience some basic provisions aimed at unification of moral and ethical norms were reviewed including the necessity of personnel’s ethics development, its fostering in the early stages of young experts’ training under the direct supervision of the Head of the organization.

INVESTIGATOR'S/JUDGE'S/LAWYER'S COLUMN

78-89 1335
Abstract
Land disputes considered by the courts are very diverse. A common feature of such cases is the involvement of an expert land surveyor to resolve issues that go beyond the legal knowledge. Expert opinion findings frequently form the basis of a court decision since in land disputes land survey expertise often predetermines the decision on a case. In the article a range of significantly different civil disputes with plots as objects is given, their classification is proposed. It is explained that for each type of the disputes special land survey knowledge is necessary. Questions are presented which can be resolved by conducting a forensic land survey expertise as well as some examples of decisions from court practice with demonstrations of a judge’s legal competence realization on the one hand and expert land surveyor – on the other.

INTERNATIONAL PERSPECTIVES IN FORENSIC SCIENCE

90-99 925
Abstract

The article addresses modern ways countering corruption. Based on the analysis of foreign experience the major trends in improvement of national and international legal anti-corruption framework are presented. The development of a high level anti-corruption culture in a society, which relates directly to transparency, publicity and repudiation of this phenomenon across all levels of government, is shown to be one of the most effective ways. Reporting on all cases of corruption should be seen as any citizen’s civil duty since corruption is considered a threat to state of law institutions, democracy, human rights and social justice.

The article presents the main legal and institutional models of corruption counteraction in modern countries. It is justified that, with the current level of technology development, appointment of forensic examinations is becoming the most prevalent investigative action. They are particularly relevant in cases involving corruption.

REVIEWS

100-111 1849
Abstract

Forensic psychology has been an independent scientific discipline for a long time now and has become an integral part of legal proceedings. Its relevance as an area of theory and practice has led to writing multiple works on the topic. At the same time, information regarding them was fragmented. The publication of a unified bibliographic index for forensic psychology compiled by Irkutsk forensic scientists N.N.  Kitaev and V.N.  Kitaeva [Forensic psychological examination and forensic examinations with the participation of a psychologist: Bibliographic Index, 1901–2016. Irkutsk: BSU, 2018. 166 p.] was well-timed. This has been the first experience in compilation a bibliography on forensic psychological examination in Russia. The index provides insight into the level of development of this scientific field and highlights the issues that have not been studied sufficiently or have not been developed at all. It also addresses the pressing issue of systematisation of the literature on forensic psychological examination and is a scientific reference guide and an educational tool at the same time.

The article discusses the index in detail, makes remarks and observations about its content and structure, comments on some of the features of the text. A hope that the compilers will continue the work on the index improving the methods of collecting and selecting publications, expanding the bibliographic list and developing and refining its structure and categorization is expressed.

BIOGRAPHIES AND HISTORIES

112-119 928
Abstract
The article is devoted to the contribution review of forensic expertology scientific school created at the Department of Forensic Expertise of Kutafin Moscow State Law University (MSAL) under the leadership of professor E.R. Rossinskaya to the improvement of quality and efficiency of forensic activities. A brief biographical note is given which reflects the main milestones of the formation of the famous scientist and teacher, leader of the national forensic science and forensic expertise. The author concludes that the national scientific school of forensic expertology has received international recognition and world sounding largely due to the personal qualities of its leader – professor E.R. Rossinskaya, who is celebrating her milestone birthday this year.

DISCUSSIONS

120-126 806
Abstract
The study of the features of compensation for harm caused by a high-risk object is important both from theoretical and practical points of view. The article attempts to justify the possibility for a court to use expert techniques in determining the proportions of compensation for property damage caused by a traffic accident resulting from inadequacy of road conditions to safety requirements. The subjective basis for imposing liability on a driver for the damage caused by the accident is the high-risk object owner’s conscious choice to carry out activities entailing an accidental harmful result. When considering the cases of this category, the court may face the problem of determining the proportions of compensation for the damage that has arisen from the inadequacy of the driving to the requirements of traffic regulations and from negligence in the performance of duties by the road services. In this case, it is proposed to determine the proportions of damages from the standpoint of rationale for the extent of the driver’s technical ability to prevent the accident.


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ISSN 1819-2785 (Print)
ISSN 2587-7275 (Online)