Exercising By the Defense the Right To Involve a Specialist into Criminal Proceedings

Abstract

Clause 3 of Article 123 of the Constitution of the Russian Federation stipulates that judicial proceedings are conducted on the basis of competition and equality of the parties. The problems of proof in an adversarial criminal trial are the subject of research in numerous scholarly papers. The current Criminal Procedure Law contains a number of norms regulating the defense party in the exercise of powers in criminal proceedings, in particular, in collecting evidence. However, the methods and procedure for collecting evidence by the defender are hardly regulated by the norms of this law, which the Authors of this paper emphasize. The lack of regulation results in the law enforcement officer being confronted with the problems arising when it is required to evaluate evidence presented by the defense. The basis for evaluating the expert's opinion is the ruling of the Constitutional Court of the Russian Federation, according to which, by virtue of the principle of legal equality, homogeneous relations should be regulated in a similar way. Therefore, verification and evaluation provided by an expert and presented by the defense attorney as evidence are carried out with regard to the need of complying with uniform rules and conditions for the similar evidence provided by the prosecution and by the court. The paper analyzes a number of problems related to exercising by the defense party the right to involve an expert into criminal proceedings, and focuses on the imperfection of the conceptual and terminological system and the lack of regulation of this activity of a defense attorney. To ensure the comprehensive study of the issue indicated in the title of the paper and the deep understanding of the content, the Authors consistently examine the following issues: the legal grounds for the use by the defense of the results of the applying expert knowledge by well-informed parties; evaluation of the specialist's conclusion in the evidence system and the ratio of evidence “specialist's conclusion” and “expert's conclusion”; the conditions of acquiring by the defense the evidence “specialist's conclusion”. Since criminal procedure law does not actually “prescribe” the procedure for acquiring by the defense such evidence as a “specialist's conclusion”, the Authors, using the rulings of the Constitutional Court of the Russian Federation, provide an approximate sequence of actions of the defense attorney intending to involve a specialist and their conclusion.

Keywords

• criminal proceedings, criminal court proceedings
• specialist
• expert opinion
• defense party