Are the Lawyer, the Prosecutor and the Court Subjects of Evidence or Participants in Evidence in Criminal Proceedings?

Abstract

Relevance. The article examines the issues of participation of a lawyer, prosecutor and court in proving in modern conditions of adversarial proceedings, within the framework of ongoing legal reform. The author comes to the conclusion that the subjects of proof in modern Russian criminal proceedings are only the investigator and the investigator, since they bear the burden of proof. At the same time, the lawyer, the prosecutor and the court are participants in the evidence, whose main task is to examine the evidence collected by the parties. At the same time, the court, being an impartial participant in criminal proceedings, should not take the initiative in collecting evidence and substantiating the accusatory thesis put forward and formulated by the prosecution at the pre-trial stage.Objectives: to continue the consideration of issues arising at the present stage in the theory of evidence in criminal proceedings, and to propose a new gradation of subjects of evidence and participants in evidence, in continuation of the ongoing scientific discussion on the modern development of the theory of evidence in criminal proceedings.The purpose of the study is to identify and discuss problematic issues of the implementation of the mechanism of criminal evidence and propose a new list of subjects of evidence and participants in evidence in criminal proceedings.Methodology. The methodological basis of the research was the universal dialectical method of cognition of socio-legal phenomena, general scientific research methods (analysis and synthesis, deduction and induction, system-structural and others). In addition, private scientific methods of cognition were used - logical–formal and system analysis.The results of the study are distinguished by both theoretical and applied nature with elements of scientific novelty. The author considers the emerging difficulties associated with the practical implementation of the provisions of the issues of evidence in criminal proceedings, proposes a new list of subjects of evidence and participants in evidence, as well as a possible change in the established traditional scientific theory of evidence.Conclusions. The discussion of the identified problems will allow drawing the attention of the scientific community and the legislator to the development of solutions to eliminate the identified gaps in criminal procedural evidence, a more detailed definition of the role of the court, prosecutor and lawyer in criminal proceedings. At the same time, it is suggested that the use of the approach proposed by the author, including the introduction of relevant provisions in criminal procedure legislation, will correct the imbalance in the theory of evidence that exists at the present stage.