Evidence In Criminal Proceedings Research Articles

Problematic Issues of Using Electronic Evidence in Criminal Proceedings (SDG's)

Objective: The object of this scientific publication is the use of electronic evidence in criminal proceedings, focusing on the main problematic issues, legislative gaps, and the need for improvements in law enforcement practices. Method: The method of study involves a detailed analysis of the current criminal procedure legislation, identification of the general and special features of electronic evidence, and examination of practical issues related to the collection, assessment, and admissibility of electronic evidence in criminal proceedings. The authors use legal analysis and case studies to propose amendments to the legislation and suggest practical improvements. Results: In this scientific publication, the authors highlight the main problematic issues of using electronic evidence in criminal proceedings, propose amendments to the current criminal procedure legislation, and also make proposals for improving law enforcement practice. It is argued that electronic evidence is an independent procedural source of evidence which has both general and special features and nowadays plays an important role in establishing the truth in criminal proceedings. It is concluded that the use of electronic evidence in criminal proceedings currently has no regulatory basis, which causes numerous difficulties and gaps which, among other things, lead to abuse of procedural powers. Contribution: It is established that in the process of collecting electronic evidence, there are many abuses of procedural powers, which are expressed in the excessive seizure of their carriers, as well as unlawful interference with privacy. The article also reveals the difficulties in assessing electronic evidence as relevant, admissible and reliable evidence. In particular, the use of different copies of electronic documents, compliance by judges with the principle of direct examination of evidence, and the admissibility of electronic evidence obtained from open sources are controversial. Based on the results of the study, the authors propose to amend the Code of Criminal Procedure of Ukraine by supplementing Chapter 4 ‘Evidence and Proof’ with paragraph 5 ‘Electronic Evidence’, which should define their concept, procedural procedure for their seizure, storage, return, and peculiarities of evaluation. The authors also emphasises the expediency of upgrading the qualifications of authorised persons by conducting thematic training on the proper use of electronic evidence and preventing abuse of procedural powers in this process.

The situation of "double protection" and its impact on evidence in criminal proceedings: appearance analysis and recommendations to lawyers

Relevance. A lawyer, not being a subject of proof in criminal proceedings, nevertheless, is an active participant in the proof process, which he carries out throughout his activities to protect his client from suspicion or formed and put forward an accusatory thesis. At the same time, the current situation of "double protection" significantly hinders the participation of a lawyer in proving innocence or lesser guilt in comparison with the accusatory thesis put forward, and at the same time establishes an obstacle to the implementation of the provisions enshrined in Article 48 of the Constitution of the Russian Federation, which enshrines the right of everyone to receive qualified legal assistance. The situation of "double protection" is one of the most negative factors in advocacy. In order to avoid the occurrence of a "double protection" situation, the author proposes an algorithm of actions when entering the process as a defender.Objective: to develop an algorithm for entering the process in order to avoid a situation of "double protection".The purpose of the study is to continue the research of advocacy in criminal proceedings, refuting the arguments of the prosecution and proving the innocence or lesser guilt of the defendant.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 both theoretical and applied in nature, and have elements of scientific novelty. The author considers the issues of the lawyer's entry into the criminal process by appointment, proposes an algorithm for the lawyer's actions in order to avoid possible violations and the emergence of a situation of "double protection".Conclusions. The discussion of the identified problems will allow us to develop solutions to eliminate the identified gaps in the implementation of protection in criminal proceedings, protect lawyers from possible violations of internal corporate regulations.

Mutual Admissibility of Evidence and Electronic Evidence in Criminal Proceedings as per Bhartiya Sakshya Adhiniyam, 2023

Mutual Admissibility of Evidence and Electronic Evidence in Criminal Proceedings as per Bhartiya Sakshya Adhiniyam, 2023

К проблеме допустимости доказательств

This article addresses the issue of the admissibility of evidence in criminal proceedings, specifically focusing on the use of results from operational investigative activities, expert conclusions, and testimonies. Until now, the issues of their legalization and recognition as admissible evidence remain controversial. The relevance of this study is underscored by the need in legal theory and practice to recognize the distinct role of non-procedural information in criminal proceedings, which holds significance for the case, and to develop approaches to its legal interpretation and application, considering the sources and methods of its acquisition. The aim of this publication is to justify the necessity of fully reflecting the results of operational investigative activities and expert studies in the materials of pre-trial investigation and criminal cases for subsequent judicial review. To achieve this goal, a number of tasks are solved, including: analysis of approaches to understanding the stated problem that have emerged in the scientific legal literature, determination of legal ways to solve it within the framework of current legislation. An overview of the procedural process of judicialization is provided, with emphasis on the possibilities of interrogating personnel conducting operational support and specialists performing individual studies, the results of which are then subject to verification and evaluation in accordance with the requirements of relevance and admissibility of evidence. In conclusion, the integration of operational investigative results and expert analyses as admissible evidence in criminal proceedings requires balanced approaches that uphold procedural integrity while accommodating the complexities of modern investigative techniques. By advancing these discussions, policymakers and legal practitioners can foster a more robust framework for evidence evaluation and judicial decision-making.

Speed and contextual information of a crime-related video bias the responsibility judgments

AbstractCourts often rely on video evidence, assuming it accurately shows important legal details. Yet, studies suggest that video isn’t inherently “objective” and people, including legal professionals, might misinterpret its objectivity due to video quality or context. This study aimed to explore how video speed variations and contextual information affect judgments of responsibility in a video portraying a bus assault. The study employed a 5 × 3 mixed design, with video speed (Very Slow, 0.88x; Slow, 0.96x; Neutral, 1.00x; Fast, 1.04x; Very Fast, 1.12x) as a between-subject variable, contextual information (Hit, Harm, Kill) attributed to the perpetrator’s action as a within-subject factor, and dimensions of accountability, predictability, criminal intent, and severity as dependent variables. ANOVA results from a sample of 300 participants (60 per video speed condition) revealed that the highest levels of accountability, criminal intent, and predictability were attributed when the contextual information was “hit” as compared to the “harm” and “kill” actions. Furthermore, the greatest difference in accountability and criminal intent scores for the kill action was between the very fast and very slow conditions. These findings raise significant concerns about the use of video evidence in criminal proceedings, as video speed manipulation and contextual information can have a substantial impact on responsibility judgments.

Criteria for the admissibility of digital (electronic) evidence in criminal proceedings

Criteria for the admissibility of digital (electronic) evidence in criminal proceedings

Legality and admissibility of evidence in criminal proceedings

Legality and admissibility of evidence in criminal proceedings

Procedural Aspects of Cryptocurrency Arrest in National Legal Systems: A Comparative Analysis

The article presents an analysis of the procedures for arresting cryptocurrencies in various national legal systems, emphasizing the relevance of this topic in light of the rapid development of the digital economy and the increase in crimes related to cryptocurrencies. It draws attention to the absence of a unified international approach to regulating and controlling cryptocurrency assets, which creates challenges for law enforcement agencies in combating crime and money laundering. By analyzing the legislation of different countries, various approaches to defining the status of cryptocurrencies, mechanisms of their arrest, and their use as evidence in criminal proceedings have been identified. Special attention is given to the comparative analysis of the procedural aspects of cryptocurrency arrest, which allows for the identification of best practices and the development of recommendations for improving criminal procedural legislation. Solutions to the practical problems of jurisdiction and technical aspects of executing arrest decisions are proposed, emphasizing the importance of international cooperation in this field.

The importance of electronic evidence in criminal proceedings

The development of digital technologies contributes to the change of criminal procedural relations and the emergence of electronic evidence used in the proof process. The author’s position is formulated based on the results of the analysis of theoretical approaches in criminal procedure science to the definition of the concept of “electronic evidence”. Arguments are presented confirming the need to use electronic evidence in criminal proceedings in order to overcome the risks associated with the realization of the rights and legitimate interests of participants in a criminal case, the preservation of evidence in case of their referral to the place of investigation, destruction or modification in case of counteraction to the investigation. The article reveals the importance of electronic evidence in criminal proceedings. Based on the analysis of the norms of criminal procedure legislation and law enforcement practice, the factors that determine the increasing importance of electronic evidence in criminal proceedings are substantiated.

Current issues of properties of evidence in criminal proceedings

Current issues of properties of evidence in criminal proceedings

Specific features of obtaining and using electronic evidence in criminal proceedings

The relevance and importance of this research is due to the fact that scientific and technological progress and rapid development of information technology in all spheres of public life have significantly influenced the emergence of new types of criminal offences. Criminals are using computer systems and other portable devices to commit unlawful acts with increasing frequency. Today, many criminal offences are being committed with the help of information technology around the world, ranging from simple online fraud to the threat of a territorial act. Therefore, one of the ways to record (document) such illegal activities effectively is to obtain (collect) electronic evidence by law enforcement agencies in criminal proceedings. In this regard, the key role is played by evidence, which helps to form an evidence base that makes it possible to notify a person of suspicion, send an indictment to the court and make a final court decision on the guilt (innocence) of a person in committing a particular criminal offence. Achievement of this objective undoubtedly necessitates a specific legal procedure for seizure of electronic evidence in criminal proceedings, which is not yet clearly defined in terms of its collection, leading to numerous cases of courts declaring such evidence inadmissible.
 In the course of the scientific research, the author of the article analyses the views of scholars on the interpretation of the concept of electronic evidence; provides the legislative interpretation of this term (unlike the CPC of Ukraine, other procedural codes enshrine the concept of electronic evidence); studies the case law on the issue of electronic evidence being admissible/inadmissible; and identifies the main features of electronic evidence, etc.
 Given the fact that the Russian Federation commits war crimes on the territory of Ukraine on a daily basis, the author states the need to collect and record evidence of such crimes from open sources, which will further ensure the prosecution of the perpetrators.
 In the course of studying the specific features of obtaining and using electronic evidence in criminal proceedings, the author applied general scientific and special scientific methods, in particular, dialectical, formal and logical, and comparative legal methods. The interrelated use of these methods allowed for a comprehensive study, where each of these methods was used at a certain stage of the examination of the specific features of obtaining and using electronic evidence in criminal proceedings.

FEATURES AND EMPHASIS OF TEACHING FORENSIC MEDICINE FOR STUDENTS OF THE PEP "PAEDIATRICS"

This article addresses current issues in teaching the academic discipline "Forensic Medicine and Medical Law" to students of the professional educational program (PEP) "Pediatrics." With a focus on violence against children, the authors emphasize the necessity of educating pediatric students on forensic principles and practical skills. The article highlights the harmonization with international standards, the importance of awareness among students, and the critical role forensic medicine plays in pediatric training. Forensic medicine, as a discipline encompassing diverse medical fields, plays a crucial role in pediatrics. This article explores the integration of forensic principles into the PEP "Pediatrics," emphasizing the increasing societal issue of violence against children. The importance of training pediatric students to recognize and respond to such incidents while maintaining a solid evidence base is paramount.
 The authors emphasize that teaching forensic medicine to pediatric students should prioritize the following directions:
 
 Expert Involvement in Forensic Medical Examinations: Focuses on the significance of forensic medical examinations related to medical errors and offenses. Article 69 of the Criminal Procedure Code allows pediatricians to act as experts, emphasizing equivalence in rights and responsibilities with forensic medical experts.
 Physician Participation in Urgent Investigative Actions: Emphasizes the importance of practical skills, such as examining a corpse at the scene. Article 238 of the Criminal Procedure Code permits pediatricians to participate in urgent investigative actions. This includes instructing students on organizational and legal aspects, as well as theoretical and practical principles of examining a corpse at the scene.
 Accurate Documentation of Physical Injuries: Stresses the essential skill of accurately describing physical injuries on a child's body. Acknowledges the role of pediatricians in initial injury documentation, considering the potential involvement in criminal investigations.
 Accuracy and Completeness of Medical Documentation: Underscores the critical nature of accurate and complete medical documentation, serving as evidence in criminal proceedings. The article discusses potential legal consequences for physicians due to improper maintenance.
 Recording Sexual Offenses Against Children: Introduces an elective course focusing on preventing sexual offenses against children and domestic violence. Aims to form theoretical and practical competencies in students, adhering to the "Istanbul Protocol" and emphasizing the role of pediatricians in recognizing and responding to sexual violence against children.
 
 Therefore, educating pediatric students on how to act in such cases, how to work with patients without compromising the evidence base, and simultaneously providing timely medical assistance becomes paramount. This ensures the preparation of a highly qualified specialist in pediatrics whose competencies align with their professional qualification characteristics.
 Conclusion.
 
 Harmonizing domestic legislation with EU norms and standards as part of Ukraine's integration into the EU creates priority directions in teaching the discipline "Forensic Medicine and Medical Law."
 Insufficient awareness among pediatric students and a casual attitude towards the consequences of unprofessional actions or inaction in future professional activities contribute to a lack of motivation for studying "Forensic Medicine and Medical Law."
 Teaching forensic medicine is a crucial part of pediatric training. By providing students with the knowledge and skills necessary to recognize and respond to cases of violence against children, we can help protect children and ensure they receive the necessary assistance.

The use of evidence in criminal proceedings as a component of the evidetiary process

The article is devoted to elucidating the essence and content of the use of evidence, as well as to justifying the identification of such a category as a separate component of evidentiary process in criminal proceedings. It was found that despite the absence of the category "use of evidence” among the provisions of Part 2 of Art. 91 of the Criminal Procedure Code of Ukraine, the term is used by the legislator in a number of articles of the current CPC of Ukraine. The positions of domestic scientists regarding the essence of the use of evidence were analyzed. It was found that the majority of doctrinal definitions of this term boil down to the understanding of the use of evidence as the manipulation of it (evidence, their procedural sources, evidentiary information) for the performance of intermediate and final tasks (that is, the achievement of certain positive results) in criminal proceedings.
 Based on the study of the provisions of the current legislation and doctrinal sources, it was established that evidence is used by justifying, making, and implementing decisions in criminal proceedings. The following forms of evidence use are singled out: procedural decisions, decisions on submitting evidence to the court and substantiating legal positions with them, on submitting motions and complaints during the pre-trial investigation, tactical decisions of the prosecution and other subjects of evidence. The general mechanism of making the listed decisions and the place of use of evidence in the system of components of evidentiary activity are considered.
 The use of evidence is defined as a component of the evidentiary process, a set of logical and instrumental operations consisting in justifying with evidence (evidential information), making and implementing decisions by the subject of proof in order to fulfill their own tasks in criminal proceedings.
 Further research prospects in the analyzed field are related to the scientific and theoretical study of the essence, types and mechanism of decision­making in criminal proceedings as a form of evidence use.

Problems of normative regulation of procedural means of cognitive activity of the investigator

The article examines the cognitive orientation of investigative activity during pre-trial proceedings. It emphasizes that cognitive activity in the process of disclosing and investigating a criminal offense is determined by the provisions of the current Criminal Procedure Code of Ukraine, procedural means primarily aimed at understanding the circumstances to be established. Undoubtedly, these means should contribute to obtaining new knowledge about circumstances relevant to criminal proceedings, but in accordance with Part 8 of Article 223 and Part 5 of Article 280 of the Criminal Procedure Code of Ukraine, if pre-trial investigation is completed, the terms have expired, or it has been suspended, the investigator's activity related to understanding past events ceases due to the prohibition on conducting investigative (search) actions. However, investigative (search) actions also include measures to ensure criminal proceedings, such as detention, temporary access to items and documents, temporary seizure of property, and property arrest. However, since the regulatory framework for investigative (search) actions and measures to ensure criminal proceedings remains vague, the question arises about the possibility or impossibility of using these measures outside the deadlines of pre-trial investigation to obtain evidence in criminal proceedings without violating the general principles of criminal proceedings (primacy of law, legality, reasonableness of deadlines). Based on this, it is suggested that the cognitive nature of some measures to ensure criminal proceedings reflects the imperfection of the regulatory distinction between investigative (search) actions and measures to ensure criminal proceedings, considering their general definition in the norms of criminal procedural law. Finally, the question is raised about the investigator's ability to obtain information about the circumstances of committing a criminal offense through measures to ensure in a suspended criminal proceeding.

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

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.

The proposed Regulation to fight online child sexual abuse: an appraisal of privacy, data protection and criminal justice issues

ABSTRACT Protecting children online is a priority for the EU legislator. Since July 2021, an interim regulation allows service providers to derogate from confidentiality safeguards in the e-privacy Directive to fight child sexual abuse online. The European Commission aims to repeal this legislation with a proposal of May 2022. This Regulation will require providers to monitor users’ content communication for online child sexual abuse, among other things. Privacy experts worry that confidentiality standards (i.e. end-to-end encryption) will be weakened and that the Regulation will serve as a basis for indiscriminate interception of content communications. However, the implications of the proposal go beyond privacy and data protection and will impact criminal justice rights too. Therefore, this contribution presents a comprehensive analysis of the proposal from a privacy, data protection and criminal justice perspective. It examines the proportionality of the measure and its implications within the Area of Freedom, Security, and Justice (AFSJ). Specifically, it looks at purpose limitation issues in data exchanges and the admissibility of such evidence in criminal proceedings. The aim is to show that the EU, while aiming at increasing data circulation in the AFSJ, might not be ready for this challenge from an infrastructural and fundamental rights standpoint.

Study on the Examination and Judgment of WeChat Record-type Evidence in Criminal Proceedings

In order to solve the problems existing in China at present in the examination and judgment of WeChat record evidence, this paper is based on the relevant laws and regulations in Chinese criminal procedure law, analyze the examination and judgment mechanism of WeChat record evidence, namely, the authenticity examination of the content, original data and storage medium, the relevance examination of WeChat record evidence to examine whether the content of WeChat record evidence is related to the facts to be proved and the legality review of the subject of the evidence, the way of the evidence and the procedure of the evidence collection. The legality review of the subject of the evidence collection, the way of evidence collection and the procedure of evidence collection. On this basis, it further analyzes the problems existing in the current mechanism, and provides certain methodological reference for improving the examination and judgment of WeChat record evidence.

ACTION OF CHINESE COURTS WITH THE ANTI-TORTURE LEGAL OBLIGATION UNDER THE UNITED NATIONS CONVENTION AGAINST TORTURE: A SOCIO-LEGAL NARRATIVE CRITIQUE ANALYSIS OF APPLICATION OF LAW AND LEGAL REASONING

Background: The most of critique is based mainly on the previous literature, namely, that Chinese dynamic institutional structures’ silence may have exacerbated the miscarriage of justice and obtain illegal evidence in criminal proceedings in China. However, the fact that torture to extract confessions and maltreatment of prisoner’s cases involve judicial decision-making by Chinese hierarchical courts has been disregarded. Objective: Taking China's outward telling and internal judicial reforms as starting positions, the article focuses on address the knowledge gap that torture to extract confessions and maltreatment of prisoner’s cases involving the application of law and legal reasoning regarding how Chinese domestic courts' actions is related to the interpretation of torture and domestic compliance with international conventions. The causes of action include torture to extract confessions, maltreatment of prisoners in criminal scenarios, and cases of cruel, inhuman, or degrading treatment or punishment involving detention in police custody (garde a vue) and outside custodial settings. The article also examines how Chinese hierarchical courts have implemented their judicial practice in accordance with international obligations to prohibit and prevent torture under United Nations Convention against Torture. Methods: Process tracing is a qualitative research method that examines causal processes connecting results to potential causes form socio-legal perspectives, focusing on varying time stages. It is essential for within-case analysis based on qualitative data. Implication: This article highlights the intricate relationship between the definition of torture in law in context in UNCAT and treaty compliance by China domestic court, addressing flaws in previous court decisions and responding to those points of view to gain a more in-depth understanding of the dynamics underlying cases of confessions extracted under torture, ill-treatment in prisons and outside custodial settings (garde a vue) in China's criminal judicial system.

The use of video and audio recordings provided by victims of domestic violence as evidence

The relevance of the study lies in the urgent need to develop scientifically grounded and practically applicable criteria for the admissibility of using secret audio and video recordings made by victims in criminal proceedings regarding domestic violence. The purpose of the study is to establish whether the information contained in secret audio and video recordings made by victims can be used as evidence in criminal proceedings regarding domestic violence. The main research methods are systemic, analysis and synthesis, historical, heuristic, formal-legal methods. The issues of providing recordings by victims, witnesses, and other persons for criminal investigation purposes; general criteria for restricting the right to privacy in criminal proceedings regarding domestic violence; problems of evidence presentation by victims and applicants; issues of documenting domestic violence facts; the issue of admissibility of documentation are investigated. It is proved that aspects of the legality test for limiting the offenderʼs right to privacy in cases of conducting criminal proceedings regarding domestic violence may involve inquiries concerning the importance of evidence gathered through covert recordings and the exclusivity of the necessity of such measures. It is argued that when considering the criterion of a secret operation, which is identified as a condition for recognising audio and video recordings as inadmissible evidence, it should be acknowledged that in criminal proceedings related to domestic violence, video and audio recordings provided by victims cannot meet this condition in the vast majority of cases. The practical value of the study lies in the possibility of unifying judicial practice in determining the admissibility of evidence contained in audio and video recordings made secretly by victims in criminal proceedings regarding domestic violence

Электронные доказательства, электронное доказывание, искусственный интеллект: что далее?

The concept of “electronic evidence” is usually considered within the framework of existing legal classification (material evidence, documents, etc.), whereas more general and natural concepts for them are “electronic proof” and “electronic litigation”, the material substrate of which is the digital environment, where artificial intelligence is gaining increasing importance. Electronic evidence does not always fit into existing legislative definitions and can exist in virtual space (cryptocurrency, other digital assets, etc.). Artificial intelligence in combination with so-called “big data” (Big Data), collectively called the integral technology of artificial intelligence and big data (BD&AI), can take the process of searching for evidence during an investigation to a qualitatively new level, revealing hidden relationships in events and behavior of individuals, often beyond the scope of human consciousness. Through the development and application of BD&AI, the very nature of evidence in criminal proceedings can change, transforming from the sphere of human perception into the sphere of machine cognition. Structuring “big data” for electronic evidence requires further development of investigation algorithms and standards of proof