Pre-trial Stage Research Articles

Disparate impact of risk assessment instruments: A systematic review.

One concern about the use of risk assessment instruments in legal decisions is the potential for disparate impact by race or ethnicity. This means that one racial or ethnic group will experience harsher legal outcomes than another because of higher or biased risk estimates. We conducted a systematic review of the literature to synthesize research examining the real-world impact of juvenile and adult risk instruments on racial/ethnic disparities in legal decision making. Given the nature of research synthesis, we did not test formal hypotheses. Our systematic literature search as of July 2023 identified 21 articles that investigated the disparate impact of 13 risk assessment instruments on various legal outcomes. Most of these instruments were actuarial pretrial screening instruments. Our narrative synthesis indicated that there is not strong evidence of risk instruments contributing to greater system disparity. Ten articles indicated that adopting risk instruments did not create (or exacerbate preexisting) disparities, and eight articles found that instrument use reduced disparities in legal decision making. Three articles reported evidence of disparate impact of risk instruments; only one of these studies received a strong study quality assessment score. We observed a scarcity of high-quality articles that employed what we deem to be the gold standard approach for examining the disparate impact of risk instruments (i.e., pretest-posttest design). The evidence signals that risk instruments can contribute to reductions in disparities across multiple stages of legal decision making. Yet study quality remains low, and most research has been conducted on decisions during the pretrial stage. More rigorous research on disparate impact across diverse legal decision points and approaches to risk assessment is needed. (PsycInfo Database Record (c) 2024 APA, all rights reserved).

Ensuring the legal interests of a person in pre-trial criminal proceedings

In the science of the criminal process, there is no unified vision of the essence of a person’s legitimate interests and guarantees of their provision at the stage of pre-trial investigation. Ensuring a legitimate interest at the stage of pre-trial criminal proceedings is not supported by the performance of duties by other participants. An effective guarantee of the realization of a person’s legitimate interests in pre-trial criminal proceedings should be the real possibility of going to court to challenge the decisions, actions or inaction of law enforcement agencies. The presence of such a legal possibility should stimulate law enforcement agencies to take active actions aimed at satisfying legitimate interests. The criminal procedural law must provide for a mechanism to protect the legal interests of a person, both those that directly follow from the criminal procedural norms and those that are not provided for by the criminal procedural law, but are consistent with the spirit and principles of criminal justice. It can be argued that the legitimate interests of a person in pre-trial criminal proceedings are general legal and not prohibited aspirations of a person. Ensuring the legal interests of a person at the pre-trial stage of the criminal process should be ensured by a general obligation (general obligation) to take active actions by state bodies aimed at ensuring legal interests. The guarantee of the realization of the legal interests of a person in pre-trial criminal proceedings is the legal regulation in the criminal procedural law of the procedure for judicial appeal of decisions, actions or inaction of law enforcement bodies (including pre-trial investigation bodies) that prevent the realization of general legal aspirations of a person at the pre-trial stage of criminal proceedings. The need for regulatory regulation of the procedure for judicial protection of legitimate interests is determined by their legal nature, which provides for regularities in the actions of the participants of criminal proceedings of an undefined nature.

THE RIGHT OF PARTICIPANTS IN CRIMINAL PROCEEDINGS TO APPEAL IN THE PRE-TRIAL STAGES

The purpose of the study. The article deals with the problem of forecasting the development of the right to appeal in criminal proceedings. A comparative legal analysis of the norms of the right to appeal against the Statute of Criminal Proceedings of 1864 and the modern Criminal Procedure Code of the Russian Federation has been carried out. The purpose of the study is to establish and identify similarities and differences in the legal mechanisms governing the right to appeal in order to predict its development in the future. Conclusions. The modern version of the right to appeal at the pre-trial stage of the criminal process has much in common with the right to appeal in pre-revolutionary Russia, which allows us to talk about the cyclical development of criminal procedural legislation. We predict that the vector of development in the future will be aimed at democratizing the right to appeal, improving mechanisms to increase its accessibility and effectiveness at the pre-trial stage of the criminal process.

Remaining silent during investigative interviews: a perspective of prisoners convicted for a serious crime

ABSTRACT The right to remain silent is a fundamental procedural safeguard for people accused of a criminal offense. Practitioners draw conclusions from the fact that a defendant makes use of the right to silence. Conversely, we know little about defendants’ perspective of the right to silence and their understanding of the possible risks involved in invoking this right. It was the aim of the current study to provide insights on defendants’ decision to remain silent and the reactions and consequences they experienced. We conducted four focus group interviews with 29 prisoners who served a prison sentence for a serious crime of at least three years in the Netherlands or Belgium. Overall, prisoners were in favor of remaining silent and recommended remaining silent over the full duration of their investigation and trial, or at least the pre-trial stage. The presence of co-suspects, attitudes towards police, and perception of evidence strength played an important role in the decision to remain silent. Legal assistance informed prisoners’ strategy decisions, especially for first offenders. When interpreting the findings it is important to consider that interviewees were mostly convicted of serious multiple perpetrator crimes. This might have contributed to the strong emphasis on silence as preferred strategy.

Functional component of the criminal procedural status of the Prosecutor's Office Head

The article examines the functions of the Head of the Prosecutor’s Office in criminal proceedings as an integral part of his/her criminal procedural status. The existing approaches to understanding the concept of “criminal procedural status” and its analogues are identified. It is noted that the function of the head of a pre-trial investigation body differs from the function of a prosecutor - procedural supervisor (at the pre-trial investigation stage) and a prosecutor supporting the public prosecution (at the trial stages of criminal proceedings). The above is determined by the prosecutor's powers which are determined by the criminal procedure law. The expediency of distinguishing four functions of the Head of the Prosecutor’s Office in criminal proceedings is emphasized: procedural guidance, public prosecution, organisational and managerial function and quasi-judicial control function. Based on the analysis of the Criminal Procedure Code of Ukraine provisions which vest the head of a prosecution body with procedural powers, the article establishes that some of these functions are exercised by the head of a prosecution body depending on his/her specific position (Prosecutor General, head of a regional prosecution office, etc.). It is also established that the approaches to determining the criminal procedural status of participants to criminal proceedings (subjects of criminal proceedings) available in the current scientific literature through the use of the terms “legal status” and “procedural status” are inaccurate, although not entirely wrong. Their use significantly expands the content of this category, which is illogical. The functions of the Head of the Prosecutor’s Office in criminal proceedings constitute the core, or basis, for determining his/her criminal procedural status in general, due to the close connection of this category with his/her powers (rights and obligations) in criminal proceedings, which opens up the possibility of studying other components of his/her status. It is also worth mentioning that under martial law, in certain circumstances, the Head of the Prosecutor’s Office may also perform the supervisory function of the court. These powers are unique and inherent only to the Head of the Prosecutor’s Office in criminal proceedings. Thus, the Head of the Prosecutor’s Office replaces the powers of the investigating judge to exercise the judicial control function, which indicates the quasi-judicial nature of such a function.

Unraveling the Complexities: Factors Influencing Conviction Rates in Violence against Women (VAW) Cases in Northern Bangladesh

This study aims to examine the complex dynamics involved in adjudicating violence against women (VAW) cases within urban settings in Bangladesh, with a focus on the determinants that affect conviction outcomes. Adopting a qualitative research methodology, this inquiry gathers insights from in-depth interviews with 17 key stakeholders, including judges, lawyers, and police officials, within the metropolitan areas of northern Bangladesh. This primary data is further enriched by field observations (court, police station, medical college, and victim support center). The investigation reveals significant procedural deficiencies and systemic challenges encountered during the pre-trial stages of violence against women (VAW) litigation. These include delays in filing complaints, inaccuracies in First Information Reports (FIRs), lapses in evidence preservation, lack of witness cooperation, and discrepancies in medical documentation. The study identifies overarching issues such as inadequate training for investigative officers, substandard evidence collection practices, and the scarcity of forensic expertise as pivotal factors that negatively influence conviction rates. Furthermore, it emphasizes the crucial yet strained role of public prosecutors, who grapple with excessive caseloads, insufficient resources, and a lack of specialized support. This research contributes novel insights into the complexities of prosecuting violence against women (VAW) cases in Bangladesh’s urban centers, highlighting critical inefficiencies within its criminal justice system.

Limits of Judicial Control at the Pre-trial Stages of the Criminal Process

The article examines the issues of the limits of judicial control in accordance with Art. 125 of the Code of Criminal Procedure of the Russian Federation at the pre-trial stages of criminal proceedings. The author concludes that the court, verifying the legality and validity of the actions (inaction) and decisions of the investigation body in accordance with Art. 125 of the Code of Criminal Procedure, has no right to invade the investigation process and establish the factual circumstances of the case by these bodies and assess the validity of the internal conviction of officials of these bodies, monitor the correctness of their application of criminal and criminal procedure laws.Otherwise, the court would invade the competence of the investigator, interrogator, prosecutor, limiting their procedural independence in the commission of procedural actions and decision-making and would prejudge issues that may later become the subject of legal proceedings.

Problems of closing criminal proceedings due to the expiration of pre-trial investigation deadlines

The article is dedicated to addressing the current issues in the theory and practice of closing criminal proceedings during the pre-trial investigation stage, particularly focusing on the basis of closing due to the expiration of pre-trial investigation deadlines. The problem of closing criminal proceedings by the investigating judge based on paragraph 10 of Part 1 of Article 284 of the Criminal Procedure Code of Ukraine is currently the subject of active discussions among legal professionals. This basis is directly related to the pre-trial investigation stage and, according to the current established practice of the Supreme Court, is classified as exclusive competence of the prosecutor, limiting the Investigating Judge's ability to exercise effective judicial control during the pre-trial investigation stage. It is noted that the absence of these powers in the Investigating Judge entails the risk of violating the reasonable time requirements for pre-trial investigation, as the pre-trial investigation deadline is not just a formality. Enshrining in procedural law the prosecutor's obligation to apply to the court with an accusatory document or close the criminal proceedings as soon as possible but not later than the procedural deadline after notifying the suspect of the accusation is a guarantee of the fundamental right of individuals to have their cases heard within a reasonable time frame. Unfortunately, in practical terms, this guarantee is not always implemented, and the lack of effective judicial control only contributes to the spread of prosecutorial inactivity. The article suggests that the most optimal solution to this problem is the alternative competence of both the prosecutor and the Investigating Judge regarding the authority to close criminal proceedings during the pre-trial investigation stage. This would help achieve a balance of interests between the parties involved in criminal proceedings and prevent abuses of power. To improve the mechanism for ensuring compliance with reasonable deadlines, the author proposes expanding and specifying the powers of the Investigating Judge when closing criminal proceedings. Specifically, it is suggested to add Part 2-1 to Article 284 of the Criminal Procedure Code of Ukraine: «Criminal proceedings at the pre-trial investigation stage are closed by the Investigating Judge based on the grounds provided for in paragraph 10 of this article if the suspect does not object to the closure on these grounds.»

Особенности стадии предварительного исследования при идентификации лиц с измененной внешностью

The article reviews the dependence of results of identifi cation on expert's actions at the pre-trial investigation stage provided that a person has altered the appearance. The author analyzes cases that require provision of information on medical interventions in the appearance of an investigated person and their further complications as well as involving specialists from other spheres of scientifi c knowledge. The paper describes requirements for samples for comparative studies including the need to refl ect unchanged elements of the appearance. The publication emphasizes that interaction between an expert and the examination initiator produces a positive eff ect on the effi ciency.

Challenging Issues of Determination of Court Jurisdiction over Adoption of Procedural Decisions in Exercising Judicial Control at Pre-Trial Criminal Procedure Stages

Challenging Issues of Determination of Court Jurisdiction over Adoption of Procedural Decisions in Exercising Judicial Control at Pre-Trial Criminal Procedure Stages

Французская модель предварительного производства по уголовному делу: организационные и процессуальные механизмы

The article analyzes the organizational and procedural mechanisms for constructing the French model of preliminary proceedings in a criminal case. Particular attention is paid to the organizational and procedural division of government bodies responsible for public litigation and judicial activities. The author emphasizes that the Russian model of pre-trial proceedings also originates from the French model of preliminary proceedings, many of whose institutions were significantly transformed to the detriment of the principle of separation of powers in the pre-trial stages of criminal proceedings.

Mathematical Representatives in Forensic Methods of Crime Investigation

Criminologists created a doctrine about the forensic characteristics of a type of crime (about typical models of crime mechanisms) in order to improve criminal proceedings, optimize the forensic methodology for investigating crimes, and suggested the existence of correlations between the various components of the criminalistic characteristics of a crime. At the same time, modern criminology, with its intradisciplinary means, cannot confidently confirm the existence of these correlations. It has no means to calculate the volume of typified characteristics of the elements of the crime, which will be sufficient to put forward all possible investigative versions. Forensic science currently does not have the ability to use typified characteristics of elements of a crime to build a sequence of typical investigative leads according to the principle “from the more probable to the less probable” (or vice versa). Since these problems cannot be solved by modern intradisciplinary means of criminology, scientific society should look for the way to solve these problems other areas of scientific knowledge. Firstly, we should determine the fundamental foundations of forensic characteristics, taking into account the nonlinearity of modern science, the fundamentals of information theory, and apply systematic approach. The we can logically determine ways to study forensic characteristics and ways to improve forensic methods for investigating crimes. The comparison of synergetic systems and forensic characteristics of a crime, taking into account the fundamentals of information theory, reveals the synergetic essence of forensic characteristics. Synergetic systems can be researched using mathematical representatives. The possibilities of researching synergetic systems using mathematical methods are also applicable to the forensic characteristics of a type of crime. Thus, we can try to solve the above problems and optimize the process of preliminary investigation at the pre-trial stage of criminal proceedings applying mathematical representatives to the forensic characteristics of the crime.

About some directions of increasing the efficiency of operational search support for the identification and investigation of crimes

Subject of research: capabilities of operational investigative support for the detection and investigation of crimes. Purpose of research: to identify modern factors that determine the need for operational investigative support for the detection and investigation of crimes; determine the content of operational investigative support for the detection and investigation of crimes; to formulate some areas for increasing the efficiency of operational investigative support for the detection and investigation of crimes. Methods of research: the work used general scientific methods (analysis and synthesis, logical, systemic), as well as special scientific methods (sociological, statistical). Main results of research: based on the analysis, the author made the following conclusions: on the advisability of supplementing the legally defined list of tasks of operational investigative activities; on the practical validity of developing an interdepartmental normative legal act regulating operational investigative support of criminal proceedings; about the need to use the capabilities of operational investigative support not only at the pre-trial stages of the criminal process, but also at the trial stage.

ECHR rules regarding procedural guarantees which act as balancing factors in the event of the prosecution’s witness not appearing in court

The article examines the legal position of the European Court of Human Rights regarding the possibility of using as evidence the testimony of a witness who did not appear at the court hearing and was not questioned at the pre-trial stage.
 It is established that important procedural safeguards are a component of balancing factors, together with which compensate for the difficulties faced by the defense as a result of accepting unverified statements as evidence, which contribute to a fair trial. Reliable procedural guarantees should ensure a proper assessment of the credibility of the evidence in the case under consideration.
 It has been proven that the reliability of procedural guarantees is established by the European Court of Human Rights referring to cases where the prosecution witness did not appear at the court session, based on paragraph 1 and subparagraph «d» of paragraph 3 of Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms.
 In accordance with the judicial practice of the Court, reliable procedural guarantees where highlighted, with the help of which this supranational body established or did not establish a violation of paragraph 1 and subparagraph «d» of paragraph 3 of Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms in the event that the prosecution witness did not appeared at the court session. Examples are given and, for each of them, the views of the Court regarding the reliability of procedural guarantees are emphasized. These examples cover various aspects of the European Court of Human Rights’ consideration of the reliability of procedural guarantees, in particular: when a witness for the prosecution did not appear at the court session, but was able to be questioned at the pre-trial stage; the position in which the defending party found itself during the conduct of face-to-face bets; evaluation of the actions of the investigator during the conduct of face-to-face bets; the reasonableness of national courts’ efforts to locate an absent witness; the need for the consent of the accused and his lawyer to announce the testimony of an absent prosecution witness; assessment by national courts of the weight of the testimony of an absent witness given during the pre-trial investigation and others.

Implementation of the principle of competition in the course of pre-trial investigation

The article is devoted to the study of the peculiarities of implementing the adversarial principle in the course of pre-trial investigation. Adversariality determines the image of the entire criminal process, since it implies its construction in which the functions of prosecution, defense and case resolution are separated from each other. This, in turn, gives the court’s verdict a special power of persuasion, increases its legal and social significance.
 The adversarial principle in the course of pre-trial investigation has its own structure, which consists of four interrelated elements: 1) the presence of the prosecution and the defense; 2) the presence of equal procedural rights for the prosecution and the defense; 3) the presence and clear separation of the functions of public prosecution, defense and trial; 4) the presence of an objective and impartial court.
 At the stage of pre-trial investigation, the adversarial nature of the parties is characterized by a number of circumstances, one of which is that the officials conducting the proceedings have power and administrative authority, unlike the defense. In the course of the study, the author substantiates the position that it is necessary to expand the powers of defense counsel with a view to intensifying his/her activities in implementing the principle of adversariality at the pre-trial investigation stage. In this regard, the author suggests that the CPC of Ukraine should include the following: a protocol form for recording the results of questioning of persons by the defense; provide for the liability of public authorities, local self-government bodies, enterprises, institutions, organizations, officials and individuals for failure to comply with the defense’s requests for the provision of necessary items and documents; supplement the CPC of Ukraine with a rule imposing on the investigator, prosecutor the obligation to timely notify the defense counsel of the time and place of the investigative (search) action in which he or she has the right to participate.

Уголовный процесс ≠ уголовное судопроизводство

The article deals with current problems and possible options for the further development of criminal procedure law on the basis of an analysis of unity, differences and the ratio of pretrial and judicial stages of proceedings in a criminal case. Examining in historical context such categories as the purpose, tasks and destination of criminal procedure, the author comes to the conviction of the fallacy of the identification of the concepts of criminal procedure and criminal justice that has become familiar. Based on the functional purpose of the main (authority) subjects of criminal procedure, the forms of their interaction, the ratio of pretrial and judicial proceedings are determined. The conclusion is formulated on the need to move to differentiated regulation of the pretrial stage of the criminal process as a sphere of activity of the bodies of accusatory power (preliminary investigation) and judicial stages as an area of functioning of the judiciary. Awareness of the difference in goals and objectives solved during criminal proceedings by subjects of the prosecution and judicial authorities allows us to hypothesize about the need to differentiate the principles of criminal procedure in relation to each of its two parts. The proposed idea should help to solve the most significant problems of criminal procedure law.

Basic models of building pre-trial investigation as a stage of criminal proceedings in foreign countries

One of the main areas of development of criminal procedure legislation has been, and still is, the differentiation of criminal proceedings into pre­trial and trial stages. The author notes the current trends in national criminal procedure legislation aimed at optimising the procedure for investigating criminal cases and reducing the timeframe for their investigation. The desire for democratisation of the criminal procedure doctrine, strengthening of the guarantees of admissibility of evidence, adversarial process, and changes in the process model itself, along with the fundamental trends in the development of the rule of law, have led to a large-scale adoption of foreign criminal procedure institutions.
 The authors examines the main models of pre­trial investigation as a stage of criminal proceedings in the countries with the Anglo-Saxon (England, USA) and Romano-Germanic (France, Germany, Switzerland) legal systems. Given the materials studied, it is noted that when building models of pre-trial investigation of criminal proceedings, regardless of the system of law used in different States, the legislator focuses on improving two areas: criminal procedure and criminal law. The criminal law criterion is responsible for determining a more moderate sentence by reaching an agreement between the prosecution and defence. The criminal procedural criterion, in turn, defines two more areas of change: the possibility of reducing the procedural timeframe of the proceedings in a certain part or in general; reducing the procedural obligations of persons involved in criminal proceedings. The authors come to the conclusion that it is necessary to modernise the current model of the pre-trial stage of the national criminal procedure with due regard for the positive experience of the most developed Western countries.

Разграничение полицейской, прокурорской и судебной функций в ходе предварительного расследования уголовного дела: общие положения

The article discusses doctrinal approaches to distinguishing police, prosecutorial and judicial functions in the pretrial stages of criminal proceedings. Each of these functions implies the implementation by public authorities of relevant powers. Depending on the nature of these powers, some of them can be delegated to other government bodies (primarily executive authorities — the police), delegation of other powers, on the contrary, is not permissible and leads to a distortion of the “system of checks and balances” in the pre-trial stages of criminal proceedings.

Judges as Agents of Coloniality: Understanding the Coloniality of Justice at the Pre-trial Stage in Brazil

Abstract This paper exposes how colonial ways of knowing and being shape judicial behaviour in Brazil, where pre-trial detention is excessively used against racialised groups. I argue that judges continue to conceptualise and operationalise justice according to colonial logics and thus reveal the coloniality of justice. Drawing on decolonial theory from across South America and from interviews and court observations in Rio de Janeiro, I reveal how judges understand themselves as heroic crime fighters, acting beyond the law in a modern moral crusade. I examine how violence remains a central component of justice and consider how judges deal with the contradiction of neutrality and aggression. I argue that judges, by endorsing or tolerating violence, become agents of coloniality.

DIFFERENCES BETWEEN "SPECIALIST'S OPINION" AND "EXPERT RESEARCH OPINION" IN CASES OF FORENSIC MEDICAL EXAMINATIONS ON A CONTRACTUAL BASIS

The article presents topical issues related to the appointment of forensic medical examinations and research at the request of the defense in criminal proceedings, as well as procedural features of the participation of specialists in expert work at the pre-trial investigation stage. Similarities and differences of subjects using special knowledge, namely specialist and expert, were studied. Ways to improve the participation of specialists in the pre-trial process are proposed.
 Aim of the work. The purpose of the work is to determine the differences between the "Specialist's Opinion" and the "Expert Research Conclusion" in cases of forensic medical examinations on a contractual basis.
 Results. It was established that "Expert's opinion", "Specialist's opinion", "Consultation" cannot correspond to the expert's opinion according to the following criteria: the qualification requirements for persons with special knowledge are different, and the qualification requirements for a specialist at the regulatory level are not defined at all. Similarities and differences of subjects using special knowledge, namely specialist and expert, were studied. Ways to improve the participation of specialists in the pre-trial process are proposed.
 Conclusions. If, in order to obtain a specialist's opinion, all the requirements inherent in an expert's opinion must be followed, then the question arises of the feasibility of obtaining such an opinion, instead of evaluating the evidence in a method proven by practice, namely, conducting a forensic medical examination. "Expert's opinion", "Specialist's opinion", "Consultation" cannot correspond to an expert's opinion according to the following criteria: the qualification requirements for persons with special knowledge are different, and the qualification requirements for a specialist at the regulatory level are not defined at all. It is expedient to amend Article 102 of the Criminal Procedure Code of Ukraine on the procedure for warning an expert about responsibility for a knowingly false conclusion and refusal without valid reasons to perform the duties assigned to him in the case of providing the conclusions of an expert study, on a contractual basis. Article 243 of the Criminal Procedure Code of Ukraine should be supplemented with paragraph 71 of the following content: "A copy of the agreement with the expert institution on conducting the examination, a copy of the receipt for payment of the appointed examination shall be attached to the decision of the investigating judge on the commission of the examination. In Article 71 "Basics of the legislation of Ukraine on health care" it is necessary to introduce a provision on the possibility of conducting a forensic medical examination at the request of the defense party or the victim.We consider it expedient to: 1) create in higher education institutions (medical universities) advisory groups of scientific and pedagogical workers (docents, professors), 2) have them undergo thematic improvement cycles in medical jurisprudence and the basics of forensic medicine.