Reasons for calling for questioning
Useful information
On our website we will provide recommendations on how to behave during interrogation, how to respond to an investigator or tax officer, and whether it is possible to remain silent during interrogation.
According to Article 205 of the Code of Criminal Procedure of the Russian Federation, an expert can be summoned for interrogation only after he has provided an opinion on the issue under investigation, since interrogation is a continuation of this conclusion, but not independent evidence. Calling an expert to the investigator is not a mandatory investigative action. A specialist may be summoned for questioning based on the following reasons:
- The need for participants in the process (investigator, judge, prosecutor) to obtain additional information regarding the issue on which the expert gave an opinion.
- Petition from other participants in the criminal process who have the right to collect evidence (defender, suspect, accused, civil plaintiff or defendant, as well as their representatives).
The court cannot refuse to question a specialist who has appeared in court at the initiative of either party. In turn, the expert may refuse to give an opinion, and, as a result, he cannot be summoned for questioning.
Important - an interrogation differs from a survey in that the documents drawn up as a result of the survey cannot be used as evidence in court.
Purpose of interrogation
The purpose of interrogating an expert is to obtain complete truthful information. In particular, a specialist may be called to:
- clarification of the expert’s competence;
- explanations by the expert of certain concepts and terminology that were used in the conclusion;
- the expert’s explanation of the progress of the study and the rationale for the chosen methods;
- identifying the reasons for the discrepancies between the number of questions and tasks posed to the specialist and the answers provided;
- checking the completeness of the use of the provided information in the study;
- providing evidence of the validity of the conclusions made
If two or more examinations were carried out by different specialists in the case, and there are contradictions in their conclusions, then they are summoned for questioning in order to establish the reason for such discrepancies.
In this case, the specialist cannot be questioned about information that became known to him in connection with the forensic examination, but it is not related to the issue being studied.
Commentary on Article 80 of the Code of Criminal Procedure of the Russian Federation
1. Certificates, acts, conclusions and other forms of recording the results of departmental or other research, obtained at the request of the preliminary investigation authorities or the court, cannot be considered as an expert opinion and serve as a basis for refusing to conduct a forensic examination (see also the commentary to Article 196 Code of Criminal Procedure of Russia).
These provisions do not prevent the inclusion in the materials of the criminal case and the use in the process of proof of a specialist’s opinion obtained in accordance with Part 3 of the commented article <465>. ——————————— <465> See: Resolution of the Plenum of the Supreme Court of the Russian Federation of December 21, 2010 N 28 “On forensic examination in criminal cases” // Bulletin of the Supreme Court of the Russian Federation. 2011. N 2.
2. An expert’s conclusion is a written document duly drawn up by an expert in connection with a decision issued by the competent authority to order a forensic examination, in which he (the expert) sets out the progress of the study and his conclusions (probable or categorical) on issues requiring special knowledge , usually in science, technology, art or craft. The expert’s report may set out his research and conclusions not only on questions posed to the expert by the person conducting the criminal proceedings or the parties, but also on circumstances that are important for the criminal case, but about which questions were not posed to him (Part 2 of Article 204 of the Code of Criminal Procedure of Russia).
3. The expert’s conclusion differs from all other evidence in the following ways:
1) an expert’s opinion can be drawn up only in connection with the appointment of an examination through a specially issued resolution;
2) produces and formalizes the results of the procedural action not by the investigator (inquiry officer, etc.), the court, but by another subject - a person with special knowledge, usually in the field of science, technology, art or craft;
3) the expert’s conclusion may record the results of experimental actions.
4. An expert’s opinion is, in accordance with the law, one of the types of evidence and is given on the basis of research carried out. The expert may be asked questions that are within the specialist’s competence; asking a specialist questions that fall within the expert’s competence is unacceptable; his opinion cannot be equated to an expert’s conclusion <466>. ——————————— <466> See: Resolution of the Plenum of the Supreme Court of the Russian Federation of September 17, 1975 No. 5 “On compliance by the courts of the Russian Federation with procedural legislation during the trial of criminal cases” // Ibid. pp. 422 - 423.
5. In necessary cases, when the establishment of a particular circumstance is impossible by conducting separate forensic examinations or this is beyond the competence of one expert or commission of experts, a comprehensive forensic examination may be appointed.
6. Complex forensic examination is a series of studies carried out by several experts based on the use of various special knowledge.
7. The result of a comprehensive forensic examination can be formalized in a joint expert opinion. The expert report must indicate what research each expert conducted, what facts he personally established and what conclusions he came to. Each expert has the right to sign only that part of the conclusion that reflects the progress and results of the research he personally conducted. If the basis for the final conclusion is the facts established by another expert, then this should also be indicated in the conclusion.
8. The requirement of the law that an expert gives an opinion on his own behalf based on research conducted by him in accordance with his special knowledge, and bears personal responsibility for the conclusion he gives, fully applies to persons participating in the production of a comprehensive forensic examination.
9. When the court evaluates the expert’s opinion, it should be borne in mind that it does not have pre-established force, does not have an advantage over other evidence and, like all other evidence, is assessed according to general rules in conjunction with other evidence. At the same time, the qualifications of the expert should be taken into account, and it should be determined whether sufficient materials and appropriate research objects were presented to him <467>. ——————————— <467> See: Resolution of the Plenum of the Supreme Court of the Russian Federation of December 21, 2010 N 28 “On forensic examination in criminal cases” // Bulletin of the Supreme Court of the Russian Federation. 2011. N 2.
10. Ignoring this rule and an uncritical attitude to the information contained in the expert’s report may lead to the adoption of an illegal decision in the case <468>. The rules for assessing a specialist’s opinion are similar, which also does not have predetermined force. ——————————— <468> See, for example: Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated March 17, 1992 // Bulletin of the Supreme Court of the Russian Federation. 1993. N 2.
11. To assist in assessing the expert’s conclusion and questioning the expert, a specialist may be involved at the request of a party or at the initiative of the court. The specialist gives explanations in the form of oral testimony or a written opinion <469>. ——————————— <469> See: Resolution of the Plenum of the Supreme Court of the Russian Federation of December 21, 2010 N 28 “On forensic examination in criminal cases” // Bulletin of the Supreme Court of the Russian Federation. 2011. N 2.
12. After the expert has prepared an expert opinion, he can be questioned. The interrogation of an expert is possible at the initiative of the investigator (inquirer, etc.), the court, or at the request of the suspect, accused or his defense attorney. During the interrogation, evidence such as expert testimony is formed.
13. An expert’s testimony is an oral speech of the interrogated person explaining or clarifying the conclusion prepared by him (part of it) in accordance with Art. Art. 205 and 282 of the Code of Criminal Procedure (without violating the norms of morality, truth) of the expert, the correctness of which is reflected in the interrogation protocol, he is ready to certify with his signature on each of the pages of the investigative report.
14. The concept-forming features of this type of evidence, such as expert testimony, are the following provisions:
a) expert testimony is always oral speech;
b) this is the oral speech of a person who conducted research appointed by the person conducting the criminal proceedings and prepared a written opinion (expert opinion);
c) content of testimony - information explaining the conclusion (or part thereof) of a given expert;
d) expert testimony can be given only in the manner prescribed by the Code of Criminal Procedure for interrogation;
e) the expert is ready to certify the correctness of the information provided by the expert in the interrogation protocol with his signature on each page of the investigative protocol;
f) when the expert reported information, the norms of morality and (or) truth were not violated.
15. A specialist’s opinion is a document duly drawn up by a specialist in connection with the questions posed to him by the parties, usually asked in the field of science, technology, art or craft, in which he (the specialist) sets out his judgments (probable or categorical) on the data questions. The expert’s conclusion can set out judgments not only on the questions posed to the expert by the parties, but also on circumstances that are important for the criminal case, but about which questions were not posed to him (by analogy with Part 2 of Article 204 of the Code of Criminal Procedure, regarding expert opinion).
16. A specialist’s conclusion differs from an expert’s conclusion in the following ways:
a) the law does not regulate the procedure for issuing a resolution that would set out the questions posed to the specialist, as well as the specialist’s conclusion itself;
b) the specialist is not subject to liability and accordingly is not warned about it under Art. 307 of the Criminal Code for giving a knowingly false conclusion;
c) the law does not provide for the conduct of experimental actions in order for a specialist to form his judgments.
17. An investigator (inquiry officer, etc.), on his own initiative or at the request of one of the parties, has the right to interrogate a specialist both after he gives his conclusion, and before (instead of) this. During the interrogation of a specialist, evidence such as the testimony of a specialist is created.
18. Testimony of a specialist is the oral speech of the interrogated (without violating the norms of morality, truth) containing information related to the criminal case about circumstances requiring special knowledge and (or) explanation of his opinion, the correctness of which he is ready to certify with his own testimony in the interrogation protocol signature on each page of the investigative protocol.
19. The concept-forming features of this type of evidence, such as the testimony of a specialist, are the following provisions:
a) the testimony of a specialist is always oral speech;
b) this is the oral speech of a person involved in a criminal trial as a specialist, that is, having certain knowledge that goes beyond the limits of the knowledge of an individual who is generally known to the investigator (inquirer, etc.), called (invited) by an authorized official (body or defense attorney) to testify about circumstances requiring special knowledge and (or) explain his opinion stated in his conclusion (expressed during participation in the required capacity in the production of a procedural action);
c) the content of the specialist’s testimony - information about circumstances requiring special knowledge and (or) explaining his opinion expressed in the specialist’s conclusion drawn up by him (during participation as a specialist in the production of a procedural action);
d) testimony of a specialist can be given only in the manner prescribed by the Code of Criminal Procedure for interrogation;
e) the expert is ready to certify the correctness of the information provided by the specialist in the interrogation protocol with his signature on each page of the investigative protocol;
f) when the specialist reported information, the norms of morality and (or) truth were not violated.
20. The conclusion and testimony of a specialist are given on the basis of the use of special knowledge and, just like the conclusion and testimony of an expert in court, are evidence in the case (Part 2 of Article 74 of the Code of Criminal Procedure of Russia). It should be borne in mind that the specialist does not conduct an examination of material evidence and does not formulate conclusions, but only expresses a judgment on the issues posed to him by the parties. Therefore, if research is necessary, a forensic examination must be carried out.
21. The conclusion and testimony of a specialist are subject to verification and evaluation according to general rules (his competence and disinterest in the outcome of the case, the validity of the judgment, etc.) and can be accepted by the court or rejected, like any other evidence <470>. ——————————— <470> See: Resolution of the Plenum of the Supreme Court of the Russian Federation of December 21, 2010 N 28 “On forensic examination in criminal cases” // Bulletin of the Supreme Court of the Russian Federation. 2011. N 2.
22. See also commentary to Art. Art. 58, 195, 204, 205, 240, 271, 282, 389.2, as well as all other articles of the Code of Criminal Procedure <471> mentioned here. ——————————— <471> For a more complete commentary on the institute of expert and specialist testimony, see: Ryzhakov A.P. Collection (verification) of evidence. Testimony as a means of proof: Scientific and practical guide. M.: Exam, 2007.
Interrogation procedure
Summoning an expert for questioning is carried out in accordance with Article 188 of the Code of Criminal Procedure of the Russian Federation. If a specialist works in an expert institution, then it is advisable to make the call through the manager.
The interrogation of a specialist in criminal proceedings is as follows:
note
Questions to the expert can be asked not only by the party that initiated his involvement in criminal proceedings, but also by other participants.
- The conclusion of this expert is announced.
- The investigator determines the identity of the expert and his competence.
- The relationship of the specialist with other participants in the process (victim and accused) is established.
- Next comes the actual interrogation, in which the stage of free storytelling is excluded. This means that the expert only gives accurate answers, excluding double interpretation, to the questions posed. The person performing the interrogation has the right to ask the expert questions only within the scope of the examination subject. It is unacceptable to ask leading questions.
During the interrogation, the specialist cannot supplement his research with new conclusions.
The interrogation must be recorded in accordance with the requirements of Art. 166 and 167 of the Code of Criminal Procedure of the Russian Federation. The form for the protocol of interrogation of the expert contains information about the personality, education, place of work, experience in practical or research activities in the field of the issue under study. The absence or presence of grounds for disqualifying the expert is also displayed. In the protocol, all the investigator’s questions, as well as the answers to them, must be written down verbatim.
The result of the interrogation may be a decision on a repeat or additional examination.
You can see an example of an expert being questioned in court below:
Commentary to Art. 80.1 Criminal Code
1. In Art. 80.1 of the Criminal Code provides for two types of exemption from punishment: the cessation of the public danger of the person who committed the crime, or the cessation of the public danger of the crime he committed.
2. In both cases, for release from punishment, the law requires the presence of two conditions: the commission of a crime of minor or moderate gravity for the first time (see commentary to Article 75 of the Criminal Code).
3. The basis for the application of Art. 80.1 of the Criminal Code states that it is inappropriate to impose punishment on a person in a changed situation, in which the person or the crime he committed has ceased to be socially dangerous.
By a change in the situation, as a result of which the crime committed by a person ceased to be socially dangerous, one should understand not only a change in social, political or economic conditions in the country (for example, the cessation of hostilities, major economic reforms), but also a change in the specific situation in a particular area, locality, enterprise (illegal hunting in a reserve, if by the time the case is considered in court it will be permitted there due to an excessive increase in the number of this species of animal).
Changes in the situation, as a result of which the person who committed the crime ceased to be socially dangerous, should include changes associated exclusively with the characteristics of the personality of the perpetrator and the degree of his danger in connection with the crime he committed. For example, the marriage of a perpetrator to the victim of his crime, the move of a minor offender to a new place of residence, as a result of which he found himself outside of an unfavorable environment in criminological terms, entered service or study, was fired from work or relieved of his position.
4. The type of exemption from punishment under consideration is mandatory.
5. The Criminal Code does not indicate at what point the loss of public danger of an act or the person who committed it should be established. It seems that it should be established by the time the case is considered in court. Exemption from punishment on the grounds provided for in Art. 80.1 of the Criminal Code, is carried out by the court in the form of a guilty verdict without imposing punishment (clause 3, part 5, article 302 of the Code of Criminal Procedure of the Russian Federation).
