Commentary on Article 80 of the Code of Criminal Procedure of the Russian Federation
1. The commented article determines the content of the conclusion and testimony of an expert and specialist in criminal proceedings. The information provided by these participants in the process is evidence in a criminal case (clauses 3 and 3.1 of part 2 of article 74 of the Code of Criminal Procedure of the Russian Federation).
2. An expert is a person who has special knowledge and is appointed in the manner established by this Code to carry out a forensic examination and give an opinion (Part 1 of Article 57 of the Code of Criminal Procedure of the Russian Federation).
3. The expert’s conclusion in accordance with Part 1 of the commented article is a written document that reflects the content of the study and conclusions on the issues that were posed to the expert.
4. In order for an expert’s conclusion to have evidentiary value, it is necessary to follow the procedure not only for research, but also for the appointment of a forensic examination (Chapter 27 of the Code of Criminal Procedure of the Russian Federation).
5. Part 1 of the commented article reflects that questions can be posed to the expert not only by the person conducting the criminal proceedings, but also by the parties. This allows us to conclude that a conclusion containing both answers to questions from bodies and officials of criminal proceedings, and answers to questions posed to the expert by representatives of the prosecution or defense has equal legal force. Since in many cases representatives of the prosecution are also officials of criminal proceedings, the commented norm primarily deals with the capabilities of the defense.
6. In order for an expert’s opinion to be recognized as evidence in a criminal case, it is necessary that it meets the following requirements: 1) a forensic examination must be ordered as part of the proceedings in this particular criminal case; 2) a forensic examination must be appointed by the body or official in charge of the criminal case; 3) appropriate initial data for conducting a forensic examination must be provided; 4) when conducting a forensic examination, research must be carried out using appropriate scientifically proven methods; 5) the results of the forensic examination must be properly documented; 6) during the appointment, conduct of a forensic examination and familiarization with its results, the rights of persons involved in criminal proceedings must be respected.
7. The expert’s conclusion as a document must meet the requirements imposed on it by law (Part 1 of Article 204 of the Code of Criminal Procedure of the Russian Federation).
8. A conviction cannot be based on an expert opinion drawn up on the basis of incomplete and insufficiently verified data. Also, a conviction cannot be based on an expert opinion obtained in violation of the law.
9. Part 2 of the commented article establishes that the expert’s testimony represents information that was communicated by him during the interrogation conducted after receiving his conclusion. The purpose of such interrogation is to clarify or clarify the expert’s conclusion.
In this case, the legislator especially emphasizes that the expert gives testimony only after he has presented his conclusion. Moreover, part 1 of Art. 205 of the Code of Criminal Procedure of the Russian Federation contains a direct prohibition to interrogate an expert before presenting his conclusion.
10. In Ch. 37 Code of Criminal Procedure of the Russian Federation Art. 282 “Interrogation of an expert” is placed earlier than Art. 283 “Forensic examination”. At the same time, interrogation in accordance with Art. 282 of the Code is carried out only in the case where the expert gave an opinion earlier, during the preliminary investigation or trial in the same criminal case.
11. It should be stated in paragraph 3 of part 2 of Art. 74 of the Code of Criminal Procedure of the Russian Federation are designated as a single piece of evidence. However, this can only take place in cases where the expert was questioned after presenting his report. If the conclusion was drawn up in such a way that interrogation of the expert was not required, then only the expert’s conclusion serves as evidence.
12. The subject of an expert’s testimony is information that explains or specifies the conclusion given by him. During the interrogation, the expert should not be asked questions that are not related to the examination he has carried out, or that replace expert research.
13. If the expert’s conclusion is insufficiently clear or complete, as well as if new questions arise regarding the previously investigated circumstances of the criminal case, an additional examination is appointed (Part 1 of Article 207 of the Code of Criminal Procedure of the Russian Federation). If doubts arise about the validity of the expert’s conclusion or there are contradictions in the conclusions of the expert or experts on the same issues, a re-examination is ordered (Part 2 of Article 207 of the Code).
14. If an expert is subject to challenge (Article 70 of the Code of Criminal Procedure of the Russian Federation), then his conclusion and testimony are inadmissible evidence and cannot be used in criminal proceedings.
15. The expert’s conclusion, like other evidence, has no predetermined force. The court must be critical of the expert's conclusion, evaluating it in conjunction with all the evidence in the criminal case.
16. The court’s conclusion about the qualification of the actions of the perpetrator, based on the alleged expert’s conclusion, is unfounded.
17. The court does not have the right to use an expert opinion based on assumptions and not on special knowledge to justify a verdict.
18. Recognizing the conclusions of one of the experts as evidence in a criminal case, the court must indicate the reasons why it rejected other expert opinions.
19. A conviction based on an expert opinion alone, not supported by any other evidence, is unfounded. On the other hand, an expert’s conclusion, verified and assessed by the court of first instance in conjunction with other materials of the criminal case, cannot be questioned without convincing evidence.
20. According to part 3 of the commented article, a specialist’s conclusion is a judgment presented in writing on the issues posed to the specialist by the parties. A specialist is a person with special knowledge who is involved in procedural actions in the manner established by the Code of Criminal Procedure of the Russian Federation, to assist in the detection, securing and seizure of objects and documents, the use of technical means in the study of criminal case materials, to pose questions to an expert, as well as to explain to the parties and the court issues within his professional competence (Part 1 of Article 58 of the Code of Criminal Procedure of the Russian Federation).
21. In paragraph 45 of Art. 5 of the Code of Criminal Procedure of the Russian Federation, the parties are defined as participants in criminal proceedings, performing the function of prosecution (criminal prosecution) or defense against accusations on an adversarial basis. Thus, representatives of both the prosecution and the defense have the right to put questions to the specialist. For example, a lawyer according to sub. 4 p. 3 art. 6 of the Federal Law of May 31, 2002 No. 63-FZ “On advocacy and the legal profession in the Russian Federation” has the right to engage specialists on a contractual basis to clarify issues related to the provision of legal assistance.
22. Questions are asked to the specialist in writing. This provides the court with the opportunity to assess whether the specialist gave answers within the scope of his specialized knowledge. It is prohibited to ask a specialist leading questions (i.e. questions that contain an answer, part of an answer, or a hint). If the fact of asking leading questions is discovered, then the specialist’s conclusion is recognized as unacceptable evidence (clause 3, part 2, article 75 of the Code of Criminal Procedure of the Russian Federation).
23. Unlike an expert’s opinion, the form of a specialist’s opinion is not established by law. It seems that a written document must be drawn up in compliance with the general rules of office work and have a structure generally similar to that of an expert’s opinion.
The main difference between a specialist’s conclusion and an expert’s conclusion is that the specialist uses his special knowledge directly, presents it in the form of judgments on certain issues, but does not carry out special research using special techniques.
24. Part 4 of the commented article states that the testimony of a specialist represents information provided by him during interrogation about circumstances that require special knowledge, as well as an explanation of his opinion.
25. According to clause 31, part 2, art. 74 of the Code of Criminal Procedure of the Russian Federation, the conclusion and testimony of a specialist constitute a single piece of evidence. However, unlike an expert, a specialist can give his testimony in cases where he has not previously provided an opinion. Since the specialist’s testimony is recorded in the protocol of his interrogation, he can give it only if his interrogation is carried out by the authorities and officials conducting criminal proceedings. In this regard, situations are possible when, if it is necessary to use special knowledge, an investigator or other official of criminal proceedings will not invite a specialist to give an opinion, but will immediately interrogate him on the same issues.
26. During pre-trial proceedings, a specialist may be invited to participate in any investigative actions, in the application of a measure of procedural coercion in the form of seizure of property (Part 5 of Article 115 of the Code of Criminal Procedure of the Russian Federation), and also, on behalf of the investigator, to carry out at the stage of initiating a criminal case documentary checks and audits, other studies (Part 3 of Article 144 of the Code). Therefore, the subject of a specialist’s testimony may also be an explanation of issues that arose during the performance of these actions.
27. A specialist who participated in any investigative action may, if necessary, be questioned in a court hearing about the circumstances of its production as a witness. The testimony of a specialist invited by the parties is given by him according to the rules provided for the interrogation of a person as a witness.
28. If a specialist is subject to recusal in accordance with Art. 71 of the Code of Criminal Procedure of the Russian Federation, then his conclusion and testimony are unacceptable evidence and cannot be used in criminal proceedings.
Article 80 of the Code of Criminal Procedure of the Russian Federation (with comments).
Article 80 of the Code of Criminal Procedure of the Russian Federation. Conclusion and testimony of an expert and specialist
1. Expert opinion – the content of the study and conclusions presented in writing on the questions posed to the expert by the person conducting the criminal proceedings or the parties.
2. Testimony of an expert - information provided by him during an interrogation conducted after receiving his conclusion, in order to clarify or clarify this conclusion in accordance with the requirements of Articles 205 and 282 of this Code.
3. A specialist’s conclusion is a written judgment on the issues posed to the specialist by the parties.
4. Testimony of a specialist - information provided by him during interrogation about circumstances requiring special knowledge, as well as an explanation of his opinion in accordance with the requirements of Articles 53, 168 and 271 of this Code.
Commentary on Article 80 of the Criminal Procedure Code of the Russian Federation - Conclusion and testimony of an expert and specialist - prepared by a team of scientists under the scientific editorship of Doctor of Law, Professor, Honored Lawyer of the RSFSR, Honored Scientist of the Russian Federation, Full Member of the Russian Academy of Natural Sciences Zagorsky G.I.
Expert opinions serve as a separate type of evidence.
This type of evidence in criminal proceedings is used for the purpose of a comprehensive and objective study of the circumstances to be proven in a criminal case, when, in resolving issues that have arisen during judicial proceedings, research using special knowledge in science, technology, art or craft is required.
The subject of this type of evidence is information (information) that is reflected in the very content of the study, as well as in the conclusions on the issues that were posed to the expert by the person conducting the criminal proceedings or the parties to the criminal proceedings.
An inseparable component of the subject of this type of evidence is the content of the study itself and the conclusions of this study. An essential element of the research conducted is the method that was used in the process of this research. Thus, an expert’s conclusion will be considered unfounded if the conclusions are not sufficiently substantiated and the necessary methods and techniques of expert research are applied incorrectly 1.
1 See paragraph 15 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of December 21, 2010 No. 28 On forensic examination in criminal cases.
At the same time, in accordance with the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 21, 2010 No. 28, the questions posed to the expert and the conclusion on them cannot go beyond the scope of his special knowledge.
Raising before the expert legal issues related to the assessment of the act, the resolution of which falls within the exclusive competence of the body conducting the investigation, the prosecutor, the court (for example, what took place - murder or suicide), as not being within the competence, is not allowed 1.
1 See paragraph 4 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of December 21, 2010 No. 28 On forensic examination in criminal cases.
4. In addition, in accordance with the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 21, 2010 N 28, if the research goes beyond the competence of one expert or commission of experts, in accordance with Art. 201 of the Code of Criminal Procedure of the Russian Federation, a complex examination may be ordered, carried out by several experts based on the use of various special knowledge. The experts draw up a joint conclusion 1.
1 See paragraph 12 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of December 21, 2010 No. 28 On forensic examination in criminal cases.
The procedural source of an expert’s opinion is the procedural document itself in the form of an expert’s opinion.
The essential provisions of the conclusion itself are the signatures of the experts (expert) who conducted this study, as well as the fact that the experts (expert) were warned of criminal liability for giving a knowingly false conclusion in accordance with Art. 307 of the Criminal Code of the Russian Federation, as well as for the disclosure of preliminary investigation data in accordance with Art. 310 of the Criminal Code of the Russian Federation. Moreover, each expert has the right to sign a general conclusion or that part of it that reflects the progress and results of the research he personally conducted.
The expert's conclusion as a type of evidence must be assessed in accordance with the requirements of Art. 88 Code of Criminal Procedure of the Russian Federation.
In accordance with Resolution of the Plenum of the Supreme Court of the Russian Federation of December 21, 2010 No. 28, the expert’s opinion, like all evidence (Article 240 of the Code of Criminal Procedure of the Russian Federation), is subject to direct examination in a court hearing. When assessing an 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 is assessed according to general rules in conjunction with other evidence. At the same time, it is necessary to take into account the qualifications of the expert, find out whether he was provided with sufficient materials and appropriate research objects 1.
1 See paragraph 19 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of December 21, 2010 No. 28 On forensic examination in criminal cases.
Expert testimony is also identified as a separate type of evidence.
As a rule, this type of evidence appears in criminal proceedings after the expert gives his opinion. The purpose of the appearance of this type of evidence in criminal proceedings will be to clarify or clarify the expert’s conclusions, which he provided during the criminal proceedings.
The subject of the expert's testimony as a type of evidence is the information he provides regarding the research he conducted, in particular the content of the research conducted, and information regarding the conclusions of the research conducted.
The procedural source of the expert’s testimony will be the presence of a person’s procedural status - an expert as a participant in criminal proceedings.
In this case, the person acquires the procedural status of an expert in accordance with the requirements of Art. 57 Code of Criminal Procedure of the Russian Federation. (For more details, see the commentary to Article 57 of the Code of Criminal Procedure of the Russian Federation.)
Expert testimony as a type of evidence must be assessed in accordance with the requirements of Art. 88 Code of Criminal Procedure of the Russian Federation.
Therefore, the interrogation of an expert as a separate type of investigative action is provided for in Art. 205 of the Code of Criminal Procedure of the Russian Federation. At the same time, the Code of Criminal Procedure of the Russian Federation does not provide for a procedural procedure for questioning an expert, therefore, in practice, for questioning an expert, the general procedure for questioning is used, regulated by Art. Art. 187 – 190 Code of Criminal Procedure of the Russian Federation. In addition, it should be borne in mind that, unlike a victim or witness, an expert is not warned of criminal liability for refusing to give testimony, since such liability is not provided for by the Criminal Code of the Russian Federation. Features of interrogation of an expert in court are determined by Art. 282 of the Code of Criminal Procedure of the Russian Federation.
A separate type of evidence is expert opinions.
This type of evidence is used in criminal proceedings, when there is no need to conduct research in a criminal case, but there is a need to express written judgments regarding questions posed in writing.
The subject of the specialist’s conclusion will be information (information) given on the basis of special knowledge, which represents judgments that are set out in writing regarding the issues raised.
The procedural source of this type of evidence will be a procedural document in the form of a specialist’s opinion.
In this case, an essential provision of the specialist’s conclusion is the signature of the specialist who expressed a written opinion on the questions raised. In addition, an essential provision of this conclusion is the fact that the specialist was warned of criminal liability for disclosing preliminary investigation data in accordance with Art. 310 of the Criminal Code of the Russian Federation, if he was warned about this in advance in the manner established by Art. 161 Code of Criminal Procedure of the Russian Federation.
The conclusion of a specialist as a type of evidence must be assessed in accordance with the requirements of Art. 88 Code of Criminal Procedure of the Russian Federation.
In accordance with the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 21, 2010 No. 28, the specialist’s conclusions 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 1.
1 See paragraph 20 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of December 21, 2010 No. 28 On forensic examination in criminal cases.
The testimony of a specialist acts as a separate type of evidence.
In addition, the purpose of using this type of evidence is related to the fact that in the process of criminal proceedings it is not necessary to conduct an appropriate study.
The subject of the specialist’s testimony will be information regarding circumstances requiring special knowledge in criminal proceedings, as well as in connection with the explanation of his opinion regarding the giving of a written opinion by the specialist himself.
The procedural source of a specialist’s testimony will be the person’s procedural status – a specialist as a participant in criminal proceedings.
In this case, the person acquires the procedural status of a specialist in accordance with the requirements of Art. 58 Code of Criminal Procedure of the Russian Federation. (For more details, see the commentary to Article 58 of the Code of Criminal Procedure of the Russian Federation.)
The testimony of a specialist as a type of evidence must be assessed in accordance with the requirements of Art. 88 Code of Criminal Procedure of the Russian Federation.
The interrogation of a specialist as a separate type of investigative action is not provided for by the current Code of Criminal Procedure of the Russian Federation. In this regard, the established practice of interrogating a specialist in accordance with the general requirements for interrogating a witness (Articles 187 - 190, 278, 278.1, 279 of the Code of Criminal Procedure of the Russian Federation) seems justified, taking into account certain features (just like an expert, a specialist is not warned of criminal liability for refusal to testify). In addition, in accordance with Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 21, 2010 No. 28, a specialist who participated in any investigative action may, if necessary, be questioned in a court hearing about the circumstances of its production as witness 1.
1 See paragraph 21 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of December 21, 2010 No. 28 On forensic examination in criminal cases.
