Expert opinion in a criminal case. Appealing the conclusions of forensic examinations. Expert opinion

In this difficult time that our society is going through, the fight against crime is one of the primary tasks of the state. An important weapon in this fight is forensic expertise, which allows the most effective use of the latest advances in science and technology in the investigation of a crime. An expert opinion is often important and often decisive evidence in a criminal case.

The concept of an expert opinion.

The expert's conclusion is a very original source of evidence that is becoming more and more widely used in criminal proceedings.

An expert's conclusion as evidence is a set of factual data contained in his message to the investigator and the court, and established as a result of the study of material objects, as well as information collected in a criminal case conducted by a person versed in a certain field of science, technology or other special knowledge and using this knowledge.

The investigation is carried out, its progress and results are recorded in compliance with the procedural order specified in the law. It is carried out on the basis of a special assignment by the investigating authority, prosecutor or court.

Thus, for an expert's opinion as a type of evidence, it is essential that it:

· Appears in the case as a result of research;

· Comes from a person who has a certain special knowledge, without the use of which the research itself would be impossible;

· Is given in compliance with a specially established procedural order;

· Relies on evidence collected in the case.

The forensic expert, as a result of the study, establishes the circumstances, facts that are subject to proof in a particular case. Federal Law “On State Forensic Expert Activity in the Russian Federation” The main requirement for an expert's opinion is its reliability (correctness and validity). If the research is carried out properly, the conclusion meets this requirement and is the only reliable one. Therefore, in legal proceedings there can be no "conclusion of the prosecution", "conclusion of the defense", the expert opinion must always be objective. In case of doubt about the correctness or validity of the conclusion, procedural legislation provides an opportunity to check the correctness and correct an error, if it was made, by means of the appointment and production of a repeated examination. Therefore, the adversarial principle, which rightly tends to expand in all types of legal proceedings, may refer to the expansion of the rights of the parties in appointing an examination: when asking questions, when choosing an expert institution or an expert, when assessing an opinion and resolving the issue of appointing an additional or repeated examination, but should not be implemented in the form of introducing an adversarial examination. Under this condition, of course, the party will invite and pay for the expert who, despite all his independence from the state, will give an opinion in its favor. The presence of such experts in the process will not contribute to the clarification of the objective truth in the case and the delivery of a judicial decision.

The evidentiary value of the expert's opinion may be different. It depends on many circumstances - on what facts are established by the expert, on the nature of the case, on the specific judicial-investigative situation, in particular, on the body of evidence available at the moment. Nevertheless, it is possible to make some general recommendations on assessing the evidentiary value of the expert's conclusion and point out the most common errors.

First of all, the evidentiary value of the expert's conclusion is determined by what circumstances are established by him, they are included in the subject of proof in the case or are evidentiary facts, evidence. Often these circumstances are of decisive importance, the fate of the case depends on them (for example, whether the items belong to the category of drugs, firearms, whether the driver has the technical ability to prevent collisions, etc.). In such cases, the expert's opinion becomes extremely important in the case and therefore is subject to particularly careful verification and assessment.

In other cases, when the facts established by the expert are not included in the subject of proof, they are circumstantial evidence. Their evidentiary value may be different. The expert's conclusions about individual identity (fingerprint identification, footprints, etc.) are most powerful. In practice, such facts are considered very strong and sometimes irrefutable evidence. This is indeed the case. However, on one condition - if the identified trace could not be left under circumstances unrelated to the crime. The greater the probability, the less the evidentiary value of such a conclusion. In addition, the possibility of deliberate falsification of the track cannot be discounted. The practice is aware of cases, albeit few in number, of such falsification: in particular, the transfer of a suspect's fingerprint by police officers to material evidence.

Weaker, in comparison with the establishment of individual identity, evidence is the expert's conclusion about the generic (group) affiliation and object. He acts as an indirect proof of such an identity. Its evidentiary significance is the more, the narrower the class to which the object is assigned. For example, the coincidence of the blood group means only the probability of about 1/4 that this blood was left by the given person (since there are 4 blood types). For example, the following conclusion has even less evidentiary power: "The substance of the deposition on the soil belongs to a low-quality gear oil that does not have any specific features", since this oil is widely used in vehicles. Usually experts, referring an object to a class, give a characteristic of this class, indicate its prevalence. For example, a soil scientist, stating that the studied soil samples belong to the group of carbonate, slightly contaminated with foreign impurities, notes that this type of soil is widespread and characteristic of the area. If this is not done, then this circumstance must be clarified during the interrogation of an expert, otherwise it is impossible to determine the evidentiary value of such a conclusion. For example, an output of the type: “The investigated rubber particles and rubber samples from the right rear wheel of the car no. have a common generic affiliation, that is, they belong to rubbers made according to the same recipe, ”- it is impossible to assess without knowing how many such recipes exist.

Thus, the evidentiary power of the expert's conclusions about the generic (group) belonging of an object is inversely proportional to the degree of prevalence of the class to which the object belongs (by the way, this pattern refers to any indirect evidence - the less often, the more unique a feature, the higher its price as evidence , and vice versa, if it is widespread, characteristic of many objects, then its incriminating power is less). Therefore, knowledge of this prevalence is a prerequisite for a correct assessment of the evidentiary significance of a conclusion.

The expert's conclusions, which are circumstantial evidence, can be used as the basis of the verdict only in conjunction with other evidence, they can only be a link in such a combination. Therefore, their role also depends on the specific situation in the case, on the available availability of evidence. Often they are used only at the initial stage of the investigation to solve a crime, and later, when direct evidence is obtained, they lose their value. For example, if the accused gave detailed truthful testimony, showed the place where the corpse or stolen things were hidden, and the like, then the investigation and the court will no longer be interested in the expert's conclusion about the genus of the soil from his boots, although he played an important role in solving the crime. However, when the case "goes" on circumstantial evidence, then each piece of evidence takes on special significance, including the conclusions of the expert, in other conditions are not of particular value.

What are the most common errors in assessing the evidentiary value of such expert conclusions? First of all, this is when the investigation and the court perceive them as a conclusion about individual identity. Thus, the conclusion about the same genus or group affiliation of soil samples is sometimes perceived as a conclusion about their belonging to a specific area of ​​the locality. Meanwhile, as indicated, belonging to any, as a narrow group is not equivalent to individual identity, it is only an indirect proof of such an identity.

In the aforementioned case of U., convicted of rape and murder of a young girl, the court indicated in the verdict that the forensic biological examination established the origin of the sperm found on the victim from U., while the examination established only her general group identity and such a rough the mistake was committed by a second-tier court, moreover, in a case of a particularly dangerous crime.

The evidentiary significance of the expert's conclusion also depends on the logical form of the conclusions.

For many years, it has been a controversial issue of the evidentiary value of an expert's likely conclusions. Many authors believe that such conclusions cannot be used as evidence, but are only of orientation value. Others base their admissibility. In judicial practice, there is also no unity on this issue. Some judges refer to them as evidence in their sentences, others reject them. However, in any case, it should be borne in mind that the evidentiary value of such conclusions (if recognized) is much lower than categorical ones, they are only indirect evidence of the fact established by an expert.

Conclusions in the form of judgments of possibility, as indicated, are given in cases where the physical possibility of an event, a fact is established (for example, the possibility of spontaneous combustion of a substance under certain conditions, the possibility of spontaneous movement of a car in a braked state). Such conclusions also have a certain evidentiary value. However, it should be noted that they establish only the possibility of an event as a physical phenomenon, and not that it actually took place. Their evidentiary value is about the same as the result of an investigative experiment that establishes an event. Meanwhile, the courts are sometimes interpreted as a conclusion about actual events. For example, as an expert's conclusion about the possibility of a "spontaneous" shot without pulling the trigger is interpreted as a conclusion that such a shot took place. The probative value of an alternative conclusion, in which the expert gives two or more options (for example, on this sheet of text there was originally a number "1" or "4"), lies in the fact that it excludes other options, and sometimes allows in combination with other evidence come to some one option.

Conditional conclusions (such as: “The text is not printed on this typewriter, if its font has not changed”) can be used as evidence only if the condition is confirmed, which is established by non-expert, but by investigative means.

The expert's conclusion, like all other evidence, has no predetermined force and is assessed according to general rules, that is, by inner conviction. The law explicitly states that the expert opinion is not obligatory for the person conducting the inquiry, the investigator, the prosecutor and the court, but their disagreement with the conclusion must be motivated.

Nevertheless, although the expert's conclusion does not have any advantages over other evidence, it has, in comparison with them, very significant specificity, since it is a conclusion, an inference made on the basis of research conducted using special knowledge. Therefore, its assessment is often difficult for people without knowledge. For the same reason, judicial errors are most often made when using this type of evidence.

In practice, excessive confidence in the expert's opinion, an overestimation of its evidentiary value, is quite common. It is believed that since it is based on accurate scientific calculations, there can be no doubt about its reliability. Although this idea is not directly expressed in sentences and other documents, the tendency towards this is quite strong in practice.

Meanwhile, the expert's conclusion, like any other evidence, may turn out to be doubtful or even incorrect for various reasons. The expert may be presented with incorrect initial data or non-genuine objects. The technique used by him may be insufficiently reliable and, finally, the expert, like all people, is also not immune from mistakes, which, although rare, but still occur in expert practice, therefore, an expert opinion, like any other evidence, should be subjected to a thorough comprehensive verification and critical appraisal.

How should an expert's opinion be assessed?

First of all, it should be checked whether the procedural procedure for the appointment and conduct of the examination, the procedure provided for by law, has been observed. During the preliminary investigation, this procedure includes familiarizing the accused (in some cases, the suspect) with the decision to order an examination and explaining to him his rights, which he has in the course of the examination. After the end of the examination, the accused must be familiarized with the expert's conclusion (or his message about the impossibility of giving an opinion), while he again acquires a number of rights. In practice, these requirements are not always observed, especially when the examination is carried out before the person is brought in as an accused.

The court is not bound by the wording of the questions proposed by the participants in the proceedings, however, their rejection or change is obliged to motivate.

It should be noted that these rules are not always observed by the courts. In some cases, instead of ruling, the court hands the expert a “list” or “list” of questions or other documents not provided for by law. Sometimes the courts do not draw up any document at all, but simply pass the questions presented by the participants in the proceedings to the expert. Thus, the courts are actually eliminated from the formulation of questions, leaving it entirely to the participants in the trial. This often entails asking the expert incorrectly formulated, illiterate questions, or questions that are irrelevant or beyond the expert's competence. Naturally, the expert's conclusions on such issues, if given to them, have no evidentiary value.

Failure to comply with the procedure established by procedural law for conducting an examination in a court session may serve as one of the grounds for canceling the sentence. Thus, the judicial board for criminal cases of the Supreme Court of the Russian Federation, having overturned the verdict in the case against P., indicated, in particular: forensic psychological examination that P. was in a state of prolonged psychological stress. However, this examination itself was ordered and carried out in violation of the Criminal Procedure Code. According to the requirements of the Criminal Procedure Code of the Russian Federation, when deciding on the appointment of an examination, in order to ensure the rights and interests of the parties involved in the case, the presiding judge had to ask the parties questions in writing, announce and discuss them and then formulate the necessary questions for the expert. Having received a written opinion from an expert, the court had to ensure his participation in the court session. After the expert read out the conclusion, which is attached to the case together with the questions, he could be asked questions on the merits of the answers given by him. All these requirements were not met by the court. In such circumstances, there is no reason to consider the sentence against P. lawful and well-grounded.

As you know, it is often impossible to establish the truth in various categories of cases (criminal, civil, arbitration, administrative, tax, customs) without special knowledge in various fields: science, technology, art or craft.

Expert activity in our country is regulated by the Federal Law of the Russian Federation "On State Forensic Expert Activity in the Russian Federation" dated May 31, 2001. No. 73-FZ and a number of bylaws and departmental regulations. In accordance with the law, the purpose of expert activity is the establishment of evidentiary facts with the help of special knowledge.
The modern possibilities of forensic examinations are great, several dozen types of various examinations are appointed and carried out in the country, contributing (if carried out correctly and scientifically) to the establishment of the truth in the case, the protection of the interests protected by law, the rights and freedoms of principals.

Unfortunately, as in any other field of activity, in recent years, in practice, we increasingly often have to deal with improperly conducted and scientifically unfounded expert opinions, which we have to “fight” by justifying their scientific groundlessness, inconsistency and the need to appoint additional, repeated, commissions, complex examinations.

It has long been accepted in practice (many still do this) that an expert's opinion is indisputable evidence in a case that cannot be challenged. And this, despite the fact that the law itself - part 2 of article 17 of the Criminal Procedure Code of the Russian Federation and the guiding clarifications of the Plenum of the Supreme Court of the Russian Federation expressly stipulate that no evidence in the case has a predetermined force.
In a country where, as is known, both in the pre-perestroika and especially in the perestroika period, diplomas of specialists were acquired (and are being acquired now) not only and not so much by knowledge, but often by other mechanisms, the emergence of "specialists" who do not know the subject of their specialty is not uncommon. Practice is replete with facts of deliberate distortion by experts, for various reasons, of the initial data of the subject of research, other violations of the principle of independence of experts, in order to draw up a conclusion "necessary" for the interested party.

The process of reforming all aspects of public life, incl. and in the field of expert activity, has led to the emergence, along with state, and numerous "independent" expert institutions, which, on the one hand, is a positive phenomenon, since allows the principle of competition in the search for scientific truth to manifest itself, and on the other hand, taking into account the still established mentality of our "specialists" and the material side of the issue, it leads to results inversely proportional to the goals laid down in the law.

In accordance with the current legislation, state forensic institutions belong to the system of bodies of the Ministry of Justice of the Russian Federation. However, there are also departmental expert institutions, in particular, in the system of the Ministry of Internal Affairs of the Russian Federation, the Federal Customs Service, the Federal Security Service, which essentially led to the fact that, being recognized by state forensic institutions, they simultaneously are subordinate to the same executive authorities as the investigative and inquiry bodies.

It is more than obvious that in accordance with the current legislation, the fundamental principle of expert activity is the principle of independence, both the expert activity itself and the persons who carry it out to achieve the goal laid down in the law.
However, the practice is replete with numerous facts. dependencies expert opinions from various factors not based on the law, which adversely affects the legally protected rights, freedoms and interests of legal entities and individuals and contradicts the goals laid down by the legislator in the Law of the Russian Federation on state forensic activity and other (industry) laws regulating expert activity.

The main reason for this state of affairs in expert (however, as in many other types) activities is seen in the absence of a legal mechanism (legal balance of norms) ensuring the impossibility (or at least significant difficulty) of violating the principle of independence of expert activity and ensuring its compliance with the goals laid down by the legislator.

As you know, there is an expression: "Two lawyers - three opinions." The implementation of the rule of law, as you know, is called law enforcement, which directly depends on the legislator's adequate thought of the interpretation of the rule of law by law enforcement officers. Is it possible to count that hundreds of thousands (if not millions) of law enforcement officers of our vast country uniformly understand the legislator's thought, laid down in the rule of law, and in accordance with this thought they implement the norm?
It seems that this is verified by practice, and practice convincingly confirms that such a calculation and assumption is indiscriminate. The theory of law has developed numerous types of interpretation of law (legal norms) none of which, I dare say cannot replace the interpretation by the legislator himself of the norms issued by him.
As you know, and unfortunately, in our country this type of interpretation is practically not used, with rare exceptions. (for example, decisions of the State Duma of the Russian Federation on the application of acts of amnesty).
Neither the decisions of the Plenum of the Supreme Court of the Russian Federation, nor even more so, other types of interpretation of the current norms of law (except for the decisions of the Constitutional Court of the Russian Federation) cannot replace the interpretation of the rule of law by the legislator himself in order to establish the practice of a uniform understanding and application of the rule of law.

As a result, we have what we have. Everyone is free to understand the current rules of law in the way they want it in each specific case of the application of this rule. The trouble is that the judiciary, which is also meant to be independent power and be guided by the rule of law, in practice, in a huge mass, cover all the flaws of the preliminary investigation bodies (including expert institutions), which does not contribute to the process of establishing a uniform understanding and application of the existing rules of law, not to mention the harmfulness of this process for the entire justice system; and constitutional guarantees of the right to defense.

Thus, the Moscow Regional Bureau of the SME in one of the criminal cases charged by the brothers B.E. and B.D. in the double murder, a number of forensic examinations were carried out by the order of the prosecution authorities: forensic biological; molecular genetic; forensic medicine; medico-forensic. Despite the established by law (part 6 of article 11) unified scientific and methodological approach of expert examinations in each BSME, when familiarizing with the numerous opinions of experts of this Bureau, the following contradictory opinions of experts of the same Bureau were established, which, nevertheless, formed the basis of the conviction by which the brothers B.Ye. and B.D. each of them was found guilty and sentenced to 17 years in prison.

By the conclusion of the biological examination of the material evidence on the blade and the handle of the knife found in the apartment of the killed, the expert established the presence of traces of mixed blood, in which the A and B agglutigens were found characteristic of the blood groups "A" - Pgr., "B" - Shgr. and "AB" - 1Ugr.
An examination of the blood of the accused by the same expert established that the accused B.E. - "Va" - Shgr. blood. Based on this, and "not noticing" that the agglutin "B" is characteristic not only of the III group, but also of the IV group. blood - "AB", without justifying his conclusion, the expert writes that "the presence of the blood of the accused B.Ye. on the specified knife is not excluded. " At the same time, it becomes unclear if the expert was independent and was strictly guided by the requirements of the Law of the Russian Federation "On State Forensic Expert Activity in the Russian Federation" dated 31.05.01. FZ-73, incl. Article 8 of the Law on the scientific validity of expert opinions, then, why in his conclusion, recognizing the agglutin "B" characteristic and IV gr. - "AB" for the sake of objectivity and fairness did not indicate that it is not excluded that this blood belongs to another person with the blood group "AB"?

In connection with the statements of the accused that they had an alibi and their finding during the murder, indicated by the investigating authority, on the way to the house, in this connection, the impossibility of finding them at the scene of the crime and leaving any traces of blood, as well as in connection with the available documentary evidence that during their arrest there were no bodily injuries on their bodies ( from which blood would flow) not found another expert the same SME Bureau On the court's order, a repeated examination of B.Ye.'s blood was carried out, which established that the blood of the accused B.Ye. really belongs to the group "Va", i.e. Group, but has a concomitant antigen "H" (which was not detected during the initial examination of his blood by another expert of the same bureau).

It seems that one does not need to be an expert in order to understand that concomitant blood antigen, not a temporary resident of an organism, but an antigen permanently inherent in a given blood from the moment of birth of a given individual until his death.
It is natural, in this regard, by virtue of the laws of logic, the fact that if a given person, whose blood is characterized by a concomitant antigen "H", would leave a trace of his blood on any object, then this trace of blood must necessarily be present and detected concomitant antigen "H" , which was not found on the blade and the knife handle by the previous expert of the same bureau.

Unfortunately, the Moscow Regional Court (and subsequently the board of the Supreme Court of the Russian Federation) "did not notice", or rather did not want to notice this significant contradiction in the examinations carried out, while in strict compliance with the requirements of the current legislation, both criminal procedure and and about expert activities, the failure of the expert who examined the knife, who had committed the murder of the concomitant "H" antigen in the mixed blood, did not reveal that it was necessary to give an opinion that the presence of the blood of the accused B.Ye. on the specified knife excluded.

The case that is described is a vivid example of a gross violation of the requirements of the Law of the Russian Federation "On State Forensic Expert Activity in the Russian Federation" and Articles 198 and 204 of the Code of Criminal Procedure of the Russian Federation in the field of appointment and conduct of examinations, both by experts and by the investigative and judicial authorities and is a vivid illustration of the violation of the principle independence experts and expert activities.

It seems that it is necessary to understand the content of the term "independence" for a proper understanding and assessment of the observance of this principle in the appointment and conduct of examinations.
In the dictionary of the Russian language by S. I. Ozhegov, the term "independent" is defined as "independent, not subordinate, free ... regardless of anyone, outside of connection with anything, without limiting, without taking into account someone. - someday ".

In Art. 7 ФЗ-73 dated 31.05.01. the independence of an expert is defined as follows: “... he cannot be in any dependence on the body or person who appointed the forensic examination, the parties and other persons interested in the outcome of the case .... Not allowed impact from courts, judges, bodies of inquiry, persons conducting inquiries, investigators and prosecutors, as well as other state bodies, organizations, associations and individuals in order to obtain an opinion in favor of one of the participants in the process or in the interests of other persons. "
E.R. Rossinskaya in his book: "Forensic examination in civil, arbitration, administrative and criminal proceedings", publishing house NORMA, Moscow, 2005, p. 95 admits: procedural requirements are not enough ... In real life, there are many ways to put pressure on an expert or the head of a forensic institution. The head of an expert institution may, for example, on the instruction of one of the higher superiors, transfer the examination to another expert, if the conclusion made by the initially appointed expert does not suit someone. ”

In practice, there are other sophisticated methods of violating the principle of independence and even direct deliberate falsification of expert opinions to please the investigating authorities, especially when it comes to forensic institutions of the system of the Ministry of Internal Affairs of the Russian Federation. Thus, in the aforementioned murder case, the initial operational actions and the arrest of the suspects were carried out by officers of the Dolgoprudnenskiy OVD. In connection with the discovery of 5 fingerprints at the scene of the incident, a fingerprint examination was assigned to the case, which was entrusted to "expert" M. the body to which the Dolgoprudnenskiy OVD is subordinate.
It is known from the protocol of the inspection of the scene that all 5 fingerprints were removed on adhesive tape and transferred to white photographic paper. According to the case materials, the crime was committed on June 14, 2004. A fingerprint examination was appointed on August 10, 2004, for the resolution of which the question was raised whether the fingerprints taken from the crime scene belonged to the accused B.D. and B.E. More than a month later, 09/18/2004. “Expert” M. gave a conclusion that the traces of two fingers (allegedly found at the crime scene) belong to the accused B.Ye. Since throughout the preliminary and judicial investigation the accused B.E. denied his involvement in this crime, and declared his alibi, as well as the presence of a hereditary hand disease - "acrodermatitis", during the judicial investigation the court ordered an additional fingerprint examination, which, despite the protests of the defense, was entrusted to the same "expert" of the EKTs GUVD MO - M., who naturally confirmed his previous conclusion.

However, an objective analysis of the available case materials and the conclusions of the "expert" M. testifies to the gross falsification of material evidence by the investigating officers, what the “expert” M. could not be ignorant of, at whose disposal the materials of the case were provided, from which it is seen:
- according to the protocol of the inspection of the scene of the incident, fingerprints were removed on adhesive tape and transferred to white photographic paper;
- expert M. was provided with fingerprints for examination, confiscated on light dacto film (on non-sticky tape with transfer to photographic paper);
- the dimensions of the tracks themselves and copying materials according to the protocol of the inspection of the scene were:
-the size of the first track is 12x20mm, the size of the adhesive tape copying it is 30x35mm .;
- the size of the second track is 20x25mm, the size of the copying tape is 40x40mm .;
- “expert” M. is presented for examination with dactofilm (and not adhesive tape glued on white photographic paper) with dimensions:
- the first track is 17x21mm, and the film itself is 25x29mm;
- the second track is 20x31 in size, and the film itself is 31x39mm.

The statements of the accused B.E. that on the eve of the date of the Expert's Conclusion dated 09/18/2004, i.e. 17.09.04 he was brought from the Volokolamsk SIZO to Dolgoprudnensk, where he was taken to the office of the head of the ESD, who, in a conversation, offered him various drinks, from which he chose coffee and he was asked to pour coffee from a can into a cup of coffee, after which he drank this coffee and, Apparently, then the marks of his fingers were removed from the indicated jar and cup and thrown into the case, were not taken into account by anyone (including the court).

Part 2 of Art. 204 of the Code of Criminal Procedure of the Russian Federation is expressly prescribed: “If, in the course of the forensic examination, the expert establishes circumstances that are important for the criminal case, but about which he was not asked questions, then he is entitled to point to them in your conclusion. "
As can be seen from the above example, the "expert" M., who had at his disposal the protocols of the inspection of the scene, from which he knew that all 5 fingerprints were removed on adhesive tape and transferred to white photographic paper, nevertheless, he did not reflect in his the conclusion that there are discrepancies in the objects that were removed from the scene with the objects that were presented to him for research in the form of light dacto films, and not sticky tapes.

The case also found that contrary to the requirements of the current legislation on forensic activities, in particular, Article 13 of the Federal Law-73 of 31.05.01. on the certification of experts for the right to independently conduct forensic examinations and the issuance of Certificates of this, the validity of which is 5 years by law, M. was admitted to the fingerprint examinations indicated in the murder case, despite the fact that he had a examination dated 1998 ceased to be valid after the expiration of 5 years established by law in 2003. and no other certificate of recertification was presented to either the investigating authority or the court, which indicates that M. was not an expert and did not have the rights and powers to independently carry out fingerprinting examinations. Despite this, the B.E. and B.D. convicted incl. and with reference to these examinations, to 17 years in prison.

And there are a lot of such examples.
In the criminal case of Ch., Accused under Articles 161, 131, 132 of the Criminal Code of the Russian Federation, investigated by the Chekhov City Prosecutor's Office of the Moscow Region and now being considered by the Chekhov City Court, it appears from the case materials:
The victim R. by the investigator of the prosecutor's office, after accepting from her an oral statement about the rape, is sent on 07.05.06. for examination in the hospital. At the same time, the investigator, contrary to the requirements of Part 2 of Article 179 of the Code of Criminal Procedure of the Russian Federation, does not make any decision on this, but directs letter to the head physician of the maternity hospital, in which, along with the request for the examination of the victim R. for the presence of bodily injuries in the genital area instructs maternity hospital workers: remove swabs on gauze tampons samples of vaginal contents, anus, oral cavity, abdominal hair providing them with the appropriate signatures and packaging (with the presentation of separately samples of gauze on which the seizure was made). That is, by a letter (and not by a resolution), the investigator instructs the employees of the maternity hospital, without witnesses, to carry out investigative actions, incl. and the packaging of material evidence.

In the "document" drawn up by the staff of the maternity hospital no date, named by them "Inspection", along with the statement of the absence of any external and internal injuries in the victim R., it is indicated that the surveyed from the vagina found "moderate discharge in the period of expected menstruation. At the request of the prosecutor's office ... material was taken on cotton swabs (in a letter from the prosecutor's office asked for gauze) the contents of the vagina, anus, from the mouth, combing hair from the pubis. At the request of the prosecutor's office issued to the hands of the examined R. upon presentation of a passport. "

As can be seen from this "Survey", it does not contain any information about the packaging of these biological objects, the supply of any packages with "appropriate inscriptions and signatures" and "the supply of these packages separately with samples of gauze for which seizures were made."
Nevertheless, by the end of the investigation, a protocol appears in the case. withdrawals, allegedly an investigator of the prosecutor's office on 11.05.06. (i.e. 4 days after the survey) v the specified maternity hospital:
"- samples of the contents of the vagina, oral cavity, rectum on cotton and gauze swabs;
- comb hair from R.'s pubis, paper wrapped, sealed with paper, on which there is an explanatory text 7 / U-06, R.
-Plastic bag in which there is hygienic tampon, seized from R. during the medical examination, provided with a similar explanatory signature ”.
It is more than obvious that the investigator falsified the seizure protocol of 11.05.06, since in the "Inspection" of the maternity hospital, firstly, there is no information about the packaging and labeling of any packages; secondly, it is indicated that all seized samples at the request of the prosecutor's office given into the hands of R.; thirdly, it does not appear at all confiscated and packed in a plastic bag hygienic tampon R.
Despite these numerous violations of the requirements of the Criminal Procedure Code of the Russian Federation, the conclusions of the forensic biological and molecular genetic examinations of the said Bureau of the SME of the Ministry of Defense recognized the traces of his sperm found on the indicated objects and belonging to the accused Ch.

In recent years (however, as before), gross violations of the rights of accused and defendants to defense in the form of deprivation of their rights provided for by Articles 195,198 of the Code of Criminal Procedure of the Russian Federation in the appointment and production of certain examinations in the case have become a rule.
The accused and his defense counsel are notified of the appointment of an expert examination in the case, contrary to the requirements of Part 1 of Article 198 of the Code of Criminal Procedure of the Russian Federation not with her appointment, and after the body of the investigation receives an expert opinion, and most often not immediately upon receipt, but by the end of the investigation.
It is more than obvious that in these cases the accused and his defense counsel are deliberately and artificially deprived of a whole range of essential rights provided for by Article 198 of the Code of Criminal Procedure of the Russian Federation, incl. and the right to pose questions before the examination, to choose an expert institution and the expert himself, to challenge an expert on one or another legal basis, and others.

Unfortunately, the tendentiousness of our judicial system, and an obvious bias towards the prosecution, leads to the fact that, despite the obvious violation by investigators of the requirements of the Code of Criminal Procedure of the Russian Federation and the right of the accused to defense, as well as the powers of the defender as an equal participant in the process, despite the formal presence judicial mechanism for recognizing this kind of evidence inadmissible - Art. 7, 75, 125 of the Code of Criminal Procedure of the Russian Federation, the overwhelming majority of the country's judicial authorities with the notorious reference to the fact that “The court cannot enter into the assessment of evidence"At this stage of the process, they refuse to recognize this kind of" evidence "as inadmissible, while they, of course, have been collected in violation of the procedure established by the Code of Criminal Procedure of the Russian Federation.

No one at this stage requires the court to enter into the assessment of evidence. It is about the assessment by the court compliance with the norms of the Criminal Procedure Code of the Russian Federation in the extraction of evidence... In the aforementioned murder criminal case, three members of the Moscow Regional Court who considered this criminal case, with obvious facts of violation of the requirements of the Code of Criminal Procedure of the Russian Federation regarding the timely familiarization of the accused and their defenders with the decisions on the appointment of numerous examinations in the case and the examinations themselves, with which they were familiarized with 3 to 5 months after their appointment and implementation, in the event of a refusal to satisfy a lawfully and reasonably stated defense motion, they arbitrarily interpret the current criminal procedural legislation, indicating literally the following: “The law does not specify the moment at which to follow to acquaint the accused and his defense with the decision on the appointment of an expert examination. " "at appointment examination .. "And compliance with the requirements of Part 1 of Article 17 of the Criminal Procedure Code of the Russian Federation that judges should be guided by" law and conscience "when assessing evidence would not allow the current law to be so loosely interpreted and the expression" when appointing an examination "is interpreted as an opportunity to familiarize the accused with the decision on the appointment of an examination is not "upon appointment", but after the examination.

It seems that one of the reasons for the continuing violation of these important rights, both of the accused and their defenders, is the insufficient perfection of the current version of this norm in its systemic interpretation with other norms of the current legislation on expert activity. I believe that the inclusion in the Law of the Russian Federation "On forensic activity in the Russian Federation" No. ФЗ-73 dated 31.05.01. norms that "Expert institutions (experts) are not entitled to accept for examination materials on the appointment and production of examinations without the submission by the body (person) that appointed the examination of the protocol of familiarization of the accused (defendant) and his defense lawyer with the resolution (determination) on the appointment of this examination" would largely (though not completely) eliminate numerous violations in this area.

It seems that, a priori, expert institutions and experts still have such a duty, based on the following analysis of the current legislation. The Code of Criminal Procedure of the Russian Federation was adopted later than the Law of the Russian Federation "On State Forensic Expert Activity in the Russian Federation" and, therefore, based on the legal hierarchy of Federal Laws, it has greater legal force than the Law of the Russian Federation No. ФЗ-73 dated 31.05.01. Article 3 of No. FZ-73 indicates that the legal basis of state forensic expert activity is the Constitution of the Russian Federation, a number of other laws, incl. Code of Criminal Procedure of the Russian Federation. Article 4 of the Federal Law "On the Enactment of the Criminal Procedure Code of the Russian Federation" dated 05.12.2001. it is indicated that the federal laws in force on the territory of the Russian Federation (i.e., it must be assumed that FZ-73 of May 31, 2001) and other legal acts related to the Criminal Procedure Code of the Russian Federation (of course, FZ-73 is connected with the Criminal Procedure Code of the Russian Federation on examination ) are subject to harmonization with the Criminal Procedure Code of the Russian Federation. And further it is stated: "Pending bringing the specified federal laws and other normative legal acts into compliance with the Criminal Procedure Code of the Russian Federation are applied in the part that does not contradict the Criminal Procedure Code of the Russian Federation ”.

In article 4 of FZ-73 of 31.05.01. on the principles of state forensic activity indicated the principle of observance of human and civil rights and freedoms.
Article 5 of the Federal Law-73 dated 05/31/01. approves the principle legality forensic activity subject to the exact fulfillment of the requirements of the Constitution of the Russian Federation and other normative legal acts that constitute the legal basis of this activity (i.e. within the meaning of Article 4 of the same law and the Code of Criminal Procedure of the Russian Federation).
Article 6 of this law directly regulates the observance of human and civil rights and freedoms in the implementation of forensic expert activities.

An objective analysis of the above-mentioned norms, along with the constitutional right of every citizen of the Russian Federation to defense, allows, it seems, to assert that since in the FZ-73 itself from 31.05.01. it is indicated that its legal basis is the Constitution of the Russian Federation and the Code of Criminal Procedure of the Russian Federation, the principles of protecting the rights and freedoms of man and citizen are approved, the law of the Russian Federation on the introduction of the Code of Criminal Procedure of the Russian Federation dictates the need to bring all laws in line with it and, before they are brought into compliance, they must be applied in parts that do not contradict the requirements of the Code of Criminal Procedure of the Russian Federation, it seems based on the current Constitution of the Russian Federation and the cited norms of the current legislation, the conclusion that experts are not entitled to accept materials for the production and conduct of an examination, in the absence of proper data on familiarization of the suspect (accused, defendant) and their defenders with the resolution (determination) on the appointment of this examination, i.e. observance of the rights of these participants, provided for by Article 198 of the Code of Criminal Procedure of the Russian Federation.

Since in the Constitution of the Russian Federation itself (Article 18), repeated decisions of the Constitutional Court of the Russian Federation, the principle is affirmed, according to which “the rights and freedoms of man and citizen are directly acting and determine the meaning, content and application of laws ... and are ensured by justice ... and nothing can be the basis for their derogation (Article 21) " , the federal laws themselves (No. ФЗ-73 dated May 31, 2001 and the Code of Criminal Procedure of the Russian Federation) affirm this principle, the right to defense is not only a criminal procedural, but, first of all, a constitutional right, it seems that Article 199 of the Code of Criminal Procedure of the Russian Federation should be supplemented Part 6 of the following content:
Part 6 "In the absence of a protocol in the materials sent for the examination of the acquaintance of the accused (suspect) and his defense lawyer with the decision on the appointment of the examination, the expert is obliged to return without execution the order on the appointment of the forensic examination and the materials submitted for its production, indicating the reasons for the return." A similar addition should be made to Art. 14 and 16 No. ФЗ-73 dated 31.05.01. "On the state forensic expert activity in the Russian Federation", which regulates the duties of the head of the expert institution and the expert.

Facts of incompetence or insufficient competence of experts are increasingly often revealed in numerous criminal cases. Despite the requirements of the Law on state forensic activity in the Russian Federation, and numerous Instructions of the Ministry of Justice of the Russian Federation on the scientific substantiation of expert opinions and compliance with the methods of conducting expert examinations, recklessly counting on the lack of special knowledge of the participants in the process, as well as proceeding from other, not based on the law, motives, Unscrupulous and insufficiently competent experts increasingly provide the investigative and judicial authorities with conclusions that are “convenient” for them, but absolutely inconsistent with the current legislation and the current Methodological Recommendations of the Ministry of Justice of the Russian Federation (Ministry of Health of the Russian Federation). There are many reasons for this. In this book, Academician E.R. Rossinskaya rightly notes that “The question of how skillfully the conclusion is drawn up, i. e. the question of assessing the expert's opinion is very difficult, since judges do not have special knowledge and it is difficult for them in the modern conditions of the scientific and technological revolution, when expert methods are becoming more and more complicated, to deeply understand expert technologies. The judges evaluate the expert's opinion mainly on the basis of formal criteria ”.

Agreeing with this opinion, I will only note that the assessment of the expert's opinion is given not only by the judges, but also by the parties to the process: the prosecution and the defense, and for an adequate assessment of these conclusions, the indicated participants in the process need knowledge, at least of those formal signs that the expert opinions should correspond to.
The list of these formal features, which must correspond to the conclusion of an expert in criminal cases, is given in Article 204 of the Code of Criminal Procedure of the Russian Federation. Clause 4 of Part 1 of Article 204 of the Code of Criminal Procedure of the Russian Federation does not require the provision of information in the expert's conclusion about his certification for the right to independently conduct a forensic examination, the presence of a Certificate of Attestation and the time taken to pass the attestation. Meanwhile, Article 13 of the Law of the Russian Federation "On State Forensic Expert Activity in the Russian Federation" recognizes the possibility of holding the position of an expert in a state forensic institution only for citizens of the Russian Federation " post-trained on a specific expert specialty .. ", and part 2 of this norm states that “Determination of the level of professional training of experts and their certification for the right to independently produce a forensic examination determined by expert qualification commissions. The level of professional training of experts subject to review every five years. "

It seems that this is not an idle requirement of the law, since in article 4 of the same law, which established the principles of state forensic activity, one of the important principles established the principle of conducting expert research using modern achievements of science and technology. In close connection with these norms are the requirements of Article 8 of the same law that the expert's research should be carried out on a strictly scientific and practical basis and expert opinion must be based on the provisions enabling check the validity and reliability conclusions drawn on the basis of generally accepted scientific and practical data.

It seems that the above analysis of the current legislation on forensic activities implies the need for mandatory indication in the Expert's Opinion, in addition to the data on the expert provided for in Article 204 of the Code of Criminal Procedure of the Russian Federation, as well as information about his certification, the number and date of his Certificate of the right to independently conduct forensic examinations. ... As shown above, the absence of such information in the Expert's Conclusion leads in practice to the fact that the examination involves persons (employees of the expert institution) who do not have the said Certificate (or its term has already expired, and there was no new certification) and, therefore, they cannot be recognized by experts and the Conclusions signed by them should not be recognized as evidence in the case. In the aforementioned criminal case of murder, “expert” M., who did not have a Recertification Certificate within the time limits established by law, who signed 3 conclusions of the fingerprint examination, signed them not as an expert, but as the “Chief Specialist of the EKTs GUVD” and on the said Conclusions, in spite of the requirements of Article 25 of the Law No. ФЗ-73 dated 31.05.01. it was not the seal of the "state forensic institution", but the seal "No. 67" of the Department of Internal Affairs of Dolgoprudny. Even this, the Moscow Regional Court, and later the Collegium of the Supreme Court of the Russian Federation, did not pay attention, condemning persons to long years of imprisonment.

By the way, in Article 204 of the Criminal Procedure Code of the Russian Federation, there is no requirement for a seal, which must be certified by the signatures of an expert or a commission of experts. The question of what stamp should be on the Expert's Conclusion is not legally regulated when an employee of a non-expert (state or non-state) institution performs an examination? In practice, there are cases of certification of such Conclusions with the seal of the institution in which the specialist who conducted the research works, which cannot be recognized as an action based on the law. In the literature, the opinion is expressed that in such cases the expert opinion must be notarized.
In connection with the adoption of the Law No. ФЗ-73 dated 31.05.01. by order of the Minister of Justice of the Russian Federation of 23.01.2002. No. 20 approved the "Regulation on the certification of employees for the right to independently conduct forensic examination in forensic institutions of the Ministry of Justice of the Russian Federation", the purpose of which (clause 1) is "to determine the level of professional preparedness for the production of forensic examinations." Clause 3 of this Regulation stipulates to whom and under what conditions the right of independent production of forensic examinations is assigned. Among the issues that an expert should know in order to assign him this right, in particular, the obligation to know “modern methods and techniques for the production of examinations in his expert specialty and own them. " The issue of issuing a Certificate is regulated in clause 20 of this Regulation. In clause 24 of the Regulations it is provided that in this Certificate and the Forensic Expert's Card, notes are made that the expert has been extended the right to independently produce a forensic examination. In the form of the Certificate approved by the same order of the Ministry of Justice of the Russian Federation, there is a column "Valid for" __ "______."

The absence in the criminal procedural law (Article 204 of the Criminal Procedure Code of the Russian Federation) of the requirement that it is mandatory to reflect in the Expert's Conclusion No. and the validity period of the Expert's Certificate of the right to independently conduct an examination, it seems, deprives the participants of the process of the right to know whether a proper and authorized specialist performed an examination. This situation potentially contains the possibility of violation of the legally protected rights of the suspect, the accused and the defendant, which often, as shown above, takes place in practice.
In addition, the absence in the law of numerous rules arising from the Methodological Recommendations of the Ministry of Justice of the Russian Federation, the Ministry of Health of the Russian Federation, which are mandatory for experts in the production of expert examinations, seems to make it difficult for the participants in the process to evaluate the expert opinions and determine their suitability for giving them evidentiary value. So, at present, the Instruction of the Ministry of Justice of the RSFSR of 10.12.1974 is in force and is mandatory for experts. "On the procedure for the production of forensic examinations in expert institutions of the Ministry of Justice of the RSFSR"; Methodical recommendations of the Ministry of Justice of the Russian Federation, approved by the Order of the Ministry of Justice of the Russian Federation No. 346 of 20.12.2002. "On the production of forensic examinations in state forensic institutions of the system of the Ministry of Justice of the Russian Federation."

These departmental regulations and the rules contained therein seem to play an important role in assessing the evidentiary value of experts' opinions, their compliance with mandatory rules and techniques in the production of examinations, on which the scientific validity of their conclusions, and ultimately fate, depends to a large extent. persons in whose cases these examinations were carried out and formed the basis of the verdict.
So, for example, in the aforementioned criminal case of Ch. Accused under Articles 162, 131 and 132 of the Criminal Code of the Russian Federation in one of the acts of examination (molecular genetic), the expert writes: “... by extraction in 10% ammonia solution for 20 hours numerous clippings on shorts, jeans, a sanitary napkin, tampons with the contents of the vagina, mouth and rectum of the victim R., centrifuged tubes and removed excess liquid, prepared smears from sediments on a slide, which, after evaporation of the liquid, were stained with a 1% solution of hydrochloric acid fuchsin and microscoped ”. The name of the applied technique and the source of this technique are not given in the expert's opinion.
In another criminal case on charges of M. in selling drugs under Article 228.1 of the Criminal Code of the Russian Federation, the author of the express analysis - an employee of the laboratory of the EKTs GUVD writes: “the study was carried out by the methods of OH and GLC with MSD”.
Original! Guess the pier yourself.

Meanwhile, in paragraph 42 of the aforementioned Instruction of the Ministry of Justice of 10.12. indicated: "Methods and techniques of research, as well as their results are stated clearly, clearly, accessible for understanding to persons without special knowledge, and in such detail that, if necessary, it was possible to check the correctness of the expert's conclusions by repeating the study. SPECIAL TERMS MUST BE EXPLAINED. "
In addition, in accordance with clause 9 of part 1 of article 204 of the Criminal Procedure Code of the Russian Federation and article 25 of FZ-73 of 05/31/01. the expert's opinion should reflect “the content and results of research with an indication of the applied methods ”.
In accordance with clause 2.3 of the Methodological Recommendations of the Ministry of Justice of the Russian Federation No. 346 of 20.12.2002. in the introductory part of the conclusion are indicated, including:
- "…work experience on that expert specialty, according to which forensic examination is carried out;
- reference materials and normative documents (with full indication of their details), which the expert was guided by when resolving the questions raised. "
In accordance with clause 2.4 of these Methodological Recommendations, the research part of the conclusion indicates “applied methods, research methods, special software. In the case of using standard expert methods and expert research schemes set out in methodological publications, they are referenced and full details of their publication are indicated; in the case of using automated programs or software systems, data on the institution that developed them is provided. "
In clause 41 of the Instruction of the Ministry of Justice dated 10.12.1974. provides for the need to reflect "the circumstances of the case - in cases where they are essential for giving an opinion." In clause 42 of the same Instruction, in addition to describing the research process and its results, it is necessary to give “ scientific explanation of the established facts ”. The same paragraph of the Instruction, in addition to the circumstances provided for by the Methodological Recommendations of 20.12.2002. for reflection in the research part of the conclusion on the methodology used, it also provides for the need to reflect:
- “ways, techniques of expert research; the number, sequence and conditions for performing expert experiments, the number of comparative samples obtained in this case and the conditions for obtaining them ”;
- substantiation of the accepted values ​​of technical quantities in the production of calculations;
-conditions for the use of scientific and technical means used in the study, technical parameters adopted in the calculations;
- data on literary sources or reference and normative documents used in the research (author or publisher's name, name of work or normative document, place and year of publication, pages).
The regulation by these departmental regulations is also important. the term of the examination. This issue is not regulated in the current legislation. Clause 29 of the Instruction of the Ministry of Justice of 10.12.1974. the term for the production of an examination was set "within 10 days" for materials "with a small number of objects or not requiring complex research" and "within 20 days" for materials "with a large number of objects or requiring complex research". Clause 30 of this Instruction establishes the procedure in which, if the examination cannot be performed within 20 days, the expert institution notifies the body that appointed the examination and sets an additional period in agreement with it. Preliminary acquaintance with the materials, according to this paragraph, cannot exceed 5 days. The next, paragraph 31 of the Instruction, establishes the procedure for calculating the deadlines, which starts from the day following the day the materials are received by the expert institution, to the day of sending the opinion (notification of the impossibility of giving an opinion) to the body that appointed the examination. If the end of the examination period falls on a non-working day, the next working day shall be considered the day of the end. The term for the production of the expert examination is suspended for the period of waiting for the satisfaction or refusal to satisfy the expert's application for the provision of additional materials. The suspension of the examination period takes place in accordance with clause 21 of the Instruction and in case of incorrect execution by the body that appointed the examination of the materials sent for examination.
As you know, in practice, more and more often one has to deal with the facts of an uncritical attitude to the conclusions of experts. Meanwhile, in the current and nowadays resolution of the Plenum of the Supreme Court of the USSR No. 1 of March 16, 1971. "On forensic examination in criminal cases" in paragraph 14 directly prescribed: "To draw the attention of the courts to the need to eliminate cases of uncritical attitude to the expert's opinion. By virtue of Article 17 of the Fundamentals of Criminal Procedure of the USSR and the Union Republics (now corresponding to Part 2 of Article 17 of the Criminal Procedure Code of the Russian Federation - A.R.), the expert opinion does not have a predetermined force, does not have precedence over other evidence and, like all other evidence , is subject to assessment by the judges' inner conviction based on a comprehensive, complete and objective consideration of all the circumstances of the case in their totality. "

The same paragraph of the ruling provides important guidance that the probable expert opinion cannot be used as the basis for the verdict ”. Meanwhile, practitioners know that judicial practice is replete with facts, firstly, the prevalence of the number of probable expert opinions over categorical ones: “may have ..”, “is not excluded”, etc., and secondly, expert opinions of evidentiary value and, contrary to the specified guideline explanations, their justification of convictions.
Under these conditions, it seems that, in addition to knowledge of the current legislation in the field of expert activity, the defender also needs knowledge of the current rules for the production of various types of examinations, which are regulated by departmental regulations and with the help of which it is possible to check and evaluate compliance by experts in the production of a particular type of examination the order and methodology of their implementation, which determines the scientific validity of the conclusions made and their evidentiary significance.
For example, everyone knows that in recent years, more and more often in the practice of legal proceedings, one has to deal with a growing type of examination - molecular genetic.
Being the most modern and most evidential method for evidentiary identification of a person (even called genetic fingerprinting) it is also characterized by a high degree of complexity. In this regard, as a type of medical activity, genetic examination subject to obligatory licensing The Central Commission of the Ministry of Health of Russia for licensing medical activities. By order of the Ministry of Health of Russia dated 04.24.2003. №161 it is determined that molecular genetic examination can be carried out in specialized laboratories of the bureau of forensic medical examination, having a license for this type of activity. The mandatory appendix to such a license, in the list of "Permitted types, methods and works", must indicate: "Forensic examination of material evidence and research of biological objects - genetic, code 06.020.4" Nomenclature of works and services for the provision of appropriate medical care subject to licensing "(Order of the Ministry of Health of Russia dated July 26, 2002, No. 238).
A random check carried out by the Russian Center for Forensic Medical Examination of the Ministry of Health of Russia, according to its information letter, revealed gross errors made in the production of molecular genetic examinations in a number of territorial forensic medical institutions. If we take into account that the cost of each such error is equal (in criminal cases) to long terms of imprisonment of a person, then the fate of the client largely depends on the degree of the lawyer's readiness to adequately assess the molecular genetic expertise. In the medical literature, the most common causes of errors in the production of molecular genetic examinations are noted.
In the existing Methods of possible causes of errors in molecular genetic studies, incl. associated with extraneous impurities leading to incorrect determination of genomic profiles and insufficient initial amount of template DNA indicated "false genotyping".

False genotyping
Experts will distinguish between two reasons for the false result of the similarity of one genomic profile to another. First, the presence of foreign genetic material in the compared DNA preparations, which can mimic both the coincidence and the difference in their genomic profiles. Secondly, the same effect can manifest itself as a result of incorrect genotyping, in particular, falsely determined homo- or heterozygity of the analyzed objects. This is due to artifacts of the polymerase chain reaction arising under the influence of non-optimal conditions for its conduct, among which experts indicate various reasons, including:
- insufficient starting material;
- poor quality of the drug;
- unsuccessful technical parameters of the device used for DNA amplification;
- inadequately selected operating mode (annealing at a lower temperature than it should be) and others.
According to experts in this field of knowledge, "The technology of genetic examination is a tool with which you can establish the truth, but this happens only when this tool is used by knowledgeable people."
At a minimum, the reasons for possible errors in molecular genetic examinations noted above by the specialists themselves - false genotyping, suggests the need for a lawyer in the work of a lawyer checks:
- Was the source material sufficient for the examination?
-Are there any information about the quality of the drugs used?
-Do the technical parameters of the devices used meet the requirements of GOST?
- was the operating temperature selected correctly?
and other data provided for by the Methodology for conducting this type of expertise.

As you know, numerous rules for the production of various examinations cannot be provided for in the law itself. Nevertheless, it seems that successful defense in cases in which certain expert examinations have been carried out or need to be carried out objectively require the defense lawyer to know these rules that are binding on experts, both for the purpose of being able to exercise the rights provided for in Art. 198 of the Code of Criminal Procedure of the Russian Federation competently to put before the examination the appropriate questions in the case, as well as checking the compliance of experts with their duties and Methodological Recommendations in the production of examinations. This knowledge is often necessary for the defense to make requests to reformulate the questions put before the examination by the investigating body (or the court) or to exclude the questions raised by them that do not fall within the competence of the experts (for example, legal issues or questions from other fields of knowledge).

Order of the Ministry of Health of the Russian Federation No. 161 of April 24, 2003. the Instruction for the organization and production of expert research in the Bureau of Forensic Medicine was approved, consisting of 10 sections and regulating the conduct of numerous important expert studies. It is not possible to describe and analyze in detail these rules from the point of view of the development of techniques and methods of working with them by a defender within the framework of this article. I will dwell only on a number of the opinions of experts in criminal cases that are frequently encountered in practice.
So, section U1 of the Instruction is devoted to Forensic biological expert research.
P.6.2.2 “… the expenditure of objects is carried out in such a way as to ensure the completeness of the study, as well as the possibility of additional or repeated actions with them. … The permission of the investigator must be given to the destruction of traces or to change their configuration ”.
This paragraph of the Instruction, to a certain extent, meets the requirements of Articles 10, 14, 16 of the Law of the Russian Federation No. 73-FZ of 05/31/01. on the safety of research objects and the prohibition of the destruction of research objects by experts or a significant change in their properties without the permission of the body or person who appointed the examination at the same time, it causes a certain bewilderment. Why do these norms link the prohibition of destruction or significant modification of research objects? only with the consent of the body or person who appointed the examination?
Where is the account of the right of the accused (suspect) to defense? Where is the consideration of the procedural equality of the parties to the prosecution and defense in criminal proceedings?

Practice is replete with facts of not coordinated, and often, deliberate destruction, both by the investigating authorities and, in agreement with them, by experts of the objects of study. in order to exclude the possibility of rechecking the validity of the expert opinion, to the detriment of the legitimate interests of the involved to criminal liability of the person.
So, in the aforementioned murder case, the investigator, who acted with a single accusatory bias, committed dozens of gross violations of the requirements of the Code of Criminal Procedure of the Russian Federation issued an order on the destruction of material evidence - a towel soaked in blood - with reference to the putrefactive processes that had begun and the unsuitability of this object for expert research in this regard. He did this without involving a specialist in this field. Meanwhile, the investigator is not a specialist, competent to determine whether or not these biological objects are suitable for their expert examination, and practice indicates the possibility of research and detection of evidence important for the case, incl. and in putrid objects. Thus, the methodology for determining group affiliation in putrefactively altered research objects is described in the manual for forensic doctors by Professor L.O. Barsegyants. "Forensic medical examination of material evidence (blood, secretions, hair)", M., publishing house Medicine, 1999, pp. 79-82.
In another case mentioned above, on charges of M. under Article 228.1 of the Criminal Code of the Russian Federation, the expert, with the consent of the investigator, consumed a completely powdered substance, which he recognized as a narcotic drug "Amphetamine", while according to the materials of the case, this substance, when sent to the expert examination was not recognized as material evidence in the case, and after the expert examination, the investigator issued a decree on admitting this spent substances, which in fact means familiarizing with the materials of the "air" case. At the same time, the substance sent for examination differed in color from the substance received by the "applicant", and it is no longer possible to double-check the validity of the expert's conclusion in the manner prescribed by law.

The list of such examples can be continued and practicing lawyers, it seems, are often faced with this, which has already become a fashionable practice of destruction (complete expenditure) of research objects, both agreed with the persons who appointed the examination, and without it.
It seems that the legislative leave of this important issue only at the discretion of the prosecution, without taking into account the opinion of the person prosecuted and his defense lawyer, is at least unfair.
Clause 6.2.3 of the said Instruction establishes a rule according to which “liquid blood and other perishable materials shall be examined no later than the next day after their admission to the department”.
It seems that this rule presupposes in the work of a lawyer, first, a check of what is meant by the concept of "other perishable materials" ?; secondly, whether liquid blood and / or "other perishable materials" were delivered for examination within a time frame acceptable for their examination no later than the next day after their admission to the department ?; Did the violation of these terms affect the results of the study and how ?; where and at what temperature conditions were these objects stored prior to their study?
Clause 6.2.5 of the Instruction requires that before holding of each research the suitability of the reagents and reagents used (their specificity and activity) was checked, which appears to involve a check by the defense attorney upon reviewing the expert's report reflecting this in the expert opinion.
The next important paragraph of the Instruction - 6.2.7 regulates the examination and description of material evidence by an expert and requires an indication of the “complete characterization of traces of biological origin. At the same time, the basic principle is observed, allowing subsequently at any stage of the investigation or trial identify these items, i.e. indicate in detail the texture, main dimensions, distinctive details, color, wear, damage, dirt, etc. "
In this regard, it appears that the defense lawyer is obliged to verify the complete reflection of all the specified data. for each biological object and their invariability and the possibility of identification at all stages of the investigation and trial and all their subsequent research (with additional, repeated, complex or commission expertise).

I consider it useful to add that after the defenders established the inconsistency of the examinations and materials that served as the basis for expert opinions and the initiation of appropriate petitions during the judicial investigation to declare the indicated "evidence" inadmissible, to conduct additional, repeated, commission or complex examinations, it became "fashionable" to bring "At the request of the prosecution" as "witnesses" of the investigating officers who investigated the case and committed the indicated violations, to give the appearance of the legality of the illegal procedural actions. Unfortunately, the courts, with reference to the testimony of these "witnesses" in court, leave unnoticed the procedural violations and attach evidentiary value to such procedural documents. Meanwhile, acting The Criminal Procedure Code of the Russian Federation does not provide for elimination of procedural violations of investigators and prosecutors by interrogating them as "witnesses" in the cases they investigated.

So, in the aforementioned murder case, in connection with the discovery of forgery of material evidence: fingerprints copied onto a light dacto film, which, according to the protocol of the inspection of the scene, was not used, and the discovery of a difference in the sizes of the objects of investigation according to the protocol of the inspection of the scene and according to the conclusion of an expert, in the investigator in the case and the specialist of the EKTs of the Central Internal Affairs Directorate who participated with him during the inspection of the scene of the accident were invited to the court as “witnesses”, who “explained” these contradictions by the “many hours” of the inspection of the scene and the associated “fatigue”; making measurements with gloves, "what can explain the measurement flaws", etc.
Clause 6.2.8 of the Instruction imposes special requirements for the description of "traces of biological origin". " It is mandatory to note: the localization of the trace, its color, shape, contours, degree of impregnation, compaction, size, features. "
These data, it seems, can be very important for the defense attorney to assess the validity of the expert's conclusion, the latter's compliance with the requirements for the expert's conclusion imposed by the law and the Instructions, and, finally, the legality of the examination in general. Unfortunately, in practice, they rarely pay attention to expert's duty to write a reasoned written communication about the impossibility of giving an opinion.... if the questions posed go beyond the expert's special knowledge, objects of research and case materials unsuitable or insufficient to conduct research and give an opinion and the expert was denied their addition; the current level of development of science does not allow answering the questions posed ”.

Meanwhile, there are many such grounds in practice. For example, the requirements of the specified Instruction on the reflection of "the texture on which the trace is found, its size, the degree of soaking" are directly related to the question: how much of a biological substance is this trace? Related to it is the important question of is the amount of the detected substance sufficient to produce the required complete research or research with him and preserving part of it for subsequent similar and additional research to verify the scientific validity of the conclusions and conclusions made and, thereby, fulfill the requirements of the Law of the Russian Federation No. ФЗ-73 dated 05/31/01?

It seems that each Research Methodology provides for its “own” required amount of the investigated biological substance to meet the requirements of the law and Methodological Recommendations for this study. If the defender is familiar with the specified Methodological Recommendations and, in this regard, knows that, for example, for the full detection of traces of sperm using the available methods, the minimum required amount should be 0.1 ml, and the volume of the biological substance detected on the non-impregnated texture is significantly less quantity, then what kind of legitimate and full-fledged expert study can we talk about, if the expert in these cases is in accordance with the requirements of Article 16 of the Federal Law-73 of 31.05.01. is obliged to draw up a reasoned written refusal from giving an opinion with the reasons for such a decision, and not to please the investigating authorities with the conclusion "on the discovery" of traces of semen on the object under investigation!
The requirements of the specified paragraph of the Instructions on the reflection of the "localization, color, shape, contours" of a biological object may be useful for clarifying the limitation period of this trace, the mechanism of its formation and other issues important for protection.
Clause 6.3.4.2. The instructions provide for the possibility of establishing a blood group (in the absence of the person of interest) based on the results of the study sweat from the person's wearable.
Clause 6.3.7 of the Instructions provides for the possibility of determining by blood test gender and regional origin of blood according to special methods:
-the blood belonging to a pregnant woman with the help of gravidiagnosticum;
-differentiation of peripheral and menstrual blood by electrophoretic and cytological methods.

Unfortunately, in practice, ignorance or insufficient knowledge of the defenders of these issues, the lack of the necessary experience, make it difficult to "fight" with this kind of "expert opinions", which leads to certain consequences for the protected person. Of course, one cannot demand from a defense attorney to simultaneously be a specialist in numerous fields of knowledge in the field of which examinations are carried out. But, as it seems, the defense attorney should have knowledge of the mechanism for combating such examinations. In addition, as you know, the current Criminal Procedure Code of the Russian Federation allows the defender, if necessary, to contact on a contractual basis alternative experts (specialists) of the relevant branches of knowledge, who can help the defender both in an adequate understanding of the expert's conclusion, in assessing its scientific validity, and in refuting unfounded expert conclusions. It seems that the possibility of inviting an alternative expert (specialist) by a lawyer on his own initiative to the court for questioning at the request of the defense is also effective, in which the court, in accordance with the requirements of Part 4 of Article 271 of the Code of Criminal Procedure of the Russian Federation, does not have the right to refuse the defense.

In addition, in connection with the recently published 10.03.2007. Administrative regulations of the Federal Service for Surveillance in Healthcare and Social Development on the execution of state functions for exercising control over the procedure for the production of medical expertise, approved. By order of the Ministry of Health of the Russian Federation No. 900 dated December 31, 2006. and registered with the Ministry of Justice of the Russian Federation on February 19, 2007. under No. 8959, it seems to be an effective and promising direction of "struggle" against scientifically unfounded and procedurally flawed conclusions of experts in a timely manner, i.e. already at the stage of preliminary investigation of the case, after familiarization with such conclusions, appealing them to the body provided for by the said regulations - the Federal Service for Supervision in Healthcare. The right to appeal this kind of expertise is provided for by Article 6 of the Federal Law -73 of 05/31/2001.

Knowledge of the possibilities of modern expert research and the rules for their conduct will largely help the defender to take this into account when building a line of defense and adequately assessing expert opinions.
The result of this painstaking and, of course, difficult work of the defender in an unequal struggle against such conclusions of "experts" may be a feeling of deep satisfaction with the fulfilled duty, and possibly saved human destinies.

Attorney at Law Office No. 63
Inter-republican collegium of advocates R.G. Ambartsumov

Zarovneva G.S.,Sorochanova A.O.

EVALUATION OF AN EXPERT IN CRIMINAL CASES

Far Eastern Federal University

Expert opinion - the contents of the study and conclusions presented in writing on the issues posed to the expert by the person conducting the criminal case, or by the parties (part 1 of article 80 of the Code of Criminal Procedure of the Russian Federation).

A forensic examination is appointed in cases where special knowledge is required to establish the circumstances relevant to the case. Special knowledge is knowledge that goes beyond general education, everyday experience and requires special training and professional skills. Special knowledge can relate to any area of ​​human activity: science, technology, art, craft.

The expert's opinion, in contrast to the testimony, is given in writing, it has no advantages over other evidence and is subject to mandatory verification and assessment according to general rules. No matter what exact data the expert conclusion is based on, it cannot be considered binding for the investigation or the court.

The process of evaluating an expert opinion consists of several sequential stages. Verification of compliance with the requirements of the law when appointing an examination, which consists in finding out the answer to the following questions.

1. Is the expert competent in solving the tasks assigned to him and did he go beyond the limits of his competence? When conducting an examination by a private expert, his choice is carried out by the investigator or the court, the question of the competence of the forensic expert is decided upon his appointment.

2. Has the expert examination been carried out by the person subject to challenge on the grounds listed in the procedural law?

3. Are the rights of the participants in the process observed when appointing and carrying out an examination?

4. Has the procedural order been violated when receiving samples for comparative research and fixation in the corresponding protocol?

5. Is the procedural form of the expert's opinion observed and are all the requisites required for it available? The absence of any part of the expert's opinion makes it difficult or impossible to assess the opinion.

At the same time, one cannot ignore the specifics of the expert's conclusion in comparison with other types of evidence, the complexity of its assessment for persons who do not have the appropriate special knowledge. Evaluation of an expert's opinion includes, first of all, establishing its admissibility as evidence. A prerequisite for the admissibility of the expert's conclusion is the observance of the procedural procedure for the appointment and conduct of the examination. It should be borne in mind that only objects that are properly procedurally formalized can be subjected to expert research. In the event of violations entailing their inadmissibility, the expert's opinion also loses evidentiary force. And finally, the investigator and the court must verify the correctness of the expert's conclusion, the presence of all the necessary details in it.

When assessing the relevance of the expert's conclusion, it should be borne in mind that it depends on the relevance of the objects that were investigated by the expert. If their relevance is not confirmed, then it automatically loses this property and the expert's conclusion. The most difficult component of the assessment by the investigator, the court of the expert's conclusion is to determine its reliability (correctness, validity). Such an assessment includes determining the reliability of the methodology used by the expert, the sufficiency of the material presented to the expert and the correctness of the initial data, the completeness of the research conducted by the expert (for example, whether all three cavities were opened during the investigation of the corpse), etc.

A necessary element (and method) of assessing the expert's opinion is to compare it with other materials in the case. It happens that the conclusion does not cause any objections in its content, but contradicts other evidence in the case. In such cases, it is subject to particularly careful verification.

The problem of the admissibility of evidence gained relevance after the introduction of the institute of inadmissible evidence in the RF Criminal Procedure Code (Article 75), which stipulates that evidence obtained in violation of the requirements of the criminal procedure law is inadmissible. In this regard, the question arises: should all violations of the law in the production of a forensic examination entail the inadmissibility of evidence, deprivation of its legal force?

Some proceduralists suggest that evidence should be considered inadmissible in the event of any violation of the law. M.L. Jakub, on the contrary, believes that the proof cannot be left without consideration of the merits, rejecting it for inadmissibility. Scientists O.V. Khimicheva and R.V. Danilov subdivide violations into those that entail the inadmissibility of evidence in any case (criminal violations, other significant violations of the criminal procedure law, entailing irreparable doubts about the reliability of factual data), and insignificant violations. The last type of violations of the law does not determine the recognition of evidence as substandard, since such violations do not create irreparable doubts about the reliability of the factual data and do not infringe on the rights of the participants in the process.

According to Professor V.M. Savitsky, any violations of the law when collecting evidence should entail the recognition of their nullity, otherwise the classification of violations into implemented and insignificant will lead to an indirect blessing of minor violations of the law, a hierarchy of procedural rules in terms of their importance will be required and the erosion of legality in criminal proceedings will deepen.

N.M. Kipnis also considers it impossible to develop criteria for determining the materiality of violations of the procedural form of evidence, recognizing the possibility of its replenishment in case of eliminable violations.

In our opinion, more preferable is the position that recognizes the possibility of significant violations of the law when collecting evidence. So, both in science and in the criminal procedure law in relation to the grounds for the cancellation of sentences, the concept of the materiality of violations of the criminal procedure law (Article 381 of the Code of Criminal Procedure of the Russian Federation) is known, the nature of which does not differ from procedural violations in the collection and verification of evidence. The absence of the term “substantial” in this article does not preclude the possibility of considering those mentioned in Part 1 of Art. 381 of the Code of Criminal Procedure of the Russian Federation, violations of such. The indicated name of violations only distinguishes them from the general number of procedural violations, since they affect or may affect the decision of a legal, reasonable or fair sentence.

If the law provides for the means and methods by which it is possible to neutralize the consequences of violation of its individual prescriptions, proving that they did not affect the observance of the principles of criminal proceedings, then with the successful use of such means and methods it can no longer be said that such evidence was used to prove in violation law. Violations that can be refuted should, in our opinion, be considered removable, or refutable. On the contrary, if it is established that the distortion of the procedure has led to real damage to the principles of adversarial proceedings, its results in any case should be considered legally null and void, and the violations committed are irreparable.

The recognition of some procedural violations as insignificant does not mean that there is no need to suppress and prevent them. In addition to sanctions of nullity, minor criminal procedural offenses when collecting evidence may entail other measures of legal influence: of a disciplinary nature, as well as the dismissal of the investigator and the proceedings on the case, the issuance of a private court ruling.

Consider violations of the requirements of the criminal procedural law when conducting a forensic examination based on their materiality and the possibility of being eliminated in the course of the trial. It seems that, depending on the procedural consequences, violations can be divided into three relatively independent groups. Violations of the first group do not entail the exclusion of the expert opinion from the proof process, since they do not raise doubts about the truth of the conclusion contained in this evidence.

Violations of the second group do not entail, but may entail the recognition of the conclusion of the forensic examination as inadmissible evidence, provided that additional judicial actions cannot remove doubts about the legality of its conduct.

Violations of the third group entail the unconditional exclusion of the expert's opinion from the proving process in connection with significant violations of the criminal procedure law in the appointment and conduct of a forensic examination.

It seems that the assessment of violations and their assignment to one category or another largely depends on such a subjective psychological category as the discretion of judges.

As the main criteria for the admissibility of an expert's conclusion as evidence, a set of dialectically interrelated conditions should be recognized, in particular, if: the procedural procedure for appointing and conducting an examination is observed; the examination was appointed and carried out by authorized persons; the objects, objects, comparative samples presented at the disposal of the expert were seized in compliance with the criminal procedure law; when appointing, conducting and attaching expert examination data to the case file, the rights of the victim, suspect, accused, defense lawyer are not infringed upon; the expert has been warned about criminal liability for giving a deliberately false opinion; the examination report contains all the necessary details, scientific substantiation of the conclusions, which do not go beyond the competence of the experts; the content of the narrative part and the conclusions contained in it correspond to the conclusions of the final part of the examination.

Based on these components, the criteria for the inadmissibility of an expert's conclusion as evidence in a criminal case should be determined, clearly distinguishing with which particular group of procedural violations or omissions we are dealing with in each specific case.

Violations of the first group are omissions associated with a certain negligence, a superficial approach to the impeccable observance of the procedure for procedural execution of documents when appointing and conducting an examination, which do not affect its objective content.

The court and the parties in this situation practically have not the slightest doubt about the legality of the expert's conclusion or about the proper procedural competence of the subject of proof, who received and consolidated it in the case file. Omissions, as a rule, relate to the exact observance of the procedural form of registration of this evidence. Due to their insignificance and obvious insignificance, they can not objectively affect the actual content of the evidentiary material and its reliability. The petitions and applications for the exclusion of such evidence by the procedurally interested parties, as a rule, are made “just in case” and if they are reasonably rejected by the court, most of them are not contested by the parties and are not re-submitted.

Such omissions in the procedure for appointing and conducting an examination include: failure of the head of the expert institution to notify the investigator about who among the experts is entrusted with the examination (part 2 of article 199 of the Criminal Procedure Code of the Russian Federation); the absence in the expert's opinion of the time and place of the forensic examination (part 1 of article 204 of the Code of Criminal Procedure of the Russian Federation); the absence of the signature of the investigator in the decision on the appointment of a forensic examination or an obviously erroneous date of its issuance; the absence of the title of the forensic examination in the title of the decision.

A somewhat different situation arises when assessing violations of the second group, which in themselves do not entail, but in the presence of certain conditions may entail the exclusion of the expert's conclusion from the proving process due to its inadmissibility.

It is here that the fate of evidence most of all depends on the judicial discretion, therefore, these procedural violations and their procedural consequences cause the greatest range of positions and opinions.

It seems that here, too, there can be not the slightest doubt about the legality of the expert's conclusion and the correctness of his conclusions. The essence of the violations that caused the statements of the parties or the initiative of the court to recognize the conclusion as not legally binding, fully and completely relates to the procedural requirements established by law when appointing and conducting an examination. So, one of the most common violations that can be attributed to this group is the failure of the subjects of proving to comply with the requirements of Article 198 of the Code of Criminal Procedure of the Russian Federation, namely, the violation of the right to familiarize the suspect and the accused with the decision on the appointment of a forensic examination prior to the commencement of its conduct. Practice shows that very often investigators familiarize suspects and defendants, as well as their defenders, with the decision to appoint an expert examination simultaneously with the expert's conclusion, while violating their right to challenge the expert, raise additional questions and other rights listed in this provision. It is this question that is controversial both in the procedural literature and among practitioners. According to Art. 198 of the Code of Criminal Procedure of the Russian Federation, a suspect, an accused, a defender, when appointing and conducting a forensic examination, has the right to familiarize himself with the decision on the appointment of a forensic examination, to challenge an expert, as well as to petition for a forensic examination in another or in a specific expert institution, to involve the persons indicated by them as experts , on the introduction of additional questions to the expert in the decision on the appointment of a forensic examination. Article 195 of the Code of Criminal Procedure of the Russian Federation directly establishes the duty of the investigator, who appointed a forensic examination in a criminal case, to ensure that the suspects, the accused, the defender of these rights can be exercised. For these purposes, part three of this article establishes that the investigator acquaints them with the decision on the appointment of a forensic examination and explains to them the rights provided for by Article 198 of the RFY Code of Criminal Procedure, about which a protocol is drawn up, signed by the investigator and persons who are familiar with the decision.

The specified procedural action in the sense of the above norms, considered in systemic connection, should be essential before the start of the examination - otherwise named participants in the process are deprived of the opportunity to exercise the rights associated with its appointment and arising from the constitutional principle of adversariality and equality of the parties, enshrined in Art. 198 of the Criminal Procedure Code of the Russian Federation. This requirement of Part 3 of Article 195 of the Code of Criminal Procedure of the Russian Federation applies to the procedure for the appointment of any forensic examinations, is imperative in nature and is mandatory for the investigator to fulfill at the pre-trial stage of proceedings in all cases.

Thus, it seems that when resolving the issue of the admissibility of the expert's conclusion in the case of a violation of the requirements of Art. 195 and 198 of the Criminal Procedure Code of the Russian Federation, when appointing an examination, judges should find out from the defendant: whether he had, when familiarizing himself with the decision on the appointment of an examination, carried out after the examination, a petition to challenge an expert, to pose additional questions and other actions aimed at exercising his rights ... In this case, it is necessary to compare the obtained data with the protocol of familiarization with the decision on the appointment of an expert examination, establishing whether during the investigation he had remarks, motions and additions set out in the corresponding column of the protocol.

The second group of violations also includes violations committed by experts when drawing up an opinion. Practice shows that sometimes forensic medical examinations “sin” with this.

The third group of violations, as shown by judicial practice, does not require a time-consuming procedure for checking and assessing the significance of violations of the criminal procedure law and their impact on the expert opinion received. The legislator, as it were, a priori recognizes that the presence of at least one of them should unconditionally entail the recognition of the expert's opinion as inadmissible evidence. These include cases when: the examination was appointed by an inappropriate subject of proof; the conclusion was given by an expert subject to challenge on the grounds specified in Art. 70 of the Criminal Procedure Code of the Russian Federation; in the conclusion there is no indication that the expert was warned of responsibility under Art. 307 of the Criminal Procedure Code of the Russian Federation; the objects submitted for examination were obtained with gross violations of the criminal procedure law.

A forensic examination can be appointed only after the execution of investigative actions, confirming the fact of the appearance of objects of research, as well as samples for comparative research. Violation of these requirements leads to the invalidation of the evidence obtained, including the expert's conclusions.

Literature:

1. P.P. Gritsaenko On the issue of consideration of the "Conclusion of a specialist" in court // Judicial Bulletin. 2007. No. 3.
2. Criminal Procedure: A Textbook for Law Higher Educational Institutions. / Ed. IN AND. Radchenko. - M .: "Legal House" Yustitsinform ", 2003.
3. Mukhin I.I., Objective truth and some issues of the assessment of judicial evidence in the administration of justice. - L., 1971.
4. Yakub M.L. The problem of assessing evidence in the Soviet criminal process // Bulletin of Moscow State University. 1974. No. 6.
5. Khimicheva O.V., Danilova R.V. Admissibility of evidence in criminal proceedings (based on materials from criminal cases on crimes committed by organized groups). - M., 1998.
6. Savitsky V.M. The criminal process of Russia on a new round of democratization // Legal world. 2009. - No. 6.
7. Kipnis N.M. Admissibility of evidence in criminal proceedings. - M., 1995.
8. Scientific and Practical Commentary on the Criminal Procedure Code of the Russian Federation / Ed. V.M. Lebedev, V.P. Bozhieva. - M .: Standard, 2009.
9. Selina E.V. Attracting special knowledge in criminal proceedings. - M .: LLC "Publishing house" Yurlitinform ", 2007.

10. Vladimirov L.E. The doctrine of criminal evidence. - Tula: Autograph, 2000.

11. Orlov Yu.K. Foundations of the theory of evidence in criminal proceedings. M .: Prospect, 2008.

Investigation of a criminal offense involves not only conducting investigative actions and experiments, on the basis of which investigators and interrogators make subjective value judgments, but also the involvement of independent objective experts.

As specialists of a narrow scientific profile, experts conduct various checks to establish certain reasons for the circumstances directly related to the essence of the event being investigated.

The types of expertise in the criminal process are represented by a very wide list, in which each of them has its own key features.

What is examination, who can become an expert, and what types of forensic examinations are most often encountered in practice, we will talk further.

A forensic examination is a type of criminal procedural action carried out by independent experts at the request of the participants in the process, as a result of which an expert opinion is issued.

The expert opinion must contain answers to the questions posed to the expert that meet the objectives of the expert examination.

Expertise is a powerful evidence-based weapon in a criminal case. Most often, the accusation is based precisely on the expert opinion.

Expertise, according to Art. 196 of the Code of Criminal Procedure of the Russian Federation, can be carried out both compulsorily and voluntarily at the initiative of the investigating authorities.

The mandatory signs of an examination include:

A forensic examination can be carried out even before the initiation of a criminal case.

The appointment of a forensic examination in a criminal proceeding must be justified and reasoned. It is carried out on the basis of a resolution issued by the investigator.

The production of an expert examination in a criminal case assumes that the investigator obligatorily acquaints the participants of the process with him, who put their signatures in a special protocol.

The Criminal Procedure Code of the Russian Federation states that the examination should be carried out by state forensic experts or other persons carrying out expert activities and possessing special knowledge.

There are two main criteria that must be met in order to be appointed as an expert in a particular person's case:

• The expert must be uninterested in the outcome of the case and be objective in relation to the subject of the study;
• The expert must be competent in a specific area of ​​scientific knowledge.

You cannot be an expert on all matters. Experts, as a rule, conduct narrowly focused activities, but at the same time have very broad knowledge in it.

Also Art. 70 of the Code of Criminal Procedure of the Russian Federation establishes the reasons according to which the expert can be removed from participation in the case.

A challenge is allowed in the following cases:

• The expert has a family relationship with one of the participants in the process;
• The expert is incompetent;
• The presence of a current or past official dependence of the expert on the parties to the case;
• The expert has already participated in this case in any position, except for the expert.

In one case, an expert can conduct examinations several times and give explanations on them in court proceedings.

The number of expert examinations in criminal proceedings is quite impressive. The appearance of each new species is based on separate classification characteristics.

The main ones are:

With the development of technology and new areas of knowledge, new types of forensic examinations appear. At the same time, their classification, created long ago, is still valid.

Forensic examinations allow you to restore the evidence of the crime and evidence of guilt in detail.

Forensic science is a separate area of ​​knowledge in the theory of criminal law. Even in universities there is such a special specialization as a criminologist.

Forensic examinations also have their own varieties:

A forensic examination can independently confirm the guilt of a particular person in a crime at a time when other examinations only help in the collection of evidence.

Expertise in the field of economic knowledge is carried out in civil, arbitration cases, as well as in criminal economic crimes.

They, in turn, have their own varieties:

A very widespread expertise in criminal cases, especially in those who have victims of crime. Including any types of damage also require this examination.

There are several types of it:

Not only the motives of the participants in the criminal case are important for the investigation. Materials and material evidence that have received certain changes in the process of committing a crime are also of great importance for the investigation.

Material science examinations are:

Forensic linguistic and forensic regulatory expertise

An expert linguist is involved in the investigation of a case when his value judgment on the nature of a particular statement is required.

Any professor of philology can be invited as an expert linguist.

Both oral and written statements, including those published on the Internet, are subject to assessment.

Regulatory examinations check the compliance of various documents with the standards and the rules for their maintenance and filling.

Regulatory expertise can reveal traces of the corruption component in economic documents and contracts.

In addition to the above, there are many other types of expertise in the framework of a criminal investigation. Their use is based on the peculiarities of the criminal case itself, the expediency of their application to establish the circumstances of the case.

The following types of forensic examinations are often found:

This is an incomplete list of forensic examinations, it is annually updated with new types of inspections.

When the question of the possibility of using an examination is decided in the court session, all participants in the process speak out about such an action.

Any participant in a criminal case may refuse to consent to an examination.

The examination will not be carried out in the following situations:

• The participant who must participate in the examination and without whom it is impossible to establish the reliability of the data, refuses such participation;
• The court refuses to satisfy the request for an expert examination;
• The expert refuses to perform actions that contribute to the confirmation or refutation of one of the parties.

The court must give reasons for its refusal to grant the petition. Otherwise, his decision can be appealed.

A forensic examination is an objective investigative measure, which, with the assistance of a competent and uninterested expert, helps to establish reliably the circumstances of a criminal case.

In practice, there is such a large number of types of expertise that for each complex and special criminal case in this list there is always a suitable objective check.

Expert opinion - the content of the study and conclusions presented in writing on the issues posed to the expert by the person conducting the criminal proceedings, or by the parties (part 1 of article 80 of the Code of Criminal Procedure of the Russian Federation).

A forensic examination is appointed in cases where special knowledge is required to establish the circumstances relevant to the case. Special knowledge is knowledge that goes beyond general education, everyday experience and requires special training and professional skills. Special knowledge can relate to any area of ​​human activity: science, technology, art, craft.

The expert's opinion, in contrast to the testimony, is given in writing, it has no advantages over other evidence and is subject to mandatory verification and assessment according to general rules. No matter what exact data the expert conclusion is based on, it cannot be considered binding for the investigation or the court.

The process of evaluating an expert opinion consists of several sequential stages. Verification of compliance with the requirements of the law when appointing an examination, which consists in finding out the answer to the following questions.

• 1. Is the expert competent in solving the tasks assigned to him and did he go beyond the limits of his competence? When conducting an examination by a private expert, his choice is carried out by the investigator or the court, the question of the competence of the forensic expert is decided upon his appointment.
• 2. Has the expert examination been carried out by the person subject to challenge on the grounds listed in the procedural law?
• 3. Have the rights of the participants in the proceedings been observed when appointing and carrying out an examination?
• 4. Has the procedural order been violated when receiving samples for comparative research and fixation in the corresponding protocol?
• 5. Has the procedural form of the expert's opinion been followed and are all the requisites required for it available? The absence of any part of the expert's opinion makes it difficult or impossible to assess the opinion.

At the same time, one cannot ignore the specifics of the expert's conclusion in comparison with other types of evidence, the complexity of its assessment for persons who do not have the appropriate special knowledge. Evaluation of an expert's opinion includes, first of all, establishing its admissibility as evidence. A prerequisite for the admissibility of the expert's conclusion is the observance of the procedural procedure for the appointment and conduct of the examination. It should be borne in mind that only objects that are properly procedurally formalized can be subjected to expert research. In the event of violations entailing their inadmissibility, the expert's opinion also loses evidentiary force. And finally, the investigator and the court must verify the correctness of the expert's conclusion, the presence of all the necessary details in it.

A necessary element (and method) of assessing the expert's opinion is to compare it with other materials in the case. It happens that the conclusion does not cause any objections in its content, but contradicts other evidence in the case. In such cases, it is subject to particularly careful verification.

As the main criteria for the admissibility of an expert's conclusion, a set of dialectically interrelated conditions should be recognized as evidence, in particular, if: the procedural procedure for appointing and conducting an examination is observed; the examination was appointed and carried out by authorized persons; the objects, objects, comparative samples presented at the disposal of the expert were seized in compliance with the criminal procedure law; when appointing, conducting and attaching expert examination data to the case file, the rights of the victim, suspect, accused, defense lawyer are not infringed upon; the expert has been warned about criminal liability for giving a deliberately false opinion; the examination report contains all the necessary details, scientific substantiation of the conclusions, which do not go beyond the competence of the experts; the content of the narrative part and the conclusions contained in it correspond to the conclusions of the final part of the examination.

Based on these components, the criteria for the inadmissibility of an expert's conclusion as evidence in a criminal case should be determined, clearly distinguishing with which particular group of procedural violations or omissions we are dealing with in each specific case.

A forensic examination can be appointed only after the execution of investigative actions, confirming the fact of the appearance of objects of research, as well as samples for comparative research. Violation of these requirements leads to the invalidation of the evidence obtained, including the expert's conclusions.