How to document investigator mistakes
Documentation of criminal case materials review under article 217 of the RF CPC: attorney guidelines.
How to address investigator errors and properly document them to ensure court acceptance of defense objections by Dmitry Zagainov, attorney and partner at law firm INTELLECT.
Documentation is mandatory!
When errors by an investigator are identified, it is not always advisable to immediately voice or respond to them in writing. Accumulate the errors you have discovered at least until the completion of investigative actions or another more opportune moment. However, all errors must be documented without fail.
One of the most common examples of an error is negligence regarding an expert's signature. It is known that in practice, investigators are often forced to order forensic examinations in a different region rather than at the location of the investigative actions (e.g., computer-technical examinations, etc.). This is typically due to the specifics of the research required or the heavy workload of state forensic institutions. In any case, before ordering an examination, the investigator must ensure that the examination can be conducted at a specific institution by sending a request.
In criminal cases involving similar episodes, the repetition of the same actions often leads to complacency on the part of the investigator. Having received a response to such a request once, the investigator may not send requests in similar cases—they are either simply filed in the case or are entirely absent. However, in the resolution ordering the examination, the investigator states that the examination cannot be conducted in a particular institution or region, and therefore, the materials for the expert examination are sent to another region.
What does this lead to? The case file includes a resolution that sometimes lacks the expert's signature confirming that they were informed of the consequences of providing a knowingly false conclusion. Should the defense counsel point this out to the investigator when reviewing the expert's report? For the purposes of defense, it is more prudent to refrain from such remarks—but it is imperative to photograph the document.
During the review of the criminal case materials under Article 217 of the Criminal Procedure Code (CPC), it is necessary to verify once again that the expert's signature has not appeared on the document. In such a case, the defense should include in its remarks a request to exclude certain documents from the evidence, citing violations of the CPC, including the resolution ordering the examination. There is no need to describe the nature of the violation in detail. As a rule, such a motion is denied, but the defense counsel's reaction remains on record, which will later assist in court.
The issue is this: when the expert's report arrives, the preamble to the research results includes a statement that the expert was warned of criminal liability. This convinces the reader that the examination was conducted properly. However, there is a nuance: the signature on the document prepared after the research could not have appeared before the document was printed. Therefore, if the resolution lacks a signature confirming that the expert was informed of their rights and warned of the consequences, the signature on the research itself carries weak evidentiary value.
From practice, I recall a case where the investigator, noticing his oversight, forged the expert's signature because summoning the expert from another region would have been too time-consuming and resource-intensive, especially since the defense had already begun reviewing the case materials. The defense noticed this and immediately filed a written motion in the protocol to disqualify the investigator and exclude the document from the evidence.
The investigator was spared criminal liability only because, during the court's consideration of the defense's motion to exclude all documents related to the ordering and results of the examination, the expert appeared in court and stated that he had simply signed poorly that time but recognized his signature, even though he usually signs differently. This explanation satisfied the court but not the defense. On appeal, it was proven that the criminal case had been initiated unlawfully—and all investigative actions were therefore unlawful. The court returned the case materials to the prosecutor to rectify the deficiencies in the charges. The investigator's conduct did not go unnoticed; he resigned from his position voluntarily (since the criminal case was initiated unlawfully, it seemed inappropriate to punish him for forgery).
How to properly document errors
The issue of documenting investigator/inquiry officer errors is crucial for the defense. The other question is how to do it correctly so that the court accepts the defense counsel's objections and believes them.
The defense counsel must be able to use modern means of photo and video documentation. Before investigative actions, it is necessary to ensure that all settings on technical devices are correctly configured:
- The date and time must correspond to astronomical time.
- The image size provided by the camera should be the maximum possible to avoid quality loss when zooming in.
- Geolocation and the preservation of all metadata containing information about the object for subsequent identification must be enabled.
- The automatic file upload function to a cloud storage, accessible only to the defense counsel, must be activated.
Important: Do not manually change the file name assigned automatically by the device. You may change the name of a copy of the file for convenience, but the original must remain untouched.
In the example above, all possibilities of digital documentation were utilized. It is necessary to present to the court not only the photo or video document in its original form, unaltered, but also to demonstrate its individual properties—i.e., the metadata automatically generated by the device during recording: date, time, geolocation, file size, and file name. For example, geolocation can precisely determine the location of the recording and allow for the printing of a map with the recorded geographic coordinates.
If the data is lost for any reason, the cloud can help restore it in its original form.
All of this, combined, is highly persuasive to an impartial observer. As a rule, the opposing side is unprepared for such a set of technical information accompanied by the defense counsel's explanations.
There are also additional tools for documenting information — alternative online services such as ShotApp. However, one cannot always be confident that data obtained through such services will be adequately received by courts of general jurisdiction in criminal cases, as they require additional technical justification. In arbitration courts, data from ShotApp and similar services is accepted—but the requirements for evidence there are somewhat different than in criminal cases.
I hope this guide will assist novice defense counsel in protecting their clients' interests.
Source: «Advokatskaya Gazeta» (No.24 (425) / 2024)
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