EXPERT’S CONCLUSION IN CRIMINAL PROCEEDINGS: PROBLEMS OF ADMISSIBILITY, EVALUATION, AND TACTICAL USE BY THE PARTIES

Abstract

The study of the problematic aspects of using an expert’s conclusion as a source of evidence in the criminal proceedings of Ukraine is highly relevant, gaining particular importance amidst the reform of the justice system and the challenges associated with the state of martial law. The article highlights the issue of the comprehensive evaluation of an expert’s conclusion, which extends beyond a formal analysis of its compliance with legal requirements and touches upon issues of its reliability, scientific validity, and its place within the system of other evidence. It examines the legal conflict that arises between the formal approach to the list of sources of evidence, established by the Criminal Procedure Code of Ukraine, and the actual needs of the adversarial process, particularly regarding the use by the defense of alternative expert opinions and reviews to effectively refute the prosecution’s evidence. The article substantiates the need to revise established approaches to evaluating an expert’s conclusion, moving away from the stereotypical perception of it as the “queen of evidence” and strengthening the critical analysis of its content by all participants in the proceedings. The research methodology included the formallegal method for analyzing the norms of current legislation, the systemic-structural method for determining the place of the expert’s conclusion in the system of evidence, the comparative-legal method for analyzing judicial practice, and the dialectical method for identifying contradictions between theoretical principles and law enforcement practice. The application of these methods allowed for a comprehensive investigation of the legal nature, procedural status, and tactical aspects of using expert conclusions. The article analyzes judicial practice, in particular, the positions of the Cassation Criminal Court within the Supreme Court, regarding the admissibility of conclusions obtained in violation of procedural order and the procedural status of reviews of expert conclusions. The author of the article believes that the existing contradictory practice regarding the recognition of reviews creates legal uncertainty and violates the principle of equality of arms. The article also examines the tactical techniques used by the prosecution and defense to confirm or refute the evidentiary value of the conclusion, and analyzes the specific problems that arise when conducting expert examinations under martial law, particularly concerning military personnel. The paper concludes that the effectiveness of using an expert’s conclusion depends on the synergy of three factors: adherence to the proper legal procedure for obtaining it, a deep, substantive analysis of its reliability and scientific validity, and the availability of real opportunities for the parties to confirm or refute it. Special attention is paid to the concepts of “admissibility,” “reliability,” “relevance,” and “sufficiency” of evidence in the context of evaluating an expert’s conclusion. The expediency of legislative regulation of the status of alternative expert opinions has been established. The author offers specific proposals for improving criminal procedure legislation, particularly by introducing a clearly regulated procedure for obtaining clarifications from an expert during the pre-trial investigation upon the order of an investigating judge.