On the evaluation of evidence of a suspect, accused in the Russian criminal procedure

The paper critically evaluates the practice in the Russian criminal procedure when the pre-trial evidence of a suspect or accused beyond volition is included in the body of evidence and used when proving guilt. Having analyzed the factors influencing the estimation of evidence of a suspect or accused, the authors criticize the “double standard” established by law, which is used when evaluating evidence obtained in the presence of a defense lawyer or without one’s participation. The paper proves that the existing legal regulation enshrines different extent of procedural possibilities for the defense by an accused person of one’s interests defined by the presence or absence of a defense lawyer in the pre-trial procedure. Paradoxical as it may sound, when defending interests, the maximum damage is inflicted on those convicted who used the assistance of a defense lawyer during the pre-trial procedure. Having studied the Russian and international practice of evaluating the evidence of a suspect or accused and analyzed current Russian legislation, the authors identified the existing contradictions and proved the necessity to improve the Russian Federation Code of criminal procedure in terms of excluding the statements, which allow using the evidence not confirmed by an accused person given in the presence of a defender. Taking into account that the main disputes occur when evaluating so-called “admissions” of suspects or accused persons, the authors pay special attention to the study of this problem, including in the context of “the fruit of the poisonous tree” scientific doctrine recognized in Russia. The authors see the way out of the current contradiction in the leveling of the relevance of evidence of a suspect or accused in the cases when a suspect does not confirm it in court, regardless of whether a defender participated or not in an investigative interview.