The cybernetic approach to understanding criminal procedural evidence: limits and prospects of applicability

Abstract: The paper considers the so-called cybernetic (informational) approach to understanding criminal procedural evidence, which was officially recognised by the legislator in 2001 and became the doctrinal foundation of modern evidence law. The reasons for the emergence and gradual predominance of the cybernetic approach to understanding evidence are identified. They are seen in the widespread fascination of Soviet society in the 1960s–1970s with cybernetics as a science of patterns, methods, means, and technologies of obtaining, storing, transforming, and transmitting information. A hypothesis is put forward that such views on evidence were determined by the aspirations of a number of procedural law scholars to conform to fashionable trends and their desire not to lag behind advanced technical developments. At the same time, the significance of the cybernetic approach for the development of the theoretical foundations of criminal procedural proof is analysed. First, it is associated with a sharp increase in scholarly attention to the problems of gathering evidence: the conduct of investigative and judicial actions, the commissioning and conduct of forensic examinations, etc. The shortcomings of the cybernetic approach that have emerged over time are also noted. These are seen in the reduction of the entire process of proof to nothing more than an informational process, in the devaluation of the role of the logical phase of proof, of the potential of circumstantial evidence, etc. In this regard, the question is raised about the prospects for preserving the cybernetic approach as the doctrinal foundation of evidence law. These ideas, on the one hand, are well applicable to the cognitive (epistemic) phase of proof, but, on the other hand, are not subject to use as universal ones and are not compatible with the evidentiary (recording) and logical phases of proof. As a result, a conclusion is formulated regarding the necessity of the simultaneous use of several different approaches to understanding evidence: cybernetic, pragmatic, and formal-logical – depending on the role of evidence characteristic of a particular phase of proof.