Use Of Special Knowledge During The Investigation Of Knowingly False Testimony Of The Witness And The Victim

Fair and objective justice requires compliance by all its participants with legally established principles. At the same time, in law enforcement practice there are cases of falsification of evidence, which is caused by various circumstances, and motivational factors that are guided by the participants in the process, in particular, the witness and the victim. That is why similar acts are criminalized, and the scientific community has an updated task to develop substantiated recommendations for improving the quality of investigations of similar facts. Taking into account the significant importance of special knowledge in similar criminal proceedings, which is evidenced by the analysis of court practice, the purpose of the article is defined as the clarification of typical forms of special knowledge used during the pre-trial investigation of knowingly false statements by witnesses and victims, the specifics of their implementation. Based on the results of the research, it was determined that the appointment of a forensic handwriting examination, a forensic psychiatric examination, a forensic psychological examination, in particular with the use of a polygraph, a forensic telecommunications examination, and less often a technical examination of a document is typical. Each of the outlined forensic examinations has its specifics that need to be considered. Prospects for further scientific research are outlined.

Features Of Tactics And Fixation The Results Of A Search Carried Out With The Participation Of A Specialist criminal proceedings which have not yet been analyzed in the legal literature, and therefore require their own solution.
Analysis of Essential Researches and Publications.In order to ensure fair, impartial, competent and objective justice, at one time the legislator faced the task of criminalizing the facts of giving knowingly false statements by witnesses and victims.The actions of these subjects are currently criminalized by Art.384 of Criminal Code of Ukraine.At the same time, such responsibility is not provided for the commission of similar actions by suspects, accused and defendants in criminal proceedings that is determined by traditions of the national legal system that currently recognizes them as a means of protection.However, this does not negate the need to resolve during the pre-trial investigation the question of reliability and objectivity of the testimony given by the person.The very issues related to verification of a person's testimony, given both during an interrogation and an investigative experiment, have already repeatedly found their coverage in legal literature.Research papers of I. V. Hora and V. A. Kolesnyk 1 , O. S. Korobka 2 , O. O. Protsenko 3 , O. M. Tsilmak 4 and others are devoted to these issues.The scientists did not ignore the question of the use polygraph in investigative practice as an effective means of ascertaining the reliability and objectivity of testimony 5 .At the same time, definition of typical forms of specific expertise used, specifics of appointment of forensic examinations, the involvement of specialists in criminal proceedings of the mentioned category still remain outside the attention of scientists, that proves the need to cover these aspects in legal literature.
This Article Purpose is to find out typical forms of specific expertise used during the pre-trial investigation of deliberately false statements by witnesses and victims, as well as specifics of their implementation during pre-trial investigation.
The victim's testimony in criminal proceedings is important for proving a person's guilt in various categories of criminal proceedings.Often this is the only direct evidence of accused's guilt.The victim gives evidence regarding circumstances that are subject to proof (Article 91 of Criminal Procedural Code of Ukraine).An integral part of the victim's testimony is his thoughts and assumptions made during the interrogation.This is acceptable, considering that victim in most cases is an eyewitness of a criminal offense, having directly encountered a criminal offense or the offender himself, and therefore, he knows more than anyone else about the circumstances of the criminal offense that caused him harm6.
Regarding eyewitness testimony, some scholars emphasize that it is not always as reliable or as accurate as might be hoped, given the weight often placed on it by procedural decision makers7.Such theses are also confirmed in the precedent practice of the European Court of Human Rights.Thus, in the decision in case of Doorson v. the Netherlands, ECtHR indicated that a conviction cannot be based solely or decisively on testimony that the defense cannot dispute 8 .In the Case of Kornev and Karpenko v. Ukraine, the ECtHR noted that "if the conviction is solely or decisively based on the testimony of a person whom the defendant did not have the opportunity to interrogate or obtain the interrogation of, neither during the pre-trial investigation nor during the trial, the rights of the defense are revealed limited to the extent that is incompatible with the guarantees provided for in Article 6 of the Convention" 9 .At the same time, despite this, sometimes the guilt of a person is proven only on the basis of the testimony of the participants in the hearing that proves the need to find out their credibility.However, even the reporting of biased information by a person actualizes the need to find out whether the person had the intention to give false testimony and thus mislead the persons authorized by law.Clarification during investigation of outlined problems is facilitated by the specific expertise use.
At the same time, it should be taken into account that a pre-trial investigation can be carried out not only in connection with a person giving deliberately false statements to investigator, prosecutor, agent, but in case of misleading court by providing false information in administrative proceedings.during consideration of civil cases, etc.
Thereby in particular, as defined by the Code of Administrative Proceedings of Ukraine, one of the provided evidence, i.e. on which basis court finds out availability or lack of circumstances (facts) that substantiate the claims and objections of the parties to the case, or other circumstances that are important for the resolution of the case, there are witness statements 10 .This Code does not provide for the possibility of testimony by other participants in the process.Similar definitions are contained in Art.72 of the Code of Administrative Proceedings of Ukraine 11 and in Art.

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Boiarov V., Larkin M., Dudorov O., Pyrozhkova Y., Legkykh K. Interrogation of the victims during the investigation of crimes committed by youth extremist groups.Amazonia Investiga.2020.№ 9 (28).P. 286.participants with legally established principles.At the same time, in law enforcement practice there are cases of falsification of evidence, which is caused by various circumstances, and motivational factors that are guided by the participants in the process, in particular, the witness and the victim.That is why similar acts are criminalized, and the scientific community has an updated task to develop substantiated recommendations for improving the quality of investigations of similar facts.Taking into account the significant importance of special knowledge in similar criminal proceedings, which is evidenced by the analysis of court practice, the purpose of the article is defined as the clarification of typical forms of special knowledge used during the pre-trial investigation of knowingly false statements by witnesses and victims, the specifics of their implementation.Based on the results of the research, it was determined that the appointment of a forensic handwriting examination, a forensic psychiatric examination, a forensic psychological examination, in particular with the use of a polygraph, a forensic telecommunications examination, and less often a technical examination of a document is typical.Each of the outlined forensic examinations has its specifics that need to be considered.73 of Commercial and Procedural Code of Ukraine 12 .Thus, for a report by a person who is a victim or a witness in the outlined proceedings of knowingly false testimony, current legislation provides for criminal prosecution, since this is one of the criminal offenses, committing which a person encroaches on legality of the procedural activities of a judge, investigator, prosecutor or other authorized persons representatives of law enforcement agencies that makes possible to attribute it to the group of criminal offenses against justice.From the tactical point of view, we understand them as one of the ways of countering the investigation.
At the same time, it should be noted that the procedural legislation of different branches of law regulates the procedure for a person to testify in different ways.This undoubtedly affects the forms of specific expertise use .Thus, in particular, the civil procedural law provides for possibility of written questioning of participants in the case as witnesses.Due to which, answering such a question, a person acquires the status of a witness, i.e. becomes a special subject of a criminal offense (within the meaning of Part 1 of Article 384 of Criminal Code of Ukraine), and the recording of his false testimony takes place in material sources (meaning, not only in audio or video format).This may actualize during the pre-trial investigation the need for an expert study of materially recorded testimony of a person in order to find out the authorship of the written explanation, socio-biographical portrait of the person who made it, etc.
Before moving on to elucidating specifics of implementation of individual forms of the use of special knowledge, we can generalize that out of 150 analyzed court verdicts from the Unified State Register of Court Decisions, passed on the fact of misleading the court, by giving deliberately false statements by witnesses or victims, only in 26 used specific expertise that is 17.3% of criminal proceedings.In each of the latter, only one form of specific expertise use was used; the involvement of forensic expert in examination.Therefore, taking into account the outlined aspects, as well as on the basis of generalization of investigative and judicial practice, we consider it necessary to generalize specifics of implementation of this particular form of using specific expertise during investigation of criminal proceedings on the basis of the criminal offense provided for in Article 384 of Criminal Code of Ukraine.
As for the types of forensic examinations that were ordered during investigation, based on the analysis of judicial practice, we can generalize that in 11 of the 26 analyzed cases, forensic handwriting examinations were conducted, in 6 -mental state examination (MSE), and in 3 -forensic psychology analysis (one of which with the use of a polygraph), in 2 -forensic examination of telecommunication systems, in 1 -questioned document examination (QDE).At the same time, in three criminal proceedings, forensic examinations were conducted, but they were not examined during the court hearings, which allows us to assert that they did not have categorical conclusions regarding the questions that were asked by the investigators for the forensic expert to solve.Performed generalization proves the need to first determine possibilities and specifics of those forensic examinations, which are most often appointed at the stage of pre-trial investigation of the criminal offenses we are investigating.Forensic handwriting analysis is mostly carried out in order to certify the fact that signature in the protocol belongs to the person who participated in the investigative (search) action.Obtaining a sufficient number of handwriting or signature samples is important during its appointment.This plays an important role for the correct identification of a person, because if the expert has insufficient samples, it will be impossible to trace the stability of the signs of handwriting or signature.Moreover, one person can have several variants of handwriting or signature, it can change during life or depending on certain conditions (which leads to the need to select free samples under the same conditions) 13 .At the same time, it is worth noting that in this category of cases, there are almost no significant issues during appointment of forensic examinations, because the materials, as a rule, are sent that are stored in criminal proceedings, materials of court cases, etc.Because of this, the main task of investigator or prosecutor is to ensure the correct selection of comparative samples of a person's handwriting that will be sent for forensic examination.
Regarding appointment of mental state examination (MSE), based on analyzed verdicts, we can generalize that all of them were conducted on an outpatient basis.The main task that was entrusted to the decision of the forensic expert was to decide whether the person has a mental illness or a disorder of mental activity, which would deprive him of opportunity to be fully or partially aware of his actions and/or to control them.In other words, finding out the specifics of a person's mental state in certain legally significant periods of time, the need to apply coercive measures of a medical nature to him.It is noteworthy that not a single forensic expert's conclusion contained a provision on application of the mentioned measures to the examinee person, although the following were established: clinical signs of personality disorder and behavior as a result of combined use of psychoactive substances and alcohol 14 ; signs of emotionally labile (asthenic) disorder due to traumatic brain injury 15 ; mental and behavioral disorders due to alcohol consumption 16 ; signs of mild mental retardation (slight retardation), 17 etc.At the same time, even finding out and identifying a person's mild mental retardation (in the degree of moderately pronounced debility), which prevented him from being fully aware of his actions and managing them during the period of the act incriminated against him, did not become the basis for the expert to state the need to apply coercive measures of a medical nature18 to such a person.Thus, during pre-trial investigation, there is undoubtedly a need to appoint a forensic psychiatric examination, however, several important circumstances should be taken into account.
First, one should take into account presumption of mental health in force in Ukraine, according to which any person who commits an illegal act is considered capable of realizing his actions and managing them in full, until the contrary is proven 19 .In this regard, appointment of a forensic psychiatric examination of a person who does not demonstrate signs of a disorder of behavior or mental activity or for whom presence of a mental illness has not been properly confirmed, according to a medical document, can be defined as groundless and related to a violation human rights and freedoms 20 .In other cases, appointment of forensic examination should be justified.As indicated in the legal literature, the following grounds can be considered sufficient: exemption of a person from military service due to the presence of a mental illness or mental disorder; stay in hospital treatment due to treatment of head injuries, brain contusions, spinal cord injuries, spinal cord injuries; inappropriate behavior of a person during or after committing a socially dangerous act (obscuring consciousness, impaired perception, thinking, will, emotions, intellect or memory, etc.), etc. 21 Based on the above, we can determine the second reason that should be taken into account when deciding on appointment of a forensic psychiatric examination, that, in particular, manifestations of inadequate behavior or mental retardation in her behavior.After all, there are rare cases when the defense side induces a person who has a mental illness or low intelligence and by persuasion, providing material values, etc., forces him to give knowingly false statements to an investigator, court or other authorized body.Thus, during the pre-trial investigation, the investigator must pay close attention to the personal characteristics of the person, regarding whom there are reasons to believe that they are involved in the commission of a criminal offense of category under research, evaluate their behavior, etc.
Along with specified areas of conducting forensic psychiatric examinations in the context of our research, one cannot bypass psychological research on individual perception characteristics, attention and memory of the victim, witness and suspect.The methods of conducting expert research registered by the Ministry of Justice of Ukraine include: Multidisciplinary methods of research of psychological features of attention and sensorimotor reactions, Complex method of research of psychological features of memory (test of visual and auditory memory, short-term, operational memory, memory for numbers , images, etc.), a multidisciplinary methods of researching psychological features and individual properties of perception (volume, constancy, illusions, identification, etc.) 22 .In addition to those outlined, forensic psychological examination, including one conducted with the polygraph use, can also be included here.All of them make it possible to obtain information about individual perception characteristics, memorization and reproduction of information by a person.This is due to the fact that quite often during the investigation there is a need to refute the fact that a person gave false testimony unintentionally, for example, due to a bona fide mistake, tendency to exaggerate or suggest, etc.
Specifics of forensic psychological examinations conducted during pretrial investigation of criminal offenses of the category we are researching, mostly  Features Of Tactics And Fixation The Results Of A Search Carried Out With The Participation Of A Specialist consists in the fact that forensic expert was provided with video recordings of investigative (search) actions carried out in criminal proceedings in which they had the status of a witness or a victim.As a rule, in such proceedings, investigators submitted to the expert the question of whether the person was in a state of mental tension at the time of participation in procedural action, whether the investigator did not create conditions for him to formulate statements of a certain content; whether the examinee was subjected to psychological pressure; what are the features of a person's communicative activity at the time of participation in a procedural action; the question of providing an assessment of a person's non-verbal means of communication 23 ; finding out whether examinee demonstrates indicative-instructive behavior during investigative (search) actions 24 ; his inherent tendency to imitate an authoritative personality 25 , etc.As indicated in legal literature, appointment of forensic psychological analyses with the use of a polygraph is promising for establishing false testimony, although this approach has not yet acquired the status of being approved in investigative practice of domestic law enforcement agencies 26 .At the same time, it is worth noting that, as noted in foreign literature, polygraphs have completely discredited themselves 27 , in particular, due to the fact that they have the same accuracy indicators as "tossing coins" 28 .This leads to the need to refute or confirm with data of investigative and judicial practice, in our opinion.
According to our analysis, it should be emphasized here that mostly all types of research (either conclusions of psychophysiological research, or a survey or certificates based on the results of polygraph tests) are not recognized as evidence, since the procedure for conducting such research is not entered into the Register of methods of conducting forensic examinations, and data on polygraph 29 examiners are not in the State Register of certified forensic experts.Instruction on appointment and conducting forensic examinations and researches on preparation and appointment of forensic examinations and expert researches are to obtain indicative information for the purpose of constructing investigative versions 30 .
At the same time, it should be emphasized that currently in the practice of law enforcement agencies of many countries of the world, not only traditional lie detectors (polygraphs) are used, which measure certain physiological indicators that indicate a strong emotional reaction of the subject when he tells a lie (pulse rate, blood pressure, sweating, etc.), but also lie detectors Features Of Tactics And Fixation The Results Of A Search Carried Out With The Participation Of A Specialist that investigate cognitive processes using functional magnetic resonance imaging.That is, they do not study secondary emotional reactions that makes them practically not susceptible to the influence of possible attempts to deceive him, but also establish neurobiological correlates of lies and untruths, and not only their external manifestations, which makes his results more accurate.Therefore, we can make an assumption that someday such results will be recognized as evidence, but currently the polygraph use e in criminal proceedings allows us to obtain only indicative information.
As for forensic telecommunications expertise, it is understood as a kind of engineering and technical expertise, the content of which is research by an expert on the basis of special knowledge in the field of electronics and telecommunications of systems, means, networks and their constituent parts, information transmitted, received, processed and contained by them factual data about the circumstances of the crime, which are important for criminal proceedings 31 .As our analysis of court practice shows, they are mostly appointed for the purpose of performing a competent analysis of information provided by mobile operators, in particular about base stations that provided communication in the coverage area of the operators' relay antennas, the type of connection (incoming, outgoing calls, SMS, MMS, GPRS, forwarding), date, time and duration of the connection, incoming and outgoing connections, calls of zero duration, identification features of the terminals in which the number was used, identification features of the terminal equipment (subscriber number of the SIM card, IMEI), identification features of the terminals with which communication sessions took place, information about the use of personal self-service cabinets with an indication of the IP addresses of the entry to the cabinets of the specified subscriber, information about receiving services according to the SIР, as well as about the IP addresses from which authorization was carried out, etc.In our opinion, there is no need to involve an expert to clarify issues of this kind, it would be sufficient to carry out such an analysis to involve a competent specialist, for example, to participate in the review of such information.
Conclusions.During pre-trial investigation of deliberately false statements by witnesses and victims, there is a need to involve forensic expert in the examination.Typical is appointment of forensic handwriting analysis, a forensic psychiatric examination, a forensic psychological examination, in particular with the use of a polygraph, forensic telecommunications examination, less often a technical examination of a document.Each of the outlined forensic examinations has its own specifics, which consists in the preparation of relevant materials that will be provided for a competent examination by forensic expert, objective assessment of the need for its appointment, in particular, with regard to clarifying availability of sufficient grounds, conducting specifics, etc.
In our opinion, this issue is quite complex and at the same time relevant, therefore it requires further multidisciplinary researches.Prospects for further research consist in determining peculiarities of implementation of other forms of specific expertise use, in particular, such as the participation of a specialist in investigative (search) actions, tactical operations, the involvement of a specialist to provide advisory and reference assistance, etc.