INVESTIGATIVE AND PROCEDURAL ACTIONS

OBTAINING EXCULPATORY EVIDENCE IS A FUNDAMENTAL PILLAR OF THE DEFENSE STRATEGY

THE ROLE OF THE LAWYER IN THE EVIDENCE GATHERING PROCESS

IN PURSUIT OF OBJECTIVE TRUTH

Conducting investigative and procedural actions in criminal proceedings is directly related to establishing the objective truth in the case.

In turn, investigative and procedural actions constitute legally established measures aimed at comprehensive, complete and objective clarification of the circumstances of the case.

First and foremost, this process requires adherence to legality, objectivity and proportionality, which ensures the effectiveness of the investigation.

Where is the boundary between the interests of the investigation and the inviolability of an individual's private sphere? – it is defined by legislative guarantees that limit unlawful interference in the protected sphere.

Taking this into account, properly conducted investigative and procedural actions create the foundation for the admissibility, relevance and reliability of evidence – which is the cornerstone of a fair trial.

HOW DOES THE COURT ASSESS THE EVIDENCE PRESENTED BY A PARTY?

EVIDENCE ASSESSMENT STANDARDS

ADMISSIBILITY

The first criterion for evaluating evidence in criminal proceedings is their admissibility, which implies their formal authenticity, the legality of obtaining, exchanging with parties and presenting them in court.

RELEVANCE

According to the criterion of relevance, evidence must directly relate to the circumstances of the case. Information that is speculative and misleading in nature cannot be used as the basis for a decision.

VERACITY

And finally – the evidence must be direct and reliable; that is, it must not contain false information, must not raise doubts about forgery or substantial alteration, and its credibility must be verifiable.

ADMISSIBILITY

RELEVANCE

VERACITY

HOW IS EVIDENCE OBTAINED IN A CRIMINAL CASE?

In a criminal case, evidence is obtained through investigative and procedural actions.

The Criminal Procedure Code exhaustively lists which actions the defense party can perform and how, namely:

INVESTIGATIVE ACTIONS IN DEFENSE PRACTICE

In defense activities, investigative actions are special legal measures defined by law and carried out based on reasonable suspicion. Their purpose is to collect information beneficial to the defense position of the accused. The defense party performs the following actions:

VOLUNTARY AND COMPULSORY INTERROGATION OF A WITNESS

Interrogation is an investigative action during which a witness voluntarily provides testimony regarding facts known to them about a specific case. Although the witness has the right to refuse participation in the interrogation, in such a case the defense party may request compulsory questioning before a magistrate judge through the court.

INSPECTION OF THE SCENE

Inspection of the crime scene is an investigative action aimed at obtaining information about the circumstances of the crime, methods of commission, traces, or other additional information. The procedure is conducted by the party that documents all significant details of the case with photo and video recording and enters them into the relevant protocol.

INVESTIGATIVE EXPERIMENT

An investigative experiment is a reconstruction of a specific situation aimed at verifying whether it was possible to commit a certain act under given conditions and/or whether the witness’s testimony is truthful. The participant describes what, where, and how it happened, answers questions, and points out details, which are recorded by video, audio, and photography.

SEIZURE OF COMPUTER DATA

The defense party is authorized, based on a court order, to request necessary information from the computer system, such as video surveillance recordings, phone tower logs, bank transactions, telephone communications, etc.

SEARCH, SEIZURE, AND SECRET INVESTIGATIVE ACTIONS

The defense does not have the right to independently conduct searches, seizures, or covert investigative actions. Such actions are carried out by the Prosecutor's Office of Georgia based on a court order issued upon the defense party’s motion.

PROCEDURAL ACTIONS IN DEFENSE ACTIVITIES

The second way of obtaining evidence is conducting procedural actions. Unlike investigative actions, their conduct does not require the “probable cause” standard and the party’s initiative is sufficient for this. Taking this into account, we carry out the following measures:

FORENSIC EXAMINATION

An expert examination is conducted when determining facts important to the case is impossible without the involvement of specialists. It also applies if there are traces or marks on an object that can only be evaluated through specialized knowledge. The object of expert analysis must be handed over to the expert sealed and properly packaged.

MEDICAL EXAMINATION

A medical examination is initiated by the defense party and conducted by a qualified physician in a medical facility. It includes any medical procedure that does not cause severe pain. Its purpose is to obtain objective medical information for developing a defense strategy.

TAKING SAMPLES

Additionally, the defense party has the right to take a sample that reflects the properties of a person, corpse, animal, substance, object, or any other information-containing item. For example, a handwriting sample. The party is authorized to have this procedure carried out by an expert.

THREE MAIN RULES ON HOW TO AVOID THE EXCLUSION OF EVIDENCE

Investigative and procedural actions are governed by strict rules, and any violation of these rules results in the inadmissibility of the obtained evidence.

In light of this, our defense strategy includes three fundamental rules to avoid such consequences, namely:

HOW DOES EVIDENCE BECOME INADMISSIBLE AND WHAT DOES THE "FRUIT OF THE POISONOUS TREE" DOCTRINE MEAN?

The Criminal Procedure Code strictly states that evidence obtained in violation of the law is inadmissible and has no legal force. Moreover, by a chain reaction, all other evidence derived from it is also inadmissible. This phenomenon is known as the metaphor "fruit of the poisonous tree," first used by the U.S. Supreme Court in 1920 in the case Silverthorne Lumber Co. v. United States. In light of this, there are three rules that must be followed to avoid irreparable consequences:

ENSURING AUTHENTICITY OF EVIDENCE

First and foremost, both documentary and physical evidence must be authentic. Authenticity means presenting the information in its original, unaltered form. For example, a photo taken with a mobile phone is submitted to the court in electronic format.

ACTIONS BASED ON PROBABLE CAUSE

Furthermore, no investigative action should be carried out without probable cause — that is, until there is a set of information sufficient to convince a reasonable person that a specific fact will be established as a result of the investigation.

PROPER DOCUMENTATION, SEALING, AND PACKAGING OF EVIDENCE

And finally: all evidence must be included in the relevant protocol. The protocol is the formal template through which information is submitted to the court. Additionally, the evidence must be packaged and sealed in accordance with the law, to eliminate any suspicion of tampering or falsification.

QUALIFIED ASSISTANCE AT THE INVESTIGATION STAGE

DEVELOPING A REASONABLE DEFENSE STRATEGY BEGINS ALREADY AT THE INVESTIGATION STAGE. THE MAIN EVIDENCE IN THE CASE MUST BE COLLECTED WITHIN 48 HOURS FROM THE START OF CRIMINAL PROSECUTION. DO NOT DELAY CONTACTING A LAWYER.