Participation of a lawyer during an investigative experiment

Investigative experiment is a procedural action whose essence is to reproduce as accurately as possible the circumstances and mechanism of the alleged criminal offense. It is carried out for the purpose of verifying, clarifying, and comparing statements previously obtained by the investigation with the real conditions of their occurrence.

Proper participation of a lawyer at this stage ensures not only control over the protection of the rights of a suspect, victim, or witness, but also affects the admissibility of evidence that may determine the further course of the criminal proceedings.

What is an investigative experiment and why is it conducted?

Investigative experiment is used when the investigation needs to clarify whether a person could see, hear or perform certain actions under specific conditions, how events occurred, and whether the testimony corresponds to the real physical capabilities.

Typically, during the experiment they check:

• the possibility of perceiving a given situation;
• the time in which certain actions could have taken place;
• the possibility of moving along a specified route;
• the sequence of events described by the participant.

The procedure is regulated by the Criminal Procedure Code of Ukraine, and participation is possible only with the voluntary consent of the person. This means that an investigator or prosecutor has no right to compel someone to reproduce actions or reconstruct an event.

Legal guarantees and the importance of lawyer participation in an investigative experiment

A lawyer is a guarantor of protection of the person's rights.

According to part 3 of Article 240 of the Criminal Procedure Code of Ukraine, the suspect, the victim, witnesses, the defender and a representative have the right to participate in an investigative experiment.

The participation of a lawyer directly during the investigative experiment assigns to them the function of defending against unlawful actions. They also control that all procedural guarantees are observed. Their presence ensures a balance between the interests of the investigation and human rights.

Main areas of a lawyer's work:

• control over voluntariness of participation;
• prevention of psychological pressure;
• verification of whether the experiment conditions correspond to the actual events;
• documentation of the procedural action;
• filing remarks into the record of the investigative experiment.

These tasks are of significant importance, because any violation may become a basis for declaring the evidence inadmissible.

What does a lawyer do before the investigative experiment begins?

At the preparatory stage prior to conducting the investigative experiment, the lawyer:

• provides legal consultation;
• analyzes case materials on the basis of which the pre-trial authorities appointed the experiment;
• clarifies the client's legal status (witness, victim, suspect);
• assesses the conditions of the experiment — time, place, availability of technical means and parameters;
• files motions if there is a need to involve a specialist, interpreter or expert.

Thanks to this, the lawyer prevents risks that may later affect the evaluation of evidence.

Typical violations that affect evidentiary value

Clients often underestimate the importance of this procedural stage, however it is precisely during the investigative experiment that evidence may arise that significantly affects the defense's position. In criminal practice, violations that considerably reduce the value of obtained evidence are quite common. The most frequent are:

• coercion to participate or pressure on the participant;
• artificially created circumstances that did not correspond to reality;
• interruption or editing of video recording;
• lack of complete documentation of actions;
• inaccurately drawn protocol of the investigative experiment;
• mismatch of the route or conditions of the event.

In such cases, the lawyer has the right to insist on suspending the investigative action, submit remarks or initiate a repeat investigative experiment.

Why involve a lawyer in the experiment?

A lawyer's presence creates an additional level of security, ensures correct documentation and completeness of the evidentiary material. A lawyer's participation is a guarantee that:

• the participant's rights will not be violated;
• the experiment results will not distort the picture of the event;
• the investigator will not exceed his powers;
• the evidence will not lose its legal force.

In many criminal proceedings, a properly conducted investigative experiment becomes the factor that significantly affects the assessment of testimony and the evidentiary base as a whole.

An investigative experiment is an important and at the same time complex procedural action, the results of which often determine the course of the entire criminal proceeding. Professional legal support protects the participant's rights, guarantees the objectivity of the process and creates grounds for using the obtained materials in court. A lawyer's participation ensures a balance between the interests of the investigation and the rights of the person, which is the basis of a fair criminal process.

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