Investigative experiment in pre-trial investigation

In the process of pre-trial investigation, it is important not only to qualitatively collect evidence – testimonies, documents, physical evidence – but also to critically check their veracity and the possibility of implementing different versions of events. It is for this purpose that an investigative experiment is conducted – a procedural action that often becomes decisive for forming the internal conviction of the investigator, prosecutor, and court.

What is an investigative experiment: definition and legal basis

According to Article 240 of the Criminal Procedure Code of Ukraine, this experiment belongs to procedural actions, during which information important for criminal proceedings is verified by recreating certain actions, circumstances of the event.

In simple words, a practical verification of the version is an attempt to recreate conditions that are as close as possible to those in which the event under investigation presumably occurred.

This is not just an inspection of the scene, not an interrogation, but an active, dynamic action, the purpose of which is to establish:

1. Perception possibilities: could the witness, victim in certain conditions (darkness, noise, long distance) see, hear or feel something.
2. Possibilities of performing the action: was it realistic for the suspect to perform a certain action (for example, move a heavy object, climb through a window, cover a certain distance in a certain time).
3. Mechanism of the event: how exactly the event occurred (trajectory of the shot, view from the scene of the accident, possibility of damage to the object).

This is key evidence to confirm or refute the version of any party to the criminal proceedings.

Purpose and objectives of conducting an investigative experiment

A competently conducted investigative experiment can be a powerful tool in the hands of the investigation and defense. Its purpose is clearly focused on verifying the facts:

• Verifying testimony: whether the testimony of the suspect, witness, or victim corresponds to real possibilities and conditions. This is the basis for evaluating evidence.
• Clarifying details: establishing the exact location of objects, measuring distances, assessing lighting conditions, visibility, and audibility at the time of the event.
• Establishing possibility/impossibility: determining whether it was possible to perform a certain action or achieve a result under the established circumstances.
• Refuting, confirming versions: an experiment often resolves a dispute between different versions of an event, confirming or completely destroying one of them.
• Obtaining new evidence: the results of the experiment themselves serve as evidence, drawn up in the form of a protocol, which can be used in court.

Procedure for conducting an investigative experiment: procedural discipline

An investigative experiment is considered an extremely important procedural action, since its results can be crucial for establishing the truth in the case. The exceptional evidentiary value of the data obtained is possible only if the procedure and requirements specified in the Criminal Procedure Code of Ukraine are strictly observed.

Several categories of persons are involved in conducting such an experiment, each of which performs its specific role:

• The organizer is an investigator (independently or on behalf of a prosecutor) or a prosecutor. They are responsible for the legality, correctness and safety of the entire procedure.
  Interested persons are participants in the criminal proceedings whose testimonies and versions of the event are being verified. This may be a suspect, his lawyer, a victim, a witness.
• Their participation ensures direct verification and comparison of previously provided testimonies with actual conditions.
• Disinterested persons (guarantors) are witnesses. Their presence is designed to ensure objectivity and reliability of the recording of the process. The exception is cases when the experiment is documented by continuous video recording – then the participation of witnesses is not mandatory.
• Specialists and experts – criminologists, forensic doctors, engineers and other specialists involved to provide professional assistance. They ensure technical accuracy, correctness of measurements and reliability of the reconstruction of the conditions of the event.

The recording of the results is carried out in accordance with the requirements of the Code of Criminal Procedure of Ukraine. The protocol of the investigative experiment must contain comprehensive information about the course, participants, conditions and results of the conduct, as well as appendices – photo and video materials, diagrams, plans. Only such procedural discipline guarantees that the results of the experiment will be accepted by the court as proper and admissible evidence.

Sequence of stages of conducting an investigative experiment

An investigative experiment is one of the most clear and convincing investigative actions. In order for its results to have evidentiary value, the procedure must take place in a clear sequence, which usually includes three main phases.

1. Preparatory stage. This stage determines the success of the entire subsequent procedure. It is here that the conditions for the accuracy of the results are laid: the investigator chooses a place and time of the event that are as close as possible to the real circumstances of the event, determines the circle of participants and distributes their roles. At the same time, technical means are prepared – measuring devices, photo and video cameras, and if necessary, an official resolution on conducting the experiment is drawn up.
2. The main stage (reproduction of events). At this stage, the practical implementation of the plan takes place. First, the organizer explains to the participants their rights and obligations, including the right to legal assistance or refusal to participate. Next, the actions, situation or a certain situation that needs to be checked are reproduced. Sometimes the experiment is conducted several times to test different versions of events. In the process, measurements and observations are made – distances, time, viewing angles, visibility or audibility conditions are recorded.
3. Recording the results. The final step is to document everything that happened. The results are drawn up in a protocol, which has the force of official evidence. It contains the date, place and time of the event, a list of all participants, a description of the experimental conditions and a detailed description of the actions. Separately, conclusions are made regarding the possibility, impossibility of certain circumstances, confirmation, refutation of the testimony. Photo tables, diagrams, plans, video recordings are attached to the protocol – everything that ensures completeness and clarity of the reproduction.

Ethical limits and prohibitions: guarantees of the right

An extremely important aspect is compliance with prohibitions and ethical limits. An investigative experiment must be conducted without:

• Creating danger: it is forbidden to create situations that pose a threat to the life or health of the participants in the proceedings.
• Humiliation of dignity: it is unacceptable to force participants to act in a way that degrades their honor and dignity.
• Reproduction of violence: the experiment cannot be a complete, real reproduction of the event of a crime, especially if it concerns sexual crimes or scenes of cruelty. The goal is to check the possibility, not to demonstrate the act.

It is important to remember that an investigative experiment differs from “reproduction of the situation and circumstances of the event” (Article 240 of the CPC), it covers a wider range of procedural actions, but they are often combined or identified in practice. In any case, the goal is the same — verification of information.

Probative value of results and protection of client interests

The results of the conduct have direct probative value in accordance with Article 84 of the Code of Criminal Procedure of Ukraine and can be used in court on a par with any other evidence.

The role of the lawyer

For a suspect, victim, witness, whose interests may be significantly violated by the results of the experiment, the presence of a lawyer is critically important:

1. Control of legality: the lawyer ensures that the procedure for conducting the experiment is strictly observed, the conditions are really as close as possible to real ones, and the rights of the participants are not violated.
2. Recording violations: if violations occur during the investigative action (coercion to act, failure to comply with the conditions), the lawyer can make his comments to the protocol, which are used to challenge the admissibility of the evidence obtained.
3. Objectivity of the protocol: the defense attorney ensures that the description of the actions and conclusions is complete, accurate, and unbiased. If the experiment is conducted with violations, its results may be recognized as inadmissible evidence in court, which will radically change the course of the case.

Investigative experiment as a criterion of reality

Investigative experiment is a vital tool for verifying the truth, helping the investigation to avoid erroneous conclusions and theoretical assumptions. Its main value is practical verification and documentation of the reality of the event.

When an investigative experiment is assigned and conducted in a case, it is always one of the most crucial moments of the pre-trial investigation, which can either fully confirm or completely refute the key elements of the accusation or defense.

The Law Firm “Prіkhodko & Partners” has extensive experience in participating in investigative experiments, ensuring the protection of clients’ rights and monitoring the legality of each stage of this complex procedural action. Remember that your right to legal assistance during an investigative experiment is inviolable, and its use can be a decisive factor in your case.

For detailed advice and legal support during investigative actions in criminal proceedings, contact us. Your rights must be protected by professionals.