The place and role of a defense lawyer in the process of proof in the investigative type of criminal proceedings

The subject of the study is the participation of a defense lawyer in the proof process. There have been disputes for a long time regarding the reform of the existing procedure of criminal proceedings, in which a defense lawyer, according to Article 86 of the CPC of the Russian Federation, has the right to collect evidence. However, in practice, these provisions of the law face resistance from the law enforcement officer, which is caused, as the author believes, by the historical type of domestic criminal proceedings, in which objective truth and the predominance of public interest over private interests occupy key positions. Special attention is paid to the historical stages of the formation of Russian criminal proceedings, which, starting with the Statute of Criminal Proceedings, has fixed the investigator as a key figure of proof, while the court only checks the evidence collected by him "for strength". The domestic criminal process has developed as a search-type production, where three functions – prosecution, defense and resolution of the case are combined by one person – the investigator. The author concludes that in such a system of criminal proceedings, a lawyer cannot collect evidence, but his activities in the process of proving must be streamlined. In this regard, it is proposed to amend the current legislation defining the status and types of materials used in proving. Part 3 of Article 86 of the Code of Criminal Procedure of the Russian Federation should be abolished. It is proposed to formulate Article 86.1 of the Code of Criminal Procedure of the Russian Federation "The use of materials of advocacy in proving", which provides for the possibility of a lawyer to collect information by: requesting information from organizations upon request, interviewing a person with his consent, involving a specialist. In addition, it is necessary to indicate in the CPC of the Russian Federation that all materials collected by the lawyer act in the evidence system as "other documents", in connection with which the expert's conclusion is subject to exclusion from clause 3.1 of Part 2 of Article 74 of the CPC of the Russian Federation.

defense lawyer, criminal trial, investigative process type, proof process, Charter of criminal proceedings, interviewing a person, expert opinion, other documents, advocacy materials, proof