On the timing of defense motions to exclude inadmissible evidence

Under the Criminal Procedure Code of the Russian Federation, a defense attorney has the right to file a motion to have evidence declared inadmissible both during pretrial and judicial proceedings. However, Part 3 of Article 88 of the Criminal Procedure Code of the Russian Federation does not include the defense attorney among the persons authorized to file such a motion at the preliminary investigation stage. During judicial proceedings, the defense attorney has the right to file a motion to exclude inadmissible evidence at the preliminary hearing stage, as expressly provided for in Part 1 of Article 235 of the Criminal Procedure Code of the Russian Federation, or, according to Part 1 of Article 271 of the Criminal Procedure Code of the Russian Federation, when preparing the case for trial. The defense attorney may also file such a motion directly during the trial until the closing arguments. Though some scholars argue that a motion to exclude evidence should be filed at the stage of the proceedings when the grounds for it become known, the defense attorney has the right to independently determine the time of its filing, taking into account the specific circumstances of the case. At the preliminary investigation stage, defense attorneys rarely use the opportunity to file motions to have evidence declared inadmissible, both due to the lack of interest on the part of investigators and interrogators in having the evidence they have collected declared inadmissible, and due to imperfections in the mechanism for filing and considering such motions. During judicial proceedings, defense attorneys rarely take the opportunity to file motions regarding the inadmissibility of evidence at the preliminary hearing stage, since courts often deny them as untimely. Moreover, the prosecution gets an opportunity to remedy the violations committed. Mostly, defense attorneys prefer to file such motions during the trial stage. The defense attorney must decide on the timing of filing a motion to exclude evidence, guided by their experience and knowledge, based on the specific circumstances of the case, the interests of the client, and in consultation with them. The author declares no conflicts of interests.

Keywords

Authors

References