Prosecutor As A Subject Of Criminal Procedural Proof: A Doctrinal Model Of Functional Status, Powers And Evidentiary Activity

Abstract

The article develops a comprehensive doctrinal model of the prosecutor as a subject of criminal procedural proof within the author’s concept of criminal procedural evidence. It is argued that the prosecutor’s evidentiary status constitutes an independent characteristic of his or her procedural position and cannot be reduced either to membership in the prosecution or to procedural supervision of pre-trial investigation. An original definition of the prosecutor as a subject of criminal procedural proof is proposed, together with a system of its essential features. The article distinguishes the prosecutor’s functional status, evidentiary status and evidentiary competence, as well as the duty of proof and the burden of proof. It also differentiates direct obtaining of evidence by the prosecutor from procedural facilitation of obtaining evidence by other duly authorised subjects. The concept of a proper prosecutor as a subject of proof is substantiated, and a ten-criterion test for determining the proper status of a prosecutor is proposed. A differentiated model of procedural defects is developed, distinguishing defects of evidentiary legal personality, substantial defects in the exercise of competence and formal organisational defects. It is argued that obtaining and using evidence constitute the external structure of the prosecutor’s evidentiary activity, while verification and evaluation of evidence are cross-cutting components accompanying both elements. The article analyses prosecutorial assessment of relevance, admissibility and reliability of individual evidence, as well as sufficiency and interconnection of the evidentiary body as a whole. The concepts of prosecutorial evidentiary good faith, documented traceability of prosecutorial evidentiary decision-making, procedural and technical traceability of digitally recorded evidentiary information, and informational independence of evidentiary corroboration are proposed. Particular attention is paid to the stage-specific transformation of the prosecutor’s use of evidence, from notification of suspicion and substantiation of procedural motions to the formation, modification or withdrawal of public prosecution and participation in appellate and cassation proceedings. Proposals for improving the Criminal Procedure Code of Ukraine are formulated.