Peculiarities of interrogation recording

One of the main methods of fixing the procedure and results of interrogation is the record which is taken in compliance with Articles 203 and 218 of the Criminal Procedure Code of the Republic of Kazakhstan [1]. It should reflect the whole process of interrogation: its progress and results, time of its beginning and completion, break period if there was any.

The record is made in the course of interrogation or immediately after it. It should be cautioned against keeping the record after a long time after interrogation, which sometimes occurs in practice because of the diversion of the interrogating officer to other cases [2].

Testimony is recorded in the first person, word for word (as much as possible), in a handwritten, typewritten or computer-made way by means of taking shorthand notes, sound and video recording; the latter being attached to the record and kept in a criminal case file.

Questions and answers during the interrogation are recorded in the order they have been asked. It is also necessary to record all demonstrative proof and other materials concerning the criminal case.

The initial interrogation record includes the personal data of the person being questioned, as well as other information required by the circumstances of the case. The subsequent interrogation record includes only the interrogated person’s surname, first name, and middle name (if they have not changed).

According to Article 99 Clause 2 of the Criminal Procedure Code, if the interrogating officer issued a decision on security measures taken to the interrogated person, the personal information will be stored separately (not in the record), which is also to be recorded. The interrogating officer's decision is placed in a sealed envelope. Only the interrogating officer, the prosecutor, and the court have the right to get acquainted with the content of the envelope.

If the interrogation was conducted with the help of technical means or with the use of drawings, diagrams, plans, etc., this should be fixed in the record. It also should be recorded that the interrogated person and the defender (if present) are informed about the scientific and technical means used.

The interrogated has the right to make a free account of the matter and then to record the evidence with his own hand. When the interrogated signs all the testimony, the interrogating officer can ask questions.

One of the typical mistakes during the interrogation is if the interrogating officer offers the interrogated to bear evidence in his own handwriting immediately after having asked a single question. This is a violation of criminal procedure law, as the testimony with one’s one hand is to be made only after the interrogating officer listens to free account of the matter, i.e., completes the first stage of the interrogation.

Upon the completion of the interrogation the record is presented to the interrogated or the interrogating officer reads it out. The interrogated has the right to demand for introducing additions and clarifications to the record that must be implemented. All additions and clarifications are to be reflected either in the record of the interrogation, its continuation or in the additional record. Any changes, additions, or corrections not signed by both the interrogated and the interrogating officer are inadmissible. Otherwise, such a record loses its value as a source of evidence because of a serious violation of procedural law. The interrogated signs every page of the record thus certifying the record itself and the evidence given. In case of failure of the interrogated to sign the record, the interrogating officer finds grounds for refusal, puts them in the record and certifies it with the signature [3].

The entire record of the interrogation is to be signed by the interrogating officer at the end of the record. If necessary the interrogating officer can certify each page of the record with the signature, especially when the record is typewritten that does not exclude further replacing of any page of the record when transferring the criminal case file to other officials.

The record is also to be signed by all persons who participated in the interrogation: the defender, the investigation department head, the prosecutor, the interpreter, the expert, and the person responsible for fixing the interrogation using scientific and technological means. The list of all participants is to be recorded as well.

According to Article 219 of the Criminal Procedure Code the interrogation of the injured party, witness, suspect, or accused may be conducted by means of sound and video recording at the request of the interrogated or by the decision of the interrogating officer. The interrogated is to be notified about it prior to the interrogation.

Audio and video recording, as well as the record, must include the following information: date and place of the investigative action; time of its beginning and completion; characteristics of technical means applied and the terms of their application; facts and reasons of record suspension; information of a person producing sound and video recordings.

Audio and video recording of a part of the interrogation or the repetition of testimony especially for audio recording is not allowed. Audio and video recording must reflect the entire course of the interrogation and contain the following: announcement of the interrogating officer about the interrogation; confirmation of the interrogated person’s consent; explanation of the interrogated person’s rights and obligations; every question and every answer; supplements to audio and video recordings made after acquaintance with sound and video records.

Upon the completion of the interrogation all audio and video recordings are fully reproduced to the interrogated and then are certified by both the interrogated and the interrogating officer. Audio and video recordings are stored in the criminal case file and are sealed at the end of the preliminary investigation.

Audio and video recordings are annexed to the record of the interrogation and together with the paper record constitute a source of evidence. In certain situations, they can be independent sources of evidence. In particular, when there are questions about the authenticity of the materials, the conformity of the testimony in the paper record with the audio and video recordings, as well as when conducting psychological and psychiatric examination of the interrogated during the investigative process.

It is obligatory to enter all evidence fixed by means of audio and video equipment on the record of the interrogation.

Evidence Evaluation: General terms of evidence evaluation are stipulated by the Criminal Procedural Law and subject to the evaluation of evidence obtained during the interrogation. However, there are some specific peculiarities between the evaluation of evidence of witnesses and injured parties, of suspects and accused persons (Articles 25 and 128 of the Criminal Procedure Code).

While evaluating the evidence of a witness or an injured party, it is necessary to determine the significance of the information of the facts previously used for establishing the circumstances subject to proof. In this regard, every item of evidence is to be evaluated from the perspective of relevance, admissibility, and reliability. Therefore, it is necessary to determine the following:

- whether the evidence is relevant to proper resolution of the criminal case;

- whether they are given in accordance with the Criminal Procedure Law;

- whether the information reported in the interrogation corresponds to the facts in the past;

- what is the place of the evidence in the whole set of available proofs on the criminal case.

The greatest difficulty is related to the evaluation of the evidence reliability and conformity with the objective facts previously perceived by the party and reproduced during the interrogation. This takes into account the following factors:

- conditions of evidence formation (objective and subjective);

- personality characteristics of the interrogated;

- procedural status of the interrogated;

- attitude to the case under investigation and its outcome;

- reasons for giving evidence.

Each of the proposed factors reflects personal characteristics of the interrogated, thus influencing the formation of evidence. The process of evidence formation, as mentioned above, is quite complicated and should be fully taken into account in evaluating the evidence together with the features of the person being questioned.

During the interrogation the evidence cannot totally conform to the objective reality. Therefore, evidence evaluation involves understanding the relevance of the information to real circumstances of the case. The evidence can be recognized as completely appropriate the circumstances of the case or as not appropriate [4].

Some scientific observations and experiments on the testimony, as well as summarizing of the investigative and judicial practice provide a basis to challenge the absolute and unconditional credibility of even bona fide witnesses.

Testimony often has serious disagreements, inaccuracies, and mistakes depending on a number of factors: significance of the event, the quality of perception by the eyewitness, and other objective and subjective factors mentioned above.

In this regard, personal bona fides of the witness conflicts with reality, thus resulting in fallacious evidence. The interrogating officer requires accurate knowledge, wide experience, and high professionalism during the interrogation and in evaluating the evidence.

In connection with the above mentioned, it is necessary to consider such concepts as “truth”, “falsity”, and “deliberate falsity of the evidence”. The Criminal Procedure Law provides that witnesses and injured parties: a) must truthfully report all known in the case and tell the truth and nothing but the truth; b) are responsible for perjury (Articles 75 and 82 of the Criminal Procedure Code).

The word “truth” means something which is in accordance with fact or reality. The law requires a witness or an injured party to give truthful testimony. At the same time, in terms of the legal concept the evidence truthfulness is determined not only by objective but also by subjective attitude of the interrogated, by his or her good faith.

The witness or the injured party may be veracious in the case when their testimony is appropriate to objective reality or when they are mistaken in good faith and their testimony does not correspond to the case file. In the Russian language the word “falsity” means a deliberate distortion of the truth, the fact of being untrue or insincere. But the science of criminal law considers the term in two ways. The evidence can be proven false and untrue as a result of unintentional situations of subjective and objective factors. Willful false testimony means that the interrogated deliberately tells lies.

Reasons for conscious and deliberate falsehood in the testimony of a witness or an injured party vary. Quite often they are the following: attitude and relationship to the outcome of the case; fear of revenge by the criminals; distrust to the investigating bodies; and some other not disinterested motives. All this does not diminish the value of the correct determination of the veracity of the witness or the injured party. In some cases, false statements may be associated with slander and self-incrimination. This refers to the testimony of the suspect and the accused.

Slander is the action or crime of making a false spoken statement damaging to a person's reputation. Such statements are most often deliberately false or are the result of honest mistakes.

Self-incrimination is the action of false admitting oneself guilty of an offense. There are two types of self-incrimination: a simple one, when the interrogated falsely pleads guilty, and a complex one, entailing a false confession of one’s guilt and false accusations of others, supposedly accomplices. The origin of self-incrimination in the testimony is most often associated with the use of illegal methods and means of interrogation, used contrary to the prohibition, or out of mercenary considerations of the person conducting the interrogation. Sometimes self-incrimination becomes a provocation on the part of the interrogating officer when the latter intentionally suggests the idea of the subjective benefit of certain evidence, actually false, to the interrogated. Self-incrimination, as well as slander, can be the result of influence of the actual perpetrator and his/her relations, as well as an initiative of the interrogated and his/her personal considerations, e.g., the interrogator may take the blame of a criminal groups to shield the accomplices, or take the blame of own relatives, friends, etc. [5].

Evaluation and verification of evidence are inextricably connected to each other. Evidence verification, as well as evidence evaluation, occurs throughout the interrogation presenting a system of actions aimed at obtaining reliable evidence. Evidence verification includes:

- analysis of the information of the evidence;

- comparison of this information with the evidence in the case file, as well as collected after the interrogation including obtained during the interrogation;

- detection of inconsistencies in the evidence in relation to other testimony.

When evaluating the evidence it is very important to distinguish between the information resulting from the deductions of the interrogated or true facts and credible facts, as well as sources of information perceived directly by the interrogated or received by the interrogated from other sources.

Other investigative actions, interrelated to the previous interrogation, such as confrontation, evidence verification at the place of the crime, investigatory experiment, experimental testimony, etc. are conducted during the investigation for final evaluation and verification of the evidence.

Further verification of evidence is not an end in itself. Its task is to obtain new evidence, which collectively form a system contributing to proper resolution of the criminal case.

Specific character of verification of evidence of the suspect and the accused is determined by four main provisions:

- obvious interest in the outcome of the case;

- the presumption of innocence, which excludes treating the evidence as given by a guilty person;

- discharge from proving the innocence and giving credible evidence;

- the position taken with respect to the accusation (suspicion).

In any situation – whether the accused (the suspect) recognizes his/her guilt in full, in part, denies it, gives evidence about his/her own actions or other persons’ actions, or declares an alibi - the interrogating officer must fully and impartially verify the information received.

There are cases when the suspect changes the contradictory evidence fully or partially. Sometimes it happens without a motive; therefore, all evidence (previous and further) must be evaluated and verified.

Reasons for the previous evidence refusal must be thoroughly examined, and each of the available evidence must be proven and evaluated. All new evidence are verified and compared with the evidence collected during the investigation.

If the suspect (the accused) changed the evidence, rejecting the first conviction of a crime, reasonably referring to the use of illegal methods of influence, an official or criminal investigation is to verify such statements. Only after that the evidence of the suspect (the accused) can be evaluated.

When it comes to a complex of procedural and criminalistics issues, it is necessary to draw attention to the fact that the evidence obtained during the interrogation in violation of law, have no legal force and evaluated as unacceptable evidence (Article 116 of the Criminal Procedure Code).

These violations include cases when the interrogation is conducted:

- with the use of torture, violence, threats, deception or other unlawful actions by the investigating authorities;

- with the use of delusion or the interrogated person’s ignorance of his/her procedural status and rights guaranteed by the law;

- without full explanation to the interrogated his/her rights and obligations taking into account the procedural provisions;

- in violation of the interrogated person’s rights guaranteed by the Criminal Procedure Law;

- by a person who is not entitled to interrogate under the given criminal case;

- with the use of tactical criminalistics methods, other equipment and techniques contrary to the Criminal Procedure Law and modern science;

- before instituting criminal proceedings.

The responsibility of the person(s) who committed violations during the interrogation depends on the extent of the violations. For example, the use of torture by the interrogating officer, the person conducting the inquiry, or any other official for getting the evidence from the tortured or a third party is a criminal offense (Article 347-1 of the Criminal Code of the Republic of Kazakhstan).

Coercion to testify by threats, blackmail or other illegal actions on the part of the interrogating officer or the person conducting the inquiry also entails criminal responsibility (Article 347 of the Criminal Code) [6].

Criminal liability is also stipulated for falsification of evidence (Article 348 of the Criminal Code). In relation to the interrogation it is revealed:

- when the interrogating officer or the person conducting the inquiry draws up a false record with fictional testimony;

- when the evidence are recorded improperly, subjectively, for mercenary motives;

- when the record is forged (including signatures of the interrogated and other persons participating in the interrogation, etc.).

There are some other hidden (latent) violations of the law during the interrogation. One of such relatively common disorders is the interrogation before the initiating of criminal proceedings. According to Article 194 Clause 2, Article 221, and Article 242 Clause 2 of the Criminal Procedure Code, the interrogation, as well as other investigations, except the crime scene investigation and forensic examination can be carried out only after the decision to institute criminal proceedings.

In order to conceal such a violation, the interrogating officer does not write the date and time of the interrogation in the record immediately at the beginning of the interrogation and fills the gap after the criminal proceeding instituting. It may seem a minor violation, but it is a falsification which is unacceptable

REFERENCE

1. The Criminal Procedure Code of the Republic of Kazakhstan as of December 13, 1997. http:// zakon.kz

2. Bozjigitova D. (2006). The record is the mirror of the interrogation: legal compulsory education. Legal newspaper. Kazakhstan, September 5, 2006, # 159, p. 4.

3. Rogov I. (2003). The Criminal Procedure Code of the Republic of Kazakhstan (special part). Commentary. Almaty.

4. Nikolenko A. (2005). Theory of judicial proofs. Ust Kamenogorsk.

5. Samoroka V., Borodkina T. (2006). About possibility of special psychological knowledge use foe evidence verification during the interrogation. Criminal Law, part 3, p. 79-82.

6. Shalabayeva Zh. (2002). Protection of rights and legitimate interests of the injured party and problems of providing safety measures in the criminal proceedings. KazGU Bulletin, Law Series, # 1, p. 97-100.