To the question of the perception of legal logic by jurors (from the position of the prosecution)

Berestennikov Aleksei Gennad'evich PhD in Law Associate Professor, Department of Prosecutor's Supervision and Prosecutor's Participation in Civil and Arbitration Proceedings, Irkutsk Law Institute (branch) of the University of the Prosecutor's Office of the Russian Federation 644011, Russia, Irkutsk region, Irkutsk, Shevtsova str., 1, office 644035 Alex-Blitz@yandex.ru

The judicial reform and the resulting changes in the criminal procedure law have expanded the scope of the institute of jurors; and since 2018, criminal cases under the jurisdiction of city and district courts of general jurisdiction have been considered with their participation.

The powers of jurors significantly affect the course of the trial. Therefore, its participants need to take into account many aspects: legal, factual, psychological and, finally, cultural. In this regard, the opening statement of the parties and the judicial investigation differ significantly from what can be observed in the general procedure of judicial proceedings: the speech of judicial speakers goes beyond the official business style and the presentation of facts is conducted not in a plot, but in a plot key ^{[1, p. 19]}; at the same time, the parties not only present evidence, but they also convince the jury of their rightness ^{[2, pp. 101-106]}. The debates of the parties also differ evenly.

Since, by virtue of the law, jurors are judges of fact, the evidence presented to them by the parties is, let us allow ourselves such an expression, "refined". It means that before presenting any evidence to the jury, the presiding judge is obliged to make sure of its relevance, admissibility and reliability. Legal disputes, if they arise around these issues, are resolved behind closed doors – in the absence of jurors. And upon the adoption of the appropriate procedural decision, they are again invited to the courtroom.

However, it would be easy to say that the rest is "a matter of simple technique" and that, having justified its right to present evidence, the party "simply" presents it, omitting the procedural details related to its receipt. That's not so. At least from a practical point of view. It would not be an exaggeration to say that this is where the jury trial begins in the true sense of the word.

Developing the topic of participation of jurors in the administration of justice in criminal cases, theorists and practitioners pay attention to many aspects: from the appearance of the court speaker to the means of expression that can be resorted to during the speech in the debate of the parties ^{[3, pp. 38-110]}.

On this path ab ovo usque ad mala, it seems, there is one place that requires both close attention and simultaneous focus of two points of view on the process: formal-legal and linguistic. This place is the charge that is brought against the defendant. The state prosecutors briefly express it in the opening statement, then bring the evidence base under it, and finally summarize it in the debates of the parties.

From the point of view of the process, an accusation is a statement in legal form that a certain individual has committed a crime. Regardless of where this statement is contained (in the decision on bringing as an accused, in the indictment, act, conclusion, etc.), it is expressed in an official business style. These are the laws of the genre. The canon for it is the texts of the criminal and criminal procedure law, other legal acts, as well as court decisions on specific cases and acts of interpretation emanating from the highest judicial bodies (such as the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation).

Professional lawyers are used to working with such language: it is close and understandable to them, since its means accurately reflect the protective mechanisms that come into motion after committing a criminal offense. Professional lawyers include judges, secretaries, public prosecutors, and defense lawyers – all except jurors. Being ordinary people, they neither speak nor think in the legal language. He is a stranger to them. His words and expressions do not resonate with their experience and often do not agree with common sense ^{[4, pp. 23-27; 5, pp. 19-23; 6, pp. 9-12]}. 

Let's try to prove this thesis.

To begin with, in accordance with Part 5 of Article 339 of the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the Code of Criminal Procedure of the Russian Federation), questions requiring jurors to legally qualify the status of the defendant (about his criminal record), as well as other issues requiring proper legal assessment, cannot be raised separately or as part of others when the jury reaches its verdict. The Supreme Court of the Russian Federation also emphasizes this rule. So, in paragraph 29 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated 11/22/2005 No. 23 "On the application by courts of the norms of the Criminal Procedure Code of the Russian Federation regulating judicial proceedings with the participation of jurors" we read: "... it is unacceptable to raise issues to be resolved by jurors using such legal terms as murder, murder with extreme cruelty, murder from hooligan or mercenary motives, murder in a state of sudden strong emotional excitement, murder when exceeding the limits of necessary defense, rape, robbery, etc."

In practice, judges, when formulating a question sheet and the text of a parting word, resort to a well-known technology, which is based on a paraphrase, that is, replacing purely legal terms with their more or less detailed definition. For example, the concept of "murder" can be replaced by "intentional infliction of death", "robbery" – "attack for the purpose of stealing someone else's property", "kidnapping" – "capture, movement and retention of the victim in a certain place", etc. From the point of view of a higher court, the actions of the presiding judge in the court of first instance, corresponding to the described logic, will be impeccable, because legal terms will be absent in key procedural documents.

Distracting from this thought, we will raise the following question – is the described approach consistent with the tasks of the public prosecutor in the process? Answer: yes, it is consistent, except...

The main task of the judge in the trial with the participation of jurors is to conduct the trial in a procedural manner; the main task of the public prosecutor is to bring the guilty person to justice. It is obvious that the above tasks overlap only partially ^{[7, p. 53]}. Therefore, impeccable decisions formulated in supposedly neutral language are also only to some extent consistent with the intention of the public prosecutor to convince the jury of his rightness.

What is the purely logical difference between these positions?

It seems that the periphery, which is not included in the zone of mutual intersection, consists of presumptions, fictions, as well as ready-made formulas, the conventions of which professional lawyers sometimes do not notice.

So, presumption in the most general form is an assumption ^{[8, p. 31]}. For the purposes of this article, the presumption of freedom is of interest, which means the duty of a judge to justify and motivate a decision with references to such evidence and factual circumstances established on their basis that convince of the need to take certain measures and deviate from the principle of respect for personal freedom in favor of the public interest ^{[9, p. 149]}. Let us note the presumption of the least state coercion, which is as follows: if there are grounds for choosing a preventive measure, then the use of the most severe preventive measure is allowed only if it is impossible to apply the least strict one ^{[9, p. 150]}. In the same row, we will give an assumption about the integrity of the victim, with which, due to the requirements of Chapter 6 of the Code of Criminal Procedure of the Russian Federation, the prosecutor acts on the part of the prosecution.

If professional lawyers perceive these presumptions and assumptions, approximately, as it is written, then ordinary people approach them with a different measure, which is based on everyday logic. Thus, the presumption of freedom, refracted through a court decision on the application of a preventive measure not related to isolation from society to a defendant who is charged with a particularly serious crime, may indirectly indicate that this person is not guilty. And, on the contrary, the presumption of the least state coercion in relation to a person who has concluded a pre-trial cooperation agreement can be interpreted broadly: if he gives evidence in court, where he was taken by a convoy, jurors can conclude that this person, having violated the line of the law, made a deal with justice, which means he is looking for benefits, tries to downplay his role in the crime committed and, consequently, his words have no faith. Finally, the assumption of the victim's good faith can be broken by his speech and appearance.

Let's move on to fictions. Fiction is something that does not correspond to facts, an appearance, a fiction used for some purpose ^{[10, p. 842]}; from a legal point of view, it is a legal assumption. Without going into doctrinal disputes, we will note those of them that are relevant to the topic under consideration. For example, in Part 5 of Article 34 of the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation), the legislator used a fictitious assumption that the actions of the organizer, instigator or accomplice in the failure to commit a crime by the perpetrator are unfinished to the end ^{[11, p. 65]}. In Part 5 of Article 35 of the Criminal Code of the Russian Federation, a fiction is fixed, dictated by the desire of the legislator to recognize organization and management of a criminal group (community) by a completed crime ^{[11, p. 65]}. Moreover, outside of systemic connection with Article 67 of the Criminal Code of the Russian Federation, the norm given in Article 35 of the Criminal Code of the Russian Federation is a fiction.

Let's try to look at the above assumptions through the eyes of the layman. Suppose a person is brought to justice under Part 1 of Article 209 of the Criminal Code of the Russian Federation – he is charged with both creating a stable armed group in order to attack citizens, and all crimes committed by an organized group, since they were covered by his intent. If such a person did not actually take part in the fulfillment of the objective side of the encroachments, except as provided for in Part 1 of Article 209 of the Criminal Code of the Russian Federation, then it is obvious that the accusation will diverge from the actual state of things. Jurors may simply consider that the defendant is not guilty because he did not commit the crimes of which he is accused. The following situation will not be equally understood: suppose the actions of the accomplices are qualified under Part 4 of Article 111 of the Criminal Code of the Russian Federation, while one of them says that the other inflicted most of the blows, and that, in turn, takes a diametrically opposite position. If the conclusion of the forensic medical examination and other evidence failed to separate the blows of the accomplices (in practice, this is not always possible), then it will be extremely difficult for the jury to figure out who is really to blame. Quite rightly, they will hold on to the idea that if, for example, one of them struck two out of 20, and the second – 18, then the defendants cannot be equally guilty. The predicted result of such a case is an acquittal verdict against both accomplices.

Let's touch on the ready-made formulas. By this definition, the author understands stable constructions, or professional stamps, which are commonly used in jurisprudence, including for describing crimes. Here are some examples of them: "seizure, transfer and subsequent retention of the victim", "illegal gratuitous seizure and (or) conversion of someone else's property in favor of the perpetrator or other persons", "an organized stable armed group of two or more persons who previously united to commit attacks on citizens or organizations". Such constructions are widely used by both legislators and judges when formulating decisions and summarizing practice. And for this reason they are transferred to criminal cases.

The problem here is that they, from a legal point of view, accurately reflecting the signs of criminal encroachment necessary for the consideration of a criminal case on the merits, may differ from common sense. For example, if the persons acting as part of an organized criminal group knew each other long before the start of illegal activities (living in the same place, they went to the same kindergarten and school and on this basis struck up a friendship), then the statement that they had previously united to commit attacks on citizens or organizations will be false. In reality, they first united and only then decided to commit crimes. All other things being equal, this logical discrepancy, embedded in the question sheet, can tip the scales, which are in the hands of the board, to the side of the defense.

Is it possible to fundamentally solve these inconsistencies of two logics – legal and everyday? It seems that it is impossible, since the underlying cause of the noted discrepancy lies in the linguistic plane. It is impossible, while administering justice, to abandon the use of an official business style, which, in turn, imposes a template on expressions used in oral and written speech. To the contrary would mean a complete rejection of the procedural format regulated by the criminal procedure Law.

What can be done is to influence the opinion of the jurors by speaking to them. To do this, the public prosecutor needs to do a lot of preparatory work before proceeding to the consideration of a criminal case with the participation of the collegium. A thorough knowledge of the factual circumstances should be combined with preventive thinking, the purpose of which will be to etch (if possible) from the text of the introductory statement, the question sheet and the debate of the parties noted presumptions, fictions and ready-made formulas, if they somehow can confuse the judges of the fact. Particular attention should be paid to the final part of the process, namely the debate of the parties. Summing up the proceedings, the public prosecutor should not just report on the facts established during the judicial investigation – he should lead the jurors to a certain opinion. To do this, where necessary, it is necessary to make reservations and resort to detailed, understandable explanations for the average person.

This approach seems to be quite consistent with the tasks of justice and the requirements of the Order of the Prosecutor General of the Russian Federation dated 30.06.2021 No. 376 "On the participation of prosecutors in the judicial stages of criminal proceedings".

Summing up, it should be noted that the legal logic of the presentation of circumstances relevant to a criminal case, in some cases, may differ significantly from common sense, the bearer of which is an ordinary person who administers justice as a juror. Fictions, presumptions and professional stamps used by lawyers fall into the "procedural risk zone". The public Prosecutor needs to distinguish them, rephrase them and convey their meaning to the board. This technique, under certain conditions, can become the key to the correct and fair resolution of a criminal case.