Certain problems in the appointment and production of unusual forensic examinations

Tsvetkova Anna Denisovna ORCID: 0000-0002-1631-9265 Student of the Institute of Justice, Ural State Law University named after V. F. Yakovlev 54 Kolmogorova str., Yekaterinburg, Sverdlovsk region, 620034, Russia at@crimlib.info Other publications by this author

Introduction

A rapidly developing society and the rapid pace of scientific and technological progress lead to the emergence of new social relations, including in those areas that have not been sufficiently explored. The main examples of these are a wide group of relationships in the digital environment, issues related to artificial intelligence. This development also leads to the modernization of criminal activity: the search for accomplices through online correspondence; forgery of documents, their details (for example, signatures) using technical means – graph plotters ^{[1, p. 84]}; the use of so-called high technologies to commit latent and difficult to solve crimes ^{[2, p. 7-8]}, including including by deliberately making mistakes in the algorithm of an artificial neural network, as a result of which its work leads to a criminal result; bribery through digital currency (for example, bitcoin), etc.

For the effective disclosure and investigation of such crimes, there is often a need for expert identification of certain criminally significant facts: who is the executor of the printed text, who executed the disputed signature, whether the algorithm of the artificial neural network was correct, etc. In this regard, the issue of the formation of new or modernization, improvement of traditional types (types) of judicial expertise ^{[3, p. 122]}. However, before filling forensic expertise with new components, it is necessary to develop theoretical models according to which the existing system of examinations will be expanded. In turn, the construction of such models requires taking into account the practical problems that exist today in the production, appointment and fundamental study of non-traditional genera (types) of forensic examinations.

At the same time, speaking about "traditional" forensic examinations, we do not limit their list to forensic examinations, about which E. R. Rossinskaya absolutely correctly notes the following: "the integration and mutual penetration of knowledge naturally leads to the blurring of the lines between forensic and non-criminalistic examinations, the integration of different kinds and types of forensic examinations" ^{[4, p. 137]}. It is necessary to agree with the position of the great scientist that today the discussion about the possibility of classifying certain studies as traditional forensic has no practical and theoretical significance due to the unified nature of all expert research, however, this does not detract from a more global problem: recognizing a certain area of research as forensic expertise or classifying it among unscientific forms knowledge. This work is devoted to the consideration of some aspects of this problem.

The concept of "non-traditional forensic examinations"

There is still no uniform understanding in science of which examinations are traditional and which are non–traditional. For example, in the work of I. A. Rybakov, the first group includes: "forensic tracological; fingerprinting; forensic ballistic; forensic handwriting and others", and the second: "forensic: hypnology; homology; chronobiology; psycholinguistics; "cadaverology"; odorology; explosive technical expertise; phonoscopic expertise; examination of computer tools; examination of video recordings; "polygraph tests and profiling"; forensic drug analysis and psychological indicators, "DNA fingerprinting and dermatoglyphics", extrasensory and parapsychological directions"^{[5, pp. 154-155]}. In our opinion, the author mixed a large number of heterogeneous objects in one place: in particular, putting parascientific "research" on a par with scientific ones ^{[6, pp. 85-96, 128-134, 149-190]}. It seems that it is unacceptable at this stage to recognize as an unconventional expert direction those methods of establishing various facts that cannot be verified by scientific methods, since any expert opinion attached to a criminal case must meet the requirements of reliability, which can only be ensured when other participants in the proceedings have the opportunity to verify the results of the examination, personally verify in their correctness, either by examining the conclusion in which the expert describes in detail the methodology used, and questioning an expert who can clarify the essence of the study, or by assigning a re-examination. However, if communication with a fortune teller was carried out as a judicial study, then it is not possible to double-check it and provide an objective conclusion based on the results of the "examination". In this regard, we believe that when raising the question of the possible use of non-traditional types of forensic examinations, it is necessary to develop a uniform understanding of the terms and not include among such studies paranientific knowledge and methods that are not verified by science. At the same time, it cannot be excluded that in the future there will be ways to objectively confirm these methods and they can be considered as new areas of judicial research.

Further, it seems important to identify those expertise that are included in the non-traditional group. However, due to the fact that society is constantly developing, it is not possible to create a once-established list of research data, but it seems advisable to formulate the signs that non-traditional areas of forensic examinations should meet:

1) scientific validity and evidence;

2) the presence of recognized professionals in this field;

3) the real demand for the practice of disclosure and investigation of crimes;

4) optional: the conditionality of the appearance of scientific and technological progress (this feature is not mandatory, since it is quite possible that modern achievements will not create a new direction of judicial research as such, but only prove the objectivity and accuracy of what has been known for a long time);

5) existence outside the list of traditional expertise.

The last feature brings us to the problem of distinguishing between traditional and non-traditional expert research. So, in the textbook T. V. Averyanova, R. S. Belkina, Yu. G. Korukhova, E. R. Rossinskaya the chapter "The main types of forensic examinations" contains: tracological examinations; examination of the restoration of destroyed markings; phototechnical examination; portrait examination; ballistic examination; examination of cold weapons; technical examination of documents; speech expertise; examination of substances and materials; examination of food products and beverages; fire and technical expertise; electrotechnical expertise; road transport expertise; explosive expertise; construction and technical expertise; computer and technical expertise; engineering and technological expertise; economic expertise; commodity expertise; medical expertise; psychiatric expertise; psychological expertise; biological expertise; soil science expertise; agrotechnical (agrobiological) expertise; veterinary and veterinary toxicological expertise; environmental expertise ^[7].

The textbook A.V. Antropov, D. V. Bakhteeva, A.V. Kabanova specifies a narrower list: tracological examination; fingerprint examination; ballistic examination; examination of cold weapons; technical examination of documents; handwriting examination; phonoscopic examination; linguistic examination; portrait (habitoscopic) examination ^[8].

Even from the two particular examples given, it becomes obvious that there is no agreement in science when determining the content of a group of traditional forensic examinations, and, until uniformity is achieved in this matter, it is difficult to talk about the problems of appointment and production of non-traditional kinds (types) of forensic examinations, since the degree of their development is too different: while some, classified by individual authors as non-traditional, have been fully developed in practice, and their production does not cause problems ^{[9, 10]}, others are either completely new or extremely rare, which causes difficulties when referring to them. In this regard, we consider it necessary to define a list of traditional types of forensic examinations common to all representatives of forensic science and practice and formulate more clearly than we have tried to do in this work, a system of signs (especially in terms of the criterion of scientific reliability) of non-traditional expert areas.

For the purposes of further research, we will focus on the following semantic content of the category "non–traditional expertise" - these are scientifically based and proven research methods that have not found universal scientific and (or) practical recognition in the forensic environment at the moment, although they have significant potential and relevance in the process of solving and investigating crimes.

Regulatory regulation

Having determined the subject of consideration, we present it possible to proceed to the description of the problems that arise (may arise) during the appointment and production of non-traditional types of examinations. Firstly, the issues of legislative (normative) consolidation of the relevant areas of judicial research are difficult. So, today departmental acts are in force: Order of the Ministry of Justice of the Russian Federation dated December 27, 2012 No. 237 "On approval of the List of genera (types) of forensic examinations performed in Federal Budgetary forensic expert institutions of the Ministry of Justice of the Russian Federation, and the List of expert specialties for which the right to independently conduct forensic examinations in federal budgetary forensic expert institutions of the Ministry of Justice is provided Order of the Ministry of Internal Affairs of Russia dated 06/29/2005 No. 511 "Issues of organization of forensic examinations in forensic units of the internal Affairs bodies of the Russian Federation" and Order of the FSB of the Russian Federation dated June 23, 2011 No. 277 "On organization of forensic examinations in expert units of the Federal Security Service", which consolidate the closed lists of those studies which can be carried out in the expert units of the relevant authorities. As a result, a class of problems is formed, which is indicated by E. R. Rossinskaya: since "new types or types of forensic examinations, as a rule, are not included in departmental lists, their subject, objects, tasks are poorly structured or not defined at all in the literature, which causes difficulties in assigning such forensic examinations (ambiguity in determining the competence of an expert, difficulties in asking questions, etc.), as well as in evaluating and the use of expert conclusions in proving" ^{[11, p. 150]}.

Thus, if, for example, a police investigator encounters something unconventional in practice, he will not be able to appoint an examination in a public institution, or, at least, he will have to somehow try to integrate a new phenomenon of reality into an already functioning system, which may seem very time-consuming.

The investigator faced a similar problem in the following case: the young K. died from the fact that a birch tree broke near the house, and the broken part of the trunk fell on the girl. During the inspection of the scene, three fragments of wood were seized and information about weather conditions on the date of the incident was requested. The investigator appointed a forest pathology forensic examination to the state expert institution, during which the expert concluded that due to the influence of environmental factors and the formation of wound wood, a pathogen had entered the tree, which led to changes in the structure of the wood and its mechanical properties. As a result, the tree, while remaining resistant to static loads, lost its resistance to dynamic loads and in a strong gusty wind the tree broke (collapsed) ^{[12, p. 112]}.

Despite the fact that the expert's opinion was accepted by the court, it contained a certain number of procedural flaws, one of which is that such a type of forensic research as a forest pathology examination is not provided for conducting in state expert institutions, which means that the court should have had questions about the qualifications of the expert and the reliability of the submitted conclusion.

At the same time, despite the restrictions that are artificially created as a result of the normative consolidation of exhaustive lists of forensic examinations, it cannot be abandoned. Firstly, such a refusal is fraught with the spread of paranientific knowledge and research (widespread introduction of hypnosis, appeals to fortune tellers, etc.) – that is, without strict regulation, it will be possible to appoint examinations, the reliability of the results of which will be impossible to verify. Secondly, this will create a personnel problem: for example, determining the list of examinations that can be carried out in a particular institution ensures that there are specialists of the appropriate profile in this institution. If there are no such instructions, then it is possible that situations may arise in which the investigator will appoint an examination to a place where it is not possible to conduct it due to the lack of qualified personnel, equipment, and other conditions. Thirdly, this may entail problems in the process of disclosure and investigation of crimes, since the investigator will not know in respect of which objects he, in principle, has the opportunity to appoint an expert study – that is, a specific list in this case acts as some kind of guideline for the main subject of the investigation.

In addition, it should be noted that fixing the list of available expertise in by-laws allows you to quickly adjust them to a rapidly changing world: reviewing and amending orders, resolutions, orders and instructions requires less time and bureaucratic procedures than changing laws. Thus, the emergence of a real need to create a new field of forensic research, which does not fit into any of the existing species (genera), can be very timely reflected in the relevant regulations. However, this may give rise to another problem related to the regulation of non-traditional types of examinations.

Thus, difficulties are created by the existing discrepancy on the issue of recognition of certain examinations by various authorities. In particular, the previously mentioned Orders of the Ministry of Internal Affairs and the FSB have in the list an indication of a psychophysiological examination of a person using a polygraph, and the specified Order of the Ministry of Justice does not contain such an examination. As a result, a situation arises in which certain controversial areas of expert activity are recognized by some departments and not recognized by others, which contradicts the requirements of scientific reliability. This also negatively affects the process of disclosure and investigation of crimes, namely, bringing the perpetrators to justice, since the courts do not have a developed uniform position regarding the recognition of a psychophysiological examination of a person using a polygraph as reliable (see, for example, the Resolution of the Federal Arbitration Court of the Central District of 04/03/2009 No. F10-772/09 in the case N A64-1603/08-9; Resolution of the Arbitration Court of the West Siberian District dated 06/02/2017 No. F04-1399/2017 in case No. A46-9231/2015; Resolution of the Samara Regional Court No. 44U-75/2019 4U-707/2019 dated March 28, 2019), despite multiple experiments that proved its objectivity and accuracy ^{[13, 14, 15]}. Thus, the consolidation of the list of examinations in disparate by-laws leads to the lack of a stable practice of recognizing the evidentiary value of the conclusions of experts conducting non-traditional research.

At the same time, the lack of uniformity hinders the development of mobile reference applications aimed at a wide range of investigation subjects. For example, in a mobile application "CrimLib.info – Investigator's Handbook" there is a section dedicated to forensic examinations, which presents the rules of appointment, the specifics of the provision of facilities, approximate lists of issues arranged in accordance with the classification of the Ministry of Justice of the Russian Federation, as a result of which there is no adaptation with the orders of other departments. This complicates the use of this section of the Handbook by investigators of the Ministry of Internal Affairs of Russia, for example. As a result, the problem of a vicious circle arises: fixing the list of examinations in the Federal Law, as proposed by some authors ^{[12, p. 111]}, will significantly complicate the process of normative consolidation of new types and types of examinations, however, such regulation at the level of the law will allow to come to unity.

Education

The next important problem is the training of personnel. Thus, in Russia there are relatively few higher educational institutions that provide training in the specialty 40.05.03. Forensic examination. Training within the framework of the program is carried out in traditional areas of forensic expertise ^{[11, pp. 147-148]}. This is due to a number of facts:

– Curricula are approved for the entire period of study and are not subject to change. Accordingly, the emergence of a new kind (type) of expertise may lead to its inclusion in the curricula only for the next academic year for students (cadets) of a new set (1st year). Thus, after the appearance and universal recognition of a new kind (type) of forensic examination, it will take at least 5 years before qualified specialists in this field appear.

– In order to train professionals in the field under consideration, teachers with experience in the production of relevant expertise (or, at least, a sufficient amount of theoretical knowledge) are needed. However, today it is difficult to find teachers who would have such competencies in terms of non-traditional types of expertise, which makes the prospect of training the required professionals in state higher educational institutions almost impossible.

However, this training within the framework of basic higher education will be necessary only if new social relations become regular and the need for appropriate expertise begins to arise frequently – that is, when specialists in this field will be in sufficient demand after receiving education. Up to this point, the need for personnel can be solved in two ways: either through contacting narrow specialists who are not employees of state expert institutions (for example, to a private practicing polygraph examiner to conduct a psychophysiological examination of a person using a polygraph), or through professional training of experts engaged in the production of traditional forensic research.

But these methods also carry a number of risks: the lack of unified approaches to special education in narrow expert areas does not allow us to develop unified methods for conducting non-traditional types of research: private experts are not limited to expert methods and can act at their own discretion in the examination process; commercial organizations offering advanced training courses are also free in the use of educational methods, which does not guarantee the reliability of the knowledge obtained in the process of such training ^[16], especially in the context of the increasing prevalence of fraudulent activities in this area. The described prevents non-traditional examinations from establishing themselves, since the generally recognized scientific basis necessary for this is not being formed, on which any forensic expert activity is based ^{[11, p. 150]}. In addition, the court, when evaluating such private expert opinions, does not have a reliable guideline, therefore it is forced to rely only on its own discretion and is inclined to refuse to attach the results obtained to the case materials if there is the slightest doubt about their reliability.

Appointment of non-traditional forensic examinations

Finally, if we look at the issues of appointment of non-traditional types of forensic examinations from the investigator's perspective, we can note the existence of the following problem: in the absence of the above-mentioned normative consolidation, highly qualified and unquestionable specialists, guarantees of acceptance of the expert's opinion by the court, the investigator, on the one hand, may not know about the fundamental possibility of establishing any facts relevant to the case, through conducting a forensic expert study, and on the other hand, even being familiar with the achievements of progress, one may not risk appointing an unconventional examination, since its production will take time, possibly entail the loss of part of the evidentiary materials, and there is no confidence in the final possibility of attaching the conclusion to the case materials.

It should be pointed out that we are not alone in our vision of problematic aspects related to non-traditional areas of forensic research. For example, N. N. Ilyin said about this: "With the advent of new (non-traditional) genera and types of forensic examinations, problems arise in their organization and production. This is due to the fact that, firstly, some forensic examinations are missing from the list of genera (types) of forensic examinations conducted in departmental state expert institutions, secondly, there is no methodology for their conduct and, thirdly, the expert institutions themselves have not been identified where such an unconventional examination could be assigned." ^{[12, p. 111]}. D. A. Vlezko, in turn, writes about the need "for an investigator to know the modern types and possibilities of examinations, the procedure for their appointment and conduct, to properly organize scientifically based interaction with experts and specialists in the preparation and appointment of examinations, as well as during investigative actions" ^{[9, p. 123]}. Thus, the relevance of the study of the appointment and production of non-traditional types of forensic examinations is beyond doubt and is reflected in the works of many forensic scientists.

The algorithm for the introduction of new types and types of research into the practice of forensic examination

In our opinion, the problems described above can be solved using the following sequence of actions:

1. Development of a unified scientific approach to determining the list of traditional forensic research and criteria to be met by non-traditional genera (species). To do this, it may be advisable to convene an all-Russian symposium at which to develop a conventional position on this issue.

2. Approval of a single (basic) list of forensic examinations conducted in state expert institutions for all bodies, while maintaining the ability at the level of individual departments to add new directions when the necessary profile of experts appears in the staff. The general list will have to contain all the traditional and those new directions that have been tested by science, practice and time.

3. Further scientific study of issues related to the organization of non-traditional research areas, increasing the degree of their reliability to that critical level that will allow unambiguously recognizing relevant expert opinions as evidentiary materials.

4. Organization of advanced training courses and elective courses on the basis of state higher educational institutions aimed at training students and interested practicing experts in the production of non-traditional types of forensic examinations. To do this, it may be useful to contact narrow specialists (for example, in the field of programming), whose curriculum will be adjusted taking into account the legal specifics of the work of forensic experts.

5. Educating investigators, interrogators, and employees of operational agencies about the existence and possibilities of non-traditional areas of forensic research. The use of the previously mentioned mobile application seems very promising in this regard "CrimLib.info – The Investigator's Handbook" and other similar resources, where it will be possible to organize two subsections in the general section "Forensic examinations": "Traditional forensic examinations", including those studies that will be identified as such at the symposium and will be consolidated in as "basic", mandatory for all authorities, and "Non-traditional forensic examinations", which sets out methodological recommendations regarding the appointment and production of new research areas.

It seems that systematic work on this model will ensure a smooth and scientifically based replenishment of forensic examinations with new areas of research that can increase the effectiveness of crime detection and investigation. Let's illustrate this with the example of a forensic examination of computer (keyboard) handwriting.

The study of computer (keyboard) handwriting as a potential type of non-traditional forensic research

This examination is currently only at the stage of its theoretical understanding by representatives of the sciences of the criminal law cycle ^{[17, p. 114]}, however, the available work in the computer-technical field proves the fundamental possibility of identifying the performer of the printed text by analyzing his computer handwriting ^{[18, 19, 20]}. At the same time, to date, there are already works that prove the prospects of studying the phenomenon in question in order to solve the diagnostic tasks of the investigation: detecting lies when printing testimony based on fixing the rhythm disturbance with which the keys are pressed ^[21]. Taken together, the described allows us to conclude that the study of computer handwriting of a person fully meets the criteria of scientific validity and reliability. Further, if we base on the concepts and signs of non-traditional forensic examinations formulated by us at the beginning of the work, then we can state that the study of keyboard handwriting fits the category under consideration. So, it is characterized by:

– scientific validity (described above);

– the presence of specialists in the field of computer handwriting research: programmers who know which indicators need to be taken into account and develop machine learning models based on this, capable of identifying the performer of the printed text with high probability ^{[22, p. 86; 23]};

– the real demand for the practice of disclosure and investigation of crimes, which is caused by an increasing number of electronic documents and other forms of textual interaction mediated by digital technologies;

– the emergence as a result of scientific and technological progress - namely, the creation and mass distribution of computer devices (so, as of 2018, 73% of households and 94% of organizations had personal computers ^{[24, p. 14]});

– existence outside the list of traditional examinations – despite the fact that forensic examination of computer (keyboard) handwriting can be defined as a kind of computer-technical examinations, to date there is no specific type for the production of the required research, since computer handwriting is an absolutely new object for forensic examinations.

Accordingly, as for any non-traditional research, the examination of computer handwriting is characterized by the problems described in the works on this topic:

– it is not fixed in any regulatory act, as a result of which today its appointment to state experts is impossible;

– there are no scientifically developed and approved methods for conducting it;

– it can only be conducted by general programmers who do not have special knowledge in the field of forensic examinations, as well as substantive and procedural law ^{[25, p. 121]};

– many representatives of the legal community (in particular, investigators) are not familiar with the phenomenon of computer handwriting, which is confirmed by our survey, in which 168 lawyers took part at the time of writing, of which only 10.7% (18 people) know and can explain what computer handwriting is.

Due to the fact that electronic texts are increasingly displacing handwritten documents from our lives and activities of criminals, determining the executor of the printed text is becoming an increasingly popular task: 68.1% of the subjects of disclosure and investigation of crimes surveyed by us with varying degrees of frequency were forced to analyze printed texts in their practice. The solution of this issue actualizes the need to introduce computer handwriting expertise into investigative practice, which requires:

1. To develop a scientific basis for future expertise. To do this, it is important that specialists in the field of forensic technology, digital forensics and forensic examination turn their attention to the phenomenon of computer handwriting and jointly, combining the efforts of different scientific schools, develop sound approaches to the analysis of the described phenomenon.

2. To develop expert methods for the study of computer handwriting, which will be based on the created concept.

3. In parallel with the first stages, to spread knowledge about computer handwriting, the possibilities of its fixation and research in a professional environment.

Only after that it will be possible to talk in a practice–oriented way about the prospects of introducing a new type of forensic research – examination of computer (keyboard) handwriting - and develop appropriate curricula or make adjustments to existing computer-technical expertise teaching programs.

Conclusions

In conclusion, we emphasize that the emergence of new areas of forensic expertise is a natural process that accompanies the development of mankind at all stages of its existence. At the same time, the current pace at which new social and technological phenomena are emerging requires specialists in the field of forensic expertise to respond promptly to all changes taking place in order to be ready to meet improved criminal activity with effective methods used to identify it. In this regard, it is important not only to pay increased attention to the achievements of scientific and technological progress, but also to develop a model for the presentation of forensic examinations at the theoretical level, which will ensure optimal inclusion of relevant research areas in practical activities. One of these is the examination of computer (keyboard) handwriting. We believe that its scientific understanding and implementation in practice will lead to an increase in the detection of crimes in which the investigation is faced with the task of studying the printed text and answering the question about its perpetrator.