Checking the testimony on the on-site inspection during the investigation of traffic crimes

Pinchuk Levon Viktorovich ORCID: 0009-0002-1732-5146 PhD in Law Associate Professor; Department of Criminal Law Disciplines; Ryazan State University named after S.A. Yesenin 46 Svobody str., Ryazan, Ryazan region, 390000, Russia lev.pinchuk@mail.ru Other publications by this author

During the investigation of traffic crimes, a law enforcement officer often encounters such an investigative situation that an inspection of the scene of a traffic crime and interrogations of participants in criminal proceedings do not allow to obtain comprehensive information about the event. The information received is insufficient not only to complete the investigation, but also to appoint a forensic car technical examination.

In such an environment, it is necessary to attract additional sources of criminally relevant information to clarify and clarify all the elements of the mechanism of a traffic crime. The cognitive potential of such an investigative action as checking testimony on the spot can significantly improve the situation and will allow us to establish the necessary circumstances with the possibility of assigning various forensic examinations based on them. For the most effective application of this investigative action, the law enforcement officer needs to have a clear understanding of the goals that can be achieved as a result of on-site verification of testimony.

The available data on the number of registered road accidents show that in the first nine months of 2024, 10,422 people died as a result of road accidents (+0.6% compared to the same period last year (hereinafter referred to as the APPG)) and 120,152 people were injured (- 2.5% of the APPG) ^[1]. For the first nine months of 2024, out of 96,389 (- 1.6% APPG) ^[1] 13,269 committed traffic offenses (+ 1.4% APPG) ^{[2, p. 8]} are classified as criminal violations of traffic rules and vehicle operation (13.77% is the ratio of the number of registered traffic offenses (hereinafter referred to as accidents) to registered traffic offenses).

The official statistics provided and the above-mentioned need to use on-site evidence verification in the investigation of traffic crimes indicate the relevance of the issue under consideration.

A review of the degree of study of the issues under study showed that in the period from 2015 to 2024, only one author, S.S. Kim, studied the features of this investigative action at the dissertation level, and E.E. Tsentrov prepared a monograph on the investigative action of interest to us. However, even with the expansion of the literature search to 2005, not a single source has been found that would consider on-site verification of evidence in the investigation of traffic crimes at the monographic level. All this also points to the need for research on selected topics.

The purpose of checking the testimony on the spot has a clearly defined legislative definition contained in the first part of art. 194 of the Criminal Procedure Code of the Russian Federation. According to this criminal procedure norm, "the establishment of new circumstances relevant to a criminal case" should be the guideline for which a law enforcement officer can provide for the possibility of conducting this investigative action. However, such a formulation used by the legislator is constantly criticized in the literature, since it does not allow to give a clear idea of the cognitive possibilities of this investigative action (Davydov M. V. Checking testimony on the spot as a means of knowing the circumstances of the crime committed: abstract of the dissertation of the candidate. jurid. M., 2011. 27 p.; p. 16).

Such a lengthy formulation of the goal literally disorients the law enforcement officer, since any of the investigative actions planned for production are carried out for similar purposes. Each investigative action is initially aimed at establishing the subject of evidence in a criminal case. So, "the protocol of checking the testimony at the scene of the FIO1 according to which the highway has no defects at the scene of the accident, the coating is in satisfactory condition" (Appeal resolution of the Rostov Regional Court (Rostov region) No. 22-966/2024 dated February 22, 2024 URL: http://sudact.ru/regular/doc/LeX28DIKAdWR /). The above example clearly shows that the law enforcement officer established new circumstances during the investigative action, but this could also be established with the help of a less labor-intensive and more suitable for this purpose - an additional inspection of the scene of a traffic crime.

Another example also demonstrates that a law enforcement officer, thanks to a similar legislative structure, introduces into the verification of testimony such actions that are aimed at establishing new circumstances, but they are not on-site verification of testimony. So, "the witness pointed to a public transport stop located on the right side of the roadway. <address> in the direction of travel from the intersection with <address> in the direction of departure from <address>, and explained that DD.MM.YYYY was near this stop for about 07:30 hours, indicating his specific location; told about the accident... A general photograph of the intersection's viewing angle was taken on site. <address> and <address> from the place indicated by witness Witness No. 3, indicating that witness Witness No. 3 could actually see the event of the accident right up to the moment of hitting the pedestrian" (Verdict of the Rodinsky District Court (Tula region) no. 1-2/2024 1-71/2023 dated February 13, 2024 in case No. 1-2/2024 URL: http://sudact.ru/regular/doc/MKSrjWfBoOg8 /).

The elements of experimental actions present here do not meet all the procedural requirements and criminalistic recommendations that relate to the investigative experiment. In this case, the law enforcement officer introduced parts of the investigative experiment into the verification of the testimony: "a general photograph of the viewing angle of the intersection was taken ... indicating that the witness ... could actually see the accident event" (Verdict of the Rodinsky District Court (Tula region) no. 1-2/2024 1-71/2023 dated February 13, 2024 in case No. 1-2/2024 URL: http://sudact.ru/regular/doc/MKSrjWfBoOg8 /).

If the law enforcement officer's goal was to check the possibility of visual perception of the events of a traffic crime from the place where the witness was, then after establishing this location, the verification of testimony should have been stopped. After that, it would be necessary to provide for the possibility of conducting an investigative experiment, determining how much the situation on the spot currently corresponds to that which was at the time of the incident (time of day, illumination, weather conditions, precipitation, etc.). With regard to experimental actions, it would be necessary to provide for several experimental actions with the obligatory addition of various variations. As a result, if all this had happened in an environment as close as possible to the moment of the incident and repeated experiments had shown that visual perception was possible in all cases, then this fact could be recognized as proven. The fact of conducting experimental actions always directly indicates an investigative experiment, and not an on-site verification of testimony ^{[3, p. 202]}.

There can be no doubt that the above-mentioned purpose is present when checking the testimony on the spot. However, it would be wrong to consider it as the sole purpose, since it would reduce the rather significant cognitive abilities of this investigative action.

First of all, the purpose that can be perceived by a law enforcement officer based on the name of this investigative action in domestic legislation should be mentioned – verification of previously obtained testimony. In our opinion, this goal also needs to be further formulated and designated in legislative regulation. Now, in the legislative structure of the above-mentioned norm, there is only a mention that the testimony can be verified or clarified. However, it is necessary not to define such a possibility, but to designate verification and clarification of testimony as precisely the purposes of this investigative action. In this case, the law enforcement officer is guided by the fact that the initial information – the testimony of the relevant participant in the criminal proceedings must be received in advance and distributed at the time of their conduct. Quite often, this goal is formulated in the literature as verification and clarification of testimony, and the Criminal Procedure Law of the Republic of Kazakhstan designates this investigative action (Criminal Procedure Code of the Republic of Kazakhstan dated July 4, 2014 No. 231-V (with amendments and additions as of 09/05/2024) URL: CPC - Code of Criminal Procedure of the Republic of Kazakhstan 2024 | Paragraph Online of art. 257).

V.I. Belousov believes that the goal is to "verify the collected evidence and orienting information" (Belousov V. I. Verification of testimony on the spot during the preliminary investigation: abstract of the dissertation of the candidate. jurid. sciences'. Krasnodar, 2003. 32 p.; p. 23). Such a rather voluminous goal raises objections, since, in our opinion, it is the testimony that should be checked during the conduct of this investigative action, and not any other types of evidence, and even more so not information that is not recorded in the procedural order.

I.V. Chadnova expresses the opinion that on-site verification of testimony should be carried out to confirm the available evidence (Chadnova I. V. Verification and clarification of testimony on the spot: abstract of the dissertation of the candidate. jurid. sciences'. Tomsk, 2003. 24 p.; p. 12). We cannot agree with this approach, as it presupposes the initial existence of any incomplete evidence in the materials of the criminal case, which must be confirmed. This violates the very system of evidence in criminal proceedings and the very process of proof.

From the point of view of M.V. Merkulova, on-site verification of testimony should be carried out to verify and examine the available evidence (Merkulova M. V. Tactics of verifying testimony at the scene of an event: abstract of the dissertation of the cand. jurid. M., 2008. 24 p.; pp. 10, 15). However, we believe that the additional designated goal should help clarify, and not further confuse, the law enforcement officer. We also draw your attention to the fact that the domestic legislator mentions this, indicating that it is the testimony that can be checked.

In our opinion, S.S. Kim reasonably indicates that on-site verification of testimony is carried out in order to verify the available testimony ^{[4, p. 39]}. And O.V. Chelysheva, revealing her position on the purpose of verifying testimony on the spot, indicates that it consists "in establishing the truthfulness or falsity of testimony" ^{[5, p. 61]}. Our author's position is consistent with these two cases, that a separate purpose should be to verify previously given testimony.

Checking the previously obtained testimony, V.I. Tarasova indicates that during the investigation of traffic crimes, "the place where the passenger fell from the cabin of the route vehicle onto the roadway, the places where overtaking began and ended" ^{[6, pp. 121-122]} should be established. Here we see that the specifics of the investigation of criminal cases in this category pose clearly defined tasks for checking testimony on the spot. So, "PHIO3 fully confirmed his earlier testimony as a suspect, indicated that on 05/16/2023 he allowed a VAZ 21060 car to roll over on a piece of terrain located 79 m. in a south-easterly direction from the kilometer-long pillar with a mark of 4 km. from the highway, the entrance to the village of Klichka, Priargunsky district, Zabaykalsky Krai, as a result of which a passenger was killed. FIO9" (Verdict of the Priargunsky District Court (Zabaykalsky Krai) no. 1-11/2024 1-137/2023 dated January 16, 2024 in case No. 1-11/2024 URL: http://sudact.ru/regular/doc/DFWPx7xUNlNK /).

Not limited to literary sources, when referring to the criminal procedure legislation of the CIS countries, it is established that in the Criminal Procedure Code of the Republic of Moldova (Criminal Procedure Code of the Republic of Moldova dated March 14, 2003 No. 122-XV (with amendments and additions as of 07/31/2024). URL: Criminal Procedure Code of the Republic of Moldova No. 122-XV dated March 14, 2003 (with amendments and additions as of 07/31/2024), Part one, Article 114) and the Model Code of Criminal Procedure for the Member States of the Commonwealth of Independent States (Model Code of Criminal Procedure for the Member States of the Commonwealth of Independent States (St. Petersburg, February 17, 1996 year). URL: The Model Code of Criminal Procedure for the member States of the Commonwealth of Independent States (St. Petersburg, February 17, 1996), part one, Article 283) Verification of testimony is also noted as the main purpose of the investigative action under consideration.

Criminal procedure code of the Republic of Azerbaijan defines as its main objective the establishment of "the veracity of the testimony" (code of Criminal procedure of the Azerbaijan Republic (approved by the Law of the Republic of Azerbaijan dated July 14, 2000, No. 907-IQ) (with amendments and additions as of 29.03.2024 g). URL: Criminal procedure code of the Republic of Azerbaijan (approved by the Law of the Republic of Azerbaijan dated July 14, 2000, No. 907-IQ) (with amendments and additions as of 29.03.2024 g) the first part of the article 260), and Criminal procedure codes of Turkmenistan (the Criminal code of Turkmenistan on April 18, 2009 (with amendments and additions as of 25.11.2023 g) URL: Criminal procedure code of Turkmenistan on April 18, 2009 (with amendments and additions as of 25.11.2023 g) the first part of article 285), Of the Republic of Tajikistan (the code of Criminal procedure of the Republic of Tajikistan of December 3, 2009 (with amendments and additions as of 03.01.2024 g) URL: the code of Criminal procedure of the Republic of Tajikistan of December 3, 2009 (with amendments and additions as of 03.01.2024 g) the first part of article 207), of the Republic of Uzbekistan (code of Criminal procedure of the Republic of Uzbekistan (approved by the Law of the Republic of Uzbekistan from September 22, 1994, No. 2013-XII) (with amendments and additions as of 28.10.2024 g) URL: The code of criminal procedure of the Republic of Uzbekistan (approved by the Law of the Republic of Uzbekistan from September 22, 1994, No. 2013-XII) (with amendments and additions as of 28.10.2024 g) part two of article 132), Belarus (code of Criminal procedure of the Republic of Belarus dated July 16, 1999 No. 295-Z (with amendments and additions as of 08.01.2024 g) URL: the code of Criminal procedure of the Republic of Belarus dated July 16, 1999 No. 295-Z (with amendments and additions as of 08.01.2024 g) the first part of article 225) and the Republic of Kazakhstan (code of Criminal procedure of the Republic of Kazakhstan dated July 4, 2014 № 231-V (with amendments and additions as of 05.09.2024 g) URL: CPC - Code of Criminal Procedure of the Republic of Kazakhstan 2024 | Paragraph Online part one of Article 257) "identification of the reliability of testimony" is considered as one of the purposes of verifying testimony on the spot. In our opinion, the identification of the reliability of testimony and the establishment of their truthfulness are quite well included in the understanding of the verification of testimony.

When investigating traffic crimes, the designation of such an additional purpose is important due to the rather difficult to understand mechanism of such crimes. There is a large amount of data in the testimony of drivers of vehicles, as well as pedestrians and passengers, which must be checked on the spot. This is due to the fact that the results of the investigative action are considered by the law enforcement officer as the initial data for the appointment of a forensic car technical examination. So, "the witness testified <the data was seized> she also confirmed when checking the testimony on the spot , indicating that the place of the hit-and-run on Victim No. 1 is located on the adjacent territory of the GBUZ SB Makhnevskaya RB, at: <...>, 11.1 meters from the gate inside the territory and 3 meters from the curb" (Verdict of the Alapaevsky City Court (Sverdlovsk region) no. 1-18/2024 1-244/2023 dated January 11, 2024 in case No. 1-18/2024 URL: http://sudact.ru/regular/doc/RonJMBJMtmW4 /).

K.S. Latypova, identifying in her study typical errors in the appointment of a forensic car technical examination, directly points to such a problematic situation when the initial data for this examination were obtained only during interrogations, which is clearly insufficient and requires the establishment of the initial data by verifying the testimony on the spot ^{[7, p. 154]}. T.A. Mokhovaya also points out that the investigators are trying to limit themselves to the maximum detail and concretization of testimony through repeated interrogations ^{[8, p. 152]}.

Taking into account the above, the law enforcement officer often cannot limit himself to an early check of these indications, since the initial data for a forensic car technical examination must have clear quantitative and qualitative indicators. The testimony of road users for these purposes is inevitably clarified and specified on the spot, since in the investigator's office, even if there is a well-executed photo table for the accident scene inspection protocol and viewing the video recording for the accident scene inspection protocol, it is not possible to clarify and specify each element in the received testimony. EA Popov also indicates the possibility and importance clarification of the testimony, since during the course of this investigative action "the place of the collision of vehicles and the place of hitting a pedestrian are determined quite accurately" ^{[9, p. 136]}.

The importance and need to clarify the testimony on the spot is illustrated by the following example: "witness FIO6 No. 1 indicated the direction of movement of the Renault Master car at the time of the traffic accident, the direction of movement of pedestrians FIO15 and Victim No. 1 ... indicated that a hit-and-run occurred on the specified section of the carriageway, at a regulated pedestrian crossing on 08/20/2020 at about 21 o'clock on pedestrians FIO15 and Victim No. 1, who were crossing the roadway at an adjustable pedestrian crossing at a red traffic light forbidding pedestrians, perpendicular to the axis of the front of the Renault Master car... Then witness FIO6 No. 1 ... indicated the location and direction of movement of FIO15 pedestrians and Victim No. 1 at the regulated pedestrian crossing. The trajectory of pedestrians was perpendicular to the axis of the carriageway and was located in the area of the traffic signs 5.19.1 and 5.19.2 of the traffic Regulations of the Russian Federation, on the zebra road markings. After that, witness FIO6 No. 1 ... indicated the place where the FIO15 pedestrians and Victim No. 1 were hit, which is located at a distance of 4.60 m from the right edge of the carriageway and at a distance of 2.40 m from the beginning of the marking of the pedestrian crossing 1.14.1 of the Traffic Regulations of the Russian Federation" (Verdict of the Industrial District Court of Smolensk (Smolensk region) No. 1-18/2023 1-2/2024 1-369/2022 dated January 26, 2024 in case No. 1-18/2023 URL: http://sudact.ru/regular/doc/IEXuoNE2Dua /).

Therefore, the next additional purpose of checking on-site testimony in the investigation of traffic crimes is to clarify the testimony of road users. As previously indicated, even the name of this investigative action in the Criminal Procedure Law of the Republic of Kazakhstan focuses on highlighting this goal (Criminal Procedure Code of the Republic of Kazakhstan dated July 4, 2014 No. 231-V (with amendments and additions as of 09/05/2024) URL: CPC - Code of Criminal Procedure of the Republic of Kazakhstan 2024 | Paragraph Online of art. 257). M.V. Merkulova (Merkulova M. V. Tactics of verifying testimony at the scene of the event: abstract of the dissertation of the candidate. jurid. M., 2008. 24 p.; p. 10) and S.S. Kim also single out the clarification of available indications as an additional goal ^{[4, p. 39]}.

P.A. Kononov reasonably expresses his point of view, who notes that when checking the testimony on the spot, "gaps in the testimony can be filled in" ^{[10, p. 199]}. In fact, clarifying testimony on the spot can help fill in or eliminate such gaps, as evidenced by numerous examples from judicial practice.

Clarifying his testimony, the driver of the vehicle on the spot can indicate exactly where those elements of the road situation are located that significantly influenced the development of the traffic situation. So, "when checking the testimony on the spot, PHIO1 pointed out the irregularities of the highway and the place where his car began to move into oncoming traffic, and he lost control of the vehicle" (Verdict of the Sokolsky District Court (Vologda region) no. 1-132/2023 1-9/2024 dated January 24, 2024 in the case No. 1-132/2023 URL: http://sudact.ru/regular/doc/GqpImorjrTlu /).

V.I. Belousov points out that "clarifying the available evidence and orienting information" is an additional goal (Belousov V. I. Verification of testimony on the spot during the preliminary investigation: abstract of the dissertation of the cand. jurid. sciences'. Krasnodar, 2003. 32 p.; p. 23). As with the previous purpose proposed by this author, we would like to point out that only the previously given indications should be clarified. It is quite problematic to assume a legitimate and legitimate clarification of the orienting information with the help of this investigative action. Moreover, when analyzing the materials of judicial practice on the issue under consideration, not a single example was revealed that the orienting information was checked and clarified on the spot during the verification of testimony.

In the Criminal Procedure Codes of the Republic of Moldova (Criminal Procedure Code of the Republic of Moldova dated March 14, 2003 No. 122-XV (with amendments and additions as of 07/31/2024). URL: Criminal Procedure Code of the Republic of Moldova dated March 14, 2003 No. 122-XV (with amendments and additions as of July 31, 2024), part one of art. 114), the Republic of Azerbaijan (Code of Criminal Procedure of the Republic of Azerbaijan (approved by the Law of the Republic of Azerbaijan dated July 14, 2000 No. 907-IQ) (with amendments and additions as of 03/29/2024). URL: Code of Criminal Procedure of the Republic of Azerbaijan (approved by the Law of the Republic of Azerbaijan dated July 14, 2000 No. 907-IQ) (with amendments and additions as of 03/29/2024). URL: Code of Criminal Procedure of the Republic of Azerbaijan (approved by the Law of the Republic of Azerbaijan dated July 14, 2000 No. 907-IQ). July 2000, No. 907-IQ) (with amendments and additions as of 03/29/2024), Part one, Article 260) and in the Model Code of Criminal Procedure for the Member States of the Commonwealth of Independent States (Model Code of Criminal Procedure for the Member States of the Commonwealth of Independent States (St. Petersburg, February 17, 1996 year). URL: The Model Code of Criminal Procedure for the member States of the Commonwealth of Independent States (St. Petersburg, February 17, 1996), part one, Article 283) Clarifying testimony is also one of the purposes of verifying testimony on the spot.

Thus, the available proposals in the literature, the regulatory and legal regulation of this investigative action in the CIS countries, as well as the needs of law enforcement practice in the investigation of road traffic crimes indicate the need to identify two purposes for verifying testimony on the spot, in addition to those legally enshrined in art. 194 of the Criminal Procedure Code of the Russian Federation.: 1) verification of previously received testimony; 2) clarification of previously received testimony.

The designation of these two additional goals will make it possible to orient the law enforcement officer to a greater extent to the use of on-site verification of testimony in proving cases of road traffic crimes and distinguish it from related investigative actions. The achievement of each of the proposed goals will contribute to a significant increase in the criminally significant information obtained during on-site verification of testimony.