Admissibility of Evidence — What You Should Know for the Defense

Evidence constitutes the cornerstone of criminal justice. Evidence is information submitted to the court in accordance with the procedure established by law, or an object or document containing such information, on the basis of which the parties in court confirm or refute facts and substantiate their position. In this definition, decisive importance is attached to the words “in accordance with the procedure established by law” — it is precisely in the interests of the defense to identify procedural violations in the obtaining of evidence and, by invoking them, to exclude incriminating evidence against the accused from the criminal case.

The function of a lawyer is, on the one hand, to conduct an alternative investigation, and, on the other hand, to carry out a critical analysis of the evidence presented by the prosecutor and to detect violations of legality. In the article below, we will examine the standards of admissibility of evidence and present casuistic cases in which procedural violations by investigative authorities can be used in favor of the accused.

1. “The Fruit of the Poisonous Tree Doctrine”
“Evidence obtained with a substantial violation, and other evidence lawfully obtained on the basis of such evidence, if it worsens the legal position of the accused, shall be inadmissible and shall have no legal force.” This legislative provision, protecting the interests of the defense, represents an analogue of the “fruit of the poisonous tree doctrine,” which was developed in U.S. judicial practice in the first half of the twentieth century.

To illustrate this, let us present a similar case: if an investigative authority grossly violates the law when obtaining evidence and, on the basis of that evidence, obtains other evidence in compliance with the law, both pieces of evidence shall be deemed inadmissible. For example, in relation to a specific person, a covert interception of communication was carried out in violation of the law, on the basis of which the fact of unlawful possession of a firearm was revealed. The police, in compliance with the law, carried out investigative actions and seized the firearm; however, since the primary evidence was obtained in substantial violation of the law, the lawfully obtained secondary evidence shall also be considered unlawful. Such an approach serves as a restraining mechanism for investigative authorities, so that the detection of criminal acts is not achieved at the expense of the protection of human rights.

2. The Phenomenon of an “Unreliable” Witness
“If there is a substantial contradiction in the testimony of a witness, a party has the right to submit a motion before the judge to declare the testimony inadmissible as evidence” — this provision of the Criminal Procedure Code allows for the impeachment of unreliable witness testimony. In general, witness testimony consists of both a free narrative and information conveyed in a question-and-answer format. Accordingly, contradictions may be revealed in both parts.

For example, at the beginning of the testimony, the witness indicates that they saw the accused near the victim’s residence in the morning hours, whereas during cross-examination by the lawyer they state that they observed the accused in the evening hours. This clearly constitutes a substantial contradiction, which is a ground for declaring such testimony inadmissible. However, it is the prerogative of the party to point this out and to file a motion before the judge. Accordingly, it is the duty of the lawyer to identify the unreliability of the witness testimony and to substantiate it before the judge.

3. Reasonable Doubt Regarding the Authenticity of Evidence
“Evidence shall also be inadmissible if it is obtained in compliance with the procedure established by this Code, but reasonable doubt has not been eliminated regarding its possible substitution, substantial alteration of its characteristics, or the substantial disappearance of traces on it” — this provision of the Procedural Code is particularly valuable for protecting the interests of the accused. Questionable evidence may mislead a judge or a jury and hinder the establishment of the truth. The standard of reasonable doubt here serves as a protective mechanism: it obliges the parties and the court to assess the reliability and integrity of evidence with particular caution. Thus, priority is given not only to the legality of obtaining evidence, but also to its authenticity and integrity. As a result, this norm ensures that a court decision is based only on such evidence, the accuracy and reliability of which do not raise doubt. This is of paramount importance for achieving the primary objective of justice — the establishment of the truth and the protection of human rights.

What Does KH & PARTNERS Do?

In the context of evidence, the right to defense constitutes one of the decisive mechanisms ensuring that a court decision is based solely on lawful, reliable, and verified information. Its importance increases particularly at the stage when evidence is obtained, recorded, and presented before the court. Our approach is based on a thorough analysis of evidence and the effective application of admissibility standards and includes:
• detailed verification of the legality of obtaining evidence;
• identification of procedural violations and appropriate response;
• ensuring the exclusion of inadmissible evidence from the process;
• identification of reliability issues and contradictions in witness testimony;
• critical assessment of the authenticity and integrity of evidence;
• individual planning of a defense strategy taking into account the specifics of each case.

Such an approach ensures that only those pieces of evidence remain in the case that meet legal requirements and do not raise reasonable doubt, ultimately serving the implementation of fair justice.

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