The weight of criminal judicial evidence

Abstract

The study is devoted to the current issue of the weight of criminal judicial evidence, which is understudied in the national doctrine. The legislator, having introduced this evaluative concept in 2012 (Paragraph 1, Part 11, Article 1 of 178 CCP), did not provide its normative definition. As a result, there is a conceptual uncertainty, which is inappropriate given the requirements of the rule of law (Article 8 of the Constitution of Ukraine, Article 8 of the CCP). Therefore, the purpose of study is to attempt to formulate a definition of the “weight of evidence”, to propose a scheme of work of a lawyer to determine the signs of this activity phenomenon in situations of making appropriate procedural decisions. The study is based on the activity methodology using a number of special methods – search and bibliographic; semantic; Aristotelian; hermeneutic; historical-legal; comparative-legal; functional analysis; generalisation. The study formulated the definition of the “weight of evidence” as an activity characteristic. The latter is the result of a pragmatic logical and legal evaluation of ad hoc evidence within its totality. Thus, certain evidence is prioritised due to the greater suitability attributed to it by the lawyer to serve as a convincing evidence base of the procedural decision. Therefore, the conclusion is substantiated that the “weight of available evidence” as its activity characteristic is “the fifth element” of the structure of “criminal judicial evidence” along with such characteristics as “credibility”, “admissibility”, “reliability”, and “sufficiency”. The study includes conclusion that the introduction by the legislator in 2012 of the “weight of available evidence” meets the requirements of the evidentiary practice of the modern national adversarial process and the ECHR