Problems of collecting and presenting evidence by a defence lawyer during the preliminary investigation

The author considers the legal status of a defense lawyer when participating during the evidentiary process, especially during the preliminary investigation. The defence lawyer’s evidence activity in pre-trial proceedings is extremely limited: there is a closed list of collective powers; the defence lawyer does not participate in the evidence verification and evaluation, as the state-authority subjects in whose proceedings the criminal case is. Current problems of gathering and presenting evidence are raised, and legislative solutions are proposed. As for the objects and documents received by the lawyer, it is the prosecution's «filter», which makes an authoritative decision on the admissibility and relevance of the materials submitted by the lawyer at its discretion, that is the main obstacle to their inclusion in the evidentiary basis of the criminal case. In addition, the fact that the law does not provide for the possibility of using technical means to obtain evidence does not favour the defence in practice. Regarding the questioning of a person with his consent, it can be noted that this event has not received procedural regulation, is most often considered formal and ineffective, since it does not have the legal force of interrogation, but serves only as a basis for further investigative actions, the result of which often differs from the initial one, as a rule in favor of the prosecution. A lawyer's request for information in various instances is sometimes ignored on formal grounds, which is unacceptable when providing timely legal assistance. It is noted that the defence lawyer should actively participate in the process of proving from the earliest stages of criminal proceedings. The author concludes that despite the expansion of the lawyers’ rights and the democratization of the defender’s position in criminal procedure proving, in fact, advocacy is poorly regulated by procedural legislation, there are no legal guarantees for its implementation, most often it is of a non-procedural nature. The methodological basis of the study is presented by a complex of different methods: general scientific (analysis and synthesis, induction and deduction) and private scientific (formal-legal, comparative-legal, historical-legal).