EPISTEMOLOGICAL AND PROCEDURAL ASPECTS OF THE INVESTIGATIVE EXPERIMENT: ANALYSIS OF THE SUPREME COURT’S CASE LAW

Abstract

Relevance: the investigative experiment is a key and complex investigative action that operates by modeling events, requiring the court to apply both procedural and epistemological criteria (identity of conditions) for its evaluation. The dynamic development of judicial practice, particularly at the level of the Supreme Court, constantly generates new criteria for the admissibility and evidentiary value of its results. These decisions often go beyond traditional tactical recommendations and address fundamental epistemological questions, such as the limits of the conditions’ identity and the differentiation of the experiment from other investigative actions. There is an urgent need to systematize and analyze these legal positions, as they act as a catalyst for developing criminalistic theory and establishing standardized criteria for judicial practice. Purpose: this article aims to conduct a comprehensive analysis and systematization of the legal positions of the Supreme Court of Ukraine concerning the investigative experiment, defining the key criteria for the admissibility and reliability of its results, and outlining the main trends in its development at the intersection of procedural requirements and epistemological principles. Methodology: the research is based on the analysis and generalization of the Supreme Court’s judicial practice, employing formal-legal, comparative-legal, and epistemological methods. A systematic approach is used to structure the criteria for evidence admissibility, particularly focusing on the legal reasoning behind the distinction between the investigative experiment and other investigative actions (interrogation and site inspection). The study analyses numerous judicial decisions to identify consistent patterns and evolving standards for assessing the veracity of the reconstruction. Results: the study established that the protocol of the investigative experiment is a self-standing source of evidence, strictly separate from testimony, but only if the action contains the element of reproduction of the event and is not a disguised interrogation (a hidden way of securing a confession). The Supreme Court has clearly defined the criteria for this distinction. A key finding is the establishment of non-negotiable criteria for inadmissibility, such as the impossibility of identifying and questioning attesting witnesses (pokhytykh), which is considered an essential procedural violation that breaks the chain of proof. Concurrently, the Supreme Court demonstrates a rational, pragmatic approach, which does not deem minor technical deficiencies in recording or minimal procedural delays as sufficient grounds for inadmissibility, provided the rights of the participants were not violated and the authenticity of the reconstruction is not questioned. The court’s focus is shifting towards the epistemological goals of the experiment – verifying the reality of the event through reasonable and scientifically grounded modeling. Scientific novelty: the research offers a novel systematic framework for assessing the investigative experiment by integrating the epistemological criteria (identity of conditions) with procedural criteria (admissibility) as defined by the Supreme Court. For the first time, a clear distinction is drawn between acceptable technical errors in fixing and fundamental violations of participants’ rights based on current case law. The study introduces the problem of insufficient attention to objective verification methods (such as 3D/VR modeling and integration of data from surveillance cameras) in forensic practice, highlighting the necessity of their integration for achieving metric accuracy in reconstruction. Practical significance: the findings of the article provide clear, systematic standards for law enforcement agencies (investigators, prosecutors) and judges in assessing the admissibility and evidentiary value of the results of investigative experiments, thereby ensuring the uniform application of the law. The identified problem areas and the proposed criteria serve as a basis for updating criminalistic recommendations and developing legislative amendments concerning the use of modern digital technologies in forensic evidence gathering.