Prejudice as a Means of Proof in Criminal Proceedings in Ukraine: A Comparative Analysis With Continental and Common Law Systems

Background: During the preparation of the CPC of Ukraine in 2012, the issue of legal regulation regarding the use of prejudice in the process of criminal procedure proof received little scholarly attention. Although much time has passed since then, this subject of discussion remains largely unexplored in textbooks and manuals on criminal procedure published after the adoption of the codified act. Even within the few scholarly investigations dedicated to prejudice in criminal proceedings, a communis opinion doctorum on some issues related to the means of proof has yet to be achieved. This article aims to clarify the concept, formulate its characteristics, uncover the significance of prejudice in Ukraine’s criminal procedure, and distinguish peculiarities of legal regulation and the use of this means of proof in criminal procedure law of countries with continental and general systems of law. Methods: The methodological basis of the article is a dialectical approach to the scientific understanding of social phenomena. In writing this article, general scientific and specialised legal methods of cognition were also used, including analysis, generalisation, structural and functional methods, hermeneutic methods, doctrinal or specialised legal methods, and comparative legal methods. Results and conclusions: It has been found that prejudicial significance is attributed to legal acts that summarise the outcome of criminal procedural activities in specific criminal proceedings. These legal acts include final judgments and rulings of the court and unrevoked decisions of the interrogator, investigator, detective, and prosecutor. Prejudice encompasses not only relevant facts and circumstances but also legal conclusions regarding them. The principleof free evaluation of proof allows the parties to come to different legal conclusions than those made in the previous criminal proceedings, with proper argumentation of their legal position. The use of prejudice in criminal proceedings of civil law jurisdictions is based on the doctrine of res judicata, while in common law systems, it is based on the doctrine of collateral estoppel. Examples from the criminal procedure of Poland, Greece, Italy, and the USA illustrate the specific features of using this means of proof.