Investigative experiments: the significance of time of day

Positions of the trial and appellate courts: the trial court found the defendant guilty and convicted him under Article 115(2)(7) and (12) and Article 296(4) of the Criminal Code. The appellate court amended the judgment and closed the proceedings on the charge under Article 115(2)(7) and (12), relying on Article 284(1)(3) of the Criminal Procedure Code because sufficient evidence of guilt had not been established and the possibilities of obtaining it had been exhausted.

In the cassation appeal, the prosecutor disputed the court’s decision to disregard the records of investigative experiments because those measures had been conducted at a different time of day.

Position of the Criminal Cassation Court: the appellate ruling was set aside and a fresh appellate hearing was ordered.

Reasoning of the Criminal Cassation Court: the panel disagreed with the appellate court’s conclusion that the records of investigative experiments were inadmissible merely because the experiments took place in daylight whereas the incident, according to the trial court’s findings, occurred after dark.

The Supreme Court has repeatedly stated that a difference between the conditions of an investigative experiment and those of the incident under examination does not automatically make the results inadmissible or justify disregarding them altogether. In each case, the court must assess which circumstances were tested, whether the difference was significant to achieving the purpose of the measure and whether it affected the reliability of the information obtained.

Instead, the appellate court referred to the fact that the experiments occurred in daylight without establishing which circumstances each experiment tested, whether the time of day was significant for verifying the relevant testimony, or why the difference prevented the information from being used in assessing the evidence as a whole.