4. Judicial phonoscopic examination

The range of evidence containing voice messages that can be used in civil and arbitration proceedings has been significantly expanded today. In addition to written documents, testimony, expert opinions and their testimony, phonograms and videotapes may appear as other documents (clause 1 of article 55 of the Code of Civil Procedure, clause 2 of article 64, paragraph 2 of article 89 of the APC). There is no doubt that the oral text recorded on a tangible medium (phonogram) is of significant evidentiary value. Sounding speech is today the most important source of evidence in civil and arbitration proceedings.

Phonograms as objects of judicial phonoscopic examination

The objects of phonoscopic examination are phonograms attached to the materials of the case as material evidence or other documents.

Phonograms submitted for examination can be recorded in analog form on a magnetic tape, on a cassette, micro-cassette, soundtrack of a videotape, a tape recorder (wire) on a coil, digitally on an electronic data carrier (for example, a memory chip of a digital tape recorder), magnetic , laser, optical disk, magnetic tape, hard disk (like a hard drive), etc.

The origin of phonograms as evidence and their nature has a certain specificity. Phonograms in the field of civil proceedings can be obtained from the following sources:

- as a result of sound recording by citizens of negotiations with other persons;

- as a result of the use of technical means to control business negotiations in order to document and log them;

- as a result of audio, video recording, carried out in the framework of a specific civil or arbitration process (for example,

the sound recording of the course of the court session, conducted with the permission of the court (part 7 of article 10, part 4 of article 158 of the CCP) or at the direction of the court (part 3 of article 184 of the CCP);

- as a result of audio and video recordings carried out outside the civil or arbitration process (for example, audio and video phonograms with evidence of physical evidence, as well as phonograms and video phonograms - other documents and materials (Article 73 of the Code of Civil Procedure, Article 89 of the APC).

A person submitting audio and (or) video recordings on electronic or other media or requesting their request must indicate when, by whom and under what conditions the recording was made (Article 77 of the Code of Civil Procedure).

Audio recordings can act as evidence submitted and collected by the parties or the court (Article 57 of the Code of Civil Procedure, Article 66 of the APC), or they can be the results of sound recording of the course and content of a court hearing, investigative or other procedural action.

It is important to note that the principle of publicity of the trial is implemented by the legislator in a direct reference to the possibility of sound recording by participants and persons present at the court hearing (part 7 of article 10 of the Code of Civil Procedure, part 7 of article 11 of the AIC). Thus, both the participants of the open court session and the citizens present in the courtroom, in the courts of general jurisdiction and in the arbitration court can, without seeking permission from the presiding judge and without specifically informing about it, record the course and content of the court session.

Note that according to Art. 182, 185 of the Code of Civil Procedure in order to protect the secrecy of personal information contained in audio and video records, for their reproduction at the court session, the consent of the persons between whom these negotiations were conducted is necessary. Without the consent of these persons, their negotiations are reproduced and investigated in a closed court session.

In part 2 of Art. 185 GIC stated that in order to clarify the information contained in the audio or video recording, the court may involve a specialist. If necessary, the court may appoint an examination.

Mr N. addressed the Presnensky District Court of Moscow with a complaint to Mr Z. about protecting the honor, dignity and compensation for moral harm in connection with the defendant’s dissemination of information that the plaintiff leads an amoral lifestyle, engages in prostitution, than She earns a living, has close ties with the criminal world, tried to force the defendant to threaten and blackmail her in Moscow. The defendant did not deny the fact of dissemination of this information. As evidence of their compliance with reality, the respondent submitted to the court an audio recording of a telephone conversation between Mr N. and Mr Witness K., who had been the last to make an answering machine at the time of the conversation with the plaintiff, as well as an act of an expert study of the phonogram conducted at the request of expert institution. The following questions were put to the resolution of the specialists:

1) What is the content of the conversation recorded on the phonogram on the compact cassette No. 1 (on side A), beginning with the words: “Alla! Kohl, is it you? B. --- ', finally, I got through to you” and ending with the words: "All p --- r e th, bye!"?

2) is the specified phonogram suitable for identifying the identity of the participants in the conversation with the female and male voice?

3) if the phonogram is suitable, then is the N.'s speech of Mr. K. recorded on the phonogram, whose speech and speech samples are shown on cassette No. 2?

4) Could the presented phonogram be made by editing? Are there any signs of changes on it during the sound recording process or after its completion?

The content of the conversation was established by an expert phonoscopic study, and the identity of the voices of N. and Mr. K. was confirmed. The possibility of introducing any changes or making a phonogram by editing was excluded. From the results of the phonoscopic study, it is clear that the respondent, speaking of examples of the amoral image of the plaintiff, quoted her own words, reproduced information that she herself told witness K. about in a telephone conversation. Thus, the author of the information defaming the plaintiff and the person who disseminated them is the plaintiff herself. Based on the findings of the phonoscopic study, the court refused to satisfy the claims of the plaintiff about the refutation of information discrediting her honor and dignity and compensation for moral damage.

Sound recordings in courts of general jurisdiction and arbitration courts during a court session may be made by the court itself (including with the participation of a specialist) to assist in drawing up a more complete protocol of the session. In contrast to the previous case, this fact is necessarily reflected in the protocol of the court session (Article 230 of the CCP, Article 155 of the APC). As a general rule, the material media recordings are attached to the protocol and attached to the case file.

A considerable problem for modern judicial practice is to establish facts of evidentiary value, according to the documents originally presented in digital form. This applies to audio recordings made with digital devices, tape recorders, digital recorders and other special technical equipment.

Today, hardware and software systems are widely used to introduce analog phonograms into personal computers, digitize them, and then edit, mix, synthesize voice and speech signals, perform editing and various manipulations with voice and text information, rewrite phonograms with modified content again both on analog and tangible media. This, in turn, means that the possibilities of falsifying phonograms, which are material evidence and / or documents, have been fundamentally expanded.

Thus, the difficulty in procedural fixing, checking and assessing the reliability of phonograms on analog and digital recording media (even confirmed with the help of digital signature technology) lies in the fundamental possibility of their complete or partial falsification and forgery without leaving visible traces of the conducted manipulations. This often gives rise to doubts about the reliability of information recorded on phonograms attached to the criminal case as evidence, as well as sound recordings - annexes to the protocols, which fixed the course and content of the proceedings.

At the same time, it is important to note here that the sometimes expressed view that digital phonograms should not at all be attached to criminal case materials, since supposedly it is impossible to verify their authenticity by expert means, not based on current procedural legislation and existing practice of phonoscopic examination, whose objects are both analog and digital phonogram. In the current legislation there is no specific mention of the type of material recording media. The main thing is that the phonograms should be collected in accordance with the requirements of the procedural legislation, properly attached to the case file, checked and evaluated by the court. Examination is only one of a number of possible ways of such a check provided for by the procedural procedures. At the same time, expert techniques for the integrated detection of signs of editing, rewriting, traces of digitizing phonograms and other artifacts indicating a violation of the authenticity of the recording are constantly being improved.

It is obvious that the use of sound information recordings of telephone and other negotiations for documenting sound information and oral testimony during procedural actions, on the one hand, contributes to the formation of an evidence base, but on the other hand, objectively leads to an increase in the need for their procedural testing and evaluation. Judicial phonoscopic examination, as is known, is not among the examinations, the purpose of which is defined by the legislator as mandatory.

Nevertheless, this forensic examination is an effective procedural action on the objective verification of the reliability of information recorded on a phonogram, which has the value of evidence (by virtue of Article 9 of the Law on Forensic Expert Activity). It consists of conducting a comprehensive study of phonograms and giving an opinion on issues whose resolution requires the application of specialized knowledge in the field of forensic phonoscopy.

Thus, in Russian legal proceedings, phonograms have rather firmly taken their place among other evidence, and a certain technology has been developed for their research and evaluation as material or other evidence.

Phonograms of voice messages and negotiations from business and economic turnover, economic and business activities, recording of commercial negotiations carried out by individuals (citizens), legal entities (security services, personnel office, secretariat, etc.) are involved in the sphere of legal proceedings. It does not take into account that it is necessary to properly organize not only the production of sound recordings (to produce good quality phonograms with legible speech content), but also its proper storage with subsequent registration as evidence or other document (taking into account the judicial perspective). Careless handling of the phonogram, random deformation of the magnetic carrier, stopping during recording and interruptions, careless erasing of information during reproduction - all this may be essential for later recognition of such phonogram as inadmissible or inadequate evidence.

In the arbitration court as a proof of the pretense of the purchase and sale of the apartment was presented the phonogram of negotiations between the seller and the buyer, made secretly by the buyer at the time of the transaction. However, the court refused to attach the phonogram to the materials of the case as material evidence, since the phonogram was poorly legible, had signs of discontinuity in sound recording and subsequent erasing of part of the information.

As is well known, any evidence does not have a predetermined strength for the court and is subject to evaluation in conjunction with others. At the same time, this is a new source of evidence, which has a certain specificity, requires a special approach in assessing its admissibility and reliability.

In practice, there may be problems associated with finding out the source of this particular evidence in the form of a phonogram. In accordance with Part 3 of Art. 71 of the APC evidence is recognized by an arbitration court to be credible if, as a result of its verification and research, it becomes clear that the information contained in it is true. Thus, in case of doubts about the reliability of the audio recording, the unknown source of its origin, the possibility of its falsification in one way or another requires the appointment and conduct of phonoscopic examination.