Viktor Bérces: Evidence in Criminal Proceedings
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Chapter VIII. The basic features of the Hungarian evidence system • The means of evidence in general
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8.6. The material means of evidence. Doctrinal issues relating to the classification of deeds and documents

8.6. The material means of evidence. Doctrinal issues relating to the classification of deeds and documents

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The Code of Criminal Procedure considers as material evidence any object or document which is capable of proving the fact to be proved, in particular: (1)bears traces of the perpetrator of the offence or of the commission of the offence, (2)was created by the commission of the offence, (3)was used as a means to commit the offence, or (4) the offence was committed on it.1

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This statutory definition may be of concern in certain cases, including where the object of evidence is a human body or a corpse. In addition, Kertész argues that it would be necessary to include the object, instrumentality, result and quid pro quo of the offence.2

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The importance of physical evidence was already emphasised by the former Supreme Court: if physical evidence is available in the case, it cannot normally be excluded from the proceedings.3 It should be noted, however, that it is often the assessment and examination of the material means of evidence that appears to be the most complex task. In this case, not only a procedural control of the object in question, but also, depending on its nature, physical or chemical research, for example, may be necessary. Objects “change their position, shape, colour, mix with other substances, that is to say […] they undergo changes.”4

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In order to define this means of proof, it is first of all necessary to clarify the following concepts:

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  1. The object: some separate, self-contained part of the material world. This must include odours and other gaseous substances, whose physical nature is disputed in physics, but whose evidentiary value is unquestionable in certain cases, and whose evaluation in litigation can hardly be challenged as a matter of law.5 For example, it may be significant that “each person […] is likely to leave behind different vapours depending on his or her diet, the cosmetics he or she uses and the different micro-organisms […]”6
  2. The body: a unique entity, clearly identifiable in space and time, which denotes a category narrower than the object. This is not to say that the body cannot change over time, but information obtained from it can only constitute evidence if it remains in its previous state (at the time of the offence) until the trial. 7
  3. The thing: a term denoting a category narrower than the body, which no longer only refers to corporeality, but also to the social nature and function of the body.
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

An object, body or thing only acquires the function of evidence if the prosecuting authority (the prosecution) makes it part of the case file. This process includes, on the one hand, procedures for obtaining information (e.g. research), acts to record information that has become known (e.g. preparation of a report) and acts for the purpose of preservation (e.g. seizure). It cannot be disputed, therefore, that these objects can only become evidence if they are at the disposal of the competent authorities (courts).8

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The material means of proof necessarily contains a certain amount of potential information, without which it would not be necessary in the proceedings.9 Its main advantages are:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • availability in its entirety,
  • the possibility of scientific control,
  • it is tamper-proof (e.g. fingerprint, bullet),
  • stability, and
  • the absence of the necessary intermediary (e.g. a witness).
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

For this reason, it is an important principle that the prosecution presents this evidence directly to the court, rather than replacing it with testimonies. Kertész sees this as an “irreplaceability” of material evidence. 10

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The main disadvantage of physical evidence, however, is its “procedural vulnerability”, which is due to the fact that it is often not possible to use it in proceedings without carrying out other evidentiary acts (e.g. inspection, presentation for examination) or obtaining other means of evidence. Thus, for example, in the case of the examination of various microscopic material residues or the examination of projectiles in the body, the appointment of an expert is unavoidable.11 It can therefore be concluded that in most cases physical evidence can only be considered as circumstantial evidence.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

One of the big issues in evidence is how to deal with destroyed physical evidence. In this context, I believe that if the evidence in question was previously part of the investigation file and a record (memo) was made of it, there is no obstacle to the court referring to it in its decision.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

A narrower category than physical evidence is the crime sign, a term used only for objects already seized by the authorities. The criminalisation of an object is in this respect a prerequisite for it to become material evidence, since the object in question only appears in the official proceedings through the seizure of the object by the authorities.12 For this reason, I feel that the current provisions of the CPC are deficient, as there is no reference to this term at all in the general rules on material evidence.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Overall, it can be concluded that

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • the physical means of evidence is a body which is placed at the disposal of the proceeding authority and which is recorded during a procedural act,
  • factual data is information about the event it reflects in an elementary way,
  • and physical evidence is the union of the two. 13

8.6.1. Basic documents of documentary evidence. Dogmatic issues

1 § 204 (1) para. In one case, the prosecution classified the recording of the suspect’s interrogation as “material evidence” and therefore rejected the defence’s motion for the release of a copy of the recording as a document. This decision was corrected by the court, which pointed out that the videotape recording the interrogation could not be directly linked to the crime and could therefore only be considered as a document, in which case the copy could not have been refused (RO 2006.244).
2 Imre Kertész: A tárgyi bizonyítékok elmélete. [The theory of physical evidence in criminal procedural law and criminology.] Budapest, KJK, 1972. 87.
3 Top. Judge. Bf. IV. case no. 1614
4 Kertész (1972) ibid. 15.
5 Kertész (1972) ibid. 17–21.
6 Petraneck, Günther: Gaseous traces, their search, securing, evaluation and significance for forensic practice. Forum of Criminalistics, 1970/5. 234. In: Kertész (1972) ibid. 21.
7 Kertész (1972) ibid. 23.
8 Kertész (1972) ibid. 71.
9 Kertész (1972) ibid. 77.
10 Kertész (1972) ibid. 375.
11 Kertész (1972) ibid. 72.
12 Kertész (1972) ibid. 90.
13 Kertész (1972) ibid. 89.
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