Viktor Bérces: Evidence in Criminal Proceedings
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Chapter IX. Evidence in the preparatory and investigative stages
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9.4. Investigation I: The detection phase
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9.4.4. Evidentiary acts during detection I: inspection

9.4.4. Evidentiary acts during detection I: inspection

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The taxonomic positioning of inspection (in Hungarian: szemle) is still disputed in legal literature. The procedural laws of the past centuries – both in Hungary and in Europe – have referred to it under different names, i.e. as a means of proof, as evidence or as a procedure of proof.

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In the development of Hungarian law, the First Act still included this construction among the means of proof, but the justification of this was already disputed in the university notes of the time, which also stated that the inspection is in fact a procedure of proof “in the course of which the authority becomes acquainted with facts and objects by means of its own senses, by sight.”1 The dogmatic uncertainty is shown by the fact that

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  • it was listed as a means of evidence in an earlier commentary on the CPC , which in fact makes it a “very important means of evidence, i.e. a source of evidence”;2
  • the II Bp. commentary, however, emphasised the procedural nature of the inspection by including in its scope “direct observation by the investigating authorities in their official capacity”.3
 

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The former Czechoslovak Code of Criminal Procedure (1961), however, considered inspection as evidence: “Anything that may contribute to the clarification of the case, in particular the statements of the accused and witnesses, expert opinions, things and documents relevant to the criminal proceedings and the inspection may be used as evidence.”4 (I note that the most prominent position in the forensic literature is that of Tarasov-Rodinov, who argues that “the inspection is one of the most important pieces of evidence.”5)

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Initially, most of the representatives of the Hungarian legal literature considered inspection as a basic procedural act of the court.6 Some excerpts from earlier writings:

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  • According to Angyal, inspection is the act of the court “by which it brings an object under its sensory perception, in the course of criminal proceedings, in accordance with the formalities laid down by law, in order to ascertain the truth or falsity of the material circumstances of the object.”7
  • Also according to Irk, a “judicial inspection” is nothing more than “a perceptive observation by the court or its members in an official capacity, in accordance with formal rules, of the material facts to be proved in a criminal case.”8
  • According to Lukács’s definition, “judicial inspection is the judicial procedure by which the judge directly observes certain things, facts, clues, conditions, situations, which are important, often decisive, in the assessment of the act.”9
  • According to Fayer, “Judicial inspection is the process by which the judge determines the existence or non-existence of facts and circumstances relevant to the criminal case by his own direct observations.”10
 

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I should note that in Hungarian literature there are already some authors that describe this procedure not only as a judicial but also as an official act. According to Móra’s definition, “the activity of a proceeding authority is the activity by which it views, examines or observes material evidence within the scope of its direct sensory perception.”11

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The definition of Szénási differs somewhat from the above, who sees inspection not as an evidentiary procedure but as a method of proof. 12

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A notable definition in foreign literature is that of Florian, who describes the act of observation as “visual observation”, which, in its essence, “represents the traditional element in the forms of judicial activity aimed at achieving the direct perception of the judge: it can be considered as the judicial act by which the judge himself observes, becomes aware of or in any way perceives a specific perceptible object (person or material object) or its specific characteristics.”13

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In practice, mixed solutions are also found: for example, according to the German legal dictionary, “a judicial inspection is a means of proof in which the court establishes the evidence of a fact by direct sensory perception (sight, hearing, touch, smell, taste).”14

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For my part, I believe that we must necessarily include inspection among the evidentiary procedures, since the term refers to a process, a continuous activity. Let us also not forget that the inspection does not in itself carry the intended result of the procedural act, the evidentiary instrument. The latter is the object of the inspection and the evidence is the information conveyed by the object of the inspection. I therefore consider the current solution of the CPC, which places the inspection among the evidentiary acts, to be terminologically acceptable.15

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The court, the prosecution or the investigating authority shall order and conduct an inspection if the inspection of an object or place or the observation of an object or place is necessary to obtain or establish the fact to be proved.16 On the basis of this legislation, the term ‘inspection’ therefore refers to a heterogeneous activity which can take several forms: inspection of persons, objects or places.

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With regard to the methodology of inspection, the legislator opted for the statutory regulation, despite the fact that this is essentially a matter of a forensic nature. On this basis, the inspection has the following features:

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  • it entails a search for and collecting of physical evidence and ensuring that it is properly preserved;
  • the circumstances relevant to the evidence must be recorded in detail, in particular the course, manner, place and condition of the search for and collection of the object;
  • the search for, recording and securing of physical evidence must be carried out in such a way that compliance with the procedural rules can be verified afterwards;
  • a visual, audio or audiovisual recording, drawing or sketch of the subject of the inspection shall be made, if possible and necessary, and attached to the report.17
 

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Overall, therefore, the search for traces and material remains must be carried out in a way that is not only suitable for laboratory conditions, but also for the subsequent court hearing ("from crime scene to the courtroom”).18 As a subsidiary rule, (1) if the object of the search cannot be viewed on the spot during the investigation or only at considerable difficulty or expense, the search must be carried out before the ordering body (2) an expert may be employed during the inspection19 (3) the accused, the witness, the victim and any other person, in particular any person who is in possession of the object of the inspection, must submit to the inspection and must make the object in his possession available for the inspection. 20

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The primary purpose of a crime scene inspection is to accurately record evidence of the crime at the scene.21 Known in legal literature as the “first strike”, this evidence-gathering act is, by its very nature, most closely linked to the investigative phase. In Fenyvesi’s view, it essentially encompasses all the measures taken by the investigating authorities within a short time after they have become officially aware of the crime in order to answer the questions “what, where, when, how, who, with whom, why”.22

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During the on-the-spot inspection, various data, facts and circumstances become known, which may make the accused, the defendant or the witness confront the falsity of his or her previous statements, but it may also happen that this act of evidence strengthens the truthfulness of previous statements. It should be noted that an on-the-spot inspection is usually carried out once in a procedure and is therefore considered by the authorities as a one-off and unrepeatable event. Since what is seen there often provides clear – direct or indirect – clues, the on-site inspection often leads to the persons who have previously testified changing or withdrawing their previous statements.23

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The prominent role of the on-site inspection stems from the fact that

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  • failure to carry it out, or when improperly done, it will make all subsequent evidence more difficult:24 remember that over time, the perceptions of potential witnesses may be forgotten or distorted; likewise, physical evidence may disappear or become obscured;
  • internationally, around 60-70% of crimes are so-called “crime scene crimes”, i.e. crimes where there are “tangible”, recordable traces at the crime scene;
  • it facilitates rapid “profiling”, i.e. drawing conclusions about the personality traits or physical characteristics of the offender;
  • can be the basis for immediate, “hot-track” investigative action;
  • a quick and thorough investigation may “catch the offender off guard” and “distract” him from his previously consciously constructed cover-up strategy, thus increasing the chances of a later confession.25
 

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It should be noted that in forensic literature, there is also the concept of “post-crime inspection”, which means “a post-crime, secondary inspection”: in this context, the authorities search for micro-particles that were generated at the scene of the crime but were still airborne during the first inspection and can therefore only be detected a second time after they have landed on the ground. “It is therefore worthwhile […] returning once more (even several days later) to the site already inspected.”26

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Before we think that there is a well-established practice of carrying out on-site inspections, it should be noted that there are variations in the way each crime is carried out, and consequently a kind of “targeted specificity” -since “reconstruction cannot be standardised” – is necessary on the part of the investigating authorities.27 A good investigator must “get under the skin of the perpetrator in order to carry out an effective search for clues, i.e. to find and record all the traces, material residues and lesions that may have been left by the perpetrator’s movements, following the supposed path of the perpetrator.”28 For this reason, reports must be drawn up on the basis of the ‘chain of custody’ principle, as known in Anglo-Saxon legal systems, on the public authorities responsible for the custody of objects of value. This ‘pyramid of responsibility’ is ensured by a permanent obligation of accountability, which lasts until the end of the judicial proceedings. All this is intended to confirm to the courts the undoubted origin of the evidence (corpus delicti).29
1 Ervin Cséka – Tibor Király – Ferenc Kratochwill – Teréz Szabóné Nagy – László Vargha (1974) ibid. 250.
2 György Horgosi: A büntetőeljárás kommentárja I. [Commentary on criminal procedure I.], 295.
3 László Pusztai (2003) ibid. 243.
4 Pusztai (2003) ibid. 242.
5 Quoted by V. P. Kolmakov: Sledstvennüj osmotr. Juridicheskaya Literatura. Moscow, 1969. 11. In Pusztai (2003) ibid. 242.
6 I should note that, according to the current majority view, this procedure can be considered rather a fundamental characteristic of the investigative or prosecution phase.
7 Pál Angyal (1916) ibid. 522.
8 Albert Irk (1931) ibid. 89.
9 Adolf Lukács: A bűnvdádi per előkészítő részre. [The preparatory part of the criminal trial.] Kolozsvár, 1904. 255.
10 László Fayer: A magyar bűnvádi perrendartás vezérfonala. [The guiding principles of the Hungarian Code of Criminal Procedure.] Budapest, 1905. 298.
11 Mihály Móra – Mihály Kocsis (1961) ibid. 292.
12 Géza Szénási: A Be. alapelvei, rendszere, új vonásai. [The principles, system and new features of the CPC.] 1973. 4–8.
13 Eugenio Florian: Delle provere penali. Varese–Milano, 1961. 623. In: Pusztai (2003) ibid. 243.
14 Carl Creifelds: Legal dictionary. Munich, 1968. 87. In: Pusztai (2003) ibid. 244.
15 I would like to note that the law would unnecessarily refer to the object of evidence in the context of means of evidence, since it is covered by the concept of tangible evidence or, where applicable, by the concept of a document.
16 § 207 (1) para.
17 § 207 (2) para.
18 Orsolya Szabó: A helyszíni szemle rögzítése. [Recording of the on-site inspection.] Pécs, 2009. 4.
19 § 207 (3)–(4) para.
20 The accused may be compelled to comply with these obligations, the victim, the witness and other persons may be compelled to comply with them, and may be fined.
21 These may also be so-called “negative traces”, i.e. objects or circumstances whose absence or inability to be found gives rise to further suspicion. In: János Dobos: Negatív körülmények a helyszínen. [Negative circumstances on the ground.] Belügyi Szemle, 1964/1. 54–59.
22 Csaba Fenyvesi: A helyszíni szemle mint kriminalisztikai “első csapás”. [The on-site inspection as a forensic “first strike”.] In Bárd–Hack–Holé (2014) ibid. 111.
23 Csaba Fenyvesi: A szembesítés büntető eljárásjogi aspektusai. [Criminal procedural aspects of confrontation.] http://www.mjsz.uni-miskolc.hu/200801/3_fenyvesi.pdf , 11.
24 This must include a sense of planning and improvisation, as well as legality, but also a focus on results. In practice, this is known as the “double squeeze” of the investigating authorities. Fenyvesi (2014) ibid. 114.
25 There are also different views in US legal literature: “American tactics […] caution against the criminalist setting out to collect evidence at the scene with high and imagined expectations.” Pete Moore: The Forensic Handbook. New York, Barnes and Noble, 2004. 34.
26 Fenyvesi ibid. 119.
27 Wolfgang A. Steinke: A bűnügyi technikai szakvélemények bizonyító értéke. [The evidentiary value of technical expert opinions in criminal matters.] In Géza Katona (ed.): A kriminalisztika aktuális kérdései. [Current issues in criminology.] Budapest, BM, 2001. 116.
28 Lajos Kovács: A Mór megtette [ The Moor has done…] Budapest, Korona, 2009. 38.
29 Swanson, Charles R. – Chamelin, Neil C. – Territo, Leonard: Criminal Investigation, New York, Random House, 1981. 24.
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