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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9.4.6. Evidentiary acts during detection III: presentation for identification

9.4.6. Evidentiary acts during detection III: presentation for identification

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The presentation for identification is an act of evidence aimed at the selection of a person or an object by the accused or a witness, according to the rules laid down by the Criminal Code.1 In essence, it is a criminal tactical method of identifying persons or objects presented by the authorities on the basis of their memory traces.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The effectiveness of this evidentiary act is promoted by the statutory rule according to which the accused, the witness, the victim and other persons, in particular those in possession of the object to be produced for identification, are obliged to submit to this procedural act and to make the object in their possession available for this purpose. 2

Jegyzet elhelyezéséhez, kérjük, lépj be.!

According to some authors, if the person identified declares that he or she does not wish to participate or cooperate in the act of proof, the authority should use investigative methods that can be carried out without the consent of the person concerned. 3

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The persons to be identified may be suspects, witnesses or victims. The most important aspect is, however, to document (record) that the person recognising the person saw one of the subjects or objects to be recognised at a specific place and time. 4

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Of course, presenting a person for identification for the purpose of selection is not the same as confrontation. The presentation for recognition:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • is not intended to verify statements, but to identify specific persons or objects;
  • this act of taking evidence may be secret, but the confrontation may only be carried out in the open (the confrontation of the persons being confronted together, both in the investigation and in the trial phase);
  • the confession can be forced if the person being prosecuted resists, while the confrontation cannot be carried out against the will of the person confronted;
  • the recogniser is always presented with several persons (multiple confrontation), while the confrontation is carried out with only two persons (individual confrontation);
  • the discovery procedure necessarily lacks adversarial argumentation, while the confrontation, if the parties wish to participate, contains factual or legal argumentation;
  • in a confrontation there are always two contradictory statements beforehand, but this is not a prerequisite for a confession.5
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Among the methodological rules of presentation for recognition, the following should be highlighted:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. The person from whom the detection is expected should be interviewed in detail beforehand about the circumstances in which he or she observed the person or object in question, his or her relationship with it and his or her knowledge of its characteristics.6 Without this, it is often unnecessary to order the taking of evidence, so the investigating authority (prosecution) must first ascertain whether the potential participant has any factual knowledge of the relevant facts to be proved. (In my view, the circumstances and specific characteristics of the witness’s sighting are not given as much weight in the practice of the investigating authority, which is why the involvement of witnesses as identifiers is often completely unnecessary.)7
  2. The presentation for recognition must be free of influence, i.e:
    • the recogniser and the person to be recognised must not see each other at the time of recognition;8 this is an important rule, especially because the person to be identified may try to intimidate or threaten the recogniser, using various metacommunication tools;9
    • the investigating authority must ensure that the conduct or statements of the person who has confessed are not determined by previous – possibly accidental – procedural events (e.g. sketches presented during previous questioning, etc.).
  3. At least three persons or objects must be presented to the accused or witness for identification;10 it should be noted that, if no other possibility is available, the person or object may be presented to the accused or witness for identification by means of a visual, audio or video recording.11
  4. When persons are presented, persons who are independent of the case and not known to the person making the identification and who share the main characteristics of the person in question, in particular the same sex, body type, skin colour, age, grooming and clothing, must be grouped together with the person in question.12 In this connection, the Court found a violation of the Convention when, at the identification procedure, the applicants were identified as the only persons wearing the blue or white ski masks worn by the perpetrators of the robbery, while the other persons in the queue were wearing (neutral) black ski masks.13 (It should be noted that, for example, dead bodies or parts of bodies are presented on their own, which increases the risk of a superficial identification by the recogniser in his fright or excitement.)
  5. When objects are presented, the object in question must be placed among similar objects;14 in this context, too, there is a risk of ineffectiveness if there is a substantial difference in general characteristics between the objects of choice.15
  6. The location of the person or object in question within the group must not be significantly different from the others and must not be conspicuous.16
  7. The presentation should be made separately, with recognizers participating in the absence of each other, even in the case of multiple recognizers.17
  8. The procedural act should be recorded, if possible, by video and audio recordings;18 in particular, photographs should be taken of those details that are relevant for identification and, through this, for the evaluation of the results.19
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The procedure for presenting for recognition is usually as follows:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • in the presence of the other participants (defence counsel, the accused, etc.), it is necessary to record whether the official witnesses present are interested in the case and whether they meet the requirements;
  • official witnesses should be warned that they should pay particular attention to (1) checking that the witness is free of influence and reliable, and (2) checking the legality and regularity of the evidence and the record;20
  • the informant must be informed of his/her rights and obligations: (1) if the informant refuses to cooperate, this must be recorded and the procedural act must be terminated (2) if the person who has confessed does not refuse to cooperate actively, it must be clarified whether there has been any change in the time since the interrogation – in his physical or psychological condition – that would affect his identification, or whether he can recall relevant and new (factual) information that was not brought to the attention of the authority during his previous interrogation;
  • the recognizer should be trained on how and where to express the result of the comparison; 21
  • the recogniser to state where, when and under what circumstances he/she observed the person or object to be recognised and what characteristics he/she knows about it;
  • the purpose and programme of the presentation for recognition and the general task of the recogniser should be explained to him/her: he/she should be reminded of the need to examine the persons and objects presented with due care and to compare their characteristics with those of the person/object he/she has previously observed;
  • the person to be identified and the indifferent person must be informed of his/her rights and obligations, the procedure to be followed and that he/she should refrain from any behaviour that could interfere with the identification;22 in this context, the person to be identified must be informed first and then invited to take the place of his/her choice among the persons to be presented;
  • the officer in charge of the procedural act shall distribute the number plates in ascending numerical order from left to right and record the location of the persons examined by taking minutes and photographs.
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The result of the evidence must be recorded in a report. When recording it, care must be taken to ensure that, in addition to the references to compliance with the rules of procedure, it also contains any questions or comments by the participants.23

Jegyzet elhelyezéséhez, kérjük, lépj be.!

If we look at each of the individual acts of evidence, the main argument against admission is that its reliability is questionable. Fenyvesi’s research has shown that visual recognition is the most dangerous form of presentation. According to the author, the presentation of evidence is a “judicial murder”, as is the testimony of mistaken witnesses, false confessions or poorly conducted inspections.24

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The overall advantages of this act of proof can be summarised as follows:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • it is simpler, cheaper and faster than expert evidence (this does not mean, of course, that it is a suitable substitute for expert evidence in cases of more serious crimes, such as homicide);
  • it can be effective even if, as a result of the passage of time, changes have already occurred in the external characteristics of the person or object under investigation, or if previously known patterns are completely absent;
  • the recogniser is also able to recall images of the person or object presented to him or her which he or she would not be able to recall without this, solely through interrogation;
  • it can be used to check the credibility of the person being questioned;
  • it may lead to new evidence (especially in the case of selection of objects);
  • it may even serve as exculpatory evidence if it is ineffective;
  • a negative result can also be an important clue (e.g. exculpatory evidence);
  • it can answer the question of who the persons or objects under investigation are related to or where they come from.25
1 Csaba Anti – Endre Barta – Endre Bócz – István Krispán – János Lakatos – Árpád Romasz: Krimináltaktika II. [Criminal tactics II. ] Budapest, Rejtjel, 2005. 15. This act of evidence is thus ordered by the court, the prosecution or the investigating authority if it is necessary for the purpose of identifying a person or an object. (Art.)
2 § 213 (3) para.
3 These include covert and media-based identification, for which the necessary media may be prepared by the authorities in the course of a search or seizure, seized during a search, on-site inspection, post-mortem examination, from various registers, television companies, etc. In: Kinga Czinege: Identification and its flaws as a source of justicide. http://epa.oszk.hu/02500/02567/00007/pdf/EPA02567_Studia_Iuvenum_Iurisperitorum_7_2014_367-499.pdf 376.
4 Czinege (2014) ibid. 374.
5 Csaba Fenyvesi: A szembesítés büntető eljárásjogi aspektusai. [Criminal procedural aspects of confrontation.] https://www.mjsz.uni-miskolc.hu/files/egyeb/mjsz/200801/3_fenyvesi.pdf 8-10.
6 § 210 (2) para.
7 This is confirmed by Czinege. In Czinege (2014) ibid. 375.
8 If the protection of the witness so requires, the introduction for identification shall be carried out in such a way that the witness cannot be recognised or perceived by the person presented for identification. If the personal data of the witness are ordered to be kept confidential, this must also be ensured when the witness is presented for identification [Art. 210 (5) of the Code].
9 If there is even the slightest suspicion of this, it is advisable to conduct a so-called quasi-blind test, where the act is not carried out with the real person who has been identified. Anti–Barta–Bócz–Krispán–Lakatos–Romasz (2015) ibid. 48–53.
10 § 210 (1) para.
11 § 210 (1) para.
12 § 210 (3) para.
13 Laska and Lika v. Albania judgment of 20 April 2010, no. 12315/04. In: Grád–Weller (2011) ibid. 372.
14 § 210 (3) para.
15 Flórián Tremmel – Csaba Fenyvesi – Csongor Herke (2009) ibid. 333.
16 § 210 (3) para.
17 § 210 (4) para.
18 § 213 (4) para. I would note that the law does not, in an unjustified manner, provide that this act of proof should preferably be kept in the original circumstances of perception. Of particular importance may be (e.g. in the case of eyewitnesses) the lighting conditions, the location, the mental state of the person making the statement, etc. This is of course primarily a rule of forensic importance, but I would certainly wish to see it laid down in the Act.
19 Anti–Barta–Bócz–Krispán–Lakatos–Romasz (2015) ibid. 63–67.
20 Czinege (2014) ibid. 378.
21 In the literature, there are several positions on this, such as: (1) do not make any statement at all about the fact of recognition in front of the person presented (2) point openly to the person recognised (3) always decide on the specific case how to react, etc. Czinege (2014) ibid. 379.
22 E.g. look straight ahead, don’t turn around, don’t close your eyes, hold the number plates in the same way, don’t communicate with anyone, etc.
23 It is not sufficient to record the specific location of the presentation in the introductory section, but all locations affected by the presentation for recognition should be indicated. When recording the details of the persons present at the line-up, it should be borne in mind that the provisions on the confidentiality of witnesses’ data should also be applied in the evidentiary procedure. The personal details of those who are involved as indifferent persons should always be included. The purpose of the presentation for identification, the manner in which it is carried out and, where relevant, the weather, visual, auditory, light, etc. conditions, as well as the so-called history, should be recorded. In addition to the usual formalities, the final section should list the annexes to the report, which should be signed on all pages by the person who took the statement, the interpreter and, in criminal proceedings, the suspect present.
24 Fenyvesi (2013) ibid. 172.
25 Gyula Bíró (2004) ibid. 120.
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