Viktor Bérces: Evidence in Criminal Proceedings
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Chapter IX. Evidence in the preparatory and investigative stages
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9.5. Investigation II: the examining
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9.5.4. Evidentiary acts during examining II: confrontation

9.5.4. Evidentiary acts during examining II: confrontation

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A confrontation is an evidentiary act in which the investigating authority tries to compare the statements of the accused, witnesses or the witness and the accused in the presence of each other. Fenyvesi also includes this procedural act in the category of interrogation, although I cannot agree with this view, since interrogation is based solely on the communication between the person in authority (or the judge) and the person being interrogated.

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While the simple hearing of a charge or witness can be understood as a process of communication with the authority, in the case of a confrontation a third person (co-defendant, witness or victim-witness) enters, who does not only listen to the other party’s statements, but also – usually – refutes them. The moral and psychological impact of confrontation should be emphasised, since this procedural act clearly serves the purpose of ensuring that the person being prosecuted reveals the material truth as fully as possible in the presence of the other (opposing) party.

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It should be noted that the personal presence at the confrontation – against summons or in case of production – is mandatory, but beyond that the person confronted has no active obligation (to make a statement). It is therefore primarily a question of defence tactics whether the person to be confronted makes a meaningful statement and, if so, in what form and with what content.

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Options for confrontation can be categorised through the following dichotomies:

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  • Homogeneous – heterogeneous: in the former case, the accused is confronted with the accused and the witness with the witness; in the latter case, the accused is confronted with the witness;
  • Active – passive: confrontation in the narrow sense is the active form, while in a broader sense other evidentiary acts can also be considered as confrontation, these are the cases of passive confrontation: simple questioning, on-the-spot questioning, presentation for identification, attempted evidence and the use of polygraphs.1 The latter cases are classified as passive forms because the person concerned (typically the accused) observes these acts passively, but they can also be used to trigger further reflection on his or her future “procedural behaviour”. 2
  • Formal – informal confrontation: by formal confrontation we mean only those acts of proof that are regulated by law (by the Criminal Code), and by informal confrontation we mean those acts of proof that are already governed by other criminal tactical recommendations.
 

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Among the methodological rules for the confrontation, the following should be highlighted:

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  1. The interviewees give their testimonies to each other in a live interview, after which they have the opportunity to ask each other questions.3
  2. At least three people are present at the investigative interview (the interviewer and the two interviewees). In addition, the following persons may be present: the prosecutor, the defence counsel, the legal representative of the victim-witness, the prison guard, the prison escort, the (police) college student, the law student, the consul, or – in case of a person who cannot read and write at the confrontation, at the presentation of the report, on express request, two official witnesses,4 (sign) interpreter, assistant, expert, counsellor, psychologist, guardian, legal representative, carer or teacher (in the case of a juvenile or a person of child age).
  3. If the confrontation is successful, a record of the confrontation must be drawn up, including (if possible) the verbatim statements of the persons confronted. It should be noted that Act XIX of 1998 provided for this obligation even if the confrontation was unsuccessful. However, I agree with Fenyvesi that in the latter cases it is sufficient to simply make a note, as it is sufficient to refer in 1 or 2 sentences to the fact that the necessary warnings were given and that the confrontation did not lead to a result.
  4. If more than one suspect or witness is to be confronted, the conflicting witnesses should be confronted separately.5
  5. At the start of the confrontation, if it is not obvious, the persons to be confronted must declare whether they know each other and, if so, how. The relationship between them should also be clarified. Any inconsistencies between their statements should then be explained to them separately.6
  6. After the statements have been made, with the permission of the person conducting the confrontation, the persons confronted may ask questions of each other and the defender may ask questions of the persons confronted.7
  7. If the statement made during the confrontation is contradictory or contrary to the previous statement of the person confronted, the person making the statement shall be informed of the reason for the contradiction and of the statement he or she maintains.8
  8. The questions asked during the confrontation, the answers given to them, the statements made by the person conducting the confrontation to the persons confronted, the presentation of the data, the means of evidence, the previous statements shall be recorded in the minutes of the confrontation in the order in which they were made or presented, with the necessary details, and, where appropriate, verbatim. The persons confronted shall have their parts of the statements signed separately. The conduct and non-verbal statements of the persons confronted may also be recorded in the minutes if they are relevant to the investigation.9
 

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A central concept of confrontation is effectiveness. It is said to exist when (1) both parties participate in this act of proof and (2) one of them changes his or her previous testimony in such a way that it contains a statement that is consistent with or approximates to the content of the other party’s testimony. Failing this, the confrontation shall be deemed ineffective and the fact shall be recorded in the minutes or in the notes.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The reasons for inefficiency may include:

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  1. the contradiction between the statements is only apparent because (1) the interviewees have previously stated the same thing, but expressed themselves differently (2) the different statements do not relate to the same fact (3) the contradiction relates to the same fact but is not relevant to the case under investigation;
  2. it is unnecessary to resolve a material conflict concerning the same fact because the evidence on one side preponderates;
  3. resolving a material contradiction about the same fact is a tactical error, because it is the very inextricability of the contradiction that proves it;
  4. a material conflict concerning the same fact must be resolved, but can be resolved in another way that is simpler and more certain than confrontation;
  5. the conflict to be resolved could only be resolved by confrontation, but confrontation is not expected to produce a result.10
 

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Note: the number of unsuccessful confrontations is high. The main reasons for this dysfunctionality are the lack of specificity, the lack of clarity and the lack of focus in the investigative procedures (detection).11 In addition, there are also cases of unnecessary confrontations, which are based on the (unfounded) fear by the police that failure to take evidence will lead to a decision by the prosecution to order a follow-up investigation. In my view, it would therefore be necessary in this context to draw up a single circular from the prosecution authorities setting out the general conditions for ordering a confrontation, the guidelines for this, and the aspects relating to its implementation and evaluation, with effect for the investigating authorities.

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In the light of the above, it is a much debated tactical question at which stage of the procedure it is appropriate to order the confrontation.12 For my part, I believe that in the present case it is an evidentiary act which should be used several times in the same proceedings in respect of the same persons. In essence, it is designed to ensure that the joint presence of the persons to be confronted produces an effect on the persons concerned which is capable of changing their statements by their own volition. These psychological circumstances must therefore be given the opportunity to prevail on several occasions, taking into account the principles established by law and judicial practice (e.g. no confrontation with a child or a person suffering from an intellectual disability ). Since confrontation can cause serious psychological and emotional harm to many procedural participants (e.g. because of the nature of the offence or their age), it is a rule of law that, if the protection or welfare of the witness or the accused so requires, confrontation of these persons should be avoided.13

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Complaints may be lodged against the ordering of a confrontation, the failure to order it or the manner in which it is carried out. These are filed in the first instance by the accused or the defender .14

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The primary reason for filing a complaint is if the accused (suspect) has already announced in advance – e.g. during his/her interrogation – that he/she does not wish to appear at this evidentiary hearing or to make a statement on the merits. It should be noted that the person to be confronted may still be obliged to appear at a later stage, but is of course not obliged to make a statement (in my view, it is no longer appropriate to summon or produce him in such cases). 15

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If the defence expressly requests a confrontation, it is considered a request for evidence which is granted or rejected by the competent authority (court) by written decision. There is, of course, also the possibility to lodge a complaint against these decisions.

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Complaints about the enforcement methods do not have suspensive effect, so the investigating authority (court) will carry out the act of proof and only then decide on this appeal.

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Complaints usually complain about the behaviour of the person in charge (e.g. impartial, humiliating, influential, abusive).16

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According to Fenyvesi’s study, on average half of the legal practitioners are satisfied with the legal provisions on confrontation, with prosecutors standing out. At the same time, “only one third of the respondents would prefer confrontation to the investigative branch, but the average is the same for the judicial branch and for both branches. “In other words, there is no marked dominance among law enforcement officers on the question ‘where to apply confrontation’ […]”.17 It should be noted that, according to the author’s empirical research data from 2005 to 2007, confrontation was conducted in an average of one out of every two cases, but the effectiveness of this evidentiary act was only 12-14% in the period under study.18

Jegyzet elhelyezéséhez, kérjük, lépj be.!

From the point of view of the future of this traditional act of evidence, it should be noted that its use is opposed by the ever-increasing protection of witnesses (see the growing need for special treatment), the ever-developing tools of criminal technology and computerisation.19 Nevertheless, even after many decades, this act of evidence may still be able to provide information on the merits of the allegations made by the subjects of the proceedings.20
1 When experts are heard in parallel, they also “confront” each other, as they present their conflicting opinions in each other’s presence. In the present case, however, (1) it is not a matter of questioning, but of hearing (2) this procedural act cannot be described as an “emotional battle”, but rather as a presentation or discussion of opinions.
2 It can also often happen that passive contemplation and confrontation lead to confessions being made, or previous confessions being changed.
3 § 211 (1) para.
4 Erdei, in his dissenting opinion to the AB decision on the use of official witnesses, explains that the mere presence of an official witness participating in a confrontation “implies that the person(s) concerned will gain significant insight into even extremely intimate details of private persons […] the current Criminal Procedure Act excludes even client disclosure in a significant part of the investigative acts. Thus, it does not allow the presence of the accused or the defence counsel at the hearing of witnesses whose hearing has not been requested by them; it excludes their participation in confrontations between witnesses; what is more, it makes confrontations unnecessary […]. Taking all this into account, it can be concluded that neither the effectiveness of the investigation nor any other identifiable interest of the authority requires the involvement of an official witness in the proceedings. The advantages that were previously associated with the use of an official witness can now be achieved by other means that are much more effective in ensuring objectivity and do not jeopardise the interests of others. The constantly expanding technical possibilities and methods mentioned in the law are capable of eliminating all the drawbacks that automatically go hand in hand with the use of an official witness, even under a system of guarantees that meets higher standards than those currently in force. Consequently, Article 183 of the [former] Be., which allows the use of an official witness, is unconstitutional because it unnecessarily and disproportionately restricts the rights enshrined in Article 59(1) of the Constitution.” See AB Decision 43/2004 (17. 11. 2004) and the related dissenting opinion.
5 Ordinance, § 51
6 Ordinance, § 52 (1) para.
7 Ordinance, § 52 (2) para.
8 Ordinance, § 52 (3) para.
9 Ordinance, § 52 (1)–(3) para.
10 Mihály Tóth: A szembesítés béklyójában. [In the shackle of confrontation.] Jogtudományi Közlöny, 1983/3. 140.
11 Fenyvesi: A szembesítés büntető eljárásjogi aspektusai. [Criminal procedural aspects of confrontation] ibid. 16.
12 “The legislature wanted to shift the fundamental focus of the criminal procedural reform that began in the early 1990s to the trial-court stage. He indicated that the purpose of the investigation was to inform the accuser, and that the full development of the principles governing the whole procedure was to be achieved at the trial stage, before an independent and impartial tribunal. Consequently, returning a little to the model of Bp. 1896, he also saw the use of confrontation as a method of seeking the truth as more appropriate in the trial-court part.” In Fenyvesi.
13 § 211 (2) para.
14 In this regard, a very informative court decision found a defamation offence against a defence lawyer who, before confronting his client, stated,“I object to this woman being interviewed and confronted by my client because she is the whistleblower and is banned from the district anyway.” The court found that the statement of the defense attorney made in the context of the adjudication of the case was only subject to the absence of illegality, but that this statement did not fit within that.” In Fenyvesi: A szembesítés büntető eljárásjogi aspektusai. [Criminal procedural aspects of confrontation] ibid. 32.
15 “Even after the entry into force of the Criminal Code, i.e. even in 2003 (unfortunately before that, regularly), it happened that the investigating authorities held a “one-sided” confrontation, when the accused refused to confess, exercised his right to remain silent, but nevertheless carried out a “one-sided” confrontation – again, mostly for fear of being sent back to the prosecutor for “filling in the blanks”. Fortunately, this practice of forced interrogation, which disregarded the Miranda principle and was particularly unfortunate from a criminal tactical point of view (e.g. the accused could obtain data and information), was stopped within a few months by a unified, correctly interpreted prosecutorial position.” In Fenyvesi: A szembesítés büntető eljárásjogi aspektusai. [Criminal procedural aspects of confrontation] ibid. 32.
16 I should note that the court order is in the form of a protective order, against which there is no separate appeal. Here too, however, the defence, the accused or the legal representative of the witness (victim) may comment that the confrontation is prevented by law or that it is undesirable for some other reason (e.g. the witness’s mental state).
17 Fenyvesi: A szembesítés büntető eljárásjogi aspektusai. [Criminal procedural aspects of confrontation] ibid. 15.
18 Csaba Fenyvesi: A szembesítés. Szemtől szembe a bűnügyekben. [The confrontation. Face to face in criminal cases.] Budapest–Pécs, Dialóg Campus, 2008. 112.
19 Fenyvesi: A szembesítés büntető eljárásjogi aspektusai. [Criminal procedural aspects of confrontation], ibid 33.
20 In the case of a request for a confrontation, the (active) participation of the parties concerned is not mandatory, but refusal to participate is not considered as a normal practice. The court, the prosecutor and the defence must endeavour to ensure that the confrontation is a genuine confrontation in all its substantive and physical aspects (see eye-to-eye). From the point of view of the defence, the primary issues to be considered in relation to the request for a confrontation are (1) the extent to which the present evidence may serve the interests of the accused and (2) the extent to which it is compatible with the character of the accused. The latter factor should be given particular weight, since if the accused is too ‘hot-tempered’ or, on the contrary, too restrained, the dialogue before the court may do more harm than good. The petitioner cannot rely on a perfect judge’s intuition; one never knows what significance the judge will attach to an angry exchange of words or a tearful confrontation. It is therefore the duty of the defence lawyer, among other things, to seek the opinion of his client before requesting a confrontation, to study the records of previous confrontations (see the investigative section) and to assess the likely effects of the procedural act “in a realistic manner”.
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