Viktor Bérces: Evidence in Criminal Proceedings
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Chapter XI. Evidence in court proceedings
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11.5. Basic rights of trial
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11.5.1. General issues relating to the exercise of the right of inquiry. Cross-examination by the court “contra” cross-examination

11.5.1. General issues relating to the exercise of the right of inquiry. Cross-examination by the court “contra” cross-examination

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In the questioning of both the accused and the witness, it is a fundamental requirement that the answer be free from influence, so any question that also refers to or directly includes the answer given (leading question) is prohibited. However, this is a mere principle, and standardising the questioning would be impossible and manifestly unlawful. 1

Jegyzet elhelyezéséhez, kérjük, lépj be.!

I also think it is important that the questioning is not about using manners, mimicry or tone of voice. However, it would be a mistake to say that the questioner cannot influence the testimony; on the contrary, the purpose of questioning is precisely to get the accused or witness to make a statement that the questioner considers to be favourable. In this respect, however, it is not possible to influence the person being questioned, either before or during the proceedings, and effectiveness can therefore be sought primarily by ensuring that the questions are properly composed and sequenced.2

Jegyzet elhelyezéséhez, kérjük, lépj be.!

I would like to note that I do not consider it appropriate, either in relation to the prosecutor or the defence, to use questioning practices which aim to recall facts that have already been clarified. This suggests a lack of preparation and a desire to stall for time.3 On the other hand, the questioner can never know with absolute certainty how many statements – of the same or similar content – are necessary to prove beyond reasonable doubt for the purposes of the court in question.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Fenyvesi attaches great importance to the person asking the questions and the order in which they are asked.4 The author explains this opinion on pertactical grounds, but for my part, I would consider it important to amend the rules of the Be. primarily from a “dramaturgical” point of view. In my view, it should be laid down as a basic statutory rule that

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. in the case of the accused, the prosecutor should be the first to ask the questions, then the defence, and finally the court, may do so;
  2. in the case of witnesses, the prosecutor or defence counsel who requests the examination of the witness should be the first to ask questions; this could be followed by questioning from the other party, and finally the court could exercise this procedural right.
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

This change in the law would be particularly important for defendants, as it would make it clear that it is not the court that is questioning the defendant, but the prosecution.5 This would be of great importance for demonstrating judicial impartiality.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In the case of witnesses, it would be justified to provide for the priority of questioning by the petitioner, since the petitioner’s obvious preparation and more precise questioning may make the purpose of the questioning of the witness in question and the content of the testimony clearer. All this, in my opinion, would also facilitate the situation of the opposing party and the court, as they would be able to narrow down and clarify their questions in the light of these more coherent witness statements.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

All in all, I find it regrettable that the Be. – in comparison to Act XIX of 1998 – does not refer at all to the possibility of “questioning by the parties”,6 but provides as an exclusive rule that the prosecutor, the defence, the victim, as well as the interested party and the expert (in that order) may ask questions to the accused and the witness only after the members of the court.7

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Arguments both for and against the use of cross-examination can be found in Hungarian:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • According to Cséka, “the effect of this institution in promoting a fairer and more thorough adjudication of criminal cases is highly debatable, since the chairman of the board can only be involved in the substantive evidentiary activities of the parties in a subsidiary capacity, by asking questions. The chairman may thus lose control of the search for justice, whereas it is the responsibility of the judicial council he chairs to decide on the question of establishing the truth.”8
  • According to Király, however, the court is not “condemned to a passive role in this system.”9 The author adds that “the initial questioning of the accused has a somewhat accusatory character […] therefore, if he is first questioned by the judge, there is a risk that the accused may unwittingly assume an accusatory position during the questioning, which is entirely appropriate for the prosecutor but impermissible for the judge.”10
  • According to Bánáti, “it is not right for the judge to become part of the fight by conducting the trial too actively, by questioning, as this is similar to the referee watching the gladiators’ fight directly from the arena. The sand stirred up by the gladiators could easily get in his eyes, which could jeopardise his clarity of vision.”11
  • Fantoly draws attention to the following practice: if the court finds that the evidence from the witness’s testimony is likely to favour the defence, it will give the accused and the defence the right to question on the principle that the “parties” should first be given the opportunity to clarify their (necessarily) legal position. However, this solution is not, in the author’s view, acceptable, because “the criminal tactical significance of the coherent testimony may be lost by this method of questioning.”12
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

My position is the following:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • the decision not to use the cross-examination system cannot be based merely on the hypothesis that judges ask better questions;
  • would be more likely to ensure the impartiality of the chairman of the chamber (the single judge), who would not automatically be forced to take over the role of prosecutor or defence counsel;
  • it requires both the prosecution and the defence to be more precise in their knowledge of the case, and to prepare thoroughly for the trial;
  • would generally promote development of communication in trials.13
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

However, it could be argued that regulating this system as a statutory default case would lead to an unjustified prolongation of proceedings, given the current number of courts and prosecutors’ offices. The judge would then have only an indirect possibility of influencing the number of questions put by the parties and of filtering out questions which are not relevant to the case. This would lead to unplanned trials, frequent adjournments and, overall, an unjustified prolongation of the litigation period.14

Jegyzet elhelyezéséhez, kérjük, lépj be.!

According to Fantoly, this system “has difficulty in making its way in continental criminal proceedings. The procedural laws generally make its application conditional on the consent of the parties or at least the wish of one of them.”15 That said, in Hungarian practice it is still often the case that (1) in the case of witnesses, the court will leave it to the petitioner to start the questioning at once, and (2) out-of-court questioning is still possible, but only with the permission of the court.
1 Of course, there are also cases when the unpreparedness or lack of understanding of the person being questioned makes it difficult to ask questions that are not suggestive. In such cases, a judge’s permission can be obtained to help the respondent (e.g. to explain the meaning of certain technical terms or words of foreign origin).
2 The “trick question” is an established tool of defensive tactics. For example: a co-defendant claims to have seen the victim on the bus. The defender asks: “Did you see him get off the bus in Kalocsa?” The defendant replies: “No, because when the bus stopped there, I was talking!” Finally, it turns out that there was no bus stop in Kalocsa, which the defender knew when he asked the question. However, the defence’s question can be considered to be a proper one.
3 However, it may be possible to ask the same question again if it has already been answered (on the merits), but the prosecutor or the defence believes that the person questioned has given it incorrectly due to some misunderstanding. Thus, for example, if a person questioned during the investigation or prosecution phase or during the preparation of the trial later changes his or her statement, the first task of the defence is to formulate questions to clarify the discrepancy.
4 Fenyvesi (2002) ibid. 254.
5 According to Fenyvesi, however, the “prosecutor-accused” relationship cannot be interpreted in this context, since the accused is himself a client. In Fenyvesi ibid. 254.
6 Previously, the essence of this was that questions to the accused or witness could not be put by the court, but by the prosecutor or the defence, on request.
7 § 523 (4), and § 526 (4).
8 Cséka (1998) ibid. 114.
9 Tibor Király: A büntetőeljárási kódex tervezetének helye a magyar büntető eljárásjog fejlődésében. [The place of the draft Code of Criminal Procedure in the development of Hungarian criminal procedural law.]. Jogtudományi Közlöny, 1998/4. 119.
10 Tibor Király: A kihallgatások rendszere a tárgyaláson. [The system of interrogations at trial.] In. Tóth (ed.) ibid. 354.
11 János Bánáti: Homokszemek és sziklatömbök a büntetőeljárás gépezetében. [Grains of sand and boulders in the machinery of criminal procedure.] In Fantoly (2002) ibid. 506.
12 According to empirical research conducted at the Szeged Municipal Court, if the witness has not been questioned during the investigation, the judge – after recording the witness’s personal data and after the witness has been lectured – transfers the right of questioning to the party who has requested the questioning of the witness. In Fantoly (2002) ibid. 507.
13 However, the possible reluctance of the prosecution and defence staff is, in my view, due to the fact that they simply do not want to break routines, and the intention to innovate is therefore rather low for the time being.
14 Fantoly (2002) ibid. 508.
15 Fantoly (2002) ibid. 504.
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