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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11.5.3. The right of petition in general. The prominent role of evidentiary motions

11.5.3. The right of petition in general. The prominent role of evidentiary motions

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A motion is a verbal or written declaration of intent by the prosecutor, the accused, the defence, the victim or any other person named in the CPC the purpose of which is to perform or not to perform a procedural act. Classifying the content of motions is an almost impossible task, since the legal effects of the procedural acts targeted are also very different. However, the following are examples of common motions:

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  • motions to impose, maintain or terminate coercive measures;
  • motions to postpone or adjourn the hearing;
  • motions to exclude the public (audience);
  • motions for evidence, etc.
 

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From the above list, evidently the most significant are the motions for evidence, since the procedural act ordered as a result of such motions may provide decisive facts and data with regard to the guilt of the accused or the provability of the given offence. These motions are usually aimed at obtaining evidence and examining or evaluating existing evidence.

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The single judge or the chairman of the chamber decides on the evidence proposed and the order in which it is to be presented, with the evidence proposed by the prosecution usually preceding that proposed by the accused and the defence.1

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An important rule is that the prosecution, the accused or the defence may only submit a motion for evidence after the preparation of the trial if

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  1. the facts or evidence on which the motion is based arose after the preparatory meeting or came to the knowledge of the movant through no fault of his/her own after the preparatory meeting, or
  2. the motion serves to refute the probative value of an evidentiary instrument or the result of an evidentiary hearing,2 provided that the manner and means of doing so have become known to the court only from the evidence taken.3
 

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The court examines the request for evidence from the point of view of whether the evidence requested is necessary to clarify the facts, and then decides whether its submission complies with the rules of the Be.4 As a result, the court may make the following decisions:

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  • if the requested evidence is not necessary to clarify the facts, the court may reject the request made contrary to the law without giving reasons on the merits;5
  • if the facts of the case cannot be clarified without the requested evidence, the court shall also grant the motion filed contrary to the rules of the Be.6
 

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If the court rejects the request for evidence, it can only be challenged at the trial or on appeal.7

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The first guidance on the exercise of the right of petition was given in the BK Opinion 1/2007, which is still considered to be the guiding opinion. According to this opinion, the prosecutor may submit a motion for evidence in support of the prosecution during the court proceedings, but the court is not obliged to grant it. Indeed, the prosecutor would be indirectly exercising a judicial function if he could, by means of a binding motion, determine what evidence the court should take.8 If, on the other hand, the record of the proceedings indicates the existence of additional evidence (possibly) supporting the prosecution’s case, but the prosecutor has not made a motion to obtain it, the court cannot make a specific request to that effect, because by so doing it would violate the principle of separation of functions and would, in essence, be assuming the function of prosecutor.9

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It follows from the presumption of innocence that the accused is not obliged to present any (evidence) at the trial. This is true even if he has evidence that would lead to his acquittal, the termination of the proceedings or a reduction of his criminal responsibility. This is not true, of course, of prosecutors and defence counsel, who have not only a legal but also an ethical (professional) obligation to submit such evidence. However, a motion by a defence lawyer differs from a motion by a prosecutor in that it is usually made even if the chances of success are extremely remote. The prosecution, however, usually exercises this right in a much more selective manner, as all the evidence in support of the prosecution case is usually available by the time of the trial.

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Requests for evidence may be directed, inter alia, to:

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  • the production of a record of the procedural steps,
  • order an inspection,
  • the recruitment of a new expert,
  • supplement the evidence,
  • prove the motive of the accused, the personality of the witness, the interest of the witness, the bias of the expert,
  • examine whether a particular act could have occurred in the circumstances,
  • read out documents,
  • the production of physical evidence, etc.
 

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An unsuccessful motion must be resubmitted if the circumstances of the case warrant it (e.g. the witness tells the lawyer in private that he or she is willing to tell the truth for the second time). Similarly, a motion that has been denied must be resubmitted if there are more compelling reasons for ordering it.10 It is important that the motion for an evidentiary hearing should be reasoned to the court (but should not be transformed into a pleading).

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On the defence side, note that

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  1. in making these motions, the defender is not at all bound by the will of the accused and should not allow himself to be influenced by his client or his relatives,11 in fact: the defender may make such motions as he or she deems necessary, over the objection of the accused, provided that they are aimed at establishing exculpatory or mitigating circumstances12 (in this context, the defender is therefore subject to only one limitation, namely that his or her evidentiary motion must always be aimed at promoting the rights and legitimate interests of the accused); 13
  2. the accused may also have expedient motions, and indeed: these must always be considered by the defender, who should not be deterred from taking such initiatives because of the lay nature of his or her defence;
  3. it is up to the defence to determine when to make the evidentiary motions: from this point of view, according to Fenyvesi, it is not advisable to leave motions that already appear to be well-founded at the investigation stage to the trial stage, as (1) the passage of time does not favour the evidence; (2) the indictment leads to a new authority holding the accused liable, which also does not favour the defence, as it may influence the court.14
1 § 519 (2) –(3) para.
2 In this case, the motion may be filed within fifteen days of the evidence taken, at the same time the petitioner must establish the probability of the subsequent admissibility of the evidence and its suitability to refute the evidence taken. [§ 520 (3) para.]
3 § 520 (1) para.
4 § 520 (4) para.
5 § 520 (5) para.
6 § 520 (6) para.
7 As the rejection of the defence’s evidence is a leading order, it can only be challenged in an appeal against the judgment. In this appeal, the unsubstantiated nature of the judgment must be pointed out to the court of appeal, and it is not a matter for concern if the appellant raises the possibility of setting aside the judgment of first instance in his application.
8 However, the lack of evidence obtained from the means of proof proposed by the prosecutor but not obtained by the court, if it would have been necessary to establish the facts, results in unfoundedness.
9 This does not mean, of course, that the court cannot obtain or examine incriminating evidence in the absence of a motion by the accuser, but only that it is not obliged to do so, and that its practice cannot be held accountable.
10 A common reason for rejections is that the motions do not make it clear what the defender is trying to prove. If this is the case and the court is unable to clarify the issue, it is a case of malpractice which can be remedied by a repeated and clear motion. In Bolgár–Kárpáti–Traytler (1962) ibid. 373.
11 This is particularly true when the accused tries to persuade the defence to resort to illegal or unethical methods of proof.
12 “In this context, it cannot be ruled out that a defence motion for evidence in favour of the accused may be aimed at obtaining information on the accusation of another, opposing party, or possibly aggravate the situation of the latter, but this does not become a defence accusation and is not excluded either by law, the code of ethics or theory.” In Fenyvesi (2002) ibid. 259–260.
13 Conduct by a lawyer in breach of these constitutes a serious breach of professional obligations and should result in disciplinary sanctions imposed by the competent bar association.
14 Fenyvesi (2002) ibid. 260. I would like to note that these statements can be generally accepted, but we should not lose sight of the fact that the defence lawyer’s primary task is not to convince the investigating authority, but the court of his legal position. This, however, often requires the defence to reserve a particular evidentiary motion (e.g. the examination of a witness) for the appropriate procedural stage.
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