Viktor Bérces: Evidence in Criminal Proceedings
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Chapter XI. Evidence in court proceedings
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11.9. The importance of trial speeches in evidence
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11.9.1. The prosecution’s case (plea)

11.9.1. The prosecution’s case (plea)

Jegyzet elhelyezéséhez, kérjük, lépj be.!

A fundamental characteristic of the prosecutor’s closing speech is that its mandatory content is – to a minimal extent – laid down in law. This legislative solution is a consequence of the principle of the statutory charge, which requires that certain precise aspects apply not only to the indictment but also to the closing argument. The relevant substantive rules can be grouped according to whether the prosecution’s final decision is to find guilt or acquit. On this basis:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. If the prosecutor considers the guilt of the accused to be established, he or she submits a motion in his or her closing speech, indicating to the law and advising the court on (1) the exact offence and facts based on which the accused should be found guilty, (2)the punishment or measure to be imposed,1 and (3)other orders to be made2 (e.g. It should be noted that criminal proceedings cannot be terminated on the grounds of lack of a statutory charge if the prosecution adds to the facts of the charge in the final indictment facts which contain elements of an additional offence.)3
  2. If the prosecutor’s motion is for acquittal, he shall make a reasoned motion in his closing argument, if he is satisfied, on the basis of the evidence, that (1) there is no proof that the offence was committed, or (2) there is no proof that the offence was committed by the accused, or (3) the accused is guilty of a crime not punishable by law, or is a minor, or of a pathological state of mind, or acted under duress or wasthreatened, or made a mistake.4
  3. If the court has accepted the guilty plea at the preparatory hearing, the prosecutor may not change the sentence or the application of the measure in his or her closing argument.5
    In addition to the above, the representative of the prosecuting authority of course also enjoys full “rhetorical freedom”, but certain principles of theoryand practice – based on “procedural customary law” – also apply to closing arguments. Hence:
    • in these speeches, it is not necessary to repeat the facts of the indictment verbatim (it is sufficient to highlight the facts relevant to the qualification and to summarise them briefly in chronological order);
    • both aggravating and mitigating circumstances6 must be referred to, if they exist;7 however, it is obvious that, in order to establish the prosecution’s case, the prosecutor focuses on the aggravating factors, but must also highlight those mitigating circumstances that can be clearly established on the basis of the case file (e.g. no criminal record).
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

According to the above, “the prosecutor is not an idle bystander, a witness condemned to passivity in the formation of judicial conviction. He can and must influence the judge’s discretion. And the final and most important means of influencing the judge, which sums up the entire proceedings so far, is the prosecution’s speech, including the assessment of the evidence. If we look at the classic parts of the speech, it is easy to see that the failure to assess the evidence alone can have almost irreparable consequences. Some parts of the facts, the legal classification or the circumstances of guilt can be supplemented and corrected by the prosecutor in the second instance – provided, of course, that there is a second instance […].”8

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The prosecution has a fundamental duty to assess the evidence, and this cannot be delegated to the court. When assessing the evidence, all evidence must be included in the scope of the assessment and the process must be complete. “The most common error in this area is when the prosecutor, in addition to a detailed discussion of the evidence supporting the prosecution’s case, fails to deal with data that – apparently – weaken the prosecution’s case. It is correct if, in the course of its evaluation and analysis, he or she carefully examines each and every circumstance and expresses his or her position not by a cogent recitation of incriminating evidence, but by confronting it with contrary circumstances, while at the same time possibly demonstrating the untenability or inability of the accused to defend himself.”9

Jegyzet elhelyezéséhez, kérjük, lépj be.!

It is undoubtedly an advantage if this oral statement, like the defence, expresses the internal convictions of the rapporteur, but this is of course not a condition for the success of the prosecution. It is important that the prosecutor’s assessment of the evidence in the prosecution case is preferably consistent with the presentation of the facts and not general. It is therefore not enough to list the evidence, the relevance of the evidence must also be indicated. And if the accused presents a substantive defence earlier in the trial, the scope of the evidence (i.e. the content of the closing argument) should be framed in the light of this.10
1 In this connection, it should be noted that: (1). The prosecutor may never make a motion in his or her closing argument for the specific amount of the sentence or measure [§ 542 (2)]; (2) If the court has accepted the plea of guilty at the preparatory session, the prosecutor may not change his or her motion in his or her closing argument for the imposition of the sentence or the application of the measure to the accused [§ 542 (3)].
2 § 542 (1) para.
3 BH 2009.74. In: Belovics–Tóth (2020) ibid. 424.
4 § 542 (4) para.
5 § 542 (3) para.
6 Mitigating and aggravating circumstances in criminal law are dealt with in Criminal Law College Opinion No 56. I would emphasise that the latter is not an exhaustive(?) list, which in my view would be an impossible undertaking. It should be noted that the prosecution and the defence only rarely venture to go outside this scope, which has led to a not inconsiderable loss in qualityin legal argumentation. However, the courts themselves are reluctant to take into account other factors instead of (or in addition to) the mitigating or aggravating systems that have become dogmatic, since they make the decision easily open to challenge in the context of the appeal procedure.
7 Despite the fact that these factors have not been legally established in the Hungarian legal system, it is a legal obligation of the court, the prosecutor and the defence to explore them. However, the judicial assessment of these circumstances is completely unpredictable, since the sentencing judge has only a theoretical possibility to take into account the factors influencing the imposition of the sentence, but is not obliged to do so in any way.
8 Tóth (2012) ibid. 34.
9 Tóth (2012) ibid. 37.
10 Tóth (2012) ibid. 34–36.
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