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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11.9.3. Differences between prosecutors’ and lawyers’ closing arguments. Summary

11.9.3. Differences between prosecutors’ and lawyers’ closing arguments. Summary

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The prosecution and defence speeches have only one common feature: the requirement to present the factual and legal position of the speaker in a logical, organised structure. In addition:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. The prosecution speech always takes place before the defence speech, but it must also reflect in advance, before even hearing, on the defence arguments that follow. This is certainly one of the most difficult aspects of the prosecutor’s tasks, but the expected content of the defence speech can usually be deduced from the evidence, the defence’s previous questions and motions.
  2. The starting point for the trial phase is the facts established by the prosecutor.1 The defence, on the other hand, cannot establish the facts, but can merely reflect on the facts in the indictment. 2
  3. In each case, the court is aware – approximately – of the plea bargain that can be expected on the basis of the indictment. However, the content of the plea is unpredictable and can sometimes take place in a matter of moments without the court having any clue as to the specific intentions of the defence.
  4. With regard to the defence, the law refers only to its name and its place in the course of the trial.3 This phenomenon presumably stems from the legislator’s hypothesis that no limits can be placed on the work of the defence, as this would infringe the freedom of the defence in terms of content and form. In the case of the proscutor’s closing argument, however, the mandatory and minimum content elements are laid down in law.4
    For my part, I would prefer it if certain legal criteria – of course of a purely formal nature – were also laid down for the defence.5 In my opinion, it would not affect the freedom of the lawyer’s work at all if the Code of Conduct were to lay down certain minimum rules for the structure of the defence speech, or if the defence’s motion for qualification or sentencing were to be subject to an obligation to state reasons. This would improve the quality of the court’s work, as in many cases there is no lawyer’s reasoning (e.g. when referring to the possibility of applying the mitigating clause), and the defence often makes only simple requests to the court, without supporting them with legal or other (e.g. ethical) arguments. I believe that this significantly undermines the procedural status of the defence.
  5. The prosecution speech is mandatory, while the defence speech only includes a motion for a specific sanction, at the rapporteur’s discretion.
  6. A prosecutor’s closing argument is a more limited statement, as it can only ever contain one type of motion. The prosecutor therefore has no possibility to make a secondary (alternative) motion in case the court does not accept his position. On the other hand, the defence closing argument is allowed to present different possible variations as regards the facts, the qualification and the sanction.6 From this point of view, it may therefore seem to be easier for the defence, but it should be borne in mind that it is also not advisable for the lawyer to bombard the court with different solutions, as this could easily make his arguments frivolous.
  7. “While the structure of a prosecution speech is progressive, usually culminating in a motion for a finding of guilt, a defence speech can be structured inductively or deductively.”7 Accordingly, the defender may even choose to formulate his final conclusions on the case (e.g. that the offence is not factual) at the beginning of his speech.
  8. The defence usually has more of a “theatrical” element, the primary reason being that the defence has to be multidirectional, addressing the court, the accused and the audience who may be present.
  9. The accuser has to prove his allegations beyond reasonable doubt, whereas the defender succeeds if he can show that the accusation is untenable.
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Whatever the closing argument, the person delivering it must be aware of its importance, as it may lead the court to reopen the evidentiary procedure if it considers it necessary. Moreover, if the court finds, following the speeches, that the offence charged may be different from that charged in the indictment, it may adjourn the trial in order to prepare the defence, and must hear the prosecutor, the accused and the defence.8
1 Let us also not forget that the prosecutor is the only one who can decide on the charge.
2 In this context, you can, among other things, draw attention to the exclusion of the facts, their deficiencies and make other requests for evidence.
3 “Since it has been part of the legislation, the Code of Criminal Procedure has practically never laid down detailed rules on the defence.” In: Szitás ibid. https://jogaszvilag.hu/eletmod/jog-es-retorika-kulonos-tekintettel-a-perbeszedek-szerepere/
4 The basic elements of the argument are the introduction, the statement of the facts, the presentation of the evidence on which the facts are based and the evaluation of the evidence, the legal qualification, the motion for sentence and the conclusion.
5 In juvenile cases, it is even stipulated in connection with closing arguments that the prosecutor may not make a motion for a specific level of correctional education. [§ 693 (3)]
6 However, according to Fenyvesi, if we compare the closing arguments with the court decisions, “we can conclude that the closing arguments cannot be considered complete, unlike the court decision, which is subject to the requirement of completeness. The defence does not have to deal with all aspects of the case, the defence speech is necessarily one-sided and partial, highlighting only what is important from the point of view of the defendant. Since the defence counsel can only seek clarification of the issues in favour of the accused throughout the proceedings, including the trial, the otherwise objective defence is necessarily characterised by a certain one-sidedness and bias. This bias is also recognised by the CPC by regulating bias against the prosecutor as a ground for exclusion, whereas a biased person may also act as a defence counsel under the law. The defence speech cannot therefore be an objective final report.” In Fenyvesi: Védői jogok az elsőfokú bírósági tárgyaláson. [Rights of the defence at first instance,] ibid. http://jesz.ajk.elte.hu/fenyvesi8.html
7 In: Szitás ibid. https://jogaszvilag.hu/eletmod/jog-es-retorika-kulonos-tekintettel-a-perbeszedek-szerepere/
8 547–548. §§
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