Viktor Bérces: Evidence in Criminal Proceedings
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Chapter XI. Evidence in court proceedings
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11.10. The practical significance of the reply, rejoinder and right of the last word

11.10. The practical significance of the reply, rejoinder and right of the last word

Jegyzet elhelyezéséhez, kérjük, lépj be.!

After the closing speeches given by the prosecution, defence or the accused (if he or she requested to address the court), replies can be made by each party, following the order in which the speeches were delivered. The replies may be followed by further rejoinders, the last of which may be given by the defence or the accused.1 “The law does not regulate the number or length of the rejoinders, so the rejoinder is essentially part of the rhetorical debate between the prosecutor and the defence in the course of the trial of the offence.”2 At the same time, I agree with Szitás’s view that the present procedural construction is not intended to provide for further “mini-trials”. What is required of the content of the rejoinders is “succinctness with sufficient relevance.” These statements of case can therefore at most complement, but not replace, the closing arguments.3

Jegyzet elhelyezéséhez, kérjük, lépj be.!

According to Horváth, “the possibility of reciprocity hides many pitfalls. Although the last word is always the defender’s, often defenders do not take the opportunity to objectively withdraw, even though this would often support the credibility of their defence. Forced rejoinders and the wit that goes into them sometimes end up being uninformed and render ineffective the defence speech made beforehand.”4 I agree with this point of view, but I would also point out that the phenomenon quoted is rare. In general, neither the defence nor the prosecutors make use of this opportunity to make a statement.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The accused has the right to have the last word before the final decision is taken.5 The law regards the making of this statement as a mere entitlement, and to impose it as an obligation would be manifestly meaningless. Its specific features are indicated below:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • its primary function is to enable the court to discover, possibly repeatedly, the psychological relationship of the accused to the act charged;
  • has a secondary function as alegislative gesture signalling that the accused is not the object of the proceedings, but its prominent subject.
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

If the accused exercises this right, he or she will usually make a statement admitting, partially admitting or denying guilt.6 A full or partial admission is usually accompanied by an expression of remorse. It should be noted that, as in the case of pleas in absentia, there are no limits on the time or content of the plea, unless (1) it is intended to delay proceedings, (2) it involves expressions that constitute an offence, or (3) it creates disorder.7

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Judicial practice and legal literature are strongly divided on the legal relevance of this statement by the accused. According to the Court, statements made under the right of the last word are important procedural acts, but cannot be treated in the same way as the interrogation of the accused.8 However, the Be. even creates the condition that statements made under the right of last resort should lead to the reopening of the evidentiary procedure.9 Therefore, in principle, the final statement cannot be regarded as a mere waste of words, nor can it be ruled out that new evidence is presented which could have a decisive influence on the content of the subsequent decision. The most typical case of this is when the accused makes a confession or denial contrary to what he or she has already confessed. Even then, the possibility that the court may reopen the evidentiary procedure and order that it be supplemented is not excluded.10 If this is not done, however, the right to have the last word is transferred to the defence, which asks for the new mitigating circumstance to be taken into account in the light of the changed circumstances or, conversely, for the aggravating circumstance to be disregarded.11

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Because of the lack of restrictions on content and form, there is great variety in the statements given under the right of the last word:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • if there is no defence counsel present, the statement made in the last word should be considered as a defence in substance (“self-defence”); the accused may even use it to assess the evidence, or even to join the mitigating circumstances listed by the prosecutor or to challenge the aggravating factors listed;
  • if there is a defence counsel present, there seems to be no justification for a self-defence, since the recitation of arguments made in the previous defence in a more trivial formulation may become “mere words”;12 in such cases, the best solution is for the accused to join in what his defence counsel has said and to make only emotional statements.
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

However, when examining these statements, the focus should be on the emotional aspects. “A defence that evokes real emotions is very appropriate”,13 writes Traytler. Therefore, if the accused seeks advice from his defence counsel before exercising this right, he should first of all point out that a simple but sincere “I regret it!” is often more valuable to the court than a sobbing, apologetic statement promising, putting on the appearance of naivety, or using a negative tone of voice. The courts do not attach much importance to the accused’s general view of the criminal proceedings as a whole.
1 CPC § 544 (3) para.
2 Szitás ibid. https://jogaszvilag.hu/eletmod/jog-es-retorika-kulonos-tekintettel-a-perbeszedek-szerepere/
3 Szitás ibid. https://jogaszvilag.hu/eletmod/jog-es-retorika-kulonos-tekintettel-a-perbeszedek-szerepere/
4 Horváth (1975) ibid. 195.
5 CPC § 545.
6 In the latter case, he usually says that he agrees with what the defence has said.
7 § 546 (2)–(3) para.
8 EJF 2001/2. 30. In Czine–Szabó–Villányi–Baka (2008) ibid. 309.
9 547. §
10 Bolgár–Kárpáti–Traytler (1962) ibid. 215.
11 The legal information given earlier by the defence counsel may of course also be directed to the statement to be made by the accused to the court in this respect.
12 “The last word that reiterates the arguments of the defender is ineffective. However, a last word that reflects the outcome of the trial in the mind of the accused, the extent to which he has grasped the evidence of his guilt, the extent to which his assessment of the offence he committed has changed, the extent to which his sense of guilt has developed, will be effective. It is undoubtedly the right and duty of the defence to draw the attention of the defendant to all this. The last word is an important manifestation of the defence in the material sense, and defensive action is also necessary to ensure that it has the right effect.” In Hegyháti–Révai (1962) ibid. 297.
13 Bolgár–Kárpáti–Traytler (1962) ibid. 213.
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