Viktor Bérces: Evidence in Criminal Proceedings
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Chapter II. Paradigm shifts in the development of evidence in Hungarian law
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2.4. The stages of the trial under Act XXXIII of 1896 (I. Bp.)
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2.4.1. Rules of jury trial

2.4.1. Rules of jury trial

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The wave of political liberalisation has also had an impact on the judiciary. Accordingly, the legislature has made it possible for lay people, typically untrained in legal matters, to participate in the judicial process. It was in this spirit that Act XXXIII of 1897 on the Jury Court was created, which assigned the most serious crimes to this body.1

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The Bp. regulated the jury proceedings under the heading “Evidentiary Proceedings, Questioning and Jury Verdict”.2 This chapter did not contain any different rules from the main proceedings before the tribunal3 except that the right to question witnesses and experts directly was also granted to the jury.4 The general rules for jury trials were as follows:

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  • after the jury was sworn, the jurors took their seats opposite the accused;
  • the language of the hearing was Hungarian; in the case of a party to proceedings who did not speak Hungarian or of documents written in a language other than Hungarian, the president was obliged to provide an interpreter;5
  • in addition to the direct right of questioning, the jury could at any time make motions to supplement the evidence;
  • the specialised magistrates, without the jury being heard, issued a decree of dismissal in the event of the death of the accused or the impeachment of the royal prosecutor;
  • the specialised judges, after hearing the parties, but without the jury having been empanelled, delivered a verdict of acquittal in the absence of legal authority to indict, of a wish to indict or of a private defence; res iudicata; in the case of limitation or pardon, and where the accused has not reached the age of 12;6
  • the prosecutor (prosecutor, private prosecutor), after the conclusion of the evidentiary proceedings, “proposed the questions to be put to the jury”7 before the trial speeches were made; the advantage of this order was that these questions could be criticised in the subsequent prosecution and defence speeches.
 

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A central element of the evidentiary acts in jury trials was the exercise of the right to question.8 The importance of asking these questions in a precise and well-directed manner was such that, in order to formulate them, the main trial had to be interrupted at the request of the accused, his defence counsel or any of the jurors. The president could, in any event, briefly adjourn the session for the purpose of putting these questions in writing and was then obliged to read out the proposed questions.9 The accused, his counsel and the jury were all entitled to:

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  • object to the proposed questions, or
  • make a motion to correct or amend them or to ask further questions.
 

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The court ruled on the above, and the questions considered final had to be read. The questions were to be posed to the jury in such a way that they had to answer only “yes” or “no” (simple questions). This was primarily for the purpose of comprehension, although the number of questions varied according to the size and complexity of the case. If there were several defendants or several offences, the questions had to be grouped separately for each defendant and each offence, as this was the only way to complete the decision for each defendant or each offence.10

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  1. The main question was whether the accused was guilty of the offence charged; this had to be formulated according to the facts and the law as contained in the indictment, or failing that, in the indictment or the indictment as amended at the main trial.11 Finkey specifically stated that “the question of fact, the question of law, the question of commission and the question of guilt or imputation must be merged into the main question, i.e. there must be no separate question as to whether the accused committed the act”. The main question therefore had to cover both the act as described in the indictment and its legal classification.12 If, as a result of the evidence, the accused could be guilty of an offence other than that contained in the indictment, a separate question had to be asked. In the latter case, however, separate questions could only be asked with the consent of the accused, and if the accused did not consent, the procedures had to be separated.
  2. So-called subsidiary questions are – usually – included in a separate question. Such side questions included:
    • the discernment of juvenile offenders aged 12–18;
    • the existence of grounds for non-criminalisation (e.g. refusal to fight, attempted refusal, etc.);
    • the possibility of applying a lighter or more severe penalty, etc.
 

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Then came the speeches, which could not, however, touch on the question of punishment, which was only raised for the first time in the case of the conviction.

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The president then gave general instructions to the jury

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  • on the issues,
  • the legal problems to be solved, and
  • on the applicable laws, without being able to formulate any preconceptions about the case, even indirectly.13
 

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The jury reached its decision by a simple majority.14 In the event of a tie vote, a verdict in favour of the defendant was declared, based on the principle of in dubio pro reo.15

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The president of the court reopened the session and, at the invitation of the “jury foreman”, read the questions and the jury’s answers again. The jury’s verdict as read was to be authenticated by the signatures of the jury foreman and the clerk.16 However, this did not constitute a final verdict, because a so-called “corrective procedure” could be ordered until the court had reached a verdict.

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A “corrective procedure” was used if (1) the verdict was not in order, (2) the jury’s answer to a question was unclear or not all questions were answered, or (3) the findings of fact or answers to questions of law were inconsistent.17 In this case, the new verdict had to be written next to the questions so that the previous verdict remained legible. 18

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An ex officio stay of proceedings was imposed if the jury erred in its verdict to the prejudice of the accused.19 The court then referred the case to the jury trial of the next session without giving reasons. It follows that where the jury erred in favour of the accused, i.e. where an acquittal was obtained, this statutory provision could not be applied.

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In all other cases, the jury foreman would arrange for the defendant to be brought before the jury and then have the clerk read the jury’s final verdict, and in the case of a mistrial to the prejudice of the defendant, the courtmade the following decisions: 20

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  1. if the jury found the defendant not guilty or answered yes to the question whether there was no excuse, the defendant was acquitted;
  2. in the case of a conviction, the accused made a motion for sentence, followed by a statement of the victim’s private claim; the accused and his defence counsel were then allowed to speak once, but not to criticise the jury’s verdict; only then could the court retire to deliberate on the verdict and the verdict had to be delivered without interrupting the proceedings and then announced immediately. 21
 

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The court could not postpone the delivery of the judgment to a later date. However, at an earlier stage of the proceedings, the law allowed for the adjournment of the main jury trial, but only until the jury had retired for deliberation. At that time, jurors could even go home, with the permission of the foreman, without being allowed to discuss any pending case. In the event of an adjournment or interruption of more than one day, the jury had to be reconstituted and the trial had to start again. 22

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The operative part of the jury verdict had to include: the questions asked, the jury’s answers to those questions,23 and the aggravating and mitigating circumstances assessed in imposing the sentence (which the court was obliged to take into account ex officio and to state in its reasons).

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The judgments of the district court and the court of first instance could be appealed, but the Bp. Section 381(1) excluded the possibility to appeal against the jury verdict. The Ministerial Explanatory Memorandum justified this exclusionary rule on legal grounds and by citing foreign examples. It is to be noted that no other country’s code, with the exception of the English Act of 1907, allowed an appeal against a jury verdict on a question of fact. However, this did not mean that the jury’s verdict was without review. An appeal against its verdicts could be lodged with the Royal Court of Appeal.24 Such grounds for nullity were:25

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  • the court did not apply the provision of the criminal law or applied it incorrectly;
  • the court, when imposing the sentence, did not observe the limits prescribed by law in the sentence or in the permissible reduction, commutation or aggravation of the sentence;
  • the law was broken when the questions were asked; or
  • the jury verdict was vague, incomplete or self-contradictory.
 

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The Royal Court of Appeal based its decision on the facts as found by the jury, and there was no need to admit evidence at the hearing of the nullity complaint. It could therefore only examine the application of the substantive law. It follows that, as a general rule, the highest judicial forum could notset aside the acquittal or attempt to correct any decision of the jury which it considered to be erroneous by instructing it to retry the case. 26

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Under the amendment of Act XIII of 1914 (Bpn.), separate questions of fact and law had to be submitted to the jury in the main question. On this basis:

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  1. The question of fact was whether it was true that the accused had committed the act on which the charge was based: the question had to be formulated by listing all the factual circumstances which
    • met the elements of the offence as defined by the applicable law and were capable of distinguishing the offence, and
    • which a party or a juror has requested to be listed, or which the court has deemed necessary to list without a motion.
  2. The question of law was whether this act constituted the offence charged in the indictment; therefore, the elements of the offence set out in the applicable law had to be listed verbatim in these questions.27
 

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After the outbreak of the First World War, the powers of the jury were gradually narrowed. This was made possible by Article 12 of Act LXIII of 1912 on Exceptional Measures, which provided that the Ministry could refer to the Royal Courts of Justice the main trial of all offences which had previously been the responsibility of the jury courts and which affected the interests of warfare. After the World War, the jury courts were temporarily suspended by Decree No 6898/1919.M.E. and their re-establishment was not subsequently carried out.
1 Under the rules of the Act, this included offences punishable by imprisonment for a term of 5 years, regardless of the degree of enforcement. In Mezey–Pomogyi (2001) ibid. 385.
2 Chapter XIX, Chapter III, §§ 350–369
3 Chapter XVIII
4 Bp. 351. §
5 Bp. 350. §
6 Bp. 352. §
7 Bp. 353. §
8 I would note that the Ministerial Explanatory Memorandum to the legislation considered questioning to be the most important part of the jury trial procedure.
9 If the defendant and the jury specifically requested it, copies of the questions were to be made available to them.
10 Bp. 354. §
11 Bp. 355. §
12 The Minister’s explanatory memorandum in this regard pointed out that two mutually exclusive “statements of fact”, such as robbery and extortion or intentional homicide, cannot be included in the main question for the same act, because jurors cannot answer yes or no to these questions.
13 Jurors were not allowed to leave the courtroom during their deliberations unless the majority of them felt they needed further clarification on any legal issue. They then returned to the courtroom where, after the opening of the session, the president, in the presence of the parties, gave them the requested clarification. If either party so requested, this was to be recorded in the minutes. Once the jurors’ legal interest had been satisfied, they retired to their chambers and resumed their deliberations. When the jury had deliberated on all the relevant questions, the foreman, chosen by a simple majority from among themselves by an open ballot, put the questions to be answered in the order in which they were recorded by the foreman. If any juror so requested, the vote was taken in secret, the foreman casting his vote last. During this procedure, no one other than the jurors could be present (Bp. 367. §).
14 A conviction required at least 8 votes in favour.
15 Bp. 368. §
16 Bp. 389. §
17 Therefore, if the jury’s verdict is not clear and exhaustive, the court expressed its will that the jury fill in the gaps and make it clear to everyone. When called, the jury retired again to their separate chambers to deliberate. If there was only a formal objection, the foreman called upon the jury to correct it, and if they were wrong on the merits, he informed them that they could depart entirely from their previous verdict.
18 Bp. 370. §
19 Bp. 371. §
20 Bp. 372. §
21 Bp. 373. §
22 Bp. 376. §
23 Bp. 375. §
24 Bp. 426. §
25 Bp. 385. §
26 If, in the course of the review of the nullity complaint, the Curia found that there had been a material error of fact in the jury trial, it could not do anything other than annul the jury trial, which was obliged to give reasons for its decision, and could also provide that the members of the jury trial, the judges and jurors of the jury trial, or only the judges or only the members of the jury, could not participate in the retrial. (Act CL of 2016 on the Rules of Taxation, hereinafter: Art.)
27 The question of fact had to be framed according to the facts, and the question of law according to the law on which the accusation was based (Bpn. § 45).
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