Viktor Bérces: Evidence in Criminal Proceedings
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Chapter III. Basic concepts of evidence
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3.1. Levels of interpretation of the concept of proof
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3.1.1. Definitions and theories of the concept of proof

3.1.1. Definitions and theories of the concept of proof

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For centuries, legal scholars have studied the direction and content of the process of judicial cognition, theorising on its regularities and its relationship to objective reality. The fundamental differences have been in the way in which each author has seen the most decisive segment of this activity. However, it should be stressed that the centrality of logic is unquestionable in all definitions and theories.

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  1. Excerpts from the conceptual definition of evidence:
    • According to Angyal, proof is the logical operation by which, through various means, the evidential reasons “persuade” by their evidential force.1
    • According to Finkey, proof is the logical operation of establishing the truth or falsity of facts relevant to the conduct of a criminal trial. Evidence is most generally defined as the intellectual work done partly by the parties and partly by the court. 2
    • By proof, Irk means the logical operation designed to “convince the mind of the court of the falsity or truth of a fact or statement.”3
    • According to Vámbéry, proof is the logical operation designed to convince the court of the certainty of a fact or statement.4
    • According to Móra, the essence of proof is inference. He sees the common element of logical and legal proof in the fact that in both of them the truthfulness of the evidence can be shown by inference.5
    • In Király’s view, evidence is a complex phenomenon, involving the cognitive activity of the court, the prosecutor and the investigating authority, as well as the other participants in the proceedings, logical evidence and the logically regulated (procedural) order of these.6
    • According to Tremmel’s opinion, the primary aim of the evidence is to establish whether the past event falls within the scope of a statutory provision of the Criminal Code, or which person or persons can be linked to the commission of the crime.7 In the author’s view, it must necessarily be distinguished from the concept of detection, since the latter is a category that (merely) denotes the level of “private knowledge” or “conjecture”, whereas proof “is of a matter of common knowledge, leading to the establishment of a truth that can be understood by others and is foreseeable.”8 The author also notes that “the shortcomings of the dogmatics of the theory of proof are due primarily to the spread of lay fact-finding (jury trial) […] if the jurors are simply required to vote on questions of fact according to their conscience, their so-called ‘inner conviction’, without detailed reasoning, and the professional judge is essentially only applying the law and imposing punishment, there is little need for a scientifically sound theoretical background and definitions.”9
    • According to Cséka, evidence is a part of criminal law enforcement, one of its functions, a fundamental method of fact-finding.10
    • According to Tóth, evidence is the activity of seeking to establish a criminally significant link between the facts to be proved and the facts to be proved.11
 

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Whichever definition is used as a guide, it is certain that the whole process of evidence in criminal proceedings cannot be considered a mere process of cognition.12 Its order, procedure, framework and tools are governed by law, and compliance with its norms is a legal obligation of the authorities. The differences between the various legal systems are mainly reflected in the fact that the focus of each evidentiary act is on the investigative, prosecution or judicial stage.

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According to the Hungarian legislation, evidence in criminal proceedings is a legally regulated cognitive process aimed at establishing the material (substantive) truth, the purpose of which is to establish whether a crime has been committed and, if so, who is criminally liable. The general aim of evidence is therefore to establish the truth, which is, however, an absolute concept and therefore necessarily subjective. In this sense, the courts are satisfied with achieving a sufficient level of certainty, since the real objective of proceedings can only be to transform suspicion into certainty.13

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  1. Excerpts from some theories of evidence:
    • The “syllogism theory” describes the judgement as a logical operation in which the judge reaches a decision on the case as a result of a comparison of facts and law (the proof is essentially a series of conclusions). Some authors (e.g. Magyari14 ) argue that this activity is exclusively attributable to the courts because of its complexity. According to Földesi, the upper premise of this logical operation is the legal norm, the lower premise is the facts, and the conclusion is the judgment as normative.15
    • According to the so-called “theory of belief”, the central issue of evidence is the formation of the judicial belief or the content of consciousness which is related to the truth or falsity of the facts relevant for the decision.
    • Based on the so-called “psychological theory”, it is primarily the psychological factors behind judicial decisions that need to be examined, and which also require continuous research.
    • According to the pragmatic approach of “forensic evidence theory”, evidence is a complex intellectual, planned, practical activity aimed at reconstructing facts or events that occurred in the past.
    • According to the “procedural theory”, evidence is not only a logical process aimed at establishing the facts, but also includes all the legally regulated acts of the procedural subjects aimed at obtaining knowledge of facts relevant for the judicial decision (e.g. gathering, presenting, using, weighing evidence).
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

On the basis of the above, it can be concluded that different theories have their own conception of the role of the judiciary, and the role of the courts in the decision-making process and its nature are explained differently by different schools of evidence. On the whole, however, it can be said that logical, procedural, evaluative, social, moral and psychological factors all play a role in the establishment of the facts and in the decision making process. 16
1 Pál Angyal: A magyar büntető eljárásjog tankönyve I–II. [Textbook of Hungarian Criminal Procedure I–II.] Budapest, 1916. 314.
2 Ferenc Finkey: A magyar büntető perjog tankönyve. [Textbook of Hungarian Criminal Procedure Law.] Budapest, 1916. 277.
3 Albert Irk: A magyar büntető perjog vezérfonala. [The guiding principles of Hungarian criminal procedural law.] Pécs, 1931. 78.
4 Rusztem Vámbéry: A bűnvádi perrendtartás tankönyve. [Textbook on the Code of Criminal Procedure.] Budapest, 1916. 128.
5 Mihály Móra – Mihály Kocsis: A magyar büntető eljárási jog. [The Hungarian Criminal Procedural Law.] Budapest, 1961. 252.
6 Tibor Király: Büntetőeljárási jog. [Criminal Procedure Law.] Budapest, Osiris, 2003. 222.
7 Flórián Tremmel: Bizonyítékok a büntetőeljárásban. [Evidence in criminal proceedings.] Budapest–Pécs, Dialóg Campus, 2006. 58.
8 Tremmel (2006) ibid. 31.
9 However, the author considers it a positive development that in these countries principles of rule of law importance such as the prohibition of the use of unlawful evidence, the principle of “fair trial”, etc. have developed. In Mihály Tóth (2003) ibid. 195.
10 Ervin Cséka: A büntető ténymegállapítás elméleti alapjai. [The Theoretical Foundations of Criminal Fact-Finding.] Budapest, KJK, 1968. 220.
11 Belovics–Tóth (2020) ibid. 158.
12 In fact, it can be described as a “qualified cognition process”. Tremmel (2006) ibid. 33.
13 Belovics–Tóth (2020) ibid. 159.
14 See Géza Magyary: Magyar polgári perjog. [Hungarian Civil Procedure.] Budapest, Franklin Társulat, 1913.
15 See Tamás Földesi: Igazság az igazságról. [Truth about the truth.] Kossuth Kiadó, 1976.
16 Az ítéleti bizonyosság elméleti és gyakorlati kérdései. [Theoretical and practical issues of certainty of judgment.] ibid. 15–16.
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