Viktor Bérces: Evidence in Criminal Proceedings
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Chapter III. Basic concepts of evidence
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3.4. Verification and weighing of evidence

3.4. Verification and weighing of evidence

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The verification of evidence is carried out in a logical and empirical way: (1) in a logical verification, the member of the authority (court) follows the chain of known data according to the general laws of human reasoning and draws a conclusion; (2) in an empirical verification, new procedural steps are taken to directly verify existing evidence or to obtain new (conclusive) evidence. 1

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The weighing of evidence is a logical process aimed at determining the relevance of the evidence, its relationship with other evidence, place in the body of (?) evidence, significance, potential for further use and whether, together with the evidence already obtained at a given stage of the proceedings, it provides a sufficient basis for a procedural decision.2 An important basic principle of this activity is that not only credible evidence based on exclusivity should be used, but that all possible evidence should be examined and evaluated – even if its foreseeable relevance is likely to be limited. In this respect, Kertész argues that “if only the evidence on which the final judgment is based were to be regarded as evidence, it would not in fact be part of the evidentiary procedure, but would only appear when it was no longer needed: when the evidence was completed.”3

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If we take the whole of the evidence as a basis, I believe that this activity is carried out not only by the official (judicial) bodies, but also, where appropriate, by the accused and the defence. It should be borne in mind that the defence may also provide positive evidence, in which it first considers the plausible content of the evidence it intends to adduce (e.g. private expert opinion) and, in the light of that, submits its motion to the court.

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According to Kertész, discretion as an intellectual activity has no specific judicial characteristics, so in principle there is no distinction between discretion exercised by judges, prosecutors or investigating authorities. The author justifies this position by stating that “the finality of the effect of the decision resulting from the exercise of discretion does not derive from the specific features of the exercise of discretion, but from the legal mandate.”4 I cannot, however, agree with this view, since the purpose of the balancing exercise is (1) for investigating authorities and prosecuting authorities, to decide whether evidence is admissible at trial, and (2) for the courts, to decide the merits of the case. In the case of investigating authorities and prosecuting authorities, the balancing exercise is therefore much more “generous”, and its purpose is not to reach a specific decision but to “advance” the proceedings in general.

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The weighing of the evidence must be a separate process for each piece of evidence or for the totality of the evidence. The weighing of individual pieces of evidence is typical of the investigative phase, and at this stage issues such as the credibility of the evidence do not arise. The latter is only examined when the authorities (the courts) have at their disposal a number of pieces of evidence which appear to be of equal weight. Selection on the basis of “lack of credibility” is therefore a feature of the prosecution or court stage. Moreover, the “lack of credibility”

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • is a reflection of the evidence, conservation, procedural methods, and
  • depends on the “equipment” available to carry out the procedural act.
 

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“It is in the light of these circumstances that further consideration can be given to the relevance of the information obtained from the evidence in establishing the truth and in fully and objectively exploring the circumstances of the case from all sides.” 5

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In the balancing exercise, the question inevitably arises whether the finding of fact or the legal classification can be based solely on circumstantial evidence. In my view, there is no obstacle to this on either a legal or theoretical basis, but judicial practice has not clarified this question in any way, and at most, case-by-case decisions can be examined in the context of the grounds for unfoundedness.
1 Kertész (1972) ibid. 395.
2 Kertész (1972) ibid. 398.
3 Kertész (1972) ibid. 82.
4 Kertész (1972) ibid. 405.
5 Kertész (1972) ibid. 401–402.
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