Viktor Bérces: Evidence in Criminal Proceedings
›
Chapter V. The Anglo-Saxon system of evidence today
›
5.1. General features of evidence procedures

5.1. General features of evidence procedures

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The analysis of Anglo-Saxon systems of proof seems more difficult, mainly because of the precedent law, as it requires a case-law approach. Even in this system, however, there are pillars of principle which provide a general description of the nature of the proceedings. Among these characteristics, the following should be highlighted:

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. The general aim of the taking of evidence is to establish the formal (legal) truth, i.e. not to fully establish the historical facts, but to determine which of the parties’ motions for evidence is the more convincing, by ensuring maximum procedural fairness.1 On this basis, it can be said that
    • the basic function of the Anglo-Saxon systems is not the administration of justice but the administration of law;
    • the competent authorities (courts) are satisfied with a level of proof beyond reasonable doubt.
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

For reasons of “procedural fairness”, certain prohibitions on evidence are particularly emphasised;2 it is no coincidence that some authors refer to these systems as “models of due process”.3

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. The most important procedural stage is the trial.4 Accordingly:
    • an investigation can be considered as a systematic activity aimed at gathering evidence;
    • the investigating authorities or the prosecutor have no power to take decisions that could fundamentally change the course of the proceedings5 ;
    • the court does not learn the facts from the documents already obtained, but from the evidentiary procedure at the trial.
  2. The role of the professional judge is limited mainly to the control of the evidentiary procedure from the point of view of legality and the granting of individual motions.6 Of course, the possibility of the judge also exercising the right of questioning is not excluded, but it is less common for him to order a court-initiated measure of inquiry in addition to the motion of the defence or the prosecutor. For this reason, opinions are divided as to the role of the professional judge in the taking of evidence: the view of Király is that in this system the specialised judge cannot be considered as the subject of the taking of evidence.7 This is essentially the position of the general public, since, admittedly, the first thing that comes to mind when we think of Anglo-Saxon legal systems is the concept of the ‘jury’. However, it is also often argued that specialised judges are completely passive as regards the taking of evidence on the merits that their role is merely to make “snap decisions” on the prosecution’s or the defence’s objections, and that they have no obligation to give reasons for the facts or the evidence on which the judgment is based.8 However, according to some foreign authors, specialised judges are subjects of the taking of evidence, since they are competent to make decisions that may affect the substance of the evidence, such as decisions to exclude evidence obtained illegally, to take coercive measures necessary to obtain evidence, to authorise the use of secret service methods, etc. 9
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

There have been a number of case law decisions interpreting the “limits” of judicial activity: for example, “the Court of Appeal has upset the judge’s procedure where the judge asked the witness more questions than the parties: the judge, who interferes heavily with the evidence, virtually steps down into the arena and exposes himself to the risk that the dust of the struggle will obscure his vision. Without realising it, he deprives himself of an advantage: the calm and serene observation of the proceedings. Some decisions emphasise that the judge has not only the right but the duty to supplement the evidence of the parties in order to establish the truth. But this duty is moderate, because the judge’s failure to interfere with the evidence is not a procedural violation and does not entail setting aside.” 10

Jegyzet elhelyezéséhez, kérjük, lépj be.!

Langbein suggests that, for these reasons, judicial activism in the US system should be increased. In the author’s view, the US judicial system should move towards an inquisitorial model, as this would make the system as a whole more efficient in terms of both the efficiency and the cost of proceedings.11 However, Chase argues that an increase in the role of the judge would lead to a paternalistic approach to the process, despite the fact that “blind obedience to authority is already a serious social problem.”12

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. In jury trials – compared to continental trial systems – the prosecution and the defence require different qualities. In many cases, prosecutors and defence counsel do not rely on legal rules, principles of the law or scientific positions, but on other moral, ethical, etc. standards. The quality of argumentation is therefore more likely to be devoid of legal character, and the presentation, the personal performance and the theatricality of the argument play a more important role. This is primarily because these persons have to convince lay jurors (untrained in the law), rather than the specialist judge, of the correctness of their position.
  2. In jury trials, particular emphasis is placed on the jurors not knowing the factual basis of the case beforehand (non-preconception judging). This is obviously less expected in continental systems, where professional judges are already familiar with the case file during the preparatory proceedings and usually plan the course of evidence. In order to ensure the complete neutrality of the jury, it is necessary and justified to isolate the persons selected as jurors before the start of the trial, which is otherwise very costly. 13
  3. In court proceedings, the prosecution and the defence have the primary task of presenting evidence, hearing witnesses and experts, and determining the course of the trial.14 The system is based on the so-called “cross-examination” system, which means that the party requesting the examination of the witness (expert) – the prosecutor or the defence – always asks questions first, followed by the opposing party’s reflections, also in the form of questions.15 This process is repeated until no further factual information is required. After both sides have presented their evidence, the prosecutor and the defence argue to the jury in the form of speeches.

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • As regards witness testimony, it should be stressed that both the accused and members of the investigating authority are questioned as witnesses. On this basis:
    • the accused is a “witness for the defence”, which means that he or she is obliged to testify (the courts therefore presume that confessions are true in substance); 16
    • when questioning a member of the investigating authority, evidence may be taken on the method of the investigation as a whole.17
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • By speeding up the questions and pushing for quick answers, the interrogator is deprived of the opportunity to reflect and is forced to give hasty, thoughtless, sometimes one-word answers in the hope of betraying himself. In this way, the questioners become a kind of confronting party to the person being questioned and, as professionals (accusers, defenders), they can achieve a similar effect to that of a confrontation based on the continental tradition.
  • The advantages of the cross-examination system – compared to an investigative interview – can be summarised as follows:
    • does not put the debtor in an “information-near” state at the beginning of the procedure;
    • incriminating witnesses (including co-defendants) can “reserve” their testimonies for the trial;
    • questions are asked by professional experts (prosecutor, defence lawyer) based on a quick, well thought-out concept, so the possibility of defending the accused is “narrowed down”;
    • defendants are first confronted with physical or documentary evidence against them at trial;
    • witness protection aspects are better enforced.18

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  1. As trials are based on the principles of immediacy and verbality, direct evidence (e.g. a witness statement or a confession of the accused) always prevails over indirect evidence (e.g. fingerprints or DNA samples).
  2. Evidence systems are negatively bound, based on formal rules. This expresses scepticism about the cognitive capacities of the courts, and formalism is thus intended to create the possibility of correction and prevent erroneous decisions.19

Jegyzet elhelyezéséhez, kérjük, lépj be.!

  • In the Anglo-Saxon countries, the reliability of expert evidence has become a central issue in scientific studies in recent decades. The legal policy rationale for this is “the need to eliminate judgements that undermine public confidence.”20
  • The English Supreme Court and the Court of Appeal have primarily emphasised in their decisions of principle that there is little guidance available to first instance judges on the admissibility of expert opinions. The US Supreme Court in a 1993 landmark decision stated that the so-called Daubert test should be applied to the weighing of expert opinions: the idea is that expert opinions should be considered separately in each case in a so-called “three-step system”. The criteria are, in chronological order, as follows:
    • whether the evidence in question is relevant to the case at all, i.e. whether it needs to be examined;
    • whether the competence and impartiality of the expert are unquestionable;
    • whether the expert’s methodology and the hypotheses supporting the expert’s opinion are appropriate (detailed assessment);
    • whether the expert technique has been tested or is testable; whether the underlying method has been published in a formal journal; whether indicators of the method’s potential error rates have been determined; and whether the method is accepted by the discipline.21
 

Jegyzet elhelyezéséhez, kérjük, lépj be.!

The same judicial forum ruled in Kumho Tire v. Carmichael that the Daubert criteria should also be applied to expert tests whose subject matter lacks scientific character. In such cases, however, these criteria must be treated with sufficient flexibility and cannot be applied literally.22

Jegyzet elhelyezéséhez, kérjük, lépj be.!

In November 2005, the US Congress mandated the National Academy of Sciences to investigate peer review. On this basis, between 2006 and 2008, an independent commission was appointed to examine expert methods, their accuracy, their error rates and the general errors in the use of expert opinion. The committee also highlighted serious problems and shortcomings in a report published in February 2009. 23

Jegyzet elhelyezéséhez, kérjük, lépj be.!

A report by the National Research Council of the National Academies of Sciences (NRC) highlighted excessive funding for DNA research as the main cause of the problem,24 and also noted that the R&D and funding system for other scientific methods is far from the desired level. The Panel also stated in its opinion that “there are differences between the disciplines in terms of their scientific basis, the validity of their procedures and methods, the number of research studies and the number of scientific publications. In the application of the law, it is not clear which expert methods can be credibly used in evidence and which methods can provide important information in the course of an investigation but are not scientifically sound enough to be used in evidence. There is a lack of uniform standards for judging scientific merit, for example, it is not clear whether the result of an investigation is based on scientific examination or merely on subjective assessment.”25 However, the judgment in Frye v. USA – merely stipulated as a condition for the admissibility of expert opinions that they must be based on a scientific technique.26
1 However, according to Erdei, the assumption that “the Anglo-Saxon legal system is insensitive to the knowledge of the truth” is wrong. Árpád Erdei: Tanok és tévtanok a büntetőeljárás jogtudományában. [Doctrines and Fallacies in the Jurisprudence of Criminal Procedure.] Budapest, ELTE Eötvös, 2011. 31.
2 Flórián Tremmel: Bizonyítékok a büntetőeljárásban. [Evidence in criminal proceedings.] Budapest–Pécs, Dialóg Campus, 2006. 152.
3 P. Bárd (2014) ibid. 40.
4 Mahler even describes it as the “most dramatic” stage of the process. Mahler, Gordon. In: Mihály Tóth (ed.): Criminal Procedural Law Reader. Budapest, Osiris, 2003.79.
5 For example, the termination of proceedings for lack of offence.
6 I would note that, at the same time, the trial judge may not only prohibit question-and-answer sessions, but may also instruct any jurors who may be participating in the proceedings to disregard evidence obtained illegally.
7 Tibor Király: Büntetőítélet a jog határán. (Tanulmány a perbeli valószínűségről). [Criminal Judgement on the Frontier of Law (A Study on Probability in Trials).] Budapest, 1972. 142.
8 Tremmel (2006) ibid. 26.
9 Patrick R. Anderson – Donald J. Newman: Introduction to Criminal Justice, New York, McGraw-Hill, 1993.
10 Tibor Király: A védelem és a védő a büntetőügyekben. [The defence and the defence counsel in criminal cases.] Budapest, Közgazdasági és Jogi Könyvkiadó, 1962, 27.
11 John H. Langbein: The Germand Advantage in Civil Precedure. University o Chicago Law Review, 1985/52. 823–886. In: Petra Bárd – Péter Hack – Katalin Holé (2014) ibid. 24.
12 Oscar G. Chase: Legal Processes and National Culture, Cardozo Journal of International and Comparative Law, 1997/5. 23.
13 Miskolcziné (2015) ibid. 14.
14 Cross-examination in the investigative phase is not common in either the continental or the Anglo-Saxon system. In Fenyvesi (2002) ibid. 13.
15 This is understood to mean an interrogation in which several people ask questions of the same person, alternately and in different orders, questioning the person being interrogated ‘through and through’.” In Fenyvesi (2002) ibid. 13.
16 Árpád Erdei (1991), ibid. 212.
17 E.g. in terms of the details of tracing, recording, etc. In Benyon, John – Bourn, Colin: The Police (Powers, Procedures and Propertities) Oxford, Pergamon Press, 1986. In Tremmel (2006) i.p. 26.
18 Fenyvesi (2002) ibid. 13.
19 This regulatory approach is particularly justified in the case of jury trials. In Károly Bárd: Bizonyítási rendszerek és az igazság kiderítése büntető ügyekben [Evidence systems and the truth in criminal matters.] Budapest, Magyar Büntetőjogi Társaság, 2011. 30.
20 Csaba Virág: Nemzetközi elméleti kitekintés. [International theoretical perspectives] In. A Kúria összefoglaló véleménye [The Curia’s summary opinion.] Budapest, 16. 2014.
21 Gabriella Kármán: A kriminalisztikai szakértés fejlődési irányai. [Trends in the development of forensic science]. In: Bárd–Hack–Holé (2014) ibid. 128.
22 http://www.forensic-evidence.com In: Kármán ibid. 129.
23 Flower (2014) ibid. 16.
24 Kármán (2014) ibid. 129.
25 Strenghthening Forensic Science in the United States: A Path Forward. Washington, The National Academies Press, 2009. 14–19. In Kármán (2014) ibid. 130.
26 Frye v. United States, 293 F. 1013 (D. C. Cir. 1923) In: Kármán (2014) ibid. 127.
chevron_left
chevron_right
Tartalomjegyzék navigate_next
Keresés a kiadványban navigate_next
A kereséshez, kérjük, lépj be!
Könyvjelzőim navigate_next
A könyvjelzők használatához
be kell jelentkezned.
Jegyzeteim navigate_next
Jegyzetek létrehozásához
be kell jelentkezned.
    Kiemeléseim navigate_next
    Mutasd a szövegben:
    Szűrés:
    Kiemelések létrehozásához
    MeRSZ+ előfizetés szükséges.
      Útmutató elindítása
      delete
      Kivonat
      fullscreenclose
      printsave