Viktor Bérces: Evidence in Criminal Proceedings
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Chapter VII. The material and formal concept of truth • The concept and practical problems of the level of certainty
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7.1. The distinction between truth and certainty

7.1. The distinction between truth and certainty

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In all judicial systems, the greatest need is for criminal proceedings to be fully investigated in accordance with the objective reality of the case. In this context, “judicial murder” (wrongful conviction) is obviously the most serious case.1 However, in the course of taking evidence in legal proceedings, the judge only has direct knowledge of the means of proof and can only draw logical conclusions about past events and the truth of the statements made by the parties to the proceedings. For this reason, the principle that the general (legal) basic requirement can at most be to attempt (rather than beobliged) to discover the truth, is also applicable in criminal proceedings. What is certain is that two factors play a role in the process of discovering the truth: (1) the potential discoverability (e.g. the availability of evidence) and (2) the obstacles to the discovery process (e.g. the absence of a witness who can be subpoenaed).

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I would like to draw attention to the following authors’ views on this problem:

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  • According to Földesi, in law there is no real debate about the concept of truth, for lawyers it is indifferent how objective or subjective reality is, the only thing that matters is that true statements must be consistent with the facts.2
  • Somogyi sees “the truth of law” as the starting point, which can only be “the truth that law can establish by its own means, i.e. in the course of legal proceedings.” But since this is done in the course of judicial proceedings, the most that can be used in this context is the so-called “procedural truth”, which does not necessarily coincide with objective reality.3
  • According to Cséka, there is no separate “criminal justice”, the basic concepts of epistemology apply to any form of cognition, including cognition in criminal proceedings.4
 

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Because of this seemingly irresolvable discrepancy, jurisprudence has necessarily introduced the concept of certainty of judgment, which means the internal conviction of the court seized of a case that the decision is based on a sufficient quantity and quality of factual and legal knowledge.5

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Before clarifying the concept of certainty, it is necessary to examine what purpose requires certainty, judicial conviction, in the first place. The fundamental difference between the Anglo-Saxon and the continental legal systems lies in the substantive (material) and formal (or procedural) search for truth. It should be noted that the search for substantive justice was inherently the cornerstone of the dogmatic systems based on different traditions, since the latter “could not be questioned without risk of exclusion.”6 This is also illustrated by Hungarian practice, since the majority of procedural codes included the requirement of the principle of objective truth.

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According to Móra, “the truth of the facts established in the judgment of the court means that the conclusion as to the guilt or innocence of the persons held criminally responsible corresponds exactly to reality; the court convicts the guilty or acquits the innocent. This truth is an objective truth, because it corresponds to reality, because it correctly reflects certain phenomena of reality, and because it is specific in that it consists not in establishing general laws of nature or of social phenomena, but in establishing a fact delimited by certain local and temporal conditions.”7 According to the author, moreover, “the court may know absolute truth […] the judgment may contain absolute, unconditional truth and must necessarily be aimed at [it].” 8

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The important differences regarding approach that exist today are explained in different ways in legal literature:

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  • According to Damaska, the difference is primarily due to traditions in power structures, differences in ideology and belief in the existence of objective truth. Accordingly, paternalistic societies model processes in an apparently hierarchical pattern that is applicable to the state-individual relationship; liberal states, on the other hand, treat processes as conflicts between equals and are content with the “mere” resolution of these conflicts as a goal. 9
  • Frank bases the differences between the systems primarily on economics. In his view, where there is greater state interference in economic life, this has implications for the characteristics of the procedural (evidentiary) system; in liberal market economies, however, the procedural system leaves the resolution of cases to the parties, and provides only the conditions for fair competition rather than interfering.10
  • According to Mill, the fundamental difference lies in the scope and content of freedom of thought and expression in a given society. Accordingly, if the state imposes few restrictions on these fundamental rights, quasi creating a “marketplace of ideas”, then the chances of objective truth being revealed are much greater because of the constant conflict of differing opinions.11
  • There are also authorial positions that the distinction between concepts of truth is completely unnecessary. According to Fantoly, it all seems to be “a play on words. For even if one agrees that both procedures seek truth, even if truths of a different nature, this cannot be reconciled with the institution of the plea bargain, which is a de facto part of the accusatorial system and does not fit in with either of the aims of the search for truth. On the contrary, it is a systematic sacrifice of truth for the sake of expediency. Honesty requires that we admit that both methods have conflicting ideas about the purpose of the proceedings. The first emphasises conflict resolution (see accusatorial litigation), the second seeks to enforce state policy (see inquisitorial litigation).”12
  • According to Kadlót, this distinction loses its validity in the case of procedural legal instruments based on consensus.13 This includes any procedure that presupposes some form of bilateral or multilateral cooperation – essentially by proxy – between the parties to the procedure (e.g. mediation).
 

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Note that, of course, different judicial presumptions play a role in both structures. And the freedom of judicial belief necessarily implies the possibility for the forum to judge certain factual or legal issues on the basis of its own (pre)conceptions.

7.1.1. Arguments for formal truth-seeking

7.1.2. The internal conviction of the judge as a prerequisite for certainty

1 The Constitutional Court explained that the criminal court has a constitutional obligation to judge the criminal claim in the context of the prosecution on the basis of substantive justice, in accordance with the requirements of due process and fair trial. Although the burden of proof of the prosecution rests on the prosecutor, the court must, of its own motion and with its own professional responsibility, strive to achieve the truth, i.e. to establish the factual basis of the state’s criminal claim in a well-founded and truthful manner [AB Decision No. 14/2004 (7 May 2004) III.B.3.1.].
2 E.g. Tamás Földesi: A jogban alkalmazott igazság terminusról és annak háttérbe szorulásáról a magyar polgári eljárásjog újabb fejlődésében. [On the concept of justice in law and its eclipse in the recent development of Hungarian civil procedural law.] Magyar Jog, , 2003/8. 467–473.
3 Gábor Somogyi: A büntető per konstrukciós sajátosságai, valamint a bizonyítás szükséges mértékével összefüggő intétzményei. [The construction of the criminal trial and its institutions related to the necessary standard of proof. In. Theory and theory of the trial and the theory and theory of the trial of the jury.] In: Az ítéleti bizonyosság elméleti és gyakorlati kérdései. [Theoretical and practical issues of certainty of judgement.] ibid. 56.
4 Ervin Cséka (1968) ibid. 313.
5 “In this area, there are two opposing views in jurisprudence on the test of certainty in a judgment. One view holds that a judicial decision is an inference, an application of the rules of reasoning, while the other view holds that a decision is not merely an inference but also an evaluation.” In: Az ítéleti bizonyosság elméleti és gyakorlati kérdései. [Theoretical and practical issues of certainty of judgement.] ibid. 11–12.
6 Kadlót (2009) ibid. 50.
7 Móra–Kocsis (1961) ibid. 100.
8 Móra–Kocsis (1961) ibid. 253.
9 Damaska, Mirjan R.: Truth in Adjudication, Hastings Law Journal. 1998/49. 290. In: P. Bárd (2014) ibid. 36.
10 Frank, Jerome: Courts on Trial. Princeton, Princeton University Press, 1949. 80. In: P. Bárd ibid. 37.
11 Mill, John S.: On Liberty. Budapest, Századvég, 1994.
12 Fantoly (2009) ibid. 35.
13 Kadlót (2009) ibid. 49.
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