Introduction
According to our theoretical reasoning, not only normative criminal law (criminal law, criminal procedure law[2]), but also criminalistics as a practical and theoretical factual science has fundamental principles and guidelines that can serve as a guiding thread and show the way forward for criminal investigators. It is not advisable to deviate from these principles during an investigation, as they light the way like a lantern. Since criminalistics is not a legal science but an (applied) empirical science, it does not have a comprehensive code of conduct, and unlike the legal sciences, the representatives of the discipline rarely formulate principles set in stone at the beginning of monographs and textbooks on forensic sciences. At a general level, we most often encounter the concepts of legality and speed, but in some places the requirements of completeness, flexibility, planning, professionalism and control also appear, and in the case of secret methods, even the requirements of expediency, proportionality and subsidiarity.[3] However, in our view, principles can be formulated beyond these that can help investigators of past events with their theoretical edge and more specific details, enabling accurate, unbiased detection. However obvious they may seem, they are of great service in helping us to see more clearly. It is immediately apparent that part of our list below is our main topic, the crime scene investigation, as a cardinal component of the “first attack”.
Logically, our series of six basic principles is structured as follows: first, the main questions of investigation (facts) must be clarified (1. The seven main questions of criminalistics) in order to understand the past and reconstruct it (2. The past can be understood), namely with the help of clues and material remains (3. Every crime leaves traces). These must be collected systematically, as must personal evidence (4. Every forensic scientist is only as good as the data they have), and the repository of data is the scene and the primary measures associated with it (5. The importance of the “first strike”), from which we can extract and obtain the data necessary for our ultimate goal, i.e. (individual) identification (6. Natura non facit saltum)
The importance and requirement of the “first strike”
The fifth point in the list of principles is the key issue in our present study. In our view, the crime scene investigation detailed in László Pusztai’s high-quality work[4] provides the core of the principle.[5] The concept of the “first strike” (“first attack”, “first action”), known in its original German as “erste Angriff” and in English as “First Strike”, is most closely associated with this investigative action. What does the term mean?
In our view, it encompasses all primary measures – including data collection – that are taken by the investigating authority after becoming aware of a crime in order to answer the seven fundamental questions of criminal investigation (WHAT, WHERE, WHEN, HOW, WHO, WITH WHOM, WHY?) – are taken immediately and as quickly as possible by the authorities, or which they are required to take.
What makes it stand out, why do we elevate it to the status of a fundamental principle?
We offer the following arguments in response:
- According to forensic experience, there is a tendency for those who miss or fail to take advantage of the opportunity and chance of the “first strike” to have very little chance of responding accurately later on.
- from a positive perspective: those who seize the opportunity to strike first, who are quick and thorough in the moment, and who meet the “double squeeze” of our modern age have a good chance of further success;
- a “hot lead” always offers a greater chance of finding relevant data, including the perpetrator, than a “cold” lead, which is already “cooled down”, long past, and distant in time and space;
- recalling “memory traces” in the human psyche is, as a general rule (with a few exceptions), easier the closer we are to the event, and conversely, the further we are in time from the past event, the more difficult it is to hold up an unbiased mirror to the events (for example, witnesses make more mistakes);
- not only psychological traces, but also physical traces are not preserved over time; they also fade and disappear due to environmental influences and do not “reappear”;
- despite the fact that we emphasise the ’partisan’ nature, ’tenacity’ and durability of material remains, freshness is still an advantage in their case (at most, there remains the possibility of later use), but identification – especially unique identification – always decreases to some extent;
- The “first strike” may take the perpetrator, who may already be in the picture, by surprise, “knock them down”, shock them with its speed, confront them with their actions; the short time frame does not allow for a conscious, calm, and elaborate defence, making it much easier to obtain a confession that can be used as direct evidence, which is still valuable today;
- The “first strike” can be applied in both open and covert investigations: in the former, the crime scene investigation and the measures taken around it – hot pursuit – provide the “lead”, in the latter case, the force of the “strike” is provided by carefully prepared, yet unexpected, actions – e.g. searches, seizures, immediate interrogations, coercive measures – following the systematic collection of preliminary secret data.
The crime scene investigation as the first strike of the investigation
Based on the latter argument (and in view of his celebrated work), it is not useless to analyse the crime scene investigation as the cardinal moment of the “first strike”, as statistical data – not only in our country – show that approximately 60-70% of crimes are so-called on-site crimes. It is worth conducting an crime scene investigation where there is something to look for, investigate and “comb through”, where the building blocks, clues and material remains featured in the identification pyramid can be found. Increasingly valued by criminal investigators around the world as the primary crime scene investigation, because everywhere – whether on the European continent, in Anglo-Saxon countries, including Australia, or in Asian countries – the crime scene is a “treasure trove of data”, an “open book that must be learned to read”. There is no crime scene free of traces or material remains; one must simply find and investigate the often invisible changes left at the scene.[6] (Appropriate interpretations and meanings must be associated with them.) It should be noted here that so-called “negative traces”[7] can be just as valuable, i.e. what is not there and should be there, or what is no longer there and was there before. Often, a non-existent, missing trace says more than a “telling” present one.
It is a commonplace in criminalistics that every crime scene is different. Consequently, it can be very important to conduct the crime scene investigation in a targeted and individualised manner.[8] To this end, a good forensic scientist, crime scene investigator or “crime scene examiner” (CSE) or “crime scene investigator” (CSI) must “put themselves in the perpetrator’s shoes” order to conduct an effective search for clues, i.e. to follow the perpetrator’s presumed “path”[9] and find and record all the clues, material residues and changes that may have been created in connection with the perpetrator’s movements. And they must do so carefully and thoroughly. In other words, the more thorough and careful the perpetrator was at the scene – so as not to leave anything behind – the more thorough and careful the investigator must be.
The crime scene investigation necessarily involves multiple people and multiple stages, not to mention that both its objectives and results can be very diverse.
The name itself refers to the complex and multifaceted nature of the crime scene investigation.[10] Not only can the scene be diverse and multifaceted in itself, but the inspection itself can also take many forms, such as an inspection of persons, objects or locations. The latter necessarily includes or may include the two former elements, i.e. (dead) persons and important objects or evidence may be found at the scene. Often, it is precisely the requirement of speed – the “periculum in mora” – that makes the investigation urgent, as it is not permissible to allow the “clues” to cool down.
So much so that parallelism is also a requirement, meaning that data collection in other directions must be started during the inspection, as soon as we have sufficient data for a conditional explanation of the past and for establishing one or more versions. Research must be conducted into traces and material remains at a level that will stand up in court, from the laboratory to the courtroom (“from crime scene to courtroom”). To this end, all tactical and technical means must be employed that are available at the given time and place through the results of the natural and social sciences and criminalistics. Of these, since our commemorative study is not intended to go into detail, we would like to highlight one new development, namely the[11] digital space scanner, which has already been tested in our country. We highlight it not only because of its novelty, but also because it points to a tendency to overvalue digital data. In other words, the advance of digital techniques that produce so-called second-generation evidence. The American device, the DeltaSphere-3000, consists of a portable laser scanner and a digital camera. The scanner measures the objects around it and their distance from each other. It “scans” each of them, thus creating a three-dimensional model of the site. With the help of software, the images taken by the digital camera are superimposed on this model. Using approximately twenty laser beams, it continuously performs triangulation and determines the geographical coordinates. Thanks to the accuracy of the measurements, traditional measuring rods can be consigned to the scrap heap, saving explorers a lot of time and, of course, making the mandatory measurements and descriptions much more accurate. If users want to achieve full coverage, they only need to move the digital device around the room – holding it very steady – to see behind objects that are blocking the view. The device is also valuable because the images it captures are useful not only to investigators but also to those involved in court proceedings – judges, prosecutors, defence lawyers, experts, etc. – as they can almost place themselves in the original scene, view and analyse the incriminated location showing the exact distances. This can be many things: real, unchanged, spontaneously or intentionally altered, fabricated, live, moving, fragmented, double or multiple, “incidental”, etc. We supplement the list with the concepts of “dangerous and non-dangerous” scenes. We have made this distinction because live locations alone do not necessarily cover the concept, as there are also non-dangerous live locations. At the same time, live locations involving fire or explosions are particularly risky for the life and physical integrity of observers, as the dangers are hidden. For example, in multi-storey buildings, rotten wooden beams, walls, floors and roofs that are about to collapse pose a danger, or take the sites of serial explosions, where who knows how many timed devices are hidden. The vast majority of locations, where there is no danger whatsoever, are separate from such places, which also pose a danger to observers. (The armed perpetrator is no longer at the scene, the burglar has left no risk factors behind, etc.) It seems certain that each type of inspection requires different skills, tactics and techniques. This is both its beauty and its difficulty, as the scene must be mapped out thoroughly and quickly, and the second phase, which involves recording the overall picture, searching for clues and material remains, must be dynamic, but it must not be rushed, superficial or sloppy.
In addition to thoroughness and speed, the investigator must also be cautious, as must the first responders who secure the scene beforehand, as it is essential to avoid contaminating or losing traces and material remains before they have been recorded. The importance of the “first strike” is increased by the fact that there is no second chance. The second strike will not be a strike at all, as the moment is – practically – unrepeatable (irreversible), since the scene changes so much during the first inspection that there is very little hope for a successful investigation.
In the case of urgent investigative actions, we cannot give the same tactical advice as we do for other criminal tactics – such as the interrogation of suspects, witnesses and victims, or planned searches – which is to “prepare for your opponent”. Due to the unexpected and unpredictable nature of these actions, this is not possible, and generally there is no “opponent”, no hidden unknown perpetrator, who is not expecting the authorities. (Except in cases of apprehension in the act or voluntary surrender.) Thus, without thorough preparation, quick decisions must be made about the necessary observation forces, techniques, vehicles, tracking devices, lighting, computers, printers, dictaphones, cameras, video cameras, digital laser scanners, radios, mobile phones, etc.), assistants (tracking dogs, dog handlers, technicians, report writers, computer, weapon, trace, insect, medical, occupational safety and technical experts, consultants, etc.), and the logistics of the entire investigation. Of course, this must be done while adapting to the circumstances and the size and nature of the tasks.
A thorough crime scene investigation – and not the “crime scene investigation” that has become popular in everyday language, as that is a different criminal tactical action – must be recorded and documented in an authentic manner so that investigators who did not carry out the crime scene investigation and other authorities (prosecutor’s office, court) can recall every detail. At a minimum, this should be in the form of a written report, but it may also include computer files, internal digital network files, CDs, photos and video recordings,[12] drawings, sketches, reports on the use of dogs, a list of evidence with very precise descriptions and separately packaged items of evidence, and an inspection report containing subjective findings, conclusions and versions.
During and after the inspection, reinforcing and proving the “first strike” nature, several valuable pieces of information may emerge at a general level that may help to move forward and answer all the main forensic questions.
In our opinion, these may include the following:
a) it can provide immediate guidance on the identity of the perpetrator, their whereabouts, their route of departure or escape, their hiding place, their intention to commit further crimes, and the danger they pose (possession of weapons or explosives);
b) in addition to past events, we can obtain very powerful data about future intentions from digital devices found at the scene, which – although not easy – must be examined by experts (professionally) as soon as possible in order to extract the relevant data;
c) it can provide clues for establishing general and partial versions of events and for reconstructing past thoughts;
d) the exact time, place and method of the crime can be ascertained;
e) valuable physical, mental and intellectual characteristics of the perpetrator can be deduced from the results of both the static and dynamic phases (e.g. the number of perpetrators, their roles, their aims or motives, their professional qualifications, their knowledge of the area, their clothing, their strength, whether they smoke, any physical injuries);
f) important personality traits and behavioural patterns may be revealed by the data collected at the scene (e.g. the perpetrator’s personality, characteristic habits, perseverative mode of operation, expedient or unnecessary post-offence activities, relationship with the victim, desire to be noticed);
g) all of this physical and personal data may be suitable for profiling, for “outlining” the perpetrator (educated or primitive, brutal, greedy, reckless, with a pathological tendency, ill, social status, educational attainment, occupation);
h) the data and evidence recorded during the inspection may be useful in any subsequent attempts to prove the case, in identification presentations, and in on-site interrogations;[13]
i) the data provides an opportunity to recognise one of the serial acts and match it to similar events to date, which may also help in establishing versions, taking into account the data from previous inspections;
j) almost all of the data from the crime scene investigation can be used very effectively in verifying versions that arise later and evidence obtained later in the proceedings, and ultimately in court;
k) the traces and material residues found provide material for subsequent expert laboratory examinations;
l) rapid acquisition of surveillance data may provide a basis for organising a “hot pursuit”.
Hot ont he trail measures
This brings us to our next stop, another important component of the “first strike” that we would like to highlight, namely “hot ont he trail” coordinated measures. In our view, this also fulfils the basic requirement, namely that the commander and his team of 3-100 people should take the most effective, coordinated steps as quickly as possible – shortly after the crime has been committed – to gather evidence and apprehend the perpetrator. (When the “trail” is still “hot”.)
The manager’s wide-ranging tasks include:
a) monitoring the activities of those on duty who collect and transmit information,
b) directing the activities of the task force set up to apprehend the perpetrator (who may be armed or have explosives), including commandos, helicopters, motorcyclists, divers, etc.,
c) monitoring the activities and results of the scene security team and the inspection committee, as well as the digital data they have obtained (the inspection must continue even if the perpetrator has been apprehended in the meantime),
d) interviewing witnesses and victims and obtaining the information they provide,
e) maintaining constant contact with other law enforcement agencies involved in the operation,
f) determining and directing the activities of the regionally competent district commissioners, patrol officers and sniffer dog handlers,
g) evaluating the data obtained on an ongoing basis,
h) if necessary, changing the direction of pursuit, the points of closure (roadblocks, roadblocks, area blockades),
i) taking measures to record relevant data and information as soon as possible,
j) ensuring the professional storage of evidence obtained,
k) coordination of all these tasks and any other relevant tasks.
Point k) includes gathering information and conducting house searches at the perpetrator’s place of residence, among their acquaintances and family, if their identity has already been established. Their habits, personality, habits, occupation, marital status, educational background, other usual places of residence, and whether they possess weapons, explosives, or special devices for harming life and limb must be mapped out. It is advisable to find out what may have triggered the crime or other crimes, especially if the perpetrator is fleeing from another crime scene. The aim here is to prevent the offender from harming themselves or others – even in order to escape – and from committing or being able to commit another crime.
Of course, the commander must carry out all of this quickly, professionally, flexibly, yet in an organised manner and in compliance with legal requirements and criminal tactical and technical recommendations.
Summary
In summary, with regard to the principle of the “first strike”, which also includes the crime scene investigation, we would like to note that, in our opinion, the first attack is not only a possibility but also a requirement. The criminal investigator must take advantage of this method and this situation, all the more so because it serves as a valuable basis for answering the seven criminal investigation questions. Anyone who builds this foundation – including the crime scene investigation – poorly cannot expect a stable superstructure afterwards. The construction, the version, may collapse like a house of cards, even during the investigation, but this can also happen in court.
[1] Prof. dr. habil Fenyvesi Csaba egyetemi tanár, Pécsi Tudományegyetem Állam- és Jogtudományi Kar Büntető és Polgári Eljárásjogi Tanszék. Dr. Fábián Vanessza doktorandusz, Pécsi Tudományegyetem Állam- és Jogtudományi Kar Büntető és Polgári Eljárásjogi Tanszék, Ancil Brigitta joghallgató, Pécsi Tudományegyetem Állam- és Jogtudományi Kar.
[2] See the celebrated note on this subject. László Pusztai: A modern büntetőeljárási jog kialakulása Magyarországon. (The development of modern criminal procedure law in Hungary). Nemzeti Tankönyvkiadó, Budapest, 1984.
[3] Alexandra Bejczi: A titkos felderítés hatékonysága és törvényessége. (The effectiveness and legality of covert surveillance) Belügyi Szemle, 2011/7–8. 161.
[4] László Pusztai: Szemle a büntető eljárásban. (Review of criminal proceedings) Közgazdasági és Jogi Könyvkiadó, Budapest, 1977
[5] Forker, A. – Bertram, M. – Glaser, H. – Leonharadt, R.: Über das Wesen und einige Grundsätze des “ersten Angriffs”. Forum, 1972/9. 404–407., und Die Arbeit am Tatort – wesentlicher Bestandteil des ersten Angriffs. Forum, 1972/11. 491–495.; Eschrich, G.: Der erste Angriff is eine entscheidende Phase der Untersuchung einer Straftat. Forum, 1973/9. 433–434.
[6] American tactics advise against criminal investigators approaching the collection of evidence at the scene with high and imagined expectations. “A good evidence collector will not approach a scene with a predetermined expectation or what can be found.” Moore, P.: The Forensic Handbook. Barnes and Noble, New York, 2004. p. 34.
[7] János Dobos: Negatív körülmények a helyszínen. (Negative circumstances at the scene.) Belügyi Szemle, 1964/1. 54–59.
[8] We consider Steinke’s words to be apt: “Reconstruction cannot be standardised”. Seinke, W.: A bűnügyi technikai szakvélemények bizonyító értéke. (The evidential value of forensic technical expert opinions) In: Géza Katona (ed): A kriminalisztika aktuális kérdései. (Current issues in criminalistics). BM Kiadó, Budapest, 2001.116.
[9] For more on the “paths” that can be followed during an crime scene investigation on-site, see Lajos Kovács: A mór megtette… (Mór did it…) Korona, Budapest, 2009. 38.
[10] For more details, see the aforementioned commemorative volume, which is also included in the Fundamentum of forensic monographs (pyramid). Csaba Fenyvesi: A magyar kriminalisztika és a büntetőeljárásjog tudomány monografikus alapjai. (The monographic foundations of Hungarian criminalistics and criminal procedure law) Magyar Rendészet, 2013/2. 115–130, and László Pusztai: Szemle a büntető eljárásban. (Crime scene investigation in criminal procedure) Közgazdasági és Jogi Könyvkiadó, Budapest, 1977.
[11] Based on her experience as a prosecutor, Orsolya Szabó writes about “measuring” software developed by a Swiss-Austrian company of New Zealand origin and tested by the Hungarian police: A helyszíni szemle rögzítése. (Recording of crime scene investigation). Manuscript, Pécs, 2009. 4.
[12] Géza Katona wrote about the new digital image recording possibilities of crime scene inspections in his study entitled A helyszíni szemle hatékonyságának aktuális kérdései (Current issues in the effectiveness of crime scene investigation), which provides guidelines for increasing efficiency. Belügyi Szemle, 2012/6. 75–86.
[13] József Molnár: A helyszínelés és bizonyítási kísérlet szerepe a bűnügyi nyomozásban. (The role of crime scene investigation and evidence collection in criminal investigation.) In: Ferenc Irk (ed.): Kriminológiai és Kriminalisztikai Tanulmányok 35. OKRI, Budapest, 1998. 316–341.