From witness to suspect – when can a witness interrogation become risky?

A summons as a witness may at first seem less dangerous than a suspect interrogation. Many people think that if they are called in as a witness, they merely have information about the case and are not personally involved. It is not always that simple.

In criminal proceedings, someone may first be heard as a witness, but later the authority may treat them as a suspect. This may occur especially in economic cases, proceedings connected to corporate decisions, corruption cases, traffic or property-related offences, and cases involving multiple actors.

For this reason, a witness interrogation is not always risk-free. If the questions concern facts on the basis of which the witness’s own criminal liability may arise, the situation immediately becomes strategically significant.

Who is a witness and how is their position different from that of a suspect?

A witness is a person who may have knowledge of a fact to be proven. The basic role of the witness is to testify about the facts they have perceived. As a general rule, the witness must appear, cooperate with the authority and tell the truth when giving evidence.

By contrast, a suspect is an accused person: there is already suspicion against them of having committed a criminal offence. The suspect is not obliged to make a statement, may refuse to answer and may develop their defence strategy with defence counsel.

This difference is extremely important in practice. The duties of a witness and the rights of a suspect follow different logic. The witness is an evidentiary source for the authority, while the suspect is a subject of the proceedings who enjoys the freedom to defend themselves.

Why can a witness interrogation be risky?

A witness interrogation may become particularly risky if the questions are directed not merely at other people’s conduct, but at the witness’s own role, decisions, signatures, instructions, money movements, corporate conduct or earlier statements.

In such a situation, the witness may easily give an answer that can later be used against them. This is not necessarily a conscious admission. Often an imprecise formulation, an ambiguous acknowledgement of a fact, incorrect recollection of a date or an explanation of a document without prior knowledge of its content is enough.

A witness interrogation may be especially dangerous if:

• the witness was also a decision-maker in the company concerned
• their signature appears on contracts, invoices or performance certificates
• they participated in financial or tax decisions
• other witnesses or suspects have already made statements about them
• the authority asks them in detail about their own conduct
• the questions are in fact already examining the witness’s possible liability

What does the privilege against self-incrimination mean?

The privilege against self-incrimination means that no one may be compelled to accuse themselves of committing a criminal offence. It protects not only the suspect, but in certain situations the witness as well.

If a witness is asked a question to which an answer would accuse themselves or a relative of committing a criminal offence, they may refuse to answer that particular question. This is not the same as the witness automatically being able to refuse all questions. The scope of the exemption must always be assessed on the basis of the particular question and the specific circumstances of the case.

In practice, this often creates a difficult situation. The witness does not always know in advance where a question is leading, and may not see how their answer will later fit into the authority’s evidentiary logic. It is therefore particularly important for the witness to consider before the interrogation whether their own criminal-law involvement may exist.

When should you suspect that a witness may become a suspect?

Not every witness interrogation carries this type of risk. If someone is genuinely involved as an outside observer, victim or simple perceiver of an event, the witness position may be natural. The situation is different if the questions increasingly concern the witness’s own decisions or omissions.

It may be a warning sign if the authority:

• asks in detail about the witness’s own role
• confronts them with documents, invoices or contracts
• presents incriminating statements by other persons
• asks who gave instructions or who made a decision
• asks for explanations of money movements, cash withdrawals or company transfers
• asks about the witness’s state of mind, intent or omission
• asks questions that are no longer merely about factual knowledge, but about responsibility

In such cases, the witness interrogation may effectively slide into a situation in which the person concerned must also keep their own defence interests in mind.

Can you bring a lawyer to a witness interrogation?

A witness’s position differs from that of a suspect, but this does not mean that a witness cannot need legal assistance. Consultation with a lawyer is particularly justified if the witness’s own criminal-law involvement may arise, or if the case is connected to economic, tax, corporate, corruption-related or multi-actor criminal proceedings.

Legal preparation of a witness does not mean that the witness should not tell the truth. The purpose is to make sure that they understand their rights, obligations, possible grounds for refusing to answer, the significance of the minutes and the situations in which they should indicate that answering a question may carry criminal-law risk for them personally.

This is especially important in cases where the boundary between witness and later suspect is not clear. In economic cases, for example, a company director, accountant, employee or contributor may first be heard as a witness, but later the authority may also examine their liability.

What should a witness not do?

Even as a witness, it is not advisable to make a statement unprepared, hastily or out of a desire to comply. A witness must tell the truth, but is not obliged to guess. If they do not remember something precisely, they should say so. If they do not know the content of a document, or cannot recall it from memory, it is not advisable to give an explanation without having seen the document.

In particular, the following should be avoided:

• prior coordination with other witnesses about the content of the statement
• deleting, modifying or removing evidence
• presenting imprecise memories as certain facts
• explaining documents the witness has not seen or does not know
• guessing answers to the authority’s questions
• downplaying one’s own role in a way that may later appear as a contradiction

The purpose of witness testimony is not for the witness to answer every question at all costs. The purpose is for the witness to communicate real facts based on their own knowledge, while they cannot be forced to expose themselves to criminal-law risk.

What happens if a witness becomes a suspect?

If the authority concludes that suspicion of a criminal offence arises against the witness, the person’s procedural position changes. They must then be treated not as a witness but as a suspect, the suspicion must be communicated to them and they are entitled to the rights of an accused person.

This shift is extremely important from the perspective of the defence. The suspect is no longer obliged to make a statement, is entitled to use the assistance of defence counsel, may make motions and observations, and may file a complaint against the suspicion.

The problem often arises from the fact that the content of an earlier witness statement may later become significant in the proceedings conducted against the same person as a suspect. This is why every situation in which personal involvement may arise must be handled carefully already while appearing as a witness.

When is it worth contacting a lawyer?

Even in the case of a witness summons, it is justified to contact a lawyer if the case is not simple, if it has an economic or corporate background, or if the questions are expected to concern the witness’s own decisions.

It is particularly important to seek legal assistance if:

• the witness was a senior officer, accountant, employee or contributor in the matter concerned
• the authority asks about corporate documents, invoices or contracts
• other involved persons have already made statements
• the witness personally signed, decided, transferred funds, authorised or approved something
• a relative’s criminal-law involvement may arise
• the witness does not understand exactly why they have been summoned
• there is a risk that the witness will become a suspect

A witness interrogation is not always dangerous, but in certain cases it may carry serious criminal-procedure risk. The purpose of proper legal preparation is not to influence the testimony, but to ensure that the person concerned knows their rights, obligations and the risks arising from their own procedural position precisely.

Sources

1. Act XC of 2017 on Criminal Procedure – in particular the rules on witnesses, accused persons, the right of defence, testimony and interrogation. net.jogtar.hu
2. Curia of Hungary – decision on the privilege against self-incrimination and the legal scope of refusing witness testimony. kuria-birosag.hu
3. National Office for the Judiciary / court information material – the rights and obligations of witnesses in criminal proceedings. birosag.hu
4. Hungarian Helsinki Committee – information material on suspects’ rights, especially the right to remain silent and contact with defence counsel. helsinki.hu