Viktor Bérces: Evidence in Criminal Proceedings
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Chapter VIII. The basic features of the Hungarian evidence system • The means of evidence in general
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8.4. Basic principles of expert evidence

8.4. Basic principles of expert evidence

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In my opinion, an expert is appointed as an independent subject of the proceedings when special expertise is required to establish or assess a legally significant fact or circumstance in criminal proceedings, but the competent authority (court) does not have such knowledge. In practice, it is usually considered a specialised question if the identification or assessment of the fact to be proved can only be answered on the basis of the knowledge and scientific theories of a profession or discipline.1 The need for expert evidence is also stressed by a number of authors, such as Kertész, who argues that the results of science should be as widely represented as possible in the proceedings.2

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A technical question must necessarily be distinguished from a question of fact or law. A question of fact is obviously the easiest problem to judge, since it is aimed at answering the question “What happened?”, which does not require any legal knowledge. Deciding questions of law places the legal practitioner in the position of having to qualify the facts, which may in fact be regarded as a technical question, but the latter is a matter which the legislator has left to the exclusive competence of experts. It should be noted, however, that the expert may not only reflect on technical questions, but in many cases also gives an opinion on questions of law and fact. Without this, he would presumably not be able to give an informed opinion. For example, an expert in occupational safety and health, medicine or accountancy not only gives oral opinions on the technical issues falling within his or her professional competence, but also draws the legal conclusions from them without asking questions. 3

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So-called “legal experts” are sometimes called in, and the specific issue is to decide whether there is any legislation in force that applies in the specific case and, if so, what its content is.4 However, opinions are divided on this practice:

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  • According to Székely, “there should be no recourse to an expert on a legal question. It is the authority that has special expertise as to whether any relevant legislation […] exists and what it contains. If it has doubts, it should inquire, but it cannot call on an expert.” 5
  • According to Cséka, there is also no room for expert evidence in a question of law, because if the legislator had wanted to allow it, it would have indicated it in the text of the law. 6
  • According to Erdei, “it is even more fortunate that the practice is more realistic: the judge can ask the expert without any particular concern what the provision filling the framework says on the given question, whether there is any such provision at all. And probably no judge would be ashamed to admit that he has not read all the published legislation. The legal expert would assist in making the existence of the legislation governing the technical issues relevant to the case, and in particular its technical content, clear to the untrained authority and the parties, during the evidentiary procedure.”7
 

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For my part, I can identify with the position taken by Székely and Cséka, because, as I noted earlier, the legal issues and the technical issues are not the same in criminal procedure. On the whole, however, whatever the purpose of the secondment, it is always the duty of the authority (court) to clearly specify in its decision to second an expert the technical questions it expects to be answered. If, however, the authority (court) wrongly considers the question to be a technical question, that does not in itself affect the lawfulness of the evidence and does not, in my view, constitute a procedural irregularity.

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The subject of an expert’s study is basically a natural or social science question. According to Bolyki, “in natural science matters, such as the determination of the impact velocity of a projectile, there is no particular difficulty in deciding whether an expert should be called. In the human sciences, however, the legislator may find himself in a more difficult situation, since the phenomena covered by the social disciplines are more complex and difficult to assess objectively.”8

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Expert opinion is a special category of evidence, as its necessity is determined primarily by the quantity and quality of the data already available in the course of the taking of evidence. The content of an expert opinion should in principle be given the same weight as any other evidence.9 Moreover, Article 323 of the French Code of Civil Procedure of 1806 also contained the principle that judges were not obliged to give a ruling on the basis of an expert opinion if it was contrary to their own internal conviction (conviction intime) (if there was a difference, the court was obliged to state its reasons).10 Another important principle of the Hungarian procedural system is that courts are free to determine the evidential value of such opinions and to use them freely in determining the facts of the case.

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Notwithstanding the above principles, there is a tendency towards a practical approach that attributes a more objective and unbiased content to these means of proof. The reasons for this are twofold: (1) the experts are not in any way linked to the facts of the case; (2) the expert is acting in an “official capacity” when he or she delivers his or her opinion. Pataky writes: “the expert’s opinion is nevertheless something different from the other evidence referred to in the CPC and […] in its verification, something more is expected than a mere belief based on internal conviction.”11

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This does not mean, however, that the validity or relevance of the opinions – whether based on a legal mandate or a court decision – cannot be questioned. It should be remembered that experts are not infallible, even though they usually practice in accordance with and apply the scientific theories, written and unwritten rules, principles and methods that govern their field. However, because of this contradiction, most procedural laws also provide for the possibility for “lay” procedural actors (e.g. defenders) to question the credibility of the expert opinion.12

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It is no coincidence that the CPC also contains rules on the circumstances giving rise to a correction. Therefore, an expert opinion is considered to be of concern in particular if it

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  • does not contain the legally required content of the opinion,
  • is not clear,
  • contradicts itself or the data provided to the expert, or
  • its correctness is seriously in doubt.
 

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In such cases, the expert provides information or supplements the expert opinion at the request of the court, the prosecution or the investigating authority.13 If this is not successful, another expert must be appointed,14 and if several experts are used, the reasons for this can be clarified by hearing the experts together if they have different opinions.15 However, the principle of freedom of evidence means that the assessment of expert opinion as one of the pieces of evidence is a matter for the discretion of the judge, and that the resolution of discrepancies between expert opinions does not always require specialised scientific knowledge and thus specific expertise. 16

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The legal basis for the expert evidence is always established by the decision of the competent authority (court).17 This usually takes place at the stage of the proceedings (typically after the questioning of the accused) when the facts, data or circumstances, the characteristics of which require the expert’s opinion, have been established. From that point onwards, the expert is obliged and entitled to obtain all the information necessary for the performance of his or her task, to that end

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  • has access to the file of the proceedings, with the exceptions provided for by law;
  • is present at procedural acts;
  • may request information from the debtor, the victim, the witness, the person interested in the property, the other interested parties and the expert appointed in the proceedings;
  • may request further information, documents and clarification from the seconding authority;
  • may inspect, examine and take samples of tangible evidence and electronic data not handed over to him/her on the basis of the authority of the seconding authority;
  • during the investigation, may view and examine a person and physical evidence, electronic data and ask questions to the person;18
  • if more than one expert is conducting an examination in criminal proceedings, the experts notify each other of the examination they intend to conduct, and the notified expert may attend the examination conducted by the other expert. 19
 

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In certain cases, the high-substantive weight of the results of an expert examination requires a restriction of the fundamental rights of the subjects under examination.20 On this basis:

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  • the accused, the victim and the witness must submit to the expert examination or intervention (except for surgery and investigative procedures that constitute surgery);21
  • the victim and the witness are obliged to facilitate the expert’s examination in other ways (such a requirement cannot be defined for the accused, by analogy);22
  • on the basis of a specific order of the person who has made the appointment, the accused, the victim, the witness or the person in possession of the object in question must allow the expert to examine the object in his possession, even if this involves damage to or destruction of the object.23
 

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The Strasbourg case law stresses, above all, the importance of the principle of impartiality in the hearing of experts. The Court of Justice has laid down a general requirement that the parties to the proceedings must be heard in person (orally) during the proceedings. This is illustrated by the decision in which the Court found a violation of the Convention where the applicant in the Austrian main proceedings had expressly requested, in vain, that at least the court acting as a court of appeal should schedule a hearing for the expert to be heard in person.24

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Obviously, expert evidence is a lengthy process, although the competent authorities are always obliged to set a time limit when requesting expert opinions. In this context, the rule that the time limit for submitting an expert opinion, excluding private expert opinions, may not exceed two months is of guaranteed importance. This time limit may be extended once, up to a maximum of one month, at the request of the expert before the expiry of the time limit. 25

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Moreover, in order to avoid prolonging proceedings, both European and national law have established principles to be taken into account when ordering expert evidence:

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  • Recommendation No R (81) 7 of the Committee of Ministers of the Council of Europe on measures to facilitate access to justice sets out, in general terms, the “one expert” principle. It requires that, as far as possible, no more than one expert should be called upon in core proceedings.26
  • In the case of conflicting expert opinions, Hungarian case law follows the principle that it is only necessary to obtain a new expert opinion if the court cannot reasonably decide which expert’s opinion to accept as evidence on the basis of the statements of the experts heard at the hearing.27 According to the rules of the CPC , a third expert may be appointed only if there is still an irresolvable difference between the opinions of experts on the same fact to be proved, based on the same investigation material, on a technical issue which is essential for the decision of the case. The expert so appointed must give his opinion on the reasons for the discrepancy between the opinions and whether it is necessary to supplement any of the opinions or to obtain a new opinion.28 (I would note that under Hungarian case law it is a violation of the Convention if the accused person requests the appointment of a new expert and the court rejects this request despite the fact that the opinion of the expert originally appointed changes fundamentally as a result of the new documents. )29

8.4.1. The concept and boundaries of expert competence. Content requirements for the expert opinion

8.4.2. The principle of “equality of arms” in the field of expert evidence. The importance of private expert opinions

8.4.3. The effectiveness of expert evidence in Hungarian practice. Summary Opinion of the Jurisprudence Analysis Group of the Curia

8.4.4. On the Hungarian practice of certain specialised expert activities

8.4.5. Summary findings on expert evidence

1 Az ítéleti bizonyosság elméleti és gyakorlati kérdései. [Theoretical and practical issues of certainty of judgement.] ibid. 100.
2 Imre Kertész: A tudományos bizonyíték. [The scientific evidence.] Belügyi Szemle, 2002/11–12. 149.
3 If, however, this is done at the direct request of the authorities, it must be considered a bad practice, since the question of classification is not a matter for experts. Mária Bakonyi. The new Criminal Law Amendment Act (Biminaljogi Szemle), 2018/1. 10.
4 Árpád Erdei – László Pusztai: Jogi szakértő a büntetőeljárásban? [Legal expert in criminal proceedings?] Jogtudományi Közlöny, 1982/10. 809.
5 János Székely: Szakértők az igazságszolgáltatásban. [Expert in the administration of justice.] Budapest, 1967. 116.
6 Erdei–Pusztai (1982) 811.
7 Erdei: Tény és jog a szakvéleményben. [Fact and Law in Expert Opinion]. Budapest, KJK, 1987. 65.
8 Orsolya Bolyky: Elmeorvos és pszichológus szakértő a büntetőeljárásban. [Psychiatrist and psychological expert in criminal proceedings]. In Petra Bárd – Péter Hack – Katalin Holé (2014) ibid. 98.
9 According to Kereszty, however, “the material evidence and the document, which is relevant for the establishment of the historical facts, prevail over all other means of proof.” Béla Kereszty. In Ad futuram memoriam (2007) ibid. 106.
10 “Historically, into the 19th century, the liberal principle of free and unconstrained proof became generally dominant, appearing in the Italian Code of Civil Procedure of 1865, the Spanish Code of 1881, the so-called Imperial German Code of Civil Procedure of 1877 and the Austrian Code of Civil Procedure of 1895. In the 21st century, a predominantly bound (statutory, formal) system of proof is no longer to be found in the continental and Anglo-Saxon legal environment. The basic structure of the free (substantive) system of evidence has not been substantially affected by the European litigation reform processes of the last decades.” Flower (2014) ibid. 16–17.
11 Csaba Pataky: Műszaki szakértői hiányosságok a védő szempontjából. [Technical Expert Deficiencies from the Lawyer’s Perspective.] Magyar Jog, 2000/6. 359.
12 Therefore, it is not a matter of concern if the defence contacts the expert proposed by the defence before the trial. “Many experts regard it as a helpful fact that the defender is helping them to obtain useful information which presumably only he has.” Csaba Fenyvesi: A védőügyvéd. A védő büntetőeljárási szerepéről és jogállásáról. [The defence lawyer. On the role and status of the defence lawyer in criminal proceedings.] Pécs, 2001. http://ajk.pte.hu/files/file/doktori-iskola/fenyvesi-csaba/fenyvesi-csaba-vedes-ertekezes.pdf
13 § 197 (1) para.
14 In the application for the secondment of an expert or in the secondment decision, the concerns regarding the admissibility of the previous expert opinion shall be indicated.
15 § 197 (3) para.
16 BH 2007.34. “In the specific case, the court found that the reasons for the contradiction were based in part on the erroneous starting point of one of the expert opinions, on an assumption that had been disproved beyond reasonable doubt during the evidentiary proceedings and on the fact that this pair of experts also took a position on a technical issue which did not fall within the competence of the experts, misinterpreted the IMEI mind-monitoring report used by them and identified a psychological term such as “delusional disorder” with the term “psychiatric disorder”. The position of these experts was partly contradicted by the facts established by the court of first instance and by the strong, scientifically based arguments of the other expert opinion. The court of first instance thus resolved the contradiction, so that another expert was no longer necessary, and the court’s discretion did not result in the decision of the case without the involvement of an expert.” In Somogyi (2017) ibid. 72.
17 If an urgent partial examination is necessary for the preparation of the expert opinion, such examination may be carried out without a warrant, on the basis of an oral order of the prosecution or the investigating authority. The public prosecutor’s office or the investigating authority shall send this order in writing to the expert within fifteen days. § 189 (1)–(2).
18 § 192 (1)–(3) para.
19 § 192 (5) para.
20 It should be noted that expert examinations concerning the integrity of the body of the person to be examined may be carried out only on the basis of a special order of the person who has made the appointment.
21 § 194 (2) para.
22 § 194 (3) para.
23 § 194 (4) para.
24 Schelling v. Austria judgment of 10 November 2005, no. 55193/00. In: Grád–Weller (2011) ibid. p. 313.
25 § 189 (6) para.
26 I would like to note that this general requirement is of course subject to a number of criticisms, both from the legal profession and from jurisprudence, because it allows: (1) the expert to play the role of a quasi arbitrator, so that his opinion can become the sole basis for the determination of the facts; (2) the absence of the appointment of a parallel expert raises the possibility that any errors in the single expert opinion cannot be checked during the proceedings; (3) the court itself is left in a state of ignorance, since it can only be informed by a single expert opinion as to the determination of the facts.
27 BH 2007. 34.
28 § 197 (4) para.
29 OJ 2003/7. 558. In Czine–Szabó–Villányi–Baka (2008) ibid. p. 252.
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