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

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

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Under the Act, an expert must be appointed if the establishment or assessment of the fact to be proved requires special expertise that is not available to the competent authority (court).1 Angyal writes: “the prerequisite for being employed as an expert is the necessary expertise, i.e. knowledge of the relevant empirical laws (periti habiles), and therefore anyone who does not feel sufficiently qualified to carry out the examination or to give an opinion cannot be employed as an expert or, if appointed, must be dismissed.”2

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"Expert competence means both the right and the necessity for the authority acting in a given case to ensure that the evidence of the historical facts on which it is based is as complete as possible and, as far as possible, indisputable, in order to enable it to reach a decision on the case before it.”3

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Possible reasons for the assignment of experts may include: (1) the observation of the fact, data or circumstance that is the subject of the specific question requires the expertise (e.g. blood sample, mental state of a child);4 (2) the interpretation of the information derived from the observation does not require the involvement of an expert (e.g. determination of the speed before braking). In particular, the relationship between experts and authorities requires further explanation in order to clarify the concept of competence:

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  • According to Angyal, “the expert’s knowledge is based on empirical facts, but the essence of his function is not to teach the laws of experience, as if to fill in the missing judicial knowledge, but to deduce the result of the empirical laws in relation to the facts to be proved. Even if the expert discloses, when called upon to do so by the court, the laws which governed the formation of his opinion, this is only for the purpose of verification. However, the expert is not a judex facti, that is to say, he does not bind the judge by his opinion, because, if he were to do so, he would usurp the right to exercise jurisdiction, or part of it, which would not only be contrary to the rules of justice, but would also involve an irresponsible person among the individuals called upon to exercise the functions of the presumption of responsibility.”5
  • According to Cséka, “criminal law cognition as such, and even more so the resulting findings of fact, is the work of the authority and not of the expert.”6
  • According to Székely, in the case of experts, “their findings have no judicial character, nor do they have the force of a judgment, because a part of the evidence […] must not be evaluated in isolation from the rest of the evidence, but must be subjected to the test of the inner judicial conviction in the totality of the evidence.”7
  • According to Kereszty, the judicial approach that leaves the determination of the factual part of the case to the expert and merely adds legal reasons in the decision is fundamentally wrong.8
 

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However, it should be noted that the appointment of an expert is also necessary if the judge presiding over the case otherwise has specialised knowledge of the subject matter, e.g. graphology. The obvious reason for this is that the competence of the judge under the CPC is limited to the assessment of legal issues. An opinion based on the judge’s expertise would not be an evidentiary instrument anyway, since the party would only be informed of it in the decision closing the case and would therefore not be able to challenge its substantive findings in the course of the evidentiary procedure. Together with this:

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  • The findings of the expert are not binding on the court, as the expert’s function is in no way equivalent to that of a judge.
  • The court, not the expert, decides whether evidence is relevant to the case. The natural explanation for this is mainly that experts are usually not aware of the full facts of the case, do not know the details of the case as a whole and consequently cannot determine what the ultimate issues are. The expert’s task is therefore simply to provide an expert opinion, on the basis of the most up-to-date scientific knowledge available at the time, on behalf of the court, the prosecution or the investigating authority, and on the basis of a mandate, in order to help clarify the facts of the case by confirming or refuting them. At the same time, “the court is obliged to examine the expert opinion and the correctness of the data on which it is based. Failing to examining the data of an expert’s opinion and accepting them without criticism alters the expert’s original function and makes the expert the judge of the facts.”9
 

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Erdei writes: “A decision on relevance is a decision on a question of law and as such requires the opinion of the authority. The expert is not really in a position to determine or exclude the relevance of a fact to the whole case, because he does not know all the details of the case, he does not know which are the issues to be decided and which are the facts to be proved.”10 These circumstances do not, of course, exclude the possibility that experts may assist the authorities, either directly or indirectly, in identifying the relevance of particular evidence. It is, however, clear that “expert opinion is not a scientific judgment, but one of the means of proof, the use of which is decided by the authority on the basis of a detailed assessment and comparison with other evidence.”11

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The question remains, however, “if we accept that the expert opinion is based on a professionally sound, specialised expertise, on what basis can the court come to question its soundness or declare it unfounded?” The answer to this question is relatively simple: the relevance or probative value of an expert opinion can only ever be established by the court. In addition, the CPC provides for the possibility of supplementing the expert opinion, obtaining a new expert opinion and reviewing expert opinions as a guarantee rule. Another issue is that in the majority of cases, challenging an expert opinion requires considerable expertise and possibly the assistance of another (outsider) with expertise in the field in question.

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The boundaries of expert competence are outlined primarily during court hearings, when experts are heard orally. (1) The expert may only make statements which are appropriate to the subject of the inquiry within his competence; therefore, he may not make statements in which he takes a general position on the criminal liability of the accused;12 (2) in the case of a combination of several experts, the so-called “limits of competence” should be clearly indicated, preferably in the secondment orders13 : for example, a technical expert may not give an opinion on matters which fall within the competence of a medical expert seconded in the same proceedings. The drawing and monitoring of these boundaries is, of course, not only the responsibility of the courts, but also presupposes the involvement of the prosecutor and the defence. In this context, these procedural actors can also be expected to:

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  1. Conduct a more “in-depth” examination of the subject matter: the knowledge of the subject matter of the investigation can greatly facilitate the exercise of the right to question or comment; however, the prosecutor or the defence may even be able to question the credibility of the opinion in the light of his or her “refreshed knowledge”.14 Let us take the case of the quite common expert evidence: “the practised […] defender can form a picture of how the expert compares the writing to be examined with the known sample of genuine writing by studying some of the expert evidence. Thus, by knowing the basic rules of expert evidence, the […] defender can compare the writing to be examined with the specimen writing before the application for expert evidence is submitted and can form his own opinion as to the effectiveness or justification of the expert evidence.”15
  2. Provide a copy of the full text of the opinion: this is needed due to the inadequacy of the prosecutor’s or lawyer’s method of merely recalling the opinion from memory. It is also necessary to study the reasons for the opinion, since it is only with knowledge of the reasons that the opinion can be effectively relied on as unfounded or well-founded.16 It should be noted that the photocopies sent by the competent authorities are often of a particularly poor quality and often unsuitable for substantive examination. 17
 

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In the exercise of the right of questioning, there is a tendency for the above-mentioned procedural actors to regard experts as equal partners – “intellectuals” – and not to seek to formulate the questions asked in a simplified manner (as in the case of witnesses, for example). This attitude is obviously justified, since the expert must not be given the impression of being “examined”, and the judge, prosecutor and defence counsel are “not teachers, but students” in this respect.18 In the case of witnesses, the “teacher – trained” relationship is obviously more prevalent (which does not mean, of course, that these procedural subjects can be influenced in any way during the testimony), while in the latter circle, however, the “procedural paternalism”, the “layman versus professional” relationship is more typical. Prosecutors and defence lawyers often demonstrate to witnesses, with a certain tone of voice, a cough, that they have a firm position on the truth of the answers to the questions, but this is not allowed with experts.

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The examination of the competence of experts is primarily relevant in the “court – expert” relationship. According to Destek, “in criminal proceedings, the judge is entitled, but also obliged, to decide whether or not special expertise other than his legal knowledge is required in a particular case. We deliberately call it ‘expertise other than’ rather than ‘expertise in excess of’ because some people like to misconstrue it as a kind of qualitative surplus rather than simply a quantitative one.”19 In other words, the involvement of an expert does not result in a hierarchical relationship between the parties to the proceedings, even if the parties to the proceedings are not, as a rule, capable of making a substantive argument, either factual or legal, vis-à-vis the experts.

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There have been a number of recent publications in Hungarian legal literature on the content of opinions. For example, Erdei argues that an expert opinion should be

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  • factual;
  • real;
  • up to date;
  • scientifically sound;
  • trustworthy;20
  • in line with scientific findings or the so-called natural rules of the profession, and
  • must be verifiable.
 

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By “natural rules of the profession” the author means norms that “have been developed in the course of the practice of the profession, either as a result of the generalisation of everyday experience or as a practical application of scientific results, and [in any case] their violation is considered a professional error.”21

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Finkey points out that it is unnecessary to distinguish between “official and unofficial” experts, since “the expert is also an individual who gives evidence, like the witness, whose opinion […] is as much at the discretion of the judge as the testimony […].”22 Székely also takes the same view, according to whom an expert opinion can be evidence not only if it is based on a scientific textbook opinion, but also if its content is the result of years of practical experience of the expert. In both cases, however, the result must be verifiable. 23
1 § 188 (1) para.
2 Pál Angyal (1915) ibid. 338.
3 Kereszty (2007) ibid. 110.
4 “It is possible […] that the authority simply cannot recognize whether the available means of evidence carry relevant information or not, because it does not have the necessary knowledge to recognize the information content of the means of evidence […]. It is also inconceivable that the authority does not even recognize the relevance of a fact that can be established from a document: in expert examinations, the significance of a piece of evidence often only becomes clear through the mediation of the expert. Similarly, the relevance of one or another fact presented by a witness may also only be assessed through expert mediation.” Árpád Erdei: Tény és jog a szakvéleményben. [Fact and Law in Expert Opinion.] In Mihály Tóth (2003) ibid. 229.
5 Angyal (1915) ibid. 335–336.
6 Ervin Cséka (1968) ibid. 114.
7 János Székely (1967) ibid. 95.
8 Kereszty (2007) ibid. 106.
9 Mihály Móra – Mihály Kocsis (1961) ibid. 285.
10 Árpád Erdei: Tény és jog a szakvéleményben. [Fact and Law in Expert Opinion.] In Tóth Mihály (2003) ibid. 229.
11 László Pusztai: A szakértői bizonyítás hatósági előkészítése. [The official preparation of expert evidence.] In József Gödöny (ed.): Kriminológiai és Kriminalisztikai Tanulmányok 20. [Criminology and Criminalistics Studies 20.] Budapest, OKRI, 1983. 47.
12 This is primarily a matter for the court to take care of in the context of the conduct of the trial, but the prosecutor or the defence counsel should also comment on cases where (biased) expert opinions are given with similar content.
13 Especially in the case of so-called combined opinions, the problem may arise that “an expert in one field may not be able to judge the work of another expert with different competence, and despite his own flawless performance, the actions and conclusions drawn from the erroneous findings of the other expert’s examination may lead to his own opinion being wrong.” Kereszty (2007) ibid. 109.
14 In all cases, the lawyer must therefore start from the premise that legal knowledge alone is not necessarily sufficient for effective defence. By mastering the terminus technicus, it is much easier to ask questions to the point, which can also speed up the process of clarifying the facts.
15 István Hegyháti – Tibor Révai: Jogi képviselet és védelem. [Legal representation and defence.] Budapest, KJK, 1964. 301.
16 The representative of the prosecuting authority and the court must act with the same diligence. However, neither of them can be an interlocutor equivalent to the expert. Hegyháti–Révai ibid. 301.
17 E.g. photos in question are blurred, etc.
18 “A student can never catch up with his teacher in science. The current relevance of this is that the technical knowledge of a lawyer is usually not equal to the technical knowledge of a qualified engineer.” Csaba Pataky (2000) ibid. 358.
19 Miklós Destek: Szakértői bizonyítás a közlekedési büntető ügyekben. [Expert evidence in criminal traffic cases.] Belügyi Szemle, 1998/2. 55.
20 Árpád Erdei (1987) ibid. 101–105.
21 Erdei (1987) ibid. 140.
22 Ferenc Finkey (1916) ibid. 319.
23 János Székely (1967) ibid. 29.
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