Viktor Bérces: Evidence in Criminal Proceedings
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Chapter IX. Evidence in the preparatory and investigative stages
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9.4. Investigation I: The detection phase
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9.4.3. Specificities of expert evidence. Private experts and expert advisers

9.4.3. Specificities of expert evidence. Private experts and expert advisers

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The primary purpose of expert evidence ordered by investigating authorities or prosecutors is to avoid the need to obtain new expert opinions at the trial stage.

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Based on the data of the summary opinion (hereinafter: Opinion) prepared by the Curia’s Case Law Analysis Group in 2014, the following trend was observed in the practice of investigating prosecutors’ offices for the period from 1 July to 31 December 2013:

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  1. Prosecutors considered that the prosecutor was justified in investigations into the following offences: manslaughter, grievous bodily harm, bodily harm causing death, occupational endangerment, drug trafficking, possession of drugs, sexual coercion, sexual violence, child pornography, indecent exposure, endangering a minor, harassment, defamation, causing a road traffic accident, drink driving, damaging the environment, poaching, false accusation, misleading a public authority, perjury, coercion of a public authority, abuse of a lawyer, bribery, influence peddling;
  2. The objects of expert evidence were: examination of the defendant’s capacity to be of sound mind, examination of the defendant’s drug dependence, examination of blood alcohol concentration, existence of abortive pathological intoxication, blood test, urine test, examination of the drug content of the seized evidence, examination of the origin of fingerprints, description of the external and internal injuries on the body, their location, criminal and current medical condition, the immediate cause of death, the question of the causal link between the injuries and death, the mechanism of the injuries, the means of inflicting the injuries, the mechanism of the bodily injury, the medical condition of the injuries, whether the injuries of the complainant could have been inflicted during the coercive measure taken against him, the assessment of the occurrence of serious impairment of health or permanent disability, the review of the findings of the private medical expert, the assessment of a child’s vulnerability, the psychological examination of the accused, the victim, the mother of the victim.
  3. The seconded expert has worked in the following fields: forensic medicine, forensic psychiatry, internal medicine, forensic genetics, chemistry, road safety engineering (accident analysis), computer database, data structures, gemstones, real estate valuation, linguistics, book expertise, fingerprint expertise (dactyloscopy), document expertise, weapons expertise, literacy expertise, fire science.
  4. Other statistics:
    • in only 12.9% of cases (55 cases) did the prosecutor specify in the decision to dismiss the case the method of investigation to be used in drawing up the expert opinion;
    • in 82% (350 cases) of the cases where an expert was appointed, the expert was given the opportunity to assess a fact or circumstance that he or she considered relevant;
    • 12.2% (52 cases) of the cases in which an expert had to be seconded were cases in which more than one expert had to be seconded;
    • the prosecutor asked the expert for a preliminary work plan in only 1 case (0.2%);
    • in 6 cases (1.4%), the expert asked the prosecutor to allow another expert to be involved;
    • 46 (10.8%) joint or consolidated opinions were issued;
    • in only 1.2% of cases (5 cases), the prosecutor did not set a time limit for the submission of the opinion;
    • a negligible proportion (7.6%) of the opinions were supplemented;
    • the expert was not heard by the prosecutor in any of the cases during the investigation.1
 

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It should be noted that the workload of experts remains a major problem for secondments in the investigative phase.2 For this reason, it is common practice for the prosecutor to contact the selected expert before the secondment, in order to establish, in particular, the extent of his/her workload, the complexity of the subject matter of the investigation and the time limit for the submission of the expert’s opinion.

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The following factors also have a strong influence on the effectiveness indicators for investigative opinions:

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  • the number of experts in the field;3
  • the willingness of the person under investigation to participate in a personal examination (in this respect, for example, non-attendance or arbitrary absences are common);
  • procedural irregularities relating to secondments; 4
  • the courts’ expectations regarding the number and quality of opinions;5
  • the informality (passivity) of the activities of the “second” expert in the case of the secondment of several experts.
 

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Proposals:

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  • in the case of personal investigations, it would be advisable to provide in the secondment decision that the statutory time limit for submitting an opinion does not start from the date of notification (service) of this decision, but from the date of the investigation of the person to be investigated;
  • it would also seem appropriate that the person to be examined should be summoned directly by the investigating authority, after consulting the expert, as this would not only make the time limit predictable but also allow for the application of legal consequences for failure to appear and cooperate;
  • the possibility of a further extension of the statutory time limit for the submission of an opinion in case of proven incapacity of the person under examination;
  • in order to ensure an even distribution of expert assignments and to avoid excessive workloads for certain experts or expert institutions, it would be appropriate to have a software system operated by the Ministry of Justice or the Hungarian Chamber of Judicial Experts which would randomise and proportionate the assignments, except for specialised fields of expertise;
  • in the current directory of experts operated by the Ministry, the fields of activity of each expert are only defined in general terms, so it is often only after a lengthy investigation that it is possible to find the expert who is actually competent in the given field; for this reason, it would be necessary to define the areas of competence more precisely in the directory,6 or to create a database of experts, which would make it possible to find out about the professional work, scientific activities, publications, etc. of each expert.
  • in some fields, a form (blank form) could be prepared for the decision to appoint an expert or for the expert’s opinion, and the seconded expert could fill it in and submit his/her opinion;7
  • the establishment of further professional standards would be necessary, in particular the legal obligation of the Hungarian Chamber of Judicial Experts to issue methodological letters (for all fields).8
 

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The CPC regulates the possibility of using an expert adviser within the framework of the “data acquisition activity”. The task of the expert adviser is essentially (1) to assist in the search for and recording of evidence, (2) to give specific professional advice and (3) to assist in the preparation of other evidentiary acts.9 Under the Act, the prosecution, the investigating authority, the police body responsible for internal crime prevention and detection and the police body responsible for counter-terrorism may use the assistance of an expert adviser if special expertise is required for the detection, search, acquisition, collection or recording of evidence (after the indictment, the prosecution may use an expert adviser to make an evidence motion, search for and secure evidence). The fact of the assistance of the expert adviser, the manner and the content of the assistance must be indicated in the record or note of the procedural act. The effective involvement of that person in the proceedings shall be effected by his being heard as a witness in relation to the procedural act in which he has been involved.10

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The expertise of an expert adviser is mainly related to specialised forensic knowledge and is usually provided by an investigating authority (such as a police inspector specialised in economic crime), but the use of an independent expert adviser is not excluded. Their role is particularly important in the field of data collection and on-site inspections. It should be noted that, unlike an expert, an expert adviser does not create any means of proof (expert opinion) and can only carry out investigations which could be carried out by the person in authority.11 The expert adviser thus essentially acts in place of the person in authority, but if the member of the authority also has this specific expertise, it is not necessary to use an expert adviser at all. The ‘expert’ and the ‘expert adviser’ are therefore not competing institutions, and it is not even possible to decide, on the merits of the two activities, which of them is more important for the outcome of the procedure. Their basic tasks are simply different, and the fact that the report of the expert adviser cannot replace the expert opinion in procedural terms does not change this. At the same time, it is not prejudicial or influential if the expert also relies on the material gathered by the expert adviser.” 12
1 László Láng: Jelentés a szakértők igénybevételéről a nyomozó ügyészségek eljárásában. [Report on the use of experts in the proceedings of investigating prosecution offices.] In. Az ítéleti bizonyosság elméleti és gyakorlati kérdései. [Theoretical and practical issues of certainty of judgement.] ibid. 284–289.
2 For this reason, opinions are not always delivered within the agreed deadlines. In Láng (2017) ibid. 290.
3 Cf. “There are areas where the number of experts seems to be sufficient to carry out the tasks – e.g. writing experts, technical transport experts – but there are others where a larger number of experts could significantly reduce the time needed to carry out expert examinations and prepare opinions. This could be the case for medical and mental health experts, and also for IT experts, who are specialised within this field and certain expert tasks can only be carried out by an expert working at a considerable distance from the seat of the investigating authority.” In Láng (2017) ibid. 290.
4 According to the case law of the Pécs Court of Appeal, if the ad hoc expert is appointed in violation of the aforementioned statutory rule, his opinion cannot be evaluated as an expert opinion, but may be used as documentary evidence.
5 In the practice of one district court, in the case of a perpetrator accused of aggravated assault, the district court returned the documents to the prosecutor for further evidence (medical expert opinion), despite the fact that the perpetrator had submitted a vision as evidence, which proved that he had been injured within 8 days. In Láng (2017) ibid. 293.
6 The system cannot be satisfied with the term “psychologist-expert”. In this context, it should necessarily also refer to the age group examined by the expert and the nature of the offences.
7 This could also help to meet deadlines and reduce the cost of crime.
8 Láng (2017) ibid. 294–295.
9 Bakonyi ibid. 6.
10 § 270 (1)–(5) para.
11 According to Háger’s study, the practice was particularly problematic in the case of earlier tax evasion cases, where the tax authority (the NAV) did not appoint a special expert to determine the tax shortfall, but established the fact and extent of the shortfall with the involvement of consultants. However, in recent years, judicial practice has required an independent expert examination in this area. In Háger: Gondolatok a bizonyításról. [Reflections on Evidence] ibid. https://debreceniitelotabla.birosag.hu/sites/default/files/field_attachment/gondolatok_a_bizonyitasrol_ht_0.pdf
12 Belovics–Tóth (2020) ibid. 189.
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