Expert witnesses: Cogs or oil in the wheels of justice?

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The wheels of justice turn slowly, so the saying goes. But can the use of expert witnesses help turn them a little faster? Or are they just cogs in the wheels?

An expert witness is a person with a specialized skill set, whose opinion may help a court make sense of the factual evidence of a case. Testimonies from expert witnesses can have tremendous influence on a judge’s final decision, and they have become a mainstay of the judicial system, especially given the technical and complex nature of modern litigation.

By helping simplify and explain complex concepts and by providing information about how and why something may have been illegal or not, expert witnesses can bring an air of objectivity and impartiality to a trial.

But, while expert witnesses are certainly an integral part of the trial process, we wanted to find out what this really meant in practice. In other words, do expert witnesses actually facilitate or hamper the overall efficiency of the courts and the quality of justice delivered?

As such, we undertook a study in four countries in the Western Balkans: Bosnia and Herzegovina, Montenegro, North Macedonia, and Serbia. Our research was based on statistics collected from 22 courts across the four countries, gathered through tailor-made questionnaires on the engagement of expert witnesses and from reviewing approximately 1,100 closed cases.

The main takeaways are outlined in our report, Examining the Experts: A Comparative Analysis of the Role of Expert Witnesses in Court Systems of the Western Balkans.

For example, we found that there is a shortage of experienced expert witnesses. And the few highly experienced ones are in constant demand and spread very thin across the system. As a result, they either refuse to take on cases, or are dilatory in their submission of opinions, both of which cause delays in the trial.

It also does not help that, despite clear rules which stipulate that expert witnesses should only be engaged when the court does not possess the required expert knowledge to establish relevant facts, expert witnesses are called in for straightforward cases where their testimony is of little or no value to the case. This delays the trial and increases trial costs.

None of the four countries require new expert witnesses to undertake training on trial processes before being admitted into the profession. Without sufficient knowledge of trial processes and an understanding of the correct procedures to be followed when providing expert testimony, expert witnesses can end up causing or exacerbating inefficiency in the trial process instead of facilitating the decision-making process.

Expert witnesses often submit their opinions late, or they submit opinions that need to be revised, supplemented or clarified. At times, this results in the postponement of hearings, or the engagement of several experts in one trial, which prolongs the proceedings.

Judges rarely if ever use the tools available to them to manage the work of expert witnesses to keep trial schedules on track. Also, existing monitoring and accountability mechanisms that govern the work of expert witnesses are weak and ineffective. As a result, it is difficult to sanction expert witnesses in the face of undue delay, incompetence or unprofessionalism.

Informed by best practices outlined in the Guidelines on the Role of Court-Appointed Experts and the Guide to Good Practices in Civil Judicial Expertise in the European Union, our report provides country-specific recommendations on improving the role and engagement of expert witnesses to enhance the delivery of justice and overall performance of the courts.

In Serbia, for example, to improve the process for licensing and selecting expert witnesses, the law could be amended to introduce regular calls into the profession and/or calls for applications at the request of courts and public prosecutors’ offices. In addition, to eradicate the superfluous use of expert witnesses, Serbia’s Supreme Court of Cassation could consider adopting an interpretative opinion, which would provide clarity on when the use of expert witness statements as evidence is appropriate.

In Montenegro, the law could be amended to introduce mandatory training for expert witnesses prior to entering the profession. This would ensure that expert witnesses are familiar with trial processes, thereby reducing the chances of an expert’s testimony slowing down the trial.

To guard against expert opinions that require revisions, supplements or clarifications, the law in North Macedonia could be amended to introduce rules or standards for drafting expert opinions.

In Bosnia and Herzegovina, good trial management techniques could be included in the curriculum used to train judges and prosecutors, and courts could be granted the competence to initiate proceedings against expert witnesses, and even revoke licenses when there has been a breach of duty.

To learn more about the role of expert witnesses in the court systems of the Western Balkans, and what it will take for them to help the wheels of justice turn a little faster, you can read our full report in English, or in Bosnian/Croatian/Serbian.

Let us know what you think, or if you have comments about the impact of expert witnesses on the trial process in your country.

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Authors

Gladys Senderayi

Public Sector Specialist

Olga Šipka

Judicial Reform Expert

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