- Court cases increasingly hinge on specialist matters
Courts’ reliance on experts prompts concern
Rechtsanwalt Stefan Hesse commented on the avails and futilities of expert testimonies in an interview with Deutsche Welle, Germany’s international broadcaster, on June 1st, 2011
Stefan Hesse is practicing as criminal defense attorney in Bad Honnef near Bonn. On his desk is a mounting pile of written expert opinions. He must study them carefully in order to prepare for his clients’ trials. “Unfortunately, expert testimony has led to more confusion sometimes rather than clearing up cases,” he outlined.
Judges depend on the knowledge of experts in the majority of court cases. However, some are beginning to question the practice, claiming that excessive emphasis is being placed on such testimony by judges. In seven out of ten criminal court cases, judges rely on the opinion of experts. Medical errors, as well as road or building accidents are just some of the issues with a technical element that might require such expertise. Both judges and lawyers say that cases are increasingly demanding due to progress in science and technology. They say they need experts to unravel difficult cases and members of the jury are often in no position to assess the situation for themselves. Even the experts cannot always agree and end up doing battle on the court floor in special cases requiring psychological assessments. Court reporters believe that courts increasingly hide behind the opinion of experts.
Serious consequences
Courts normally order experts to provide assessment and opinions to help them reach a verdict. Lawyers from both sides also have the right to do so. And, all have the right to cross-examine such experts. Whoever does must have good reason to do so – but it is not always allowed. Nor does it always pay off.
Trials still end up with courts issuing wrong verdicts. Monika de Montgazon spent two years in jail, while innocent, because several experts were of the opinion that she had used methylated spirits to help fuel a house fire in which her father was burnt to death. The case was reopened, and Monika released, after the Federal Criminal Police Office proved that methylated spirits could not have been used as a fire accelerant in this particular case.
Donald Stellwag spent eight years in jail while innocent. He was convicted of bank robbery after an expert claimed to have recognized him – by his ears – in a surveillance camera video. He was released after police captured the real bank robber, years later.
There’s good reason why there are so many complaints about the use of experts. Around 200 cases are filed each year for arbitration in the Cologne district.
Questioning the experts
There is a basic problem. Experts are placed on list of publicly appointed and sworn experts. Theoretically, anybody in Germany can be on such a list, if someone in a trial requests that he or she provide testimony or their opinion.
Qualifications, however, vary enormously. Stefan Hesse is quite angry about having to privately investigate some of these experts, who, he says, are not properly qualified to take the stand. Hesse said that he recently represented a client in a case where a psychiatrist presented a medical assessment – although, it turned out, he had never studied medicine. “Here, the courts must think it right to remove such an expert.” Hesse said in such cases, he exercises his right to reject the expert.
Regardless of how much power experts seem to wield, it is still more important for lawyers to keep a presence of mind. Cross-examining an expert – without ridiculing him – could end up being a surprise advantage for the accused, said Hesse. “I have experienced quite often, that experts have changed their written opinion after being cross-examined.”
Advantages of experts dominate
Despite many errors and complaints, nearly all those in the legal profession agree that court experts have a positive impact and help courts reach a just verdict.
- The number of experts on file is growing year on year.
In one case a man tried before the local Königswinter court was accused by his wife of attempting to harm her with a knife. During his examination, the man even apologized for the accused actions, but also said in a side-comment that he didn’t really remember what had happened. A psychiatrist expert worked out that the woman must have caused the knife injuries herself: Expert evidence showed that the pattern of the cuts could not have been made by a second party. Furthermore, the cuts were made with a precision that someone with the high blood alcohol level that the defendant had would have been unable to perform. Thus the expert testimony prevented the defendant from serving jail time of possibly several years.
The power of independent experts is expected to increase. There are already five bodies in Germany that represent experts, the largest listing the names of 4,800. The quality of such experts is rarely put on trial.
