Expert opinion

In seven out of ten criminal court cases in Germany, 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.

Stefan Hesse is a specialist solicitor in criminal law. On his desk is a mounting pile of written expert opinions. He must study them carefully in order to prepare himself for court. It could cost him, or rather his client, the case if he misses a vital detail.

"Unfortunately, it's been my experience that expert testimony has led to more confusion rather than clearing up cases," he said.

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.

Many, with years of experience in the legal profession, are surprisingly open about the uses and the limits of relying on experts.

"We have to forget the idea, that we can actually get it 100 percent right," said German judge Ulrich Feyerabend.

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. Martin Huff, from the Cologne Law Society, said around 200 cases are filed each year for arbitration. "That's a lot," he said.

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.

In one case, a women accused her husband, who she said was violent and drank a lot, of trying to harm her with a knife.

Judge Feyerabend recalled talking to the accused, who at the time, even apologized for his actions.

"He said, in a side-comment, that he didn't really remember attacking the women."

Judge Feyerabend suspected something wasn't adding up here - and followed his intuition. A surprising result: it turned out, that the woman must have caused the knife injuries himself.

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 accused had - the reason the man could not remember.

One hundred pages of expert testimony for a fee of 400 euros prevented the accused from having to go to jail for 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.

Authors: Wolfgang Dick / wl
Editor: Nicole Goebel