The Court’s Role in Verifying Expert Evidence: From Presumptive Competence to Reliability Assessment

Abstract

The primary concerns of this paper are the issue of defining judicial oversight li mits when it comes to evaluating the scientific validity of expert evidence in criminal proceedings, given the rapid development of special knowledge (such as digital and algorithmic research methods). The relevance of this issue stems from contradictions between the traditional status-based model for evaluating expert opinions—which presupposes institutional trust in a forensic expert’s professional qualifications—and the requirement to ensure that a methodology employed by a forensic expert is reliable. The Article Purpose is to reveal conceptual differences between the Anglo-American and continental models for judicial verification of expert evidence, to determine their impact on the scope of judicial oversight, and to justify feasibility of transitioning to a procedural scientific validity review of expert methodologies used in criminal proceedings. Research metho dological framework comprises dialectical, systemic, comparative legal, functional and formal-legal methods, as well as overview of legal prcatice. In common law countries, it has been observed that a forensic expert is a party’s witness, and their opinion is subject to preliminary judicial scrutiny based on criteria of reliability and to further testing in the context of adversarial proceedings. In contrast, the “judicial assistant/assistant to a court (gehilfe des richters)” model prevails within the continental system. This approach relies heavily on presumption of a forensic expert’s competence and places less emphasis on scrutinising a methodology employed. It has been argued that the Ukrainian model incorporates elements of both approaches, but in practice leans towards status verification, thereby posing risks associated with utilisation of opinions lacking sufficient scientific substantiation, especially in the field of innovative research. It has been shown that formal accreditation and professional status do not guarantee reliable results due to cognitive biases and a lack of institutional oversight. An opinion has been reached on the need to move towards a model for procedural verification of expert evidence. It envisages an active role of a court in verifying reliability and validity of the research methodology. At the same time, it does not involve interference in the domain of special knowledge. Integrating components of reliability inquiry and institutionalising the overriding duty concept have been recognised as promising approaches, as they complement each other and gua rantee the scientific validity of expert evidence; these will help enhance the quality of proof and minimise the risk of judicial errors.