When a defendant refuses to cooperate with an expert witness – what next?

You are involved in a court case in which an expert witness appointed by the court, requires the cooperation of both litigants to the case, in particular – the defendant in order to obtain relevant information. But what about a situation in which the defendant obstructs, or even prevents, the expert witness’s opinion?

Various cases, ranging from almost obvious to very complicated, come before the courts. One of the elements determining difficulty of a given case is the necessity for the court to acquire knowledge beyond that available to an average, educated person, in other words to make use of the so-called special information. In such a situation, courts are obliged to make use of the institution of an expert witness’s opinion.

The expert witness appointed in the case, especially in cases with a high degree of complexity, may conclude that the material gathered so far in the case file is not sufficient, and the opinion will require further cooperation of the litigants, for example by providing documents or making a certain area available for inspection. However, it is easy to imagine a situation in which such a party, in order to avoid an unfavourable content of the opinion, refuses to cooperate with an expert witness or at least hinders it. The fact that such situations do indeed occur is evidenced, for example, by research conducted in 2016 under the auspices of the Justice Institute.

This raises the question of whether such a situation has any consequences and whether it can be prevented?

Who is the expert witness to the court and the litigants?

The status of an expert witness in the Polish legal system is not entirely clear. To date, we have not seen the adoption of a law that would comprehensively regulate the status of expert witnesses, although work on such a law has been ongoing at the Ministry of Justice for at least several years. As a result, the provisions relating to expert wittnesses are scattered across a number of acts and regulations, which mainly concern the activities of expert witnesses in specific types of proceedings, but do not answer the basic question – who exactly is an expert witness?

In court rulings and scholarly articles, an expert witness is referred to as a body auxiliary to the administration of justice or as a body auxiliary to the trial authority. Being an expert witness is not a separate profession. In addition, expert witnesses are neither full-time employees of courts and other judicial institutions nor civil servants or public officials. In order to become an expert witness, in addition to possessing special information in the relevant field, an application must be submitted to the competent president of the court, who, if the relevant conditions are met, enters the expert witness on a list maintained by him.

At the same time, the expert witnesses’ role in the trial is impossible to overlook. Like the judge, the court expert has to analyse the information provided to him/her on the basis of his/ her special knowledge, make comparisons with scientific principles, and often carry out an appropriate examination which, in some cases, may resemble an evidentiary procedure “in thumbnail”. The content of the expert witnesses’ opinion may, in effect, resemble the reasoning of a judgment – only that it does not deal with strictly legal issues reserved for the judge, and as a result, the expert witness’s role in the trial itself also approaches, in some respects, that of the judge.

Is it a crime to obstruct an expert witness?

The Penal Code in its content contains a number of offences defined as crimes against the administration of justice. It is therefore a natural reflex to look there for the answer to the question above.  Pursuant to Article 245 of the Penal Code, it is a crime to influence an expert witness, i.e. – to seek to change the expert witnesses’ actions (the content of the opinion) in the desired direction, by means of violence, unlawful threats or by violating his inviolability.

In this context, a litigant who does not co-operate with an expert may be considered to be influencing the expert witness as such, as his conduct affects the final content of the expert’s opinion. Greater problems are related to the further part of this provision – it is difficult, for example, to consider as violence or unlawful threat a situation in which a party simply refuses to do certain things at the expert witnesses’ request, and thus maintains a kind of passivity.

Can the court discipline a disobedient litigant?

The court has a tool at its disposal to ensure the proper discipline and dignity of the court in the form of a disciplinary penalty, which may take form of a fine of up to PLN 3,000 or imprisonment of up to fourteen days. Can the court therefore impose such a penalty on a party obstructing an expert in the performance of his/her activities?

The answer to this question is not straightforward. In the discussed situation, it may be considered whether it is not a case of a breach of solemnity, peace or order of court activities, for which the court may impose a disciplinary penalty. The jurisprudence of the Supreme Court indicates that it may be applied in situations where there is a possibility of the court’s immediate reaction to what takes place, e.g. during a session, whereas it may not be applied in situations where the reprehensible behaviour takes place outside the place and time of court activities. Moreover, it is difficult to consider precisely as a judicial activity the actions (e.g. inspection) undertaken by an expert witness on his/her own initiative, because, as indicated above, the expert cannot be equated with the court itself.

Can the court do anything then?

A careful study of the provisions indicates that the courts have powers to counteract the obstruction of a trial, which the preparation of an expert witnesses’ opinion is undoubtedly a part of. Within the framework of civil procedure, the Court may consider such behaviour as the so-called abuse of procedural rights and thus threaten the party committing the abuse with a fine or an order to pay court costs in a larger amount than the outcome of the case would indicate. Upon the other party’s motion, the Court may also increase the obligation to reimburse court costs (including the costs of legal representation) in its favour and increase the rate of interest awarded.

Nevertheless, if it turns out that the party preventing the expert witness from issuing an opinion or even preventing it from drawing up a judgment favorable to him was able to endure such inconvenience, the court may draw further negative consequences. According to Art. 233 § 2 of the Code of Civil Procedure, if a party obstructs evidence, the court may accept the opposing party’s assertions as true even though they cannot be supported by evidence in the form of the expert opinion in question. If, on the other hand, the expert witnesses’ task was, for example, to calculate the amount of damages, the court, pursuant to Article 322 of the Code of Civil Procedure, may award an appropriate sum in the judgment according to its own assessment.

The role of the professional representative

As mentioned above, a litigant is not defenceless against the actions of a party attempting to prevent an expert witnesses’ opinion unfavourable to that party. Nevertheless, spotting the appropriate remedies and reacting appropriately requires not only legal knowledge but also relevant experience. The role of a professional attorney, who can help both to prevent the situation discussed in this article, but also to protect his or her client from its potential negative consequences, cannot therefore be underestimated.

Author: Michał Piechota