Hearing of a witness with an expert scientist in criminal matters

Reasons for proceeding a witness with an expert psychologist

According to Article 192(2) kpk, if there is uncertainty about the intellectual state witness, his state of intellectual development, his ability to perceive or reproduce his views, the court or prosecutor may order a witness to be interviewed with the participation of an expert doctor or expert psychologist, and the witness may not object.

The anticipation of calling for both an expert doctor and an expert scientist to attend the proceeding is subject to circumstantial circumstances indicating 1 of the 3 doubts, namely:

• As to the intellectual state of the witness,
• as regards the state of intellectual development, and
• about the ability to perceive and reproduce facts.

What is significant, however, is the doubts which must be raised on the basis of certain facts (probably) arising from circumstantial procedural or factual situations and must be taken by the judicial authority in question. Accordingly, it should be considered that specified objections, which are not supported by any nonsubjective grounds, cannot be considered adequate to hear the witness with the expert.

Non-compliance with reality and intellectual interrogation

The long-established view of the case-law states that the application for a procedural action referred to in Article 192(2) of the Code cannot be based, even justified, on the party's conviction that the evidence is incompatible with the reality. The application may be based only on the grounds justifying suspicion of a state designated in those provisions reducing the ability to study facts (Yes: judgement of the ultimate Court of 14 October 1998 ,V KKN 283/97, OSNKW 1999/1-2/6, M. Lawn 1999/3/7, Biul.SN 1999/1/21 and judgement of the Court of Appeal of Łódź on 16 November 2000 ,IIAKa 173/00, Prok.i Pr.-wk. 2001/7-8/19).

Amendment of statements in the course of proceedings

Changing your evidence during criminal proceedings is not a unique and different circumstance. Therefore, it does not constitute a case for questioning an expert scientist in criminal matters (in principle: The Court of Appeal in Łódź in its judgement of 16 January 2014 in Case II AKa 265/13).

Meaning of erstwhile witness hospitalization

In particular, the specified fact that a witness has suffered a car accident in the past and suffered a stroke does not prejudge the request to interrogate him in the presence of an expert psychologist. Of course, sometimes specified events have an effect on the intellectual functioning of the patient or his perceptive capacity, but this strategy does not constitute a standard (yes: District Court in Siedlce II Criminal Division in judgement of 15 October 2021 ref. act II Ka 579/21).

Witness Alcoholism

The case law emphasises that alcohol sickness causes the right of the court to question a witness with the participation of an expert to become an work (yes: Court of Appeal in Łódź in judgement of 25 February 2014 Ref. Act II AKa 12/14).

Memory failure in the witness

The work to interview a witness with the participation of an appropriate expert, or even to submit a witness to examination with his consent, shall be updated erstwhile the witness makes a message that he or she suffers from memory failure in connection with the illness he or she has suffered, and is incapable to study events (yes: judgement of 16.06.1981, V KRN 103/81, OSNPG 1982, dated 2, item 24).

Prior psychiatric treatment of a witness

Prior psychiatric treatment of a witness does not automatically prejudge the inadmissibility of his testimony, peculiarly in the event that, during the preparatory and judicial examination, no witness has been found to have been diagnosed with those diseases which caused infirmary treatment, and in addition, erstwhile the expert’s opinion does not give emergence to a dispute against the witness’s evidence (yes: ultimate Court judgement of 11 January 1980 No. III KR 358/79, OSNKW 1980/7/64).

Doubts as to the defendant's sanity may arise erstwhile the suspect has experienced intellectual illness, brain injury and another illness that usually leads to intellectual change, and erstwhile the defendant's conduct and behaviour deviates from the intellectual development, behaviour and behaviour of average people in a intellectual sense (yes: Judgment of the Court of Appeal in Poznań of 27 February 1992 No. II AKr 54/92, OSA 1991/7-8/44).

In turn Court of Appeal in Łódź in judgement of 25 February 2014 Ref. Act II AKa 12/14 He pointed out that the fact that psychotropic drugs were taken in combination with alcohol sufficiently demonstrated the existence of uncertainty about the witness’s intellectual state and the ability to perceive and reproduce his views.

Similarly, the fact that another witness resides in psychiatric hospital during the deposition.

That court noted that the failure to do so constitutes a violation of the provision cited above, which could reasonably have affected the content of the judgement in question.

Content of the expert opinion

The assessment of a peculiar proof is solely a substance for the court of judgement and the task expert the psychologist, appointed pursuant to Article 192(2) kpk, is simply to present, after carrying out an appropriate examination of the opinion on the personality of the witness, and in peculiar on his intellectual development, the ability to perceive or reproduce claims (yes: ultimate Court judgement of 20 September 1974 No. III KR 103/74, OSNKW 1974/12/231).

The statutory opinion on the intellectual wellness of the witness and on his ability to perceive and reproduce his views does not meet the requirements if that opinion was based solely on the results of the erstwhile treatment of that witness (yes: judgement of the ultimate Court of 14 December 1979, act No III KR 393/79, OSNKW 1980/8/70).

Expert psychologist's opinion and witness's reliability

It should be stressed that the subject of the act and position taken by the expert who took part in the proceeding of the witness pursuant to Article 192(2) of the Code may not be the assessment of the reliability of the testimony, but the confirmation or exclusion of specified features of the intellectual state of the witness at the time of the act which may affect the content of the testimony, since the examination of that condition as well as the determination of the anticipation and degree of its impact on the content of the witness's relation requires peculiar information and justifies the expert's actions (yes: judgement of the Court of Appeal in Lublin of 22 December 2005, II AKa 281/05, KZS 2006, No 6, item 97; as well as the judgement of the ultimate Court of 23 November 1984, Rw 445/84, OSNKW 1985, dated 5-6, item 43, as well as the judgement of the ultimate Court of 23 November 1984, Rw 445/84, OSNKW 1985, p. Court of Appeal in Łódź in judgement of 25 February 2014 Ref. Act II AKa 12/14).

The expert opinion issued on the basis of the proceeding is intended to facilitate a procedural body's assessment of the witness's credibility. The credibility of a witness, not the credibility of his peculiar testimony. The witness's credibility (sometimes called "psychological credibility") may besides be referred to as "priority reliability" (yes: J. Widacki, Attempts to measure Truthfulness in Criminal Trials, "Palestra" 2012/3–4, pp. 13–18) or "potential". The expert scientist in this function assesses whether the witness is simply a prioritized or possibly capable of giving actual testimony.

The assessment of the witness's credibility is so to be understood not as an assessment of the compatibility of the content of the evidence submitted with the reality described therein, but only as an assessment of whether the witness is able to correctly perceive reality, memorize it and reproduce it. In another words, it concerns whether the witness is capable of testifying subjectively and objectively true. This assessment does not concern whether the witness’s evidence is subjective and objective.

Simply put, the expert can only find whether there is simply a reasonable reason to fishy that a witness, due to his ability to observe, remember and reproduce observations, besides due to his state of head or intellectual state, testifying in his actual conviction, can sometimes attest to the untruth. This can be put even further: the expert can only conclude that this witness, if he does not want to, does not lie. However, he can't tell whether he wants to lie and lie or not at the proceeding (yes: Jan Widacki in: “The discounted and underrated function of an expert scientist in the criminal trial”, Palester 5/2023 together with the rulings cited there).

Doctrine and jurisprudence are in rule compatible that Article 192(2) of the Code of Criminal Procedure..., p. 462, besides Cf. J. Widacki, Attempts to measure Truthfulness in Criminal Trials, "Palestra" 2012/3–4, pp. 13–18.).

This apparent view, which derives straight from the explanation of Art. 192(2) of the Public Procurement Law, as well as from the rule expressed in many provisions that the evidence is assessed by a procedural body and not by an expert (cf. Art. 7 of the Public Procurement Law, Art. 193 of the Public Procurement Law, Art. 410 of the Public Procurement Law), has received strong support in the case-law (so: judgement of the Court of Appeals in Krakow of 15 January 2003 (II AKa 360/02), “Krakowskie Zeszytki Sądków” 2003/3, item 50; judgement of the Court of Appeals in Lublin of 4.07.2000 (II AKa 86/00), judgement of the Courts of Procuratura and Law” 2001/6, item 26; judgement of the Court of Appeals in Katowice of 12 May 2005 (II AKa 303/04), “Krakowe Zeszytstowa” 2005/12, item 59; judgement of SN of 2 May 2006, item 387/2006; judgement of the Court of the ultimate Court of the ultimate Court of the ultimate Court of the ultimate Court of the ultimate Court of the ultimate Court of the ultimate Court of the

Likewise, Supreme Court in its order of 17 March 2021. Ref. Act I KK 28/21 He pointed out that the activities and opinions of the expert appointed in that procedure (Article 192(2) of the Code) could not be the subject of an assessment of the reliability of the witness’s testimony, but of the confirmation or exclusion of specified features of the intellectual state or of the witness which may affect the content of the evidence (so: judgement of the ultimate Court of 24 January 2019, IV KK 158/18, LEX No 2623783; order of the ultimate Court of 17 May 2017, IV KK 148/17, LEX No 2312031).

Hearing of a insignificant witness

Hearing of minors under the age of 15 is protected in Polish criminal proceedings by Articles 185a and 185b of the Code.

With respect to older witnesses of minors*, the ultimate Court has frequently pointed out that even a proceeding of a insignificant does not always gotta take place with an expert psychologist, as the fact that a certain age of a witness is not the sole determining origin in the request to usage Article 192 §2 of the ultimate Court (yes: e.g. the ultimate Court judgement of 19.03.1984, I KR 48/84, OSNPG 1985, z. 2, item 26, judgement of the ultimate Court of 15.12.1987, IV KR 396/87, OSNPG 1989, z. 7, item 83), although it is clear that the request to usage peculiar cognition in the proceeding of specified witnesses is frequently necessary.

Quality conditions of expert opinions

The opinion of an expert scientist should be clear, logical and unambiguous in his pronunciation. The expert should supply a comprehensive answer to all the issues outlined to him, leaving no area for uncertainty as to the merits of the final conclusions.

Personal presence of an expert in questioning a witness

Supreme Court in its order of 5 March 2020 No. II KK 14/20, with respect to the drop of the suspect accusing of the conduct, i.e. Article 192 §2 of the Code of Conduct, by allowing and carrying out evidence from the expert's opinion of the intellectual condition of the witness in a situation where the expert was not present at the hearing, could not observe the behaviour of the witness, and the opinion was drawn up after the interview with the witness, he considered that the expert scientist had access to the file of the case and the interview with the witness was an component of the intellectual examination supported by intellectual tests causes that the evidentiary value of specified an opinion shall not give way to any evidential value of the opinion issued solely on the basis of reflection of the witness's conduct at the hearing..

He said the same thing. The Court of Appeal in Łódź in its judgement of 16 January 2014 in Case II AKa 265/13

In turn The Court of Appeal in Łódź in its judgement of 8 October 2015 No. II AKa 151/15 considers that in the case-law it is accepted uniformly that, since Article 192(2) of the Code of Conduct provides for a circumstantial procedure in the event of a witness proceeding (the order of proceeding a witness with the participation of an expert doctor or expert psychologist), it cannot be considered that the statutory requirements in this respect are met by the expert’s opinion on the state of intellectual improvement of the witness and his ability to perceive and reproduce observations if that opinion has not been preceded by the expert’s participation in the immediate proceeding of the witness.

Furthermore, it is pointed out that the provision of Article 192(2) of the Code of Conduct, providing for a circumstantial procedure for a witness to whom there are reasonable doubts as to his intellectual state, requires an expert to be present at all his hearing, and not just a passage thereof, stating that ‘a proceeding with an expert’ shall be conducted. Without negating the crucial importance of giving an opinion on both the cognition of the case file and the additional intellectual studies that she conducted with the witness's consent, it is not possible to ignore the crucial component – directness – during the hearing. The expert, participating in this activity, not only observes the course of the proceeding and examines the content of the witness's statements and reactions, but besides has the right to ask questions on issues applicable to the performance of the expert's task (yes: ultimate Court judgments of 14 December 1979, III KR 393/79,OSNKW 1980/8/70) , Supreme Court of 14 October 1998,V KKN 283/97LEX No 574475, Prok.i Pr.-wk. 2010/7-8/34, Court of Appeal in Katowice of 17 December 2009, II AKa 337/09, LEX No 585321, Court of Appeal in Lublin of 5 March 2013, II AKa 22/13LEX No 1306008).

Ingredients provision for proof from expert opinion

A provision shall be made to indicate the acceptance of evidence from the expert’s opinion (Article 194 kpk):

• the name and speciality of the expert or expert and, in the case of the opinion of the institution, where necessary, the speciality and qualifications of the persons who should participate in the examination;
• the subject substance and scope of the expert report, with the wording, where necessary, of circumstantial questions;
• the time limit for delivering the opinion.

Opinion of another expert psychologist

The conduct of evidence from the opinion of another expert scientist must be due to defects in the first opinion. The duplication of the same evidence would not only prove useless but would besides have a negative impact on the efficiency and continuity of the process.

It is possible to reinterview the witness (injured) with the participation of another expert (recollected: Decision of the ultimate Court of 26 February 2019, No. II KK 33/19).

Relationship between Article 192(2) and related provisions

In its order of 5 March 2020, the ultimate Court indicated that the provision of Article 192(2) of the General Court was lex specialis in respect of the regulations contained in Articles 193 of the General Court and 194 of the General Court. Article 192(2) of the Code it complements these rules and does not exclude them (yes: Judgment of the ultimate Court of 27 March 2014, V KK 331/13, LEX No 146343).