Definition and Distinction: Expert Witness
The term expert witness in German law refers to a person who is examined as a witness in court proceedings, but whose testimony is based on special expertise that they have applied themselves in a specific context through their own perception. An expert witness is distinct from both a regular witness and a court-appointed expert. While the regular witness describes facts they have personally perceived through their own senses, the court expert is appointed to provide the court with an evaluation, assessment, or expert opinion using scientific or technical knowledge.
The expert witness occupies an intermediate position between these two functions: They report observations they have made themselves, which, however, are highly specialized and can be particularly significant for understanding the facts and legal situation in the case.
Legal Classification
Distinction from Witness and Expert
The legal difference between a witness, an expert witness, and a court-appointed expert is fundamental to the structure of legal proceedings:
- Witness: Provides information only about facts actually perceived, without evaluating or interpreting them.
- Expert Witness: Provides information based on their own perceptions, which rely on expertise (e.g., a treating physician regarding a patient’s symptoms and treatment), but does not formally assess them as an expert.
- Expert: Prepares expert reports on court order, draws their own conclusions, and provides a professional assessment on specific issues, regardless of whether they have personally observed the underlying events.
This distinction is particularly important from a procedural point of view, as it results in different rights and obligations as well as questions regarding the administration of oaths and remuneration.
Statutory Foundations
The expert witness is not explicitly regulated by law, but results from a combination of various provisions, particularly the Code of Civil Procedure (ZPO), the Code of Criminal Procedure (StPO), as well as related regulations.
- Code of Civil Procedure (§§ 373 ff. ZPO): The provisions on witness evidence apply. An expert witness is generally considered a witness within the meaning of the ZPO.
- Code of Criminal Procedure (§§ 48 ff. StPO): Here too, witness regulations apply. The individual is sworn to tell the truth and is examined.
- Remuneration (§ 22 JVEG): For the remuneration of an expert witness, Section 22 of the Judicial Remuneration and Compensation Act (JVEG) applies, which provides for higher compensation for witnesses with expertise.
Role in Court Proceedings
An expert witness is usually called when, through their professional experience or special training, they are able to independently make a qualified observation. Typical examples include:
- The treating doctor who testifies about findings and therapeutic measures,
- The automotive mechanic who performed maintenance work and assessed the subsequent condition of a vehicle,
- The construction manager who supervises the execution of construction work.
In contrast to a court-appointed expert, the expert witness is generally not called upon to prepare a formal expert report, but instead conveys their own, expertise-based observations as statements of fact.
Particularities of the Law of Evidence
Evidentiary Value and Evaluation
The testimony of an expert witness is subject to the court’s free evaluation of evidence (§ 286 ZPO, § 261 StPO). The difference compared to an expert is that the expert witness is not appointed to provide an objective technical assessment in the procedural sense, but only to recount their own observations made through their professional knowledge in the specific situation. The court may critically assess the accuracy and convincing power of such testimony and, if necessary, consult an independent expert if the statement is insufficient to clarify the matter in question.
Oath and Duty to Testify
Expert witnesses, like regular witnesses, are obliged to testify and can, under certain circumstances, be sworn in. The general rights to refuse testimony apply accordingly. One difference compared to a court-appointed expert is that the latter may be sworn in upon request or ex officio; this is expressly the exception for expert witnesses.
Practical Relevance and Typical Areas of Application
Medicine and Healthcare
Court proceedings in healthcare commonly make use of expert witnesses. Treating physicians are not appointed as experts, but serve as expert witnesses regarding diagnoses, treatment measures, and observations of progress that they have personally perceived in the course of treatment.
Property Damage and Technical Assessment
In construction disputes or those involving vehicles, tradespeople, masters, or technicians are often examined as expert witnesses regarding observed conditions or work performed.
Special Features in Criminal Proceedings
In criminal trials, this function can carry particular weight, for example when emergency personnel, investigators, or other professionally qualified individuals describe observations, findings, or assessments based on their own perception.
Conclusion
The expert witness occupies a distinct role under German procedural law which is of great practical significance. A clear distinction from regular witnesses and court-appointed experts is crucial for the proper conduct of proceedings, the taking of evidence, and correct legal classification. The relevant rules are based on the general provisions for witnesses, but in individual cases may prescribe particular requirements regarding remuneration, scope of testimony, and evidentiary value determination.
These special features highlight the relevance of professionally qualified witness statements in court proceedings, as they contribute to establishing the facts through personal expert observation without assuming the formal role of a court expert.
Frequently Asked Questions
What duties and rights does an expert witness have in court?
An expert witness is obliged to truthfully and fully disclose to the court any perceptions and findings they have obtained through their own observation and by virtue of special expertise. Their testimony covers specific facts they have observed or verified using their expert knowledge, but does not extend to providing a full expert report in the strict sense as done by a court expert. An expert witness has, in principle, the same rights as any other witness, including the right to refuse testimony under specific legally defined circumstances (for example, in case of self-incrimination or professional confidentiality obligations) as well as the right to compensation for time spent and reimbursement of any expenses. Furthermore, the expert witness must be instructed as to the duty of truthfulness and, if ordered by the court, can be sworn in.
How does the examination of an expert witness differ from that of an expert?
The examination of an expert witness differs significantly from the questioning of a conventional expert: While the court expert prepares an independent report on the basis of a court mandate and serves in a role comparable to judicial neutrality, the expert witness is examined like any other witness. They report on their own observations, based on their expertise, particularly facts they have established in connection with their professional activity, such as as a doctor, craftsman, or technician. Questioning is therefore confined to facts, whereas a value judgment—as provided by an expert—is generally not required. The court may use the expert witness primarily to supplement the establishment of facts, but not as the author of professional final assessments.
Can an expert witness be held liable for their testimony?
An expert witness is—just like any other witness—criminally liable for false statements (§ 153 StGB “False Unswoen Testimony”, § 154 StGB “Perjury”), regardless of whether their statement is made under oath or not. False testimony can thus have criminal consequences. Civil liability for damages arising from their statements is generally only considered in rare exceptional cases, for example if the witness intentionally makes false statements that are proven to have caused damage. As a rule, the expert witness does not incur civil liability so long as they fulfill their duties to provide truthful and complete testimony.
When is an expert witness used instead of a court-appointed expert?
An expert witness is typically called upon when the professional perception and testimony of a person is needed who, due to their professional activity or particular expertise, was directly involved in a relevant event. Common examples are doctors who treated a patient or craftspeople who assessed damage. By contrast, a court-appointed expert is used to clarify technical questions for which the court lacks sufficient own expertise and for which no person is available as an expert witness who directly experienced the incident. However, the distinction can be difficult in individual cases and is at the discretion of the judge, who decides whether the individual will act as a witness or as an expert.
How is the expert witness compensated?
According to the Judicial Remuneration and Compensation Act (JVEG), the expert witness—in contrast to the court-appointed expert—generally only has a right to witness compensation. This includes reimbursement of travel expenses, loss of earnings, and compensation for loss of time. There is no entitlement to payment for providing special expertise, as the expert witness does not assume the role of an expert, but merely reports facts. Exceptions and special arrangements are possible if a participant promises additional compensation, but such cases are legally restricted and subject to strict criteria.
Under what circumstances may an expert witness claim the right to refuse testimony?
An expert witness may, like any witness, under certain circumstances claim the right to refuse testimony. This right arises, for example, in cases of close family relationships with the accused (§ 52 StPO), in cases of professional confidentiality duties such as those for doctors, Rechtsanwalt, or clergy (§ 53 StPO), or where giving testimony would expose the witness or a close associate to criminal prosecution (§ 55 StPO). The assertion of these rights is expressly reserved to the witness and must be clearly indicated to the court. The court then decides in each individual case whether the right to refuse exists and whether the witness is partially or fully obliged to testify.
Must an expert witness take an oath in court?
Swearing an oath is not mandatory for expert witnesses. However, the court can order it, especially if the case is of particular importance or if there are doubts about the truthfulness of the testimony. The oath is administered under the same conditions as for other witnesses. If there is already a legal right to refuse to testify or an exemption from the duty to swear an oath, the obligation ceases. Taking the oath has a significant impact on the criminal consequences of making a false statement.
