The European Court of Human Rights has recently addressed the issue of expert evidence in the case of Yevstratyev v. Russia – 11620/17 (Judgment : Right to a fair trial : Third Section Committee) [2020] ECHR 906 (15 December 2020).
The applicant had been charged with murder and robbery. On a re-trial, forensic evidence was adduced by the prosecution, and the defendant sought to cross examine the expert. This was refused by the trial judge who “noted that the rules of criminal procedure provided for the questioning of experts only in the case of doubt expressed by the expert or ambiguity in the contents of the report prepared by him or her.“
This finding was challenged in the Court of Human Rights, which held that there had been a breach of the Article 6 right to a fair trial and, in particular:
(a) The accused should be entitled to seek and produce evidence under the same conditions as the prosecution. Khodorkovskiy and Lebedev v. Russia.
(b) The refusal of a court to admit reports prepared by ‘specialists’ for one party is a breach of the principle of equality of arms. Khodorkovskiy and Lebedev v. Russia.
(c) The refusal of a presiding judge to allow a defendant to call a relevant forensic expert for questioning prevented him from confronting him to cast doubt on his credibility.
(d) The defendant must have the same opportunity as the prosecution to introduce its own expert evidence.