Rights, duties and responsibility of a forensic expert

A forensic expert is not a hired “party” but an independent bearer of specialised knowledge whose powers are clearly defined by law. Understanding these limits matters equally to the defence lawyer, the investigator and the business owner: what the expert must do, what rights they have, what they may not do, and what they answer for. Below I set out these boundaries as they actually work in the practice of a forensic economic expert.

Three sources that define the expert’s status

An expert’s powers are not “negotiated” case by case — they are set by law. Three pillars are worth keeping in view:

• The core statute — the Law of Ukraine “On Forensic Expertise”. It fixes the expert’s duties (Article 12) and rights (Article 13).
• The procedural codes — depending on the type of proceedings: the Criminal Procedure Code of Ukraine (KPK), where the expert as a procedural figure is dealt with in Article 69; the Commercial Procedure Code and the Civil Procedure Code; and the Code of Administrative Procedure (KAS).
• Subordinate regulation — above all the Instruction on ordering and conducting forensic examinations, approved by order of the Ministry of Justice of Ukraine No. 53/5, which spells out the working procedure and the requirements for the opinion.

One further detail matters: attestation of forensic experts and the Register of certified forensic experts are maintained by the Ministry of Justice — it is the Ministry that confirms a given expert’s qualification. And the core idea of the whole status is simple: the expert acts within the questions posed and the materials provided. Anything beyond those limits requires a separate procedural ground.

Duties of the forensic expert

Duties are what an expert cannot waive at their own discretion. The main ones:

1. Conduct a full study. Not the “convenient” part but the entire scope needed to answer the questions posed. If the documents provided are insufficient for a full study, that is recorded — not “filled in” with assumptions.
2. Give a reasoned and objective opinion. Every conclusion must rest on specific documents, a method and calculations that can be verified. Wording along the lines of “in my view”, with no basis in the data, has no place in a forensic expert’s opinion.
3. Give explanations and appear when summoned by the body, person or court that ordered the examination — including to clarify the opinion given or to be questioned about it.
4. Not disclose information that became known in connection with the examination, in particular the secrecy of the pre-trial investigation and the parties’ confidential information.
5. Declare self-recusal where circumstances exist that exclude their participation (more on this below).

The first three duties flow directly from Article 12 of the core statute and are detailed by procedural law, in particular Article 69 of the KPK. In my practice the first duty is where parties most often stumble: a side wants a quick opinion on an incomplete file. But an incomplete set of materials is a ground to file a motion, not a reason to narrow the study.

Rights of the forensic expert

Rights are the tools that make it possible to perform those duties well. A forensic expert has the right, in particular, to:

• examine the case materials that concern the subject of the examination;
• file motions for additional materials and documents needed for a full study;
• note in the opinion facts of significance to the case even where no separate question was put about them (the so-called expert initiative within their competence — a right expressly fixed by Article 13 of the statute);
• decline to give an opinion where the questions posed fall outside their specialised knowledge, or the materials provided are plainly insufficient — with reasons stated for the refusal.

The last two are often underrated. The right to point out facts beyond the questions posed is not “freelancing” but a mark of diligence: if the documents reveal a feature that affects the conclusion, the expert has no grounds to stay silent about it.

What a forensic expert is forbidden to do

It is precisely the prohibitions that most often become the basis for challenging an opinion. An expert has no right to:

• gather evidence independently — demanding documents from the parties, “topping up” missing primary data, or obtaining materials around the body that ordered the examination. The only source of data is the materials provided in the established manner.
• communicate with the parties outside the procedure about the substance of the case: accepting private “additional explanations”, discussing the desired result, or receiving documents “by hand” from an interested person.
• decide questions of law — legal qualification (whether the elements of a criminal offence are present, who is guilty) belongs to the investigator, prosecutor and court, not to the expert.
• go beyond their specialty — an economist does not draw conclusions on handwriting or construction-technical questions.

The expert must	Has the right to	Has no right to
Conduct a full study	Examine the case materials	Gather evidence independently
Give a reasoned opinion	File motions for additional documents	Communicate with parties outside the procedure
Appear when summoned and give explanations	Note significant facts found	Decide questions of law
Not disclose information	Decline an opinion with reasons	Go beyond their specialty

The expert’s responsibility: from disciplinary to criminal

An expert’s independence is balanced by responsibility. Its range is broad — from disciplinary (for certified forensic experts, under the procedure set by the Ministry of Justice and its qualification commissions) to criminal. The two most significant provisions of the Criminal Code of Ukraine (KK):

• A knowingly false opinion — Article 384 of the KK (in the current wording, “Misleading a court or another authorised body”). The point is precisely knowingly — a deliberate distortion. An error caused by the complexity of a method or the incompleteness of materials is not the same as intentional falsehood; but consciously “fitting” an opinion to order entails criminal liability.
• An expert’s refusal to perform their duties without valid reasons — Article 385 of the KK. A valid reason may be, for example, insufficient materials or questions outside the expert’s competence; a wish not to “spoil the relationship” with a party is not a valid reason.

An important condition: criminal liability arises only where the expert has been warned in advance about it in the established procedural manner. That is why such a warning is documented before the study begins, and a corresponding note appears in the opinion. This is not a formality — it is exactly what underlines that the opinion is given under the expert’s personal responsibility.

Independence, objectivity and recusal

The backbone of the whole status is independence and objectivity. The expert is subordinate only to the law and the method, not to the interest of whoever initiated the examination or paid for it. The source of payment does not — and cannot — create any “obligation” as to the result.

In forensic economic practice the initiator or party varies. In criminal proceedings on economic offences these are detectives of the Bureau of Economic Security (BEB). In tax disputes heard under the rules of the Code of Administrative Procedure, the subject of study is additional assessments under the Tax Code, with the bodies of the State Tax Service (DPS) as a party. A separate layer of cases involves materials of the State Financial Monitoring Service (Derzhfinmonitoring). Whoever initiates the examination, the expert is equally independent of them: procedural status and method do not change with “whose” case it is.

The guarantee of independence is the institution of recusal (self-recusal). The procedural codes provide that an expert may not take part in a case where circumstances cast doubt on their impartiality, in particular:

• personal interest in the outcome — direct or indirect;
• dependence on a party — official, financial or other;
• family or close relations with participants;
• prior involvement in the case in another role.

Where any such circumstance exists, the expert must declare self-recusal; the parties, in turn, have the right to seek their recusal. An undisclosed conflict of interest is one of the surest grounds for later “collapsing” an opinion in court.

A typical mistake by the parties: pressuring the expert for the “needed” result

The most common and most dangerous mistake I observe is an attempt to steer the result. It has several faces:

• “soft” pressure: hints at the “right” answer, reminders of “who is paying”;
• attempts to hand over documents around the procedure or to “explain the situation” privately;
• leading questions phrased so as to “prompt” the desired conclusion.

For a party this is not merely futile — it is harmful. An opinion obtained under pressure or with procedural breaches is easy to challenge: it is enough to show out-of-procedure contact, an incomplete study or the independent gathering of data, and the evidentiary force of the opinion vanishes. A far more productive strategy is to work with the questions and the completeness of the materials: state the questions clearly and correctly (this can be agreed with the expert at the ordering stage), provide a complete and properly certified set of documents, and, if something is missing, secure it through the procedural route.

A short checklist for the party

• Questions for the expert — specific, within their specialty, with no legal wording of “who is guilty”.
• Materials — complete and properly certified, submitted through the body that orders the examination.
• No private “arrangements” and no documents “by hand”.
• Check in advance that there are no grounds for recusal of the chosen expert.
• Be prepared for a reasoned opinion that may not match expectations — a sign of a quality examination, not a “convenient” one.

In short

The rights, duties and responsibility of a forensic expert form a single system: broad rights are granted in order to fulfil strict duties, and responsibility ensures that independence does not turn into arbitrariness. For a party, understanding these limits is a practical tool: it helps obtain an opinion that will withstand scrutiny in court rather than be rejected over procedural defects.

If you are preparing a case and are unsure how to frame the questions for the expert correctly or how to assemble the document set, it is better to agree this before the examination is ordered. I would be glad to help with a consultation or with conducting a forensic economic examination within the bounds of the law.