A New Expert Opinion as Grounds for the Reopening of Judicial Proceedings Propter Nova: Commentary on the Judgment of the Supreme Court of 16 May 2018 (V KO 26/18, LEX no. 2515771)

Abstract

The Supreme Court’s judgment of 16 May 2018 (V KO 26/18) concerns the issue of recognition of a new expert opinion, prepared on the basis of the same evidence as the expert opinion issued in the course of the court proceedings covered by the motion for reopening, and which only contains different conclusions. The Supreme Court stated that such an opinion should be considered as new evidence, justifying the resumption of proceedings, if the different conclusions were drawn on the basis of new research methods previously unknown to the experts giving their opinions. The authors fully endorse the above view, pointing out that scientific and technological progress allows for the development of more and more accurate examination procedures, thus creating the possibility of examining evidence and clarifying cases even many years after the crime was committed. Therefore, there is a high probability that there will be cases in which the achievements of modern science and technology will allow for the formulation of completely different conclusions from those made in validly concluded criminal trials. In the commentary, three criteria are formulated, the fulfilment of which allows one to consider a newly drawn up expert opinion as new evidence warranting the resumption of proceedings: 1) the preparation of a new opinion by a new expert or a new team of experts (often an interdisciplinary team), even if they would have given an opinion based on the same evidence and traces that had already been the subject of examinations and expert opinions based on them; 2) the use of new research methods, previously unknown or not used in the original opinion, as a result of developments in science and technology, enabling a more complete and thorough analysis of the research material; 3) the adoption of different conclusions by the experts from the research carried out thanks to the use of innovative research methods which were unknown or not used in the original opinion.