EXPERT. - The expert has been defined as a delegate of the judge for an investigation and an evaluation of the facts, which the judge will then re-examine on his own account.
When the Sacred Rota extended its jurisdiction also to the civil forum, it availed itself of arbitres in pecuniary questions; their solution was also the solution of the case, and the dispute, in this way, was considered settled. In time the arbitres became rather "qualified witnesses" chosen by the judge, to enlighten him in a determined matter or art, in which they were specialized. Thus the experts became true "assistants" of the judge, by whom they were chosen and to whom they had to render account; at the same time they were clearly distinct from witnesses and far superior to them, precisely because they were chosen with the purpose of examining the fact asserted by the witness, in order then to report on it to the judge, issuing, for the technical side of the question, a true reasoned judgment. Thus, through the evolution of the Sacred Rota, the present figure of the expert has gradually been created, which, although not well defined, is accepted in almost all modern codes.
In the CIC this is required only when no other kind of proof is available. Expertise is considered an extraordinary means, also because it is generally very costly. The expert is prescribed, ex officio, in matrimonial cases of impotence, of non-consummation (can. 1976) or of insanity (can. 1982) and in causes of beatification for the examination of miracles (can. 2031; v. BEATIFICAZIONE, vol. II, coll. 1094-95). In many other questions, as, for example, to examine the authenticity of a writing (can. 1800), in controversies of novi operis nunciatio, in those concerning the boundaries of ecclesiastical circumscriptions, in criminal cases, for forgery or for theft of precious objects, the judge himself may deem the work of the expert necessary, just as it may likewise be requested by one of the parties or by both. The appointment, however, always belongs to the judge, who will consult, according to the cases, with the defender of the bond or with the promoter of justice. In civil trials, on the other hand, the parties are permitted the choice of the expert and he acts in their interest. In determined causes the CIC prescribes two experts (cf. cann. 1979, 2031 and 2118); in others a single expert may be appointed (cf. can. 1793 § 3), according to the prudent judgment of the judge. When it is found that the question has not been sufficiently elucidated, the judge may appoint a second and a third expert. If, moreover, the conclusions of two different experts who have acted independently of each other should be discordant, the judge could appoint a periziore, who, after examining all the previous acts, will give a new judgment (cf. can. 1803 § 1).
The judge must choose the expert from among persons competent in a determined profession, or art, and absolutely worthy of esteem. The name of the expert must be immediately notified to the interested parties, to give them the possibility of raising any objections. It always belongs to the judge to declare, by decree, whether there is cause to revoke the mandate of the expert or not and to appoint another (can. 1796). The interested parties may assist at the oath of the expert and be present while he carries out his mandate, except where propriety, modesty or other considerations forbid it (can. 1797).
The expert will swear an oath, both at the moment when he is about to accept the mandate (iuramentum de munere fideliter explendo), and afterward (iuramentum de munere fideliter impleto); sometimes the oath de secreto servando is added. The expert may present his reasoned report in writing, or even orally, in exceptional cases; in that case, however, the report must be immediately recorded and signed by the expert and by the notary (can. 1801 § 1). The expert, after having delivered the written report, is invited to the tribunal to acknowledge and confirm it under oath, and to give, if appropriate, further clarifications. When for a question two experts are appointed at the same time, these, as a rule, act independently of each other, and each must draw up his own report. An exception may be made to this practice, in the case of a trial for relative impotence, in which the medical examination of the man and of the woman is necessary.
Of the two experts, then, one will subject the man to examination, the other the woman, according to his own specialization; then together they will consult to compare their own data and draw up the expertise. If the opinion of the two should not be concordant, this could be noted in the drafting of the expertise, without its being necessary to specify to which of the two experts each opinion must be attributed. The conclusions of the expert are of great value for the purposes of the sentence; nevertheless, by the principle of the free conviction of the judge, the latter is not bound to the conclusions of the expert and his sentence is perfectly original and autonomous, all the more so since for the definitive decision he must take into account the whole complex of circumstances, at times unknown to the expert. Every expertise must remain in the acts, as a part of the process;
(by courtesy of p. U. Vigilio)
PERLO, FILIPPO - Portrait.
in exceptional cases, it might not be admitted or might be annulled.
It is not rare for an expert (p.) to draw up a written report, not by formal mandate of the judge, but only on commission received from an interested party or from a lawyer. Such an initiative, generally taken at the beginning of a trial, has the purpose of presenting the case itself in a favorable light, so as to make it appear furnished with a valid foundation and not merely a fumus boni iuris. The expert opinion, in that case, is called extrajudicial, and can be considered a technical defense. The expert (p.) in these cases assumes the true figure of a witness and, as such, is summoned to court to acknowledge his own report.
Particular instructions for expert opinions, both in cases of non-consummation and in those of nullity, are found in two documents issued by the Sacred Congregation of the Sacraments: Regulae servandae in processibus super matrimonio rato et non consummato of 7 May 1923, arts. 84-95; and Instructio servanda a tribunalibus dioecesanis in pertractandis causis de nullitate matrimoniorum of 15 Aug. 1936, arts. 139-54.
On 12 June 1942, the Supreme Congregation of the Holy Office issued a decree De quibusdam cautelis adhibendis in causis matrimonialibus impotentiae et inconsummationis, by which it renews the counsel to have women examined by women doctors, and only upon explicit request, by expert (p.) doctors. Moreover, no woman can be obliged to submit to a medical examination, not even when an expert opinion might appear strictly necessary for the resolution of the case.
Bibliography3 works
Pietro Santini