JUDICIAL DISCRETION IN EVALUATING EXPERT TESTIMONY IN CIVIL CASES

Abstract

The principle of the rule of law is the exercise of an independent judiciary, free from the influence of other branches of government, which administers justice to uphold the law and justice. Justice is embodied in a judge’s decision, as a source of divine inspiration. Judges must be required to fully understand every issue presented to them, judges may not refuse to hear a case even if there is no existing legal provision governing it; judges must discover the law; judges must engage in legal discovery (rechtsvinding), and the considerations in a judge’s civil judgment must be based on the evidence presented in court, which must conform to the types of evidence recognized under civil procedure law, whereas expert testimony is not considered evidence in civil cases; in civil trial practice, judges often examine experts during the evidentiary phase of the trial. The purpose of this study is to examine how judges engage in legal discovery when evaluating expert testimony in civil cases. This study employs a normative research design, and the approaches used include the conceptual approach (conceptual approach). The findings of this study indicate that the legal basis for judicial law-making is already established in Indonesian positive law, judges are free and independent in formulating legal reasoning. The stages of judicial law-making are: ascertaining, qualifying, and constituting. Judges are autonomous; when evaluating expert testimony in civil cases, judges in practice tend to rely on legal theories that influence their perspective in resolving the specific legal issues under review to form the basis for their rulings. In civil cases in Indonesia, there is no definition of an expert witness as a form of evidence, if a judge agrees with an expert’s testimony, the judge adopts it as his or her own opinion.