The Admissibility of Scientific Expert Evidence Under Indonesian Criminal Justice System

In many cases, such as corruption and forestry-related crimes, an expert has a significant role in explaining the impact of the crime. For instance, scientific expert evidence is required to disclose about the ecological destruction that occurred due to the defendant's criminal activities. In practices, the issue with scientific expert evidence is supposed to be about its admissibility in court. For this issue, the U.S. Court applies Rules of Evidence in considering the admissibility of scientific expert evidence at trial. Those are some requirements (prong test) to be met before expert testimony is admissible. In contrast, the Indonesian Criminal Procedural Law (KUHAP) or other laws do not set any prong test for presenting specialist scientific evidence to be acceptable. Lack of such proof may impact criminal justice process reliability and place expert under vulnerable position. Therefore, this paper will explore the issue on scientific expert evidence under Indonesian criminal law as well as its consequences and impacts for the Indonesian criminal justice process.


INTRODUCTION
In usual practices, admissibility of evidence becomes an issue, including in the criminal justice process.One of the problems is regarded to the admissibility of scientific expert evidence in court, for instance, is in the United States Court.Referring to the criminal case of Frye v. the United States in 1923, the so-called Frye test was enunciated by the Court of Appeals of the District of Columbia regarding the standard for scientific expert evidence to be admissible at trial.In many cases, the Frye test was applied, and it spread quickly.Considering the fact, the Frye test was then promulgated in the Federal Rules of Evidence in 1975.Nevertheless, in 1993, the Frye test was challenged in the civil case of Daubert v.  Merrel Dow Pharmaceuticals.In this case, the U.S. Supreme Court finally rejected the Frye test.Since that, the practice regarding the admissibility of scientific expert evidence has changed. 1 From both cases, the scientific theory, method, and technique determine either the evidence was admissible or excluded at trial.Once the expert failed to demonstrate that the theory, method, or technique was acceptable and reliable, the expert's testimony will be abandoned at trial.Those cases also indicate that scientific expert evidence was open to being challenged.
Nevertheless, rather than challenging the expert testimony at trial, the perpetrator in criminal cases prefers to file a lawsuit against the expert.The perpetrator's action may tamper the experts in giving their evidence.This practice also may cause other experts reluctant to assist, particularly in helping the prosecutor or government, in the criminal justice process.
Recently, Indonesia judges considered scientific expert evidence in the bribery case of Nur Alam, former Southeast Sulawesi governor and forest fires case of P.T. Jatim Jaya Perkasa (JJP) to be relevant in their verdict.As consequences of their testimony in those criminal cases, Basuki Wasis and Bambang Hero Saharjo have to deal with a civil lawsuit against them.The party in the civil suit against Basuki Wasis was Nur Alam; while JJP became a party that filed a lawsuit against Bambang Hero Saharjo.
Initially, Basuki Wasis gave his testimony in the bribery case of Nur Alam.In his testimony, Basuki Wasis explained about scientific evidence that indicates ecological destruction regarding mining activities of P.T. Anugerah Harisma Barakah (AHB) in Kabaena Island, Southeast Sulawesi.Nur Alam has allegedly accepted bribery from AHB while issued the mining license to AHB.Therefore, Nur Alam was also liable for restitution to restore the ecological destruction at Kabaena Island.Disagree with Basuki Wasis' testimony, Nur Alam claimed losses and filed a civil lawsuit against Basuki Wasis.In his lawsuit, Nur Alam sued Basuki Wasis for material and immaterial losses in the amount of Rp. 1.7 billion and Rp. 3 trillion. 2 Similar to Basuki Wasis, a civil lawsuit against Bambang Hero Saharjo was filed by P.T. Jatim Jaya Perkasa (JJP) due to his testimony against the company in forest fires case.According to Bambang Hero Saharjo, the burning that started by the company covered about 1000 hectares of peatland. 3In this case, Vitoni Immanuel Siboro, the executive of JJP was found guilty, and the court sentenced him for four-year imprisonment and an Rp. 3 billion fine. 4Previously, JJP was also imposed an Rp. 1 billion fine by the Rokan Hilir District Court.Claimed losses, JJP was then sued Bambang Hero Saharjo for unlawful deed under the civil lawsuit.Although JJP has revoked its claim, yet this practice will deteriorate the expert involvement to assist the prosecutor or government in the criminal trial.
Understandably that expert is giving his/her testimony based on his/her expertise.To testify as an expert, he/she should be qualified by knowledge, skill, experience, or education.as an expert.Under the Indonesian criminal law procedure, the judge may consider the expert testimony in their verdict.It means that there is no obligation for the judge to examine it under their verdict.The defendant may provide other expert testimony to challenge the evidence for his/her favor.
A civil lawsuit against the expert indicates that expert is susceptible to be tampered, as consequences of his/her testimony, especially in white-collar crime cases such as corruption and forestryrelated crimes.This practice also becomes justification that the expert testimony is material for a civil lawsuit; while understandable that the expert testimony is a material to be challenged in the evidentiary process.Compare to the U.S, Indonesian criminal law procedure does not regulate such evidentiary rules where some requirements should be met before expert testimony is admissible at trial.Lack of such regulations may impact the reliability of the Indonesian criminal justice process and place expert in a vulnerable position.Therefore this article will explore the issue on scientific expert evidence under criminal law procedure also its consequences and impacts for the criminal justice process.

White-Collar
Crime Under the Perspective of Law Enforcement Initially, the term "white-collar crime" was coined by Edwin Sutherland, a criminologist.This term refers to harmful business activities, which difficult to be prosecuted.Thus, many studies endeavor to define those hazardous business activities as crimes and consider to be socially controlled. 5n the early stage of the approach, Sutherland emphasized his study on whitecollar crime to the social status of the perpetrator, such as a member of a political party or economic elite, rather than the characteristic of white-collar crime.Subsequently, the U.S. Justice Department develops the study of white-collar crime and refers not narrowly to the perpetratoras mentioned by Sutherland-, but more to "those classes of nonviolent, illegal activities which principally involve traditional notions of deceit, deception, concealment, manipulation, breach of trust, subterfuge or illegal circumvention." 6The U.S. Justice Department indicates that white-collar crime includes more than about the perpetrator, yet also about the illegal activities as mentioned above.
In many cases of white-collar crime, such as corruption, criminal law officer have to deal with many obstacles.The highrank position of the perpetrator may cause difficulties in detecting illegal activities.Also, criminal law officer has to struggle with collected evidence since victims are undetected, lack of resources, and the perpetrator has many resources to evade the prosecution.Those situations have reduced the opportunity to punish the perpetrator. 7esides, from the perspective of the prosecutor, white-collar crime is distinguished from street crime.Some 5 Schlegel, Kip et al., 2000-2001."Are White-Collar Crimes Overcriminalized?Some Evidence on the Use of Criminal Sanctions Against Securities Violators," 28 W. St. U. L. Rev. 117,  p117.6   Proveda, Tony G, 1994, "Rethinking White-Collar Crime," Wisconsin Lawyer, p59.
[155] indicators to distinguish white-collar crime from street crime are as followed:8 1.The victims of white-collar crime do not recognize that they have been victimized.The position of trust of the putative defendant has caused the victims less suspicious of the irregular activities of the defendant.Thus, the victims do not recognize their victimization.2. Compare to the investigation of a street crime; white-collar crime investigation is more complicated.The length of time for the occurrence of white-collar crime caused difficulties to collect evidence since it involved many complicated transactions, documents, and perpetrators.Managing proof becomes more difficult since the victims do not recognize that they have been victimized.These difficulties impact the effectiveness of a white-collar crime investigation.3. White-collar crime has a stringent correlation with civil law.White-collar crime is potentially to proceed through administration, public, or criminal law procedure; for instance, is forestryrelated crimes.Requesting Expert Testimony refers to the Press Board as an expert for pressrelated crimes; However, KUHAP does not give any further explanation about the admissibility of expert testimony at trial, including nonscientific or scientific expert evidence.Without any prong test to determine whether expert testimony is admissible or excluded at trial, the reliability of expert may be questioned.For instance, was in a case which involved Roy Suryo, who was reported by the Information and Telecommunication (IT) Academics forum to the police for his claimed as IT expert.Roy Suryo's expertise was questioned since 9 Constitutional Court Judges expanded the definition of the witness by not limited to who saw, heard or experienced the crime; but also who can testify in investigating, prosecute, and for the interest of trial without he/she saw, heard, or saw the crime.Constitutional Court Verdict Number 65/PUU-VIII/2010, p92.
[156] Sriwijaya Law Review  Vol. 3 Issue 2, July (2019) his education background is not an IT field of knowledge. 10n contrast, related to scientific expert evidence, the U.S. Court set prong test to determine whether the scientific expert evidence is admissible or excluded at trial.Initially, through the criminal case of Frye v. the United States in 1923, the U.S. Court set -what so-called Frye-test for scientific expert evidence to be admissible at trial.Under the Frye test or also known as the general acceptance test, some requirements should be met to determine the admissibility of scientific expert evidence.In this case, the Court of Appeals of the District of Columbia enunciated the expert testimony to be admissible when it is "sufficiently established to have gained general acceptance in the particular field in which it belongs." 11The Court, in this case, concluded that the expert failed to demonstrate general acceptance among physiological and psychological authorities regarding systolic blood pressure deception test. 12owever, in 1993, the Frye test was challenged by other courts.Pharmaceuticals, 13 The Court rejected the "general acceptance" in the Frye test.The Court, in this case, enunciated the admissibility of scientific expert evidence must be met some requirements as followed: 1.To determine the expert testimony as scientific expert evidence, the testimony must constitute "scientific knowledge";14 As gatekeeping, judges should determine about "scientific" and "knowledge."In this matter, Court concluded that "scientific" refers to the ground of methods and procedures of science; while "knowledge" refers to more than subjective belief or unsupported speculation.152. To advancing a material of the case, the proposed expert testimony must be "fits."16Fits mean that the applied theory must be fit with the case.In this matter, the Court has to determine whether the expert testimony fits with the facts of the case or not.17 In practice, the Daubert test also applies for criminal cases to determine whether the scientific expert evidence is admissible or excluded at trial.For [157]   instance, forensic techniques are generally allowable in criminal cases.18

Consequences and Impacts of Scientific Expert Evidence For Criminal Justice Process
Evidentiary becomes an essential process in the criminal trial.Through evidentiary, the presented evidence will be assessed to determine the defendant's criminal liability.If the defendant is liable, then the Court will assert the punishment.
Indonesia has regulated expert testimony examination under criminal law procedure. 19Initially, judges at trial have a significant role in exploring the presented specialist testimony.According to Article 180 KUHAP, if it is necessary, the judges may request expert testimony at trial and new material to the interested parties. 20urthermore, the judge may also request recurrent research if the defendant or his/her lawyer is objected. 21o ensure that the expert testimony is reliable, the defendant also has the right to present other expert testimony for his/her favor. 22The defendant's presented expert testimony is to challenge the prosecutor's evidence.Although the burden of proof is in the Prosecutor, KUHAP provides an opportunity for the defendant to defend his/herself from incrimination.
In correlation with scientific expert evidence, in giving testimony, the expert should describe scientific theories, methods, or techniques that he/she applies to explain its relationship with the fact of the case sufficiently.This practice has been admitted under the U.S law.Under Federal Rules of Evidence 23 , the U.S Court set a test for scientific expert evidence 24 to be admissible.Unfortunately, Indonesia does not set such test yet.
Although Indonesian criminal law procedure does not set prong test to determine whether scientific expert evidence is admissible or excluded at trial; the Court still able to examine the evidence, since the judge has an active role in questioning the fact and presented evidence.Besides, prosecutor and lawyer also have a significant role in exploring facts and evidence at trial.Lack of prong test will raise an issue if presented scientific expert evidence is contradictory one to another.This situation may occur at criminal case trial, though experts examine the same scientific evidence; yet, the various scientific methodology may be applied to explain the evidence.fact finder, these differences become an obstacle in seeking the truth.
The expert role is vital since scientific evidence is challenging to be understood by non-scientific fact-finders. 25xpert testimony assists the judge to find nexus between scientific evidence and the case's facts.Without expert assistance, the judge will not be able to deliver about scientific evidence in their verdict's consideration and to prove the defendant's guilt beyond a reasonable doubt.
Concerning white-collar crime, scientific expert evidence is essential since the impact of white-collar crime requires expert assessment.For instance, in forestryrelated crime, to assess the ecological destruction caused by forest fires, the expertise of an expert in a related field of knowledge is required.This evidence will also determine the defendant liability in causing harmful effects of such crimes.Some criminal cases, such as corruption and forestry related crimes, have presented scientific expert evidence in court.In the bribery case of Nur Alam, former Southeast Sulawesi governor, scientific evidence was presented.In that trial, Basuki Wasis as an environmental expert and lecturer at Faculty of Forestry explained about the scientific evidence that indicated ecological destruction.As the prosecutor presented expert, Basuki Wasis calculated restitution to restore the environmental damage caused by mining activities of AHB.Nur Alam was assumed liable since he was as the governor of [160]   Sriwijaya Law Review  Vol. 3 Issue 2, July (2019)   particularly in explaining scientific evidence.Through his/her expertise, the expert will also tell about applied scientific theory, method, or technique in correlation with the facts of the case.This type of evidence is known as scientific expert evidence.For this matter, the U.S. Rules of Evidence set prong test regarding the admissibility of scientific expert evidence.In contrast, Indonesia does not set such rules yet.Lack of prong test in considering scientific expert evidence may hamper judge regarding the admissibility of such evidence at trial, moreover, if presented proof is contradictory one to another.In this matter, the role of the judge will be very significant, since he/she has an active role to explore presented scientific expert evidence.About consider scientific expert evidence under the verdict, the judge is not bounded to apply it.From these practices, it must be firmed that scientific expert evidence is material to be challenged under the evidentiary process, and it is not a civil lawsuit material.