Diverging Doctrines of Expert Liability: Indonesia’s Absolute Immunity vs Conditional Accountability in the US, UK, and UAE -By Fransiscus Nanga Roka

At the core of Indonesia’s justice system lies a quiet contradiction: Those who speak in the name in the courtroom of science are among the least accountable actors in it. Expert witnesses whose testimony can seal the verdict for a defendant who is guilty, inform judicial decision-making and shape the court system work with a doctrine that effectively insulates them from any civil liability. In a system that professes to affirm the rule of law, this is no mere doctrinal misstep. It is a structural flaw. The reasoning is familiar: experts should be able to testify free from retribution. Independence, it is claimed, means immunity. But this logic disintegrates under scrutiny. Independence without accountability is not neutrality, it is privilege. Furthermore, privilege integrated into justice machinery, in fact, turns into a vehicle of impunity. Indonesia’s approach is epitomised by what can merely be referred to as **absolute immunity**. Once testimony is given in the proper confines of a courtroom, the expert is immune from civil suit, irrespective of the effect of that testimony. There is virtually no judicial recourse to defend him even when a point of view that is methodologically flawed or recklessly formed or even if it is demonstrably and irrefutably misleading. This system of judicial evaluation gives judges blind faith into the validity of scientific findings, judges filtering scientific validity without a meaningful sense of external accountability to one another. This is a dangerous illusion. Scientific evidence itself does not self validate. It is also contingent, probabilistic and subject to bias, error and even manipulation. Modern comparative jurisprudence understands this status quo. We see this in US expert witnesses cannot go unproven. Some litigation privileges do exist, but don’t amount to blanket immunity. Experts can be subject to professional sanctions, exclusion pursuant to evidentiary tests like Daubert, and, under certain scenarios, civil liability where a defendant’s wrongdoing crosses into fraud or gross negligence. Accountability is not a given nor is immunity. The United Kingdom, however, extended its own way further. For decades, expert witnesses received immunity from civil suit. That doctrine was definitively struck down with the court’s decision in *Jones v Kaney* (2011): UK Supreme Court rejected the idea that experts should be protected from negligence claims. The Court’s rationale was blunt: It is not a principled basis for giving specialists protection from such abuse that is denied to other professionals. If doctors, lawyers, engineers can be sued for negligent advice, why would experts whose testimony may deprive people of liberty be different? The answer, in Indonesia, seems to be tradition disguised as principle. In places like the United Arab Emirates, as well, the evolution is clear: expert accountability is necessary for procedural justice. Court appointed experts can be challenged and replaced, and should misconduct be found, held legally liable. The system recognizes a simple fact: expertise without accountability isn’t expertise, it’s power without checks. Indonesia is the opposite. Since absolute immunity persists, it makes **epistemic authority without consequence** and hence its effect is to inscribe the rules on human behaviour. As a result, the courtroom becomes a forum in which scientific assertions influence the outcomes of legal proceedings without their authors falling into similar peril. This isn’t a technical issue. It is a constitutional one. Ultimately, the right to a fair trial is a matter of access to a court and more than a box-ticking exercise of formal procedure. It concerns the credibility of the evidence that supports judicial decision-making. If expert testimony is shielded from scrutiny other than cross-examination, if there are no substantial liabilities associated with false or negligent opinions the fairness of the trial itself is at risk. In other words, the system implores defendants to rely on expertise that the law itself will not demand accountability for. This is not neutrality. It is asymmetry. Defenders of the status quo contend that making experts vulnerable to lawsuits can cause chilling. But this point is exaggerated. Comparative systems have long shown that **conditional accountability**, precisely calibrated liability attached to bad faith, gross negligence or professional misconduct does not act as an effective deterrent to legitimate expert involvement. It serves only as a disincentive for witnesses who would testify uncritically, uncaringly or unethically. And maybe that’s precisely what Indonesia’s contemporary doctrine doesn’t achieve. The larger issue is structural. Indonesia’s evidentiary system remains inclined to view expert testimony as an auxiliary tool, a non-compromising epistemic force. Yet in reality, expert opinions often are de facto determinants of truth, especially in complex cases involving digital forensics, financial crimes and medical disputes. The law simply has not gone with the course of events. It continues to confer immunity as though expert knowledge infallible and overlooks the general risk of error. But the real-life situations are onerous. And this disconnect yields what we might only call **legalized irresponsibility**. Reform isn’t optional, it’s unavoidable. The question is whether there will be principled reform or reactive reform. A credible reconstruction would refuse absolute immunity in favor of **conditional liability**. When acting in good faith under accepted methodological criteria, experts should be safeguarded. But where testimony is given recklessly, dishonestly, or in clear violation of professional norms, legal accountability must be a follow up to the conduct. It’s not such a radical idea. It is the global baseline. Then again, reform will have to go beyond liability. For this purpose, it must entail **judicial gatekeeping standards**, a duty to disclose methodologies and error data, accreditation of forensic institutions and adversarial access to the data underpinning the use of forensic analytic techniques. Without these safeguards, the liability alone cannot fix the problem, it only reveals it. Indonesia is at a crossroads. It can persist in defending expert witnesses as untouchable players in the justice system, or it can align itself with an emerging international consensus, saying that authority on behalf of science in court must also be accompanied by the burden of accountability. A justice system that immunizes expertise from accountability does not protect truth. It protects error. And when error has been protected, justice is not only delayed but denied.

Fransiscus Nanga Roka

Faculty of Law University 17 August 1945 Surabaya Indonesia