Expanding the Scope of Quality Assurance for Forensic Experts
12.5 Years of NRGD in Perspective
By Michel Smithuis MD, LLM
Source: Expertise en Recht, Edition 1 (2023)
Since the establishment of the Dutch Register of Court Experts (NRGD) in 2010, significant changes have occurred within the forensic landscape. The implementation of the register has markedly improved the assurance of expert contributions in judicial processes in the Netherlands.
In the commemorative book ‘Ten Years of NRGD’, the chairman of the college, Eric Bakker, and director Michel Smithuis, shared their insights on a decade of forensic expertise. This article is an adaptation and update of their 2020 reflections. It delves into the history of the NRGD, the public mandate it has been entrusted with, and the progress achieved over the past 12.5 years. It also explores the challenges faced by both the NRGD and the broader forensic field.
History of the NRGD
In response to judicial errors, such as the Schiedam Park Murder case where expert opinions were questioned, Attorney General Posthumus conducted an investigation. His report contained numerous recommendations aimed at the entire criminal justice system to help prevent such errors in the future. The Expert Witnesses in Criminal Cases Act was enacted in 2009, establishing the NRGD. What public mandate has the NRGD been given? Where does the NRGD, and the field, stand after 12.5 years?
Mandate of the NRGD
The NRGD was legally established in 2010 with the mandate to ensure the quality of experts in criminal law. The Expert Witnesses in Criminal Cases Act seeks to promote the use of experts in criminal cases who, in the opinion of the independent Board of Court Experts (Board), meet the legally prescribed quality standards. This is achieved by collecting and publicly disclosing the details of these experts in the register.
The Board oversees the NRGD as an organisation and manages the register. It sets specific requirements for each area of expertise that experts must meet to be registered. It also determines the assessment methods. The Expert Witnesses in Criminal Cases Register Decree also mandates that the College establishes a code of conduct outlining the behavioural standards that registered experts must adhere to.
Over the years, the NRGD has evolved into the leading forensic quality organisation for the judiciary in the Netherlands. Collaboration, both domestically and internationally, is paramount. The NRGD ensures that forensic investigators and their reports meet internationally recognised standards. Consequently, stakeholders can trust the quality of forensic expert investigations. As an independent and transparent organisation, the NRGD promotes and safeguards the quality of forensic expertise. It also encourages the development of quality in the forensic field as a whole, focusing on regulation, advisory services, and knowledge exchange.
Review 2010-Present
In 2010, it became clear that few, if any, professional associations existed that recognised forensic quality standards. Additionally, there were no university courses to become a forensic expert—expertise was predominantly acquired 'on the job.' The first phase (2010-2015) of the NRGD involved establishing quality standards, developing assessment procedures, and populating the register. This proved to be a challenging task. Quality standards had to be established for each area of expertise, in consultation with the field: (international) experts, scientists, and legal professionals. This process of codifying professional consensus turned out to be laborious and time-consuming. Small scientific areas required the same meticulous process as larger ones. Subsequently, the experts working in these areas had to be assessed against the quality standards before they could be included in the register. Consequently, the register was populated more slowly than initially anticipated.
Since then, quality standards have been developed for twelve areas of expertise—often with multiple subfields—including DNA, Forensic Pathology, Digital Forensic Investigation, and Forensic Psychiatry, Psychology, and Orthopedagogy. New areas such as Forensic Financial Investigation and Bloodstain Pattern Analysis are in development, and areas such as Radiology are being explored. As of 2022, more than 650 experts are registered.
The WODC periodically evaluates the implementation of the Expert Witnesses in Criminal Cases Act and concluded in 2020: "The evaluation shows that the NRGD has significantly contributed to the Act's objective of enhancing trust in the judiciary by realising quality improvements and safeguards in forensic consulting."
A unique aspect of the NRGD's approach is that registration requires not only training and continuing education points but also the evaluation of the expert's work—reports they have produced in recent years. The NRGD does this with a committee composed of peers and a legal expert.
The NRGD strives to ensure quality at the source as much as possible. The starting point is that the quality of experts' work is adequately ensured through education, professional development, and corresponding assessment. Over time, the NFI and the NIFP have further developed their internal training programs with clear learning objectives, modules, monitoring, and examinations. This prompted the NRGD to develop a policy to certify such training. Successful completion of this training can lead to registration in the NRGD, potentially eliminating the need for dual assessments (both by the institution and the NRGD). The NRGD has, however, implemented several quality safeguards. Recognition is granted only after an independent review by an external committee, and the assessment during the training is conducted with an NRGD-affiliated member on the examination board, who holds veto power.
In 2019, the NIFP was the first to receive recognition for its training program for pro-Justitia reporters. Currently, this recognition applies only to initial registration of newly trained experts, not to the five-yearly re-registration. Recently, the training program for medical specialists in administrative and civil law (NVMSR) was also recognised. The NRGD is in discussions with similar organisations that train forensic experts, such as the NFI, the NSPOH (forensic physicians), and the Foundation for Advisory Services in Environmental and Spatial Planning Jurisprudence (STAB).
Ad Hoc Experts
According to the Expert Witnesses in Criminal Cases Register Decree, the NRGD standardises areas of expertise that are well-defined and for which objective standardisation and assessment are possible. However, in criminal law, experts are sometimes called upon for whom this is not feasible. This includes experts who may only be asked to provide a criminal law report once in their career due to their unique or specialised knowledge. These experts typically have little or no forensic training or experience, nor are their forensic competencies assured before the investigation and reporting. The Minister of Justice and Security has requested the NRGD to develop quality assurance tools for these so-called Ad Hoc experts in collaboration with the field. The NRGD, with assistance from the police/LDM, OM, ZM, and NFI, has developed several tools useful for judges, prosecutors, lawyers, and the experts themselves. These include a reporting guideline, a questionnaire to determine whether an expert possesses the necessary competencies, and a review system for clarity, consistency, and usability. Additionally, an e-module has been developed to help ad hoc experts prepare for their role in criminal law and the requirements imposed by the Code of Conduct.
Review-Experts
In the interest of justice, the NRGD aims to offer a wide range of experts. Only if private providers receive sufficient cases over sufficient years at a sufficient price can a segment for review-investigation emerge. Initially, this led to only a limited increase in the use of private providers. In recent years, DNA analysis has increasingly shifted to private providers. This trend is expected to continue, not only for DNA analysis but also for other areas of expertise such as toxicology and pathology. This creates a broader playing field alongside the NFI. Of course, the same quality standards must apply, so research should, in principle, be conducted by experts registered with the NRGD.
Advisory Services and Knowledge Exchange
Quality involves more than just registering competent experts. Quality is the result of efforts by all stakeholders in all phases of the forensic chain, from investigation to court. The NRGD increasingly shares knowledge with and provides advice—solicited and unsolicited—to the police, judiciary, NFI, NIFP, and politicians on safeguarding forensic expertise. Internationally, the NRGD contributes to the debate on the quality of forensic investigation. The NRGD is increasingly involved in various discussions and consultations on quality and the assurance of forensic expertise. This was the case when drafting the ‘Vision on Forensic Investigation’, the action plan for the European Forensic Area, and ISO standards for forensic technical investigation. The NRGD also advised the Taskforce for Death Investigations.
Organisations and policymakers wishing to invest more in quality often do not know how or in what. The NRGD increasingly shares its knowledge with chain partners through publications, lectures, presentations, and its website (In Dutch and English). By participating in training programs, new experts can become familiar with quality standards. For example, the NRGD participates in the NIFP training for novice pro-Justitia reporters and provides a module for the supervisor training program.
The NRGD seeks to bring together users of the register (judges/prosecutors/lawyers), policymakers, and experts by (jointly) organising quality afternoons and ‘professional meetings.’ This form of knowledge transfer has proven successful in recent years. For instance, lunch meetings of cybercrime experts with judges have been organised in various courts. Another initiative was bringing together behavioural experts, the NIFP, and the legal profession to increase the willingness to report for the legal profession.
Challenges and Opportunities
A Register for the Entire Judiciary
The legislature has always envisaged expanding the NRGD to include administrative and civil law. After all, errors in other branches of law also have far-reaching consequences. The CMO's vision document stated in 2007 that a register "must be usable for the entire judiciary." The 2008 Vision of the Judicial Expertise Work Group mentioned the possibility of expanding to other branches of law, with the observation that "demand is currently mostly focused on criminal law."
The NRGD itself has embraced the notion of a register for the entire judiciary. Experts and their work do not differ across various branches of law, but the way their opinions are tested in court does. In practice, a toxicologist or traffic accident analyst does not change the quality of their expertise and reporting when switching from criminal to civil law. A pro-Justitia report is essentially the same as a report in administrative law. The primary difference lies in how the reports are tested in court. Given that experts in the Dutch inquisitorial system are less often questioned in civil and administrative law, it is less necessary to prepare for appearing in court.
A wider rollout of the NRGD across the judiciary has taken shape in recent years. The Code of Conduct has already been updated to include administrative and civil law. The Minister of Security and Justice has noted that "jurisprudence and standards regarding the duty of care increasingly require that expert reports comply with professional standards and those prescribed by the NRGD." Some judges now routinely check whether the expert they wish to hear is registered with the NRGD.
Further collaboration between the NRGD and the judiciary in civil and administrative law will follow. In January 2022, the Expertise Center for Administrative Law and Administrative Judges (SSR) started discussions with the NRGD about registration. The judiciary can also play a crucial role in other areas. For example, the Advisory Committee on Expert Reports recommended that judges ask themselves whether an expert is appropriately registered before questioning them. The District Court of Gelderland and Amsterdam are already examples of good practice in this regard. This marks the beginning of expanding the NRGD for the entire judiciary.
Raising the Bar for Registered Experts
The current policy stipulates that registration remains valid for five years. The work of registered experts is assessed before they can be re-registered. As part of the five-yearly re-registration process, the NRGD sets new minimum standards for quality. The bar has been raised when deemed necessary.
Experts must continue to develop their knowledge, and their reports must continue to meet the increasingly stringent requirements of the NRGD. This includes keeping up with scientific and methodological developments, as well as being informed about developments in case law, jurisprudence, and the legal profession.
What to Expect in the Coming Years
In conclusion, there are several important developments to note for the future. The next phase will likely see an expansion of the NRGD's scope to include administrative and civil law. The Board will continue to work on expanding the number of fields and raising the quality standards for forensic experts. The NRGD is also working on several projects to improve quality assurance for Ad Hoc experts and provide more support to small, specialised expert areas. These efforts aim to further professionalise the forensic field and increase trust in the judiciary.
Overall, the NRGD has come a long way in the past 12.5 years. While challenges remain, the organisation is well-positioned to continue its work in the years to come.