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 Table of Contents  
REVIEW ARTICLE
Year : 2015  |  Volume : 1  |  Issue : 2  |  Page : 149-158

The Role of Forensic Examination at Trials in China


1 Cooperative Innovation Center of Judicial Civilization, Key Laboratory of Evidence Science, University of Political Science and Law, Ministry of Education, Beijing, China
2 Department of Evidence Law, Institute of Evidence Law and Forensic Science, University of Political Science and Law, Beijing, China

Date of Web Publication27-Nov-2015

Correspondence Address:
Baosheng Zhang
China Cooperative Innovation Center of Judicial Civilization, Key Laboratory of Evidence Science, China University of Political Science and Law, Ministry of Education, Beijing
China
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Source of Support: None, Conflict of Interest: None


DOI: 10.4103/2349-5014.170604

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  Abstract 

Expertise gains increasing acceptance and importance at trials in China. Currently, the forensic examination quality management system of China has been preliminarily established. There are problems, however, for example, laws and regulations related with forensic examination are not comprehensive, forensic institutes pursue their own economic profits excessively and judges sometime have undue blind faith in scientific evidence in fact-finding. These are hindering forensic examination from being put into full play duly. In 2005, the Decision of the Standing Committee of the National People's Congress on the Administration of Forensic Examination strengthened the neutrality of forensic institutes. The Criminal Procedure Law and the Civil Procedure Law revised in 2012 initially set up the expert assistant system, which is expected to break the excessively credulous but unjustified belief in scientific evidence and solve pertinent problems. We need to focus on the following aspects: First and foremost developing a unified set of rules on forensic examination; secondly, judges need to strengthen their own ability to review scientific evidence and determine its reliability; thirdly, we should actively promote fundamental legal education reform to remedy the insufficiency of legal understanding of forensic science; and finally, the existing expert assistant system must be further improved to help judges and litigants effectively to identify and use expertise.

Keywords: Expert assistant, expertise, fact-finding, forensic examination, scientific evidence


How to cite this article:
Zhang B, Li Y. The Role of Forensic Examination at Trials in China. J Forensic Sci Med 2015;1:149-58

How to cite this URL:
Zhang B, Li Y. The Role of Forensic Examination at Trials in China. J Forensic Sci Med [serial online] 2015 [cited 2019 Sep 15];1:149-58. Available from: http://www.jfsmonline.com/text.asp?2015/1/2/149/170604


  Introduction Top


Statistics generated from field studies in Beijing, Qingdao, and Hohhot regarding forensic examinations within China's criminal justice system reveal that "on average there were 2.4 expert conclusions per case, counting on the total number of cases and the total number of expert conclusions. On a yearly basis, there were averages of 1.32 expert conclusions per case in 2005. In the year of 2006 the number was 2.79, and in 2007 it was 3.15." Among the various methods of forensic examination, "the one with highest application frequency was forensic autopsy, counting for 35.04% of total expert conclusions; the next highest was DNA test, which accounts for 22.44%, followed by injury assessment counting for 15.75%."[1] Scientific evidence has been increasingly important in modern lawsuits and forensic examination has gradually become an important tool heavily relied upon in trial fact-findings. Forensic evidence has unveiled the myths surrounding fact-finding in many difficult cases. However, such reliance has also brought inconvenient problems.

Part II of this paper introduces the present situation of China's forensic examination practice. Part III explores the current problems of forensic examination in China and the major path toward reconstructing the Chinese forensic examination system. Part IV provides a roadmap for rethinking scientific evidence with a discussion of whether convictions can be brought against defendants in criminal cases based solely upon scientific evidence, and of how judges should take on the role of gatekeeper to determine the admissibility of expert testimony to find facts in criminal cases. Part V focuses on related issues arising out of the expert assistant system newly established in China by legislation. Part VI is the conclusion.


  Current Status of Forensic Examination in China Top


The nature of expertise

In the Criminal Procedure Law of People's Republic of China (hereafter referred to as the "Criminal Procedure Law"), the Civil Procedure Law of People's Republic of China (hereafter referred to as the "Civil Procedure Law"), and the Administrative Procedure Law of the People's Republic of China (hereafter referred to as the "Administrative Procedure Law"), expertise understood as scientific evidence, is deemed to be one type of statutory evidence.[2]

"The term 'forensic examination' refers to activities that forensic scientists identify, make judgments and provide expertise on special issues involved in litigation by using scientific technologies or special knowledge", as said in the Decisions on the Issues of Management of Forensic Examination 2005. Therefore, "expertise" is personal opinion provided by the forensic scientist after forensic examination. It shares the features of circumstantial evidence. The process of forensic examination is a species of scientific reasoning based on specialized knowledge.

Nevertheless, we should keep two things in mind when faced with expertise: It can be wrong and thus it has not any preaffirmed probative force. Science is the major foundation for forensic examinations. However, there is a strong possibility that such foundation could be unsound or even false due to limitations in cognition of human beings. Popper even took falsifiability as an essence of science.[3] Therefore, errors happen in results of forensic examination incidentally and, as a whole, inevitably.

Furthermore, although traditionally referred to in civil law systems and by Chinese scholars as an "arbiter of science" or as an "independent litigation participant with specialized knowledge," the forensic scientist, as a human being, cannot prevent himself from being influenced by his own ability, mental states, experience, and attitude toward the "truth," which will necessarily impose restrictions on the accuracy his work. In addition, it is probable that the specifications and conditions of equipment used in experiments may lead to unobserved mistakes.

In the chain of inference starting from the evidentiary fact, leading to a series of inferred facts, which connect to what can easily be identified as facts of consequence, which then connect to an essential element in the case,[4] expertise is just in the position of an "evidentiary fact." Thus, it still needs cross-examination and review like other types of evidence and has no definitive power in fact-finding.

The admissibility of expertise

For quite some time, evidence law has tried to regulate admissibility standards for scientific and other expert evidence. Compared to the Daubert Rule [5] and Article 702 of US Federal Rules of Evidence revised in 2000, China is quite distinct from the US by its lack of explicit regulations on the admissibility of expert evidence in its rules of evidence. Some scholars pointed out that China's regulation of expertise without adopting the expert witness system impaired proper review and accurate judgment of specialized issues.[6] Nonetheless, it does not mean that China's judicial system takes a negative or "let-it-go" attitude toward regulating expert scientific evidence. On the contrary, unlike the American system where judges have discretion over the admissibility of expert scientific evidence at trial, China focuses on legislative control over pretrial forensic examination activities by establishing technical standards. Recent forensic examination legislation (including administrative regulations and judicial interpretations) has established a unified set of technical standards for different types of forensic examinations with hopes to produce reliable and admissible expertise. This is a reflection of China's statute law tradition and, in fact, reaches the same goal as that of the US legal system but by a different route.

Initialization mode of China's forensic examination

In China, the forensic examination can be triggered through three approaches: Appointed examination, entrusted examination, and self-initiated examination.

Entrusted examination takes place in civil cases. In an entrusted examination, a court authorizes an accredited forensic examination institute to conduct examinations for trial. Nonetheless, the litigating party must submit an application to the court to trigger an entrusted examination. For this reason, more attention shall be paid to appointed examination and self-initiated examination.

The Qiu Xinghua case and appointed examination

In an appointed examination, the investigation or prosecution authority designates its own forensic scientists to conduct forensic examinations. According to the Article 144 and Article 191 of the Criminal Procedure Law, all three authorities (Bureau of Public Security, the Procuratorate, and the People's Court) have independent authority to conduct forensic examinations. However, laws in China never grant the right to initiate a forensic examination to the criminal defendant or the victim in a criminal trial. They have merely the right to request a supplementary examination or a re-examination. Moreover, as stipulated in Article 146 and Article 192 of the Criminal Procedure Law, it is at the discretion of the investigation authority or the court whether to permit re-examination or not. This system grants excessive, the monopolistic power to governmental authorities to initiate forensic examinations, more likely than not putting litigation parties' rights at risk.

The Qiu Xinghua case truly challenged the system of appointed examination. On the evening of July 14, 2006, Qiu killed more than 10 people at a remote temple in Shaanxi Province, and on July 31, he killed Wei Yikai and badly injured the victim's wife and child. On October 9, Qiu was sentenced to death in the first-instance trial. On December 8, the case was taken to the second-instance trial at Shaanxi Higher People's Court. The defense attorney, on behalf of Qiu's family, requested that the court launch a forensic psychiatric examination over Qiu. The judges on the second-instance trial, however, did not respond. In the end, Shaanxi Higher People's Court upheld the court of first-instance's sentence, and Qiu was executed immediately. This case triggered an intense discussion in China regarding the initiation procedure of forensic examination in criminal cases.[7]

A number of legal scholars questioned the prosecutors' and judges' absolute discretion on initiating forensic examinations. They believed that the defendant should also have the right to trigger forensic examinations because the balance between the prosecution and defense requires that this right be distributed equally for eliminating miscarriages of justice.[8] Some other legal scholars believe as long as evidence could prove the criminal suspect might suffer from mental illness, an application for forensic psychiatric examination should be granted; unless there is clear and sufficient evidence to prove the criminal suspect has no mental illness. The purpose of this approach is to fully protect legitimate rights of criminal suspects with potential mental illness, preventing wrongful convictions. However, the Shaanxi Province Higher People's Court held that Qiu did not show any abnormal behaviors during confession or while defending himself after arrested. Nor was there any evidence showing Qiu had a history of mental illness. Thus, the request for a psychiatric examination by Qiu's defense attorney was denied.[9]

"According to the overall statistics based on court questionnaires, among the 305 cases recorded at the intermediate people's court nationwide, forensic examinations involved in 299 cases were initiated by the investigation authority during the investigation stage, accounting for 98.03% of the total. In six cases, forensic examinations were triggered during the trial process, three of which were launched by judges on the bench."[1] The above-mentioned data illustrates that in China's judicial criminal process, the investigating authority triggered most forensic examinations during its investigation stage. It is very rare in practice for forensic examinations to be launched by the trial judge or by the litigation parties concerned in criminal cases. Such reality also reveals that the problems of forensic examination in the criminal cases of China mostly occur in the investigation stage, thus the criminal forensic examination system shall be the focus of future judicial reform on forensic examinations.

Problems in self-initiated examination exposed by Huang Jing case

In a self-initiated examination, a litigation party concerned voluntarily engages with a forensic examination institute to conduct an examination and to produce the examination result. Once the forensic scientist issues an expertise, it will be submitted to the court as evidence for the litigation party.[10] Self-initiated examination usually appears in civil cases and in criminal cases of private prosecution.

The Huang Jing case raised the issue of whether self-initiated examination should be allowed in a case of the public criminal prosecution. The young female teacher Huang Jing died in the teachers' dormitory of the Linfeng Primary School in Xiangtan City, Hunan Province on February 24, 2003. In this case, in addition to the 4 examinations initiated by the Public Security Bureau and authorized by the Hunan Province Higher People's Court, Huang Jing's family engaged the Forensic Examination Institute at Nanjing University of Medical Science, as well as the Examination Center at Sun Yat-Sen University of Medical Science to conduct a further two forensic examinations. Seven forensic institutes generated six expert reports differing from one another about the cause of death of Huang Jing. The first-instance trial court of this case took the view that "… the two forensic examinations initiated by Huang Jing's family – not delegated by the judicial authority – are lacking procedural effectiveness. Also, these two self-initiated examinations did not make any affirmative conclusion and lacked substantive significance. Thus, they are inadmissible."[11]

The applications for supplementary forensic examination or re-examination from the defendant, suspect, or victim of a criminal case will finally be reviewed and determined by the investigating authority or the court. However, the situations in which a defendant, suspect, or victim can conduct a self-initiated forensic examination in a public criminal prosecution in China are uncertain. First of all, the Criminal Procedure Law lacks any appropriate procedural rules for litigation parties to conduct a self-initiated examination, so that forensic scientists engaged by litigation parties have no legal authority or protection for the necessary accessing, inspection, and real evidence examinations. Particularly, for those activities involved with criminal technologies, i.e., on-site investigation, corpse autopsy, and physical evidence examination, such dilemmas cause extreme working difficulties. All of the stated limitations suggest that conclusions of self-initiated examinations may lack authenticity and completeness. Next, there are two major kinds of forensic examination institutes in China's contemporary forensic examination system: One type is affiliated with the Public Security Bureau and the Procuratorate; the other type comprises commercial examination institutes.[12] These types are not only isolated from each other, but there are no unified standards of examination practice between them. And no law clearly regulates how judges shall review and verify expert conclusions. Furthermore, for its own financial interest, the commercial examination institute will always make conclusions in favor of the litigating party that makes payment. Bias is difficult to avoid in such examinations.


  Reconstruction of the Forensic Examination System Top


Major problems in forensic examinations

First, regulations regarding forensic examinations are insufficient. The laws and regulations do not specify a comprehensive regulation on many important issues including but not limited to the authority and power of the main administrative body, the rights and obligations of the forensic institutes and forensic scientists, the examination procedures, the legal responsibilities, and so on.[13]

For example, in Huang Jing case, the torn underclothes that Huang's mother provided to Mr. Wu Jianqun, a forensic scientist of Yuhu Public Security Bureau, as the real evidence of Huang being raped was lost by the custodian.[14] Given the problems above-mentioned, some Chinese legal scholars claim that it is urgent to strengthen the normalization of the management system, the procedure, and the technical standards of forensic examination through legislation.[13]

Secondly, commercial forensic examination institutes in China today are overwhelmingly chasing profits. Since forensic examination reform in 2005, there has been a trend that forensic examination institutes in China becoming increasingly socialized, privatized, and market orientated. On the one hand, it broke the monopoly of the Security Bureau's affiliated forensic examination institutes and provided greater convenience to citizens. On the other hand, it increased the frequency of multiple and repetitive examinations. That commercial forensic examination institutes are required to pay taxes as a private firm incentivizes them to charge high service fees and in turn weakens their function in the service of public welfare. Such a self-financing system pushes forensic examination institutes to pursue economic interests. This is not only a deviation from the worldwide nature of forensic examination systems, but also causes a series of problems that contradict with the law of nature, as well as judicial justice. This system results in serious judicial corruptions.[15] And "the poor cannot afford taking forensic examinations" and "the rich pay for desired result of expertise," pointed out Haack.[16]

Thirdly, blind belief in the scientific evidence prevails in judicial practice in China. Judges are inclined to endow scientific evidence with strong probative value. Sir Edward Coke once said: "The judge has artificial reason which requires long study and experience, before that a man can attain to the cognizance of it."[17] However, such artificial reason would be absent when the judges are exposed to specific issues asking for scientific background knowledge to determine. It is no wonder that these fact-finders tend to rely on the professionals. In a survey of a local people's court, most judges can only review the expertise from the aspects of the qualification of scientist and qualification of the institute, as well as the format of written report, very superficially. As to the specific issue, they usually consult the scientist or the institute conducting the forensic examination,[18] which no doubt brings bias and partialness to judgment.

Since both of the litigating parties are entitled to initiate forensic examination in civil lawsuits in China, it can more or less restrain the biases and ignorance of fact-finders. However, the police and the procuratorate exclusively hold the power to conduct the forensic examination in criminal cases. Moreover, the affiliated forensic institutes of the two governmental organs are resourceful and experienced for historical reasons. Therefore, many judges take the state power as justice, regard the expertise from these organs as the final decision and then accept the expertise presented by the prosecution as a ground for judgment. This, in the meantime, gives rise to a stronger possibility of harming the rights of the defendant and victim.

Preliminary formation of a unified administration system of forensic examination

The situation of six contradicting expert conclusions regarding the cause of Huang Jing's death ignited widespread public concern. It illustrates a series of problems in today's forensic examination practice in China, such as unreasonableness of forensic examination institute settings and disorder of the forensic administration system.[19] "The history of China's forensic examination development has two features:First, it was attached to the judicial system totally, lacked independent system construction and has not closely followed the natural regularity of forensic science developments. Second, before the year 2005, the development of forensic examination was led by the police, procuratorate, and the court on a basis of specialization. They formed a relationship of mutual supervision and cooperation."[20]

During the trial of Huang Jing Case, the 14th Session of the 10th Meeting of China's National People's Congress Standing Committee approved the Decision of the Standing Committee of the National People's Congress on the Administration of Judicial Examination (hereafter referred to as the "2005 Decision") on February 28, 2005. To a certain extent, the establishment of such a decision is a loud response to the messy forensic administration system that the Huang Jing case exposed. It is a milestone in China's forensic administration system reform. The 2005 Decision "confirmed the fundamental framework and content of the unified administration system, established the principal that investigation function, prosecution function, and adjudication function shall be separated from the forensic examination administration function and affirmed the neutral/independent position of the forensic examination institutes and the requirement that forensic scientists must work independently in accordance with the law."[21] It indicates that China's forensic administration system has achieved five "unifications" a unified standard of industrial entrance, unified auditing or registration, a unified format of announcement lists, and a unified implementation procedure of forensic examination. The detailed reflections are as follows:

First of all, the forensic examination administration system is separated from the systems of investigation, prosecution, and adjudication. The forensic examination administration system, originally rooted in various sectors of Public Security Bureau, Procuratorate and the People's Court, has been revoked; now it is under the control of Ministry of Justice, which ended the chaos caused by overlapping authority. As stipulated in the 2005 Decision, "examination institutes established by an investigating authority for its own investigation needs may not take in any forensic examination business from the general public", and "people's Court and Judicial Administrative Department are prohibited to establish any examination institute".

Secondly, China for the first time made clear by legislation that the Ministry of Justice is in charge of the registration of forensic examination institutes and scientists nationwide. In September 2005, the Ministry of Justice issued the new General Requirements for Registration Administration of Forensic Scientists and General Requirements for Registration Administration of Forensic Examination Institutes. In addition, "an individual, legal person, or any other organization who applies for engaging in judicial examination shall be subject to examination of the Judicial Administrative Department of the provincial people's government. If he (it) meets relevant requirements, he (it) shall be registered, shall be listed in the roster of examination scientists and examination institutes, and shall be announced." The number of forensic institutes verified and registered by the Provincial Bureau of Justice has increased from 3789 in 2006 to 4955 in 2010.[22]

Thirdly, Article 4 of the 2005 Decision provides the requirements for access to operation of forensic qualifying examinations, which is beneficial as it has raised the bar for professional qualification.

In 2006, there were in total 43,153 forensic scientists in China, and in 2010 that figure went up to 53,835.[22]

The Ministry of Justice again issued a series of regulations including the General Rules for the Procedures of Forensic Examinationin August 2007. The initial formation of a unified forensic examination administration system in China promoted standardization and scientific methodologies of the forensic examination process, as well as elaborating practice standards.

Establishment of the forensic examination quality management system

Forensic Science Laboratory Accreditation has been adopted widely all over the world for quality control of forensic examination results. Although forensic science laboratory accreditation started late in China (the first case happened in 2003), it has grown at a fast pace. According to the 2005 Decision, "there must be accredited or certified testing labs to provide data for forensic science organizations (or companies)". The Measures for Administration of Forensic Examination Institutes 2005 also regulates that "forensic examination institutes must be certified or accredited by the national authority before practice". Therefore, (in China, forensic science...) in China, forensic science laboratory accreditation is based on international standards and carried out by two different systems. The international standards are ISO/IEC17025 (General requirements for the Laboratory Accreditation), ISO/IEC 17020 (Inspection Body Competence Accreditation Criteria)and their application guidance. The first system is the management system of the accreditation of the competence of the laboratory with two accreditation models - the laboratory measurement accreditation and the inspection body examination accreditation - executed by the National Certification and Accreditation Administration Department (one kind of administrative permit). The second system is the ratifying system of laboratory and inspection bodies under which forensic institutes may apply for accreditation voluntarily. The government-empowered authoritative body, CNAS, carries out verifications.

Progress has been made over the past few years. First, the forensic science examination has been divided into testing and inspection subdivisions, depending on the characteristics of the forensic science. ISO/IEC 17025 standards apply to all kinds of testing and ISO/IEC 17020 standards apply to all kinds of inspections. Guidance on the application in the five professional fields (DNA testing, trace evidence, digital and computer evidence, forensic medicine, and questioned documents examination) has been separately issued by CNAS, accepting the common practice of ISO/IEC 17025 and ISO/IEC 17020 in China. A total of 108 forensic examination institutes has been accredited so far, up from 12 in 2008.[23]

Secondly, besides accreditation, evaluation of the capabilities of forensic science organizations may be conducted through a process of qualification certification, required by the national government for certain kinds of organizations that issue notarized data. Furthermore, in May 2009, the Certification and Accreditation Administration of the People's Republic of China (CNCA) has issued a specified standard: The Evaluation Standards for Qualification Recognition of Forensic Examination Institute.

Thirdly, the proficiency testing of forensic science provided by the Science and Technology Research Center of Forensic Science at the Ministry of Justice has expanded to nine professional fields (clinical forensic medicine, forensic pathology, forensic biology [DNA], forensic psychology, forensic chemical analysis, trace evidence, questioned documents examination, and voice and image identity). About 1000 participants from 24 provinces and Hong Kong attend every year.

While it would be inappropriate to consider proficiency testing as any guarantee of the reliability of an expertise at this stage in China, it may be appropriate to take it into account as a factor relevant to determining admissibility at the evidence-law level.[24]


  Rethinking Scientific Evidence Top


Is it sufficient to convict a defendant solely on the basis of scientific evidence?

Scientific evidence refers to the application of the tools of science and technology to fact-finding process at trial. However, the use of scientific knowledge relies on experts. There always exists the chance that experts misuse scientific principles and technologies to make an erroneous inference. This may mislead the fact-finder to make a wrong judgment. So, to what extent is expertise or scientific evidence acquired through the application of scientific knowledge reliable? That is to say, should we convict a defendant of a criminal case simply based on scientific evidence alone? To this question, judges in judicial practice give very different answers from legal scholars.

Fingerprint evidence

According to statistics of the People's Procuratorate of Nanhu District, Foshan city in the year 2002, Guangdong Province, within the five prosecuted cases there were two cases of which the accused had never admitted guilt, but the court still convicted them on the ground of fingerprint evidence alone.[25] Opinions about this approach vary among judges. Some judges think this is reasonable; some point out that with fingerprint evidence alone an evidence chain cannot be formed; some others gave conditions under which relying on fingerprint evidence alone could determine a case: Where the fingerprint of the accused (1) is left on a fixture in a nonpublic place, (2) is left on several scenes of the crime, and (3) where the accused has a criminal record.[25]

DNA evidence

DNA evidence is often regarded as the "the crown jewel" of evidence. Professor Chen Xuequan studied the Court Case Database of the Lawyer Database [26] of Peking University[26] at the end of 2008 and found that "the authenticity of DNA evidence was seldom challenged." He noticed that from 1998 to 2008, 23,427 criminal judgments were issued in China, of which 288 involved DNA evidence. In 275 out of these 288 cases, the defendants confessed, and the defense attorneys did not even challenge the DNA evidence. Among the 13 cases in which the defendant did not plead guilty, only in three cases did the defense lawyer question the DNA evidence provided by the prosecutors and the challenges were all denied by the court. In one case, the defense attorney proposed to exclude the DNA evidence, but his objection was rejected by the Court. In another case, the court accepted the proposal of the defense lawyer that the DNA evidence should be excluded due to an illegal sampling procedure. "Generally, the defense attorneys have a relatively weak awareness and ability to cross-examine DNA evidence provided by the prosecutor."[27]

It is unjustified to convict a criminal suspect simply based on scientific evidence

"If there is only one piece of scientific evidence showing that the defendant committed a crime and no other supportive evidence, the defendant must not be convicted."[28] "It is impossible to totally avoid errors in scientific evidence due to the limitations of science and technology development today. There are also all kinds of human errors and possibility of technical errors. Therefore, it requires investigators and judiciary officers not to take scientific evidences as scientific judgment and shall not take scientific evidence as the sole evidence to find one's guilty."[29] Dr. Lv Zehua believes that the main reasons for wrongful convictions in spite of applying DNA examination are: (1) The investigators over-relied on DNA evidence, with the cost of neglecting or even discriminating against the collection of other evidence; (2) cunning criminals fake the criminal scene and the DNA materials; and (3) the DNA materials may be contaminated due to the gross negligence or the willful misconduct of investigators.[30]

How do judges act as "gatekeepers" when reviewing scientific evidence?

The Supreme Court of the United States has interpreted FRE 702 to require trial judges to act as gatekeepers when it comes to the admissibility of expert testimony. The trial judge must be convinced that the experts are testifying on the basis of knowledge acquired in a reliable way and have applied that knowledge appropriately to the case at hand.[31]

The overwhelming preference of Chinese judges for "expertise" almost always equals giving up the responsibility of gatekeeper. "As gatekeeper of the authentication of evidence, the court allowed the use of DNA in 99.65% of cases where DNA evidence was the presented by the prosecution and used this evidence as a foundation to ascertain case facts."[27] This is extremely dangerous. Judges should examine the expertise or scientific evidence from at least two aspects when deciding its admissibility.

In the first place, the judge must review not only the reliability or the "general acceptance" of the scientific principles and methods, but also the correctness of the inferences being drawn on the basis of the expertise generated by the forensic scientist. In other words, judges ought to lay equal weight to the reliability of scientific principles and the validity of the inferences of the forensic scientists when deciding the admissibility of the evidence.[32]

Secondly, it is suggested that judges combine the admissibility standard for scientific evidence with the common admissibility standard for general evidence. To clarify, judges usually are laymen in science and may appear to be unfamiliar when it comes to making a decision on matters such as the reliability of scientific principles or the application of the Daubert "four factors" in deciding the admissibility of expert testimony. However, judges are very skillful at law and value balancing. They are capable of excluding scientific evidence whose probative value is substantially outweighed by a serious risk of prejudice.[32] Judges should review expert conclusion's trustworthiness and should go over all case-related evidence to determine its probative value.[33]


  The New Legislation: Aiming to Eliminate Blind Faith in Scientific Evidence Top


From "expert conclusion" to "expertise"

The two different words "Conclusion" and "Opinion" indicate different attitudes of people toward them. "Opinion" means the personal view and proposition about matters, while the "Conclusion" contains decision and finish.[34] As stated, the early name "expert conclusion" in China's legislation showed the long-standing blind belief in scientific evidence and its over-persuasiveness, as well as the potential requirement for obedience. Such misunderstanding starting from legislation spread to judicial practice, which hindered the litigant parties from fully executing their right to cross-examination, led misjudgments of judges, and aggravated the chaos of China's forensic examination system.

The 2005 Decision replaces the "expert conclusion" with "expertise" (expert opinion) and the revised 2012 Criminal Procedure Law and Civil Procedure Law follows this alteration. Furthermore, the two revised Laws added rules on the standard, cross-examination and acceptance of expertise, and more importantly, preliminarily established the expert assistant system on a basic-law level in China. Article 79 of Civil Procedure Law stipulates: "The parties may apply to the court for calling for a person with specialized knowledge in court who can put forward his opinions about the expertise made by the forensic scientist or some specialized issues." Article 192 of Criminal Procedure Law said: "The public prosecutor or a party concerned or the defender or agent ad litem thereof may request the court to call a person with specialized knowledge to appear before court to offer an opinion on the expertise of a forensic examination or forensic scientists. The court shall make a decision on whether to grant a request above. Where a person with specialized knowledge appears before the court under paragraph 2 hereof, the relevant provisions on forensic examination or forensic scientists shall apply." The "person with specialized knowledge" appearing in court is what we call "expert assistant."

There is every indication that the legislators have been acutely aware of drawbacks behind the word "conclusion" and thus starts putting forth efforts to break the superstitions, minimize the possibility of responsibility shifting due to the self-doubt of judges, and push expertise toward a return to its nature as testimonial evidence. Currently, the forensic examination management system needs strengthening and the adoption of expertise are chaotic and lacks cross-examination. The newborn expert assistant system implies that legislators are attempting to make improvement of the system a reality.

The expert assistant system: Significance, problems, and expectations

Significance of the expert assistant system

Improving the materiality of cross-examination

Juridical fact-finding is a production of the interaction between the prosecution/plaintiff, the accused/defendant, and the judge under the procedural rules in China.[35] However, cross-examination on expertise in China is most often simply a "focus on basic process and superficiality, which cannot challenge the evidence substantially."[36] The expert assistant, with specialized knowledge involved in the case, being able to probe into the scientific principles, methods, and every link of expertise brings more rivalry and substantiality to the court trial.

Mitigating various problems caused by forensic scientists hardly appearing in court

In recent years, about only 5%[37] of the forensic scientists who gave expertise in a lawsuit appeared in court to testify. According to Article 187 of the Criminal Procedure Law, "where the public prosecutor or a party concerned or the defender or agent ad litem thereof raises any objection to an expertise, the forensic scientist shall testify before court if the people's court deems it necessary. If the forensic scientist refuses to do so after being notified by the people's court, the expertise may not be used as a basis for deciding the case." There were over 1,170,000 cases in need of forensic examinations [38] in 2010 and a majority of them rushed to the 10 famous and national-level forensic institutes,[39] which created great difficulties for those forensic scientists giving expertise to appear in court. Expert assistance can help to eliminate unnecessary doubts about the expertise and assist the judge to balance the necessity to call the forensic scientist to testify. Thus, the scientists are not run off their feet by time-wasting calling. The number of repetitive and multiple forensic examinations decrease. The contradiction between the law in the book and the social facts is eased. And judicial efficiency improves.

Promoting the development of forensic examination industry

Many forensic institutes promise to produce expertise absolutely in favor of their clients for profits as they are more socialized, privatized, and market-orientated these days. However, false propaganda about the institute's competency is quite common. The expert assistant challenging the probative force and even the validity of the expertise can reduce the undesirable aspects of these commercial interests. Moreover, for survival and reputation, the institutes will push themselves into perfecting equipment and improving personnel qualities.

Defects in existing law on expert assistant system

As the tentative sketch of the expert assistance system shows the relevant provisions in the two Procedure Laws are confusing and may reduce the effectiveness of their application. For example, the laws do not make clear the detailed requirements for a person participating in the lawsuit as an expert assistant. They also do not tell the parties when they can choose their expert assistants and whether they need to inform the court and the adversary after the selection.

What matters more is that the laws have not established the nature and effect of the professional comments about the specialized issues that the expert assistant gives in court. The judge may take these comments lightly or find it hard to use them when delivering reasons for judgment because they lack clear legal status.

Expectations on constructing the expert assistance system

Legislation should make clear the scope of "expert"

Some scholars in China consider the "specialized knowledge" as "the medico-legal examination, the examination of physical evidences, the examination of audio and visual materials, and other forensic examination matters determined by the Judicial Administrative Department of the State Council in consultation with the Supreme People's Court or Supreme Peoples' Procuratorate for which the forensic scientists and forensic examination institutes should be subject to register management" in Article 2 of 2005 Decision.[40] Some scholars conclude that the expert generally refers to those who have professional credentials or high education degrees like architects, Doctors or Ph. Ds.[41] The two ideas are relatively narrow. "All persons, I think," said Mr. Justice Maule, "who practice a business or profession which requires them to possess certain knowledge of the matter in hand are experts so far as expertness is required."[42] Therefore, any person proved to possess special knowledge related to the specialized issues of the case should be eligible to be the expert assistant.

Discussions on neutrality and partiality of expert assistant

Domestic academic circles are having lively discussions about the neutrality of expert assistants in China. Some hold the view that we cannot do too much to emphasize their neutrality,[43] though some think that the professional ethics of expert assistants requires them to be more or less partial to the party who has initiated their assistance.[44]

In reality, it is not necessary for us to stress the need for the neutrality of expert assistance particularly for now. Currently, we should focus on strengthening its use and limiting any partialness to a reasonable level. The reasons are as follows:

First, the expert assistant is mainly to assess an expertise and decide whether the forensic scientist is neutral. He may facilitate the realization of neutrality in the forensic examination, but he is not the bearer of the duty of being neutral.

Secondly, the probative force of scientific evidence depends on its "reasonability and methodology scientific process,"[45] all of which would be reviewed thoroughly by the forensic scientists and the expert assistant in court during the direct examination and cross-examination. These experts are equipped with the competitive knowledge to backup their opinions. The possibility of distorting, abusing, or fabricating professional knowledge is confined by the knowledge itself.

Thirdly, both of the litigant parties have the right to employ expert assistants. These assistants help the parties (and even the judge) with the specialized issues, reduce the nonrationality in reviewing the evidences and even find out more clues or evidences. In this adversarial context, emphasizing the neutrality of an expert assistant as a helper paid by the party is hardly meaningful.

The attributes of opinion given by expert assistant

On this issue, some scholars suggest we just consider it as evidence, whereas some scholars say it should be deemed simply as "comment" (accusing or defending).[46]

In the light of the three Procedure Laws, the primary responsibility of expert assistant is mostly "commenting on the admissibility and probative force of expertise" and shall be classified essentially as expert testimony. At the same time, such testimony, primarily challenging the expertise, usually results in the court not adopting the expertise as evidence when deciding the case. Therefore, it is reasonable to treat the opinion of the expert assistant as evidence impeaching the expertise.

Establishment of supporting microsystem

Every system needs supporting mechanism to operate smoothly and positively. The expert assistant system is no exception.

The right of presence in the re-examination and supplementary examination in the criminal procedure

As mentioned, parties interested in China's criminal procedure have no right to participate in the forensic examination. The legislation should give parties' a right of presence in any re-examination and supplementary examination in criminal proceedings. In an extension of this right, the expert assistant should be entitled to be present at such forensic examination. They can then observe the materials, the operation, and the devices [47] and thus ensure more transparency, objectivity, and accuracy in the examination.

In addition, the law is also supposed to empower any expert assistant to question the forensic scientist, consult, excerpt and copy the relevant information, and properly record the process and the methods of forensic examination.

Publishing the opinion from expert assistants

"If an expert witness is examined by his counterpart all the time, even informally, the consequence of his irresponsible testimony would bring him more fear than now it does."[48] The court publishing opinions given by expert assistants (with their names on it) in lawsuits selectively and periodically will play the same role as peer review. On one hand, this is going to pressure the experts to be more honest and prudent; on the other hand, it will undoubtedly be of helpful guidance on expert assistant selection for the litigant parties.

Training on expert assistants' appearance in courtroom

The expert assistant is regarded as the "technical lawyer." Especially in the court trial, he is expected to deliver his professional views in a way that makes it more possible to reach a conclusion in favor of his side, to the extent permitted by law of course. "The well-planned cross-examination by a lawyer may make a real but inexperienced expert crash and burn."[49] For the expert assistant, even in China where the trial is not so adversarial, knowing relevant rules and procedures will contribute to conveying specialized knowledge, coping with cross-examination and, what is important to the parties, heightening the effect of his expertise.[50]

At present, developing training courses about the general procedure of trial and the legal rights and obligations of the expert would seem to be quite necessary. First, the courts should cooperate with some colleges and universities to offer training classes. When a mature program has developed, the classes can be standardized and marketed.


  Conclusion Top


  1. 1. By properly adopting scientific knowledge, forensic science experts may help the fact-finder understand evidence and facts in dispute. However, they may also misapply scientific principles and technologies to draw incorrect inferences, which would mislead the fact-finder and result in an incorrect judgment. No forensic science evidence possesses a preaffirmed probative value. In criminal cases, judges should not convict any suspect or defendant based exclusively on forensic science evidence.
  2. 2. Judges should not have blind faith in forensic science evidence and expertise. When verifying forensic science evidence, judges should give equal weight to the trustworthiness of scientific principles and the validity of the forensic scientist's inference. Judges should also combine the admissibility standard of scientific evidence with the common admissibility standard of general evidence in practice. At the same time, through the cross-examination process between litigation parties concerned, judges can determine the relevance and probative value of the scientific evidence to facts of the case.
  3. 3. The expert assistant system improves the public credibility of expertise and is quite helpful to judges in verifying scientific evidence. The "forensic scientist expert assistant" system (dual experts system) is the optimized choice to solve problems of specialized issues in lawsuits in China. Therefore, relevant laws and regulations should be improved with the least possible delay. A more comprehensive system is also in urgent need to maximize the benefit of the expert assistant system.


Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.

 
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