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 Table of Contents  
COMMENTARY
Year : 2015  |  Volume : 1  |  Issue : 2  |  Page : 75-83

From De Facto Fact-finder to Expert Witness? Transition of Forensic Examination in China


School of Transnational Law, Peking University, Shenzhen; Institute of Evidence Law and Forensic Science, University of Political Science and Law, Beijing, China

Date of Web Publication27-Nov-2015

Correspondence Address:
Thomas Y Man
School of Transnational Law, Peking University, Shenzhen, China. Institute of Evidence Law and Forensic Science, China University of Political Science and Law, Beijing
China
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Source of Support: None, Conflict of Interest: None


DOI: 10.4103/2349-5014.170602

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  Abstract 

Forensic examination plays an important role in China's judicial system, especially in the fact-finding process of both civil and criminal proceedings. Since 2005, this system has experienced gradual, yet significant changes. This paper seeks to examine the major themes of these changes in the context of the continued conceptual reformulation and structural realignment of civil and criminal procedures and the ongoing effort to codify evidence law with transforming impact on China's judicial system and culture. Emphasis is given to the transition of the forensic examination system from an officially (both administrative and judicial) administered fact-finding mechanism with powerful impact on the courts' truth-seeking activities to, at least partially, an expert witness system with significant participation and control by the parties' to judicial proceedings. A convergence of influence from both the continental inquisitorial tradition and the common law adversarial structure appears to have strongly informed the process and direction of the Chinese forensic examination reform. This paper attempts to explain the reasons for this convergence of influence, identify the trend and direction of this development, and provide observations and suggestions for further improvement of the forensic examination system in several key aspects with particular reference to the legal principles and judicial practices under the Federal Rules of Evidence of the United States.

Keywords: Evidence law, examination opinion, expert witness, forensic examination, forensic examiner, forensic institution,judicial reform


How to cite this article:
Man TY. From De Facto Fact-finder to Expert Witness? Transition of Forensic Examination in China. J Forensic Sci Med 2015;1:75-83

How to cite this URL:
Man TY. From De Facto Fact-finder to Expert Witness? Transition of Forensic Examination in China. J Forensic Sci Med [serial online] 2015 [cited 2019 Mar 25];1:75-83. Available from: http://www.jfsmonline.com/text.asp?2015/1/2/75/170602


  Introduction Top


Forensic examination (Sifa Jianding in Chinese [1]) plays an important role in China's judicial system,[2] especially in the fact-finding process of civil, criminal and administrative trials. Since 2005, this system has experienced gradual, yet significant changes. This paper examines the major themes of these changes in the context of the continued conceptual reformulation and structural realignment of China's judicial procedures [3] and the ongoing effort to codify evidence law [4] with transforming impact on China's judicial system and culture.


  Forensic Examination as De Facto fact-Finder Top


The concept of "forensic examination"

The basic statutory authority governing the forensic examination system is the "Decision of the Standing Committee of the National People's Congress on Issues concerning the Administration of Forensic Examination" (issued on February 28, 2005 and took effect on October 1, 2005) (hereinafter referred to as the "Decision"). Article 1 of the Decision defines forensic examination as "activities in litigation that the examiner identifies, judges and provides examination opinions on special issues involved in the litigation using science and technology or specialized knowledge."[5]

Two other concepts indispensably related to forensic examination are "examiner" (Jianding Ren), referring to the person(s) engaged to conduct forensic examination and "examination opinion" (Jianding Yijian), referring to the work product produced by the examiner at the conclusion of forensic examination. An examiner must be affiliated with an examination institution (Jianding Jigou) to perform a forensic examination.[6]

Thus, according to Article 1 of the Decision, forensic examination has the following attributes: (a) It is an activity used exclusively in litigation proceedings; and (b) it is performed by the examiner, who (c) uses scientific and technical means or specialized knowledge to (d) identify, judge and provide examination opinion on (e) special issues involved in the litigation.

Brief history

Forensic examination has a short but storied history in China. In a strict sense, the forensic examination system as we know it today started only with the promulgation of the Decision in 2005 by China's national legislature. Prior to 2005, forensic examination was in large part not made available to private parties in litigation proceedings, but was almost exclusively employed by law enforcement and judicial branches of the government as an official function in law enforcement and judicial decision-making. Each of the police (the Ministry of Public Security and the Ministry of State Security and their respective provincial and local counterparts), Public Prosecution (the Supreme People's Procuratorate and its provincial and local counterparts) and Adjudication (the Supreme People's Court and its provincial and local counterparts) Departments (collectively known under the Chinese government vocabulary as the "Public Security, Procuratorate and Judicial Apparatus") (GongJianFa XiTong) had its own, internal forensic division providing forensic services to the department. Abolished during the Cultural Revolution (1966–1976), these internal forensic divisions were gradually re-established after 1979. By the early 2000s, some of these internal forensic divisions began to provide paid services to private parties.[7]

The Decision of 2005 represented a critical step by the national legislature to codify forensic examination activities. In addition to defining the nature, scope, and function of forensic examination, the Decision attempted to centralize the administration of forensic examination institutions and set forth broad guidelines for the qualifications of examiners and examination institutions. These efforts have achieved varying degrees of success. In terms of streamlining the administration of forensic examination institutions, the Decision provided that the courts and the executive department in charge of judicial affairs (i.e. the Ministry of Justice and its provincial and local counterparts) are prohibited from establishing forensic examination institutions and that the "investigative authorities" (Zhencha Bumen), a term referring to the Police and the Prosecuraterate Departments, may maintain forensic examination institutions, but these institutions may not provide services to private parties (Article 7). It designates the Ministry of Justice (and its provincial and local counterparts) the authority to administer forensic examination activities (Article 3), including the authority to issue permits to forensic examination institutions (Article 5), maintain a national register of forensic examination institutions (Article 2), prescribe qualifications for examiners (Article 4), monitor the activities of examiners and forensic examination institutions and issue administrative penalty for violation of the Decision by examiners or forensic examination institutions (Article 13).

The Decision clearly intended that all examination institutions would be put under the administration of the Ministry of Justice. However, while the People's Courts discontinued the maintenance of examination institutions, the investigative authorities continued to maintain their respective forensic examination institutions.[8] At the same time, these institutions would want to provide examination services to parties to litigation for fees, in addition to continuing supporting the investigative work of their own department as an internal function. After much inter-department discussion, a compromise was reached to establish a dual-track system for the forensic examination institutions of the People's Procuraterate, Public Security and State Security offices. These institutions discontinued services to private parties but continued to be independent from the administrative supervision of the Ministry of Justice.[9]

As a result, the current forensic examination system, from an institutional administration view, is dual tracked: While all forensic examination institutions (and examiners affiliated with them) are subject to registration and administrative supervision of the Ministry of Justice, those forensic examination institutions affiliated with the investigative authorities stay outside of the supervision of the Ministry of Justice when they function as internal arms of their respective government department.

Under this dual track administrative structure, the number of forensic examination institutions registered with the provincial Justice Bureaus has grown rapidly in the last 15 years. In 1999, the Ministry of Justice started to issue licenses (total eight for that year) to forensic examination institutions at the national level authorized to provide forensic examination services to parties involved in litigation.[10] By 2004, this number grew to 2864 and spread to all provincial-level administrative regions (i.e. provinces, autonomous regions for minority nationalities and municipalities directly under the central government).[11] From 2010, the number of forensic examination institutions and examiners registered with the provincial Justice Bureaus changed from 2254 and 27,137 (2010), 2284 and 26,294 (2011) to 4833 and 54,220 (2012), respectively.[12]

De facto fact-finder

Consistent with the increase of forensic examination institutions, the importance of forensic examination in litigation has also proliferated to the extent that in many cases it substitutes the role of the trial judge as the de facto fact-finder. There are at least four reasons that help explain this development.

Wide availability to litigants

As an evidentiary tool, forensic examination in the pre-2005 era was mainly used in criminal cases. Under the PRC Criminal Procedural Law then in effect (enacted in 1979 and amended in 1986), the forensic examination was defined as one kind of "investigative actions" conducted exclusively by the investigative authorities.[13] After 2000, especially in the post-2005 era, however, forensic examination has become increasingly widely used by litigants in all types of litigations, criminal, civil as well as administrative. By the end of 2012, forensic examination institutions registered with the provincial Justice Bureaus issued 1,505,869 forensic examination opinions, of which 192,154 opinions were issued for criminal cases, and 872,457 opinions were for civil cases.[14] Several reasons account for this wider use of forensic examination in litigations.

In the first place, forensic examination can be relatively liberally initiated in the judicial process, particularly in civil cases. Currently, there are mainly three ways to initiate forensic examination: (i) Initiation by the Parties: This procedure is available to the parties liberally before the start of the trial in civil cases. Each party to the litigation has the right to appoint examiner(s) to provide examination opinion(s) on issues of fact involved in the litigation.[15] The parties have total autonomy in the initiating forensic examination, selecting examination institution and examiner and furnishing materials to be used by the examiner to perform the examination. The only limitation on this right is that the forensic examination must be performed within the time limit set by the judge.[16] (ii) Initiation by Designation: It specifically refers to the right of the investigative authorities, primarily in criminal cases, to submit technical issues for examination by the forensic examination institutions within their own department.[17] (iii) Initiation by Court: During the trial, parties may petition the presiding judge to appoint an examination institution to perform forensic examination. The judge has discretion as to whether to grant the petition (in practice, such petitions are liberally granted). The judge also has the discretion to select the examination institution and examiner, unless the parties can agree on such selection.[18]

Second, the liberal legal framework for forensic examination initiation, especially the parties' right to initiate forensic examination in a pretrial stage in civil cases, prompted the commercialization of forensic examination activities. In 2009, there were 2150 forensic examination institutions (with 25,876 examiners) engaged in the so-called "big three types" of examinations (i.e. forensic medical examination, physical evidence examination, audio-video materials examination), of which 69.3% were commercially run institutions. These institutions performed 899,252 examinations in that year, of which about 60% were pursuant to appointment by the parties.[19]

"Super" evidence in statutory status

Under applicable statutes characterized by a traditional civil-law type of legalistic view of evidence law, examination opinion is listed as one type of evidence, along with testimonial and real evidence.[20] Different from other types of evidence, forensic examination is also a statutorily recognized tool to "create" admissible evidence. For example, copies of documents, after being "confirmed to be true by forensic examination," may be adopted as the basis of fact determination.[21] Thus, forensic examination also has the functions of identification and authentication.[22] Based on these added functions and the perceived "scientific" foundation of forensic examination, the Supreme People's Court has given examination opinions higher probative value than other types of evidence such as documents, audio-video materials, and witnesses' testimony.[23]

Evidence in "scientific" coat

The "super" evidence status of forensic examination is further reinforced by the fact (or myth) that forensic examination is "scientific" in nature. The examiners are specialists based on their scientific education, knowledge and experience, many of whom are well-known professors, scientists, engineers with forensic and other scientific training and experiences. They use scientific means and specialized equipment not accessible to the general public (such as forensic laboratories) to examine, evaluate and opine upon other types of evidence (real, documentary, or testimonial). With this "scientific" coat, forensic examination is widely recognized by the mainstream scholarship as to have higher probative value.[24] Not surprisingly, in practice, litigants and judges developed a sense of heavy preference to, and reliance on, forensic examination to an extent dangerously close to worship. Thus, forensic examination has been dubbed the "Scientific Judge," and in many cases judges routinely adopted examination opinion (called "examination conclusion" before 2005 in applicable legislation and the Supreme People's Court interpretations) as conclusive evidence to determine the facts in question. So much so that some scholars adeptly describe this blind reliance on forensic examination by judges as "Forensic Examination Reliance Syndrome."[25]

Evidence with perceived official authority

Under the specific institutional framework of forensic examination and judicial practice in China, forensic examination projects to the general public a strong sense of "official" activity. Historically, as noted earlier in this paper, forensic examination was indeed an official functionality of the "Public Security, Prosecuraterate, and Judicial Apparatus" in law enforcement and judicial decision-making. It was a tool of informal fact-finding by these public authorities. The Decision of 2005 redefined forensic examination as fact-finding mechanism in litigations and made it available to all parties, both public authorities and private parties, thus ushering the age of forensic examination also being used in the court-administered formal fact-finding process. At the same time, however, the investigative authorities have retained their own forensic examination institutions, which continue to service their respective government departments in their official capacity. This mixture of public (law enforcement) and social (commercial) functions of forensic examination institutions and examiners reinforced the perceived image of forensic examination as an official action.

In addition, in its effort to streamline registration and supervision of forensic examination activities, the Ministry of Justice has used its executive authority to impose professional standards and requirements on forensic examination institutions and examiners that are more appropriately undertaken by nongovernmental, professional organizations. This in turn helps strengthen the sense of forensic examination as an official action performed by administratively ordained institutions.

Finally, the unfortunate use of the terminology "Sifa Jianding"[26] also carries a connotation in the Chinese language that forensic examination, as a "judicial" act, is part of the official business of the government.

It is telling that before 2005 the examination report was referred to as "examination conclusion" (Jianding JieLun) in statutory documents. Coupled with its "scientific" coat and superior probative value confirmed by law, parties to litigation and their counsel and judges as well as prosecutors widely shared the belief that examination opinions, as "conclusions," have presumed authority or even unquestionable reliability, which can be admitted as conclusive evidence.[27]

Taken together, these factors contribute to the public image of forensic examination as an official function of the public authorities. Under China's inquisition-based judicial system, forensic examination is logically perceived to enjoy a different (higher, superior, authoritative due to its "official-ness") status from other fact-finding tools litigants may legally employ to prove their claims.

Misuse (abuse) of forensic examination in judicial practice

Given the wide use of forensic examination in litigations and the misconception of its functions, misuse or abuse of forensic examination is a commonplace. Because of the perceived (and actual) importance of forensic examination in judicial fact-finding, most, if not all, litigation cases, criminal or civil, tend to involve forensic evidence in one form or another as almost all cases that have been resorted to formal litigation would entail dispute in fact. In describing the English judicial scene in the late 18th century, William Blackstone wrote: "Experience will abundantly show that above a hundred of our lawsuits arise from disputed facts, for one where the law is doubted of."[28] It seems that Blackstone's observation can be equally applied to the contemporary Chinese judicial process, although no systematic statistical data are readily available to provide a quantitative picture. Due to the heavy reliance on written and physical evidence by Chinese trials, forensic examination will be called into use invariably by the parties and the judge to help ascertain disputed facts. In the rare cases where no dispute exists as to factual determination (usually in simple cases or cases where the parties have agreed to stipulate the facts, which, again, are quite rare), the judge will be either relieved from the obligation of ascertaining disputed facts entirely or faced with a relatively easy task of deciding simple, straightforward factual questions.

All parties involved in the litigation process have shared blame in abusing forensic examination. First, the investigative authorities maintain a virtual monopoly of using forensic examination to investigate the facts during the investigative stage of a criminal case. They habitually submit forensic examination reports to the court as conclusive evidence and generally refuse to allow the examiners (their own employees in this process) to testify in court. Similarly, judges show great deference to the examination reports from the investigative authorities. Therefore, in criminal proceedings, the defendants, and their lawyers face an uphill battle to overcome the "conclusions" in the examination reports of the investigative authorities. At the investigative stage, the defendant may not initiate forensic examination but can only petition for supplementary examination or re-examination. At the trial stage, the defendant is permitted to initiate forensic examination on approval by the judge, who has discretion as to whether to grant such petition.[29] Unable to performing a forensic examination on its own initiation or to cross-examining the examiners of the investigative authorities in open court, a criminal defendant oftentimes feels helpless to challenge the examination of the investigative authorities. Without effective check on its examination, the investigative authorities enjoy almost unrestricted latitude in determining even the most crucial fact of a case at the investigative stage, which is usually not subject to vigorous and effective judicial scrutiny.[30]

The litigants in civil cases have relatively easy access to forensic examination. Due to the perceived (and actual) importance of examination opinions, litigants tend to overuse forensic examination. For this reason, repeated examinations by same litigants for the same issues become very common. In certain extreme cases, over 30 examinations were performed.[31] Overusing forensic examination results in a delay of proceedings and waste of judicial resources.

Finally, judges have also played a significant part in abusing forensic examination. Due to the lack of appropriate and effective standards of review and admission of examination opinions, judges in most part have failed to safeguard the proper use of forensic examination to assist with the fact-finding process. They either display unconditional deference to examination opinions (particularly examination reports of the investigative authorities in criminal cases) or refuse to exercise the power to limit the overuse of forensic examination. In either case, judges tend to relinquish their statutorily ordained function (and obligation) as the fact-finder and irresponsibly allow examiners to become the de facto fact-finder, resulting in the well-known phenomena that litigation in China has become, as put it by one legal scholar, "litigation by forensic examination."[32]


  Reconstructing Forensic Examination in Theory and Administration Top


Dissatisfaction with forensic examination has grown wider in aspects and deeper in legal theory while it has been used in increased frequency and enlarged scope since 2005. Chinese legal and forensic scholars, in particular, have raised many issues with forensic examination in both theory and practice and developed a variety of proposed solutions from different perspectives. Despite differences in viewpoint and emphasis, there is a general consensus that fundamental reforms are required to provide systematic foundations for forensic examination to play an important, but appropriate, role in the fact-finding process. Only by so doing could forensic examination be made a valuable asset to ensure public confidence in judicial process, instead a liability detrimental to establishing the public confidence.

Viewed in the broad context of the on-going reform of the Chinese judicial system, especially trial procedures, and the movement toward unified rules of evidence adopted by either the national legislature or the Supreme People's Court, the discussion of forensic examination reform has invariably focused on three aspects, namely, adjusting the role of forensic examination institutions and examiners in the judicial administration system in relation to institutional status, qualifications and registration management and oversight of professional conduct; re-conceptualizing the nature and role of forensic examination in fact-finding process; and establishing procedural safeguards to ensure proper functions of forensic examination in fact-finding.

Structural repositioning

Most commentators share the criticism of the existing dual track forensic examination administration as being disorganized, dysfunctional, and detrimental to establishing and effectively maintaining uniform professional standards. Various proposals have been put forward to effect structural changes aimed at streamlining administrative management and professional standards. Noteworthy are the proposals pointing to the following directions:

Unify administration of forensic examination

The 2005 Decision intended to unify the administrative oversight of forensic examination by the Ministry of Justice on a national basis. However, this intent was frustrated by the insistence of the investigative authorities to insulate their forensic examination institutions and examiners from effective supervision of the Ministry of Justice. Almost all commentators view this dual-track arrangement as the biggest structural flaw of the national forensic examination administration system. It is believed to have prevented implementation and enforcement of unified professional standards and created confusion among the public. Compared with the examination institutions subject to full registration and supervision of the Ministry of Justice, the examination institutions of the investigative authorities generally are better equipped with state-of-the-art facilities and staffed with more experienced examiners and enjoy a longer history of conducting forensic analysis. They also outnumber the examination institutions registered with the Ministry of Justice in terms of the number of institutions and examiners. By one count, in 2005 the Public Security Department (the police) has 3560 examination institutions and 33,000 examiners.[33] For these reasons, their activities have enormous, and disproportionally strong, impact on the execution of justice as a whole. To eliminate any negative impact on the justice system, it is widely believed that it is necessary to streamline the administrative oversight of all forensic examination activities by adopting unified standards under the auspices of the Ministry of Justice.

Improve national registration of examiners

Many observers have called for further improving the national registration of examination institutions under the auspices of the Ministry of Justice, including the qualification standards of the examination institutions and examiners, code of professional conduct and appropriate penalty provisions. Scholars are actively studying the structures and practices of other mature jurisdictions to seek insight for constructing a system suitable for China.[34]

Administrative management v. professional self-rule

While most commentators agree that the Ministry of Justice should continue to improve its national administration of examination institutions and examiners, some concerns have been raised as to whether this move would further reinforce the perceived image of "official" function of forensic examination activities. Thus, there are suggestions that certain management functions should be exercised by professional organizations of examination institutions and examiners. In this aspect, scholars are continuing to look at the systems and experiences of other jurisdictions, both common-law and civil-law countries, to identify adaptable models to inform the system restructuring of the Chinese forensic examination system.

Necessity for state-owned, not-for-profit forensic examination institutions

In the on-going discussion of structural reform, some leading scholars advocate the necessity to establish state-owned, not-for-profit forensic examination institutions. They believe such a system would be able to ensure the neutrality of the examination instructions, a concept embedded in the 2005 Decision, prevent the commercialized examination institutions from serving the litigants for economic consideration by sacrificing objectivity, and help reduce, and ultimately eliminate, the services provided to the general public by examination institutions of the investigative authorities.[35]

Conceptual reformulation

With the growing interest in evidence law as a separate legal discipline prompted by the efforts to codify evidence rules on a national basis, greater attention has been given to analyzing forensic examination, an indigenous Chinese system, in light of the theories and practices of leading Western jurisdictions.[36] Emerging from this line of inquiry is a growing recognition that the concept of forensic examination should be modified in line with that of the expert opinion under the common law system, particularly in the United States. In particular, the definition of expert opinion under the U.S. Federal Rules of Evidence as expounded by the U.S. Supreme Court decisions (e.g. Daubert v. Merrell Dow Pharm., Inc.[37]) have gained considerable scholarly attention and reception in recent years.[38]

The current statutory definition of forensic examination of the Decision is generally consistent with the concept of expert opinion of the common-law jurisdictions.[39] Some leading treatises and articles also generally recognize this parallel. In this view, an examiner is an expert by virtue of his/her specialized knowledge in certain area who employs scientific and technical means to examine evidence or analyze specialized issues involved in the litigation. In this sense, the examiner's functional is not an official act of the judicial infrastructure, but rather a professional conduct independent of any government authority. This view finds strong support from the proliferation in recent years of commercialized forensic examinations commissioned by, and performed for, private litigants. With the introduction of elements of adversarial procedures in Chinese litigation since the mid-1990s, forensic examination has assumed an increasingly strong character of nonofficial, party-centered activities closely associated with those of the expert witnesses in typical common-law adversarial proceedings. At the same time, however, because the judge is the fact-finder under the Chinese judicial system modeled after the civil-law inquisitorial tradition, the examiner's role is mainly perceived to be an assistant to the judge in the fact-finding process. The examiner participates in this process by providing professional (expert) opinion, either in writing or by in-court testimony, to the court. In this way, the examiner assists the judge in uncovering or ascertaining facts.[40]

Different from the statutory confirmation of higher probative value of examination opinion, the emerging scholarly view is that probative value of evidence should be determined by the fact-finder (i.e. judge) by way of free proof and should not be subject to mandatory statutory requirement.[41] It implies that forensic examination opinion should not enjoy a statutorily predetermined higher probative value.[42] This view has had parable impact on legislation. One strong indication is the change of the statutory language describing the examiner's work product (or report) submitted to the court. In the past, the examiner's report was referred to as "examiner conclusion" (Jianding Jielun) in applicable statutes, indicating unmistakably a sense of authoritative determination. The Decision, however, changed this term to "examination opinion" (Jianding Yijian) (Article 10), which conveys a much weaker sense of authority and finality, and this change has been followed in other legislation and related Supreme People's Court documents, which is indicative of the new norm of conceptualizing the role of forensic examination.[43]

Bearing marks of influence from the confrontation principle of the adversarial system, most scholars in China believe that forensic examination, like any of other categories of evidence, must be subject to in-court examination, especially cross-examination by the opposing party, before it can be admitted into evidence. Under the current practice, judges are used to adopting examination opinions without in-court examination. The examination opinions prepared in written form are either submitted to the court before the trial or read to the court during trial by the attorney without the examiners attending the trial and being subject to examination. Before 2012, there was no statutory requirement mandating in-court examination of the examiners. Article 11 of the Decision provides that "where any party has objection to the examination opinions… the examiner shall appear in-court to provide testimony upon notification of the People's Court according to law." However, there are no penalty provisions that would force the examiner to testify. There are also conflicting statutory requirements in lower court rules or local regulations that allow the examination opinions to be read by the judge where the examiner does not appear in-court.[44] As a result, the rate of in-court testimony by examiners is very low. For instance, during 2012, there were total 1,064,611 examination opinions were submitted to litigations, for which only 14,983 court appearances by examiners were made.[45]

However, the latest PRC Criminal Procedural Law has taken a giant step to mandate in-court examination of examiners. Article 187(2) of this Law provides that upon application of a party, if the judge believes that it is necessary for the examiner to testify in-court, the examiner shall so testify. "On notification of the People's Court, if the examiner refuses to testify in-court, the examination opinion shall not be adopted as the basis for deciding the case." It is significant that this provision has prescribed the penalty, that is, exclusion of the opinion from evidence, if the examiner fails to testify after so requested by the court. The judge has the discretion to decide whether the examiner should testify in-court, which is still one step short of the general requirement that no opinion should be admitted into evidence before the opposing has a chance to cross-examine the examiner, unless the party has agreed not to cross-examine the examiner. Nevertheless, it clearly signifies the legislative determination to create mandatory (albeit subject to the trial judge's discretion) in-court adversarial examination of forensic opinions.

Procedural safeguards

Any conceptual reformulation, even if confirmed by national legislation, would not be effectively implemented in judicial practice, unless and until firmly established procedural safeguards are vigorously enforced. With clear realization of this principle, Chinese legal and forensic scholars have proposed a number of procedural rules to guarantee the forensic examination reform towards the directions outlined above. Some of these proposals have been or are being gradually incorporated in applicable statutes, administrative regulations or the People's Supreme Court provisions having guiding effect on all levels of Chinese courts. Prominent of these proposals include the following four that cover a broad range of procedural spectrum.

First among these proposals is to limit the use of forensic examination by litigants to avoid unnecessary repetition of forensic examinations resulting in judicial waste and damaging the reputation and credibility of forensic examination.[46]

The second proposal relates to the procedural reform establishing mandatory requirement for in-court testimony by examiners. Consistent with the conceptual shift of forensic examination from (perceived or actual) de facto fact-finder to expert opinion, there is a growing understanding that forensic examination, like any other evidence, should be subject to in-court examination, either by the judge or the opposing party, or both, before it can be adopted as evidence by the judge. While the current procedural laws have provisions on in-court testimony by examiners, these provisions are generally toothless and contain broad exceptions that have been routinely utilized by examiners to avoid court appearance. As a result, the rate of in-court testimony by examiners is merely 1.7%.[47] To change this situation in a fundamental way, Chinese legal scholars have suggested rather detailed system to ensure effective guarantee in-court testimony by examiners that includes the following elements: (i) On request by the opposing party, the judge must order the examiner appear in-court to answer questions by the judge, the opposing party and its attorney and/or other advisors and to describe in detail the process, basis and conclusion of the examination opinion; without such testimony, the examination opinion may not be adopted as the basis to determine the factual issue of the case; (ii) the judge should have the power to compel testimony by examiners using sanctions including fine, subpoena and judicial detainment; (iii) exceptions for in-court testimony should be clearly stipulated in statutes and limited to very narrow grounds (such as death, serious illness or other force majeure events), but even with these exceptions, the examination opinion should be jointly reviewed by the judge and the parties before it can be admitted into evidence; and (iv) appropriate compensation should be provided for examiners testifying in-court.[48]

Introducing "expert assistant" (Zhuanjia Fuzhuren) to judicial proceedings is the third reform proposal, which has been enacted by statutes and the Supreme People's Court provisions.[49] In the Chinese judicial context, expert assistant refers to person (s) with specialized knowledge or experience who are retained by parties to litigation to provide consultation, advice on technical issues. One of his most important functions is to help his client to analyze examination opinions provided by the opposing party. With permission from the court, an expert assistant may appear in-court to provide opinion on specialized issues and examination opinion, and if needed, may conduct cross-examination of the examiner. Expert assistant does not have the qualifications to perform forensic examination, but is authorized to provide professional opinion on the examination opinion. The purpose to introduce expert assistant is clearly to provide a counterweight to examiners, that is, using one expert (expert assistant) to check on the other expert (examiner). This peculiar expert system has been described as a unique "examiner + expert assistant dual expert evidence system."[50]

The last, but not the least important, proposal calls for the establishment of a system that requires and ensures that judges act as the "gatekeeper" in adopting examination opinion as the basis for deciding cases.[51] The current system does not require judges to perform gatekeeper duties in relation to initiating, reviewing, in-court examining examination opinions and making reasoned decisions on adoption of examination opinions, which encourages irresponsible reliance by judges on examination opinions to avoid making hard decisions. In this sense, judges are at least partially responsible for making forensic examination de facto fact-finder. Thus, it is critical that appropriate system be set up to impose a fiduciary duty on the judge to safeguard the proper use of forensic examination as a tool in fact-finding and final decision must be made by the judge in exercising his authority (and fulfilling his duty) as the legally authorized fact-finder.


  Concluding Observation and Call for Change of Terminology Top


Forensic examination possesses in many respects unwarranted lofty position in the fact-finding process, an essential part of the Chinese judicial system. Although it provides a useful service to many litigants and judges in specific cases by identifying and clarifying facts that are not easily understandable or apparent without the aid of scientific analysis employed and specialized knowledge held by examiners, under the current legal framework governing forensic examination, its functions suffer severely from ill administrative structure and mis-conceptualization. This results in widespread mis-application of examination opinions in litigation process, which in turn negatively affects public confidence in the judicial system. Sweeping reform is urgently needed to address the deficiencies of the forensic examination system as identified in the previous sections. As noted above, the solutions suggested by Chinese legal scholars and practitioners are heavily influenced by the on-going reform of the Chinese judicial system, particularly the continued trend to inject elements of the adversarial model into the traditional inquisitional process and the more recent efforts to codify evidentiary rules in light of the U.S. Federal Rules of Evidence. Thus, a convergence of influence from both the civil law tradition and the common law practice underlies the transition of the forensic examination system. Specifically, in terms of structural reformulation, China will likely rely more heavily on the institutional arrangements and administrative systems of civil law jurisdictions (France, Germany, Italy, Japan, etc.) to direct its realignment of administrative structure of the forensic examination system featuring national registration of examination institutions and examiners administered by the Ministry of Justice. In addition to issues relating to substantially improving professionalism of examiners and establishing and enforcing professional standards for examination institutions, the biggest challenge is the genuine (personnel, entity, clientele and management) separation of forensic examination functions performed by the forensic examination institutions of the "investigative authorities." This will require coordination and direction from the national government above the ministerial level.

By contrast, in terms of conceptual transformation with attendant procedural safeguards, China's forensic examination will likely look more closely at the theories and procedural measures of the major common law jurisdictions, particularly the U.S. and UK, to seek insight and practices suitable for adoption. If the current trend continues, the role of forensic examination will be transformed from "super" evidence enjoying superior probative value to expert opinion with equal probative value with other evidence. Procedural safeguards developed in the U.S. to ensure proper admission of scientific evidence in the form of expert opinion may (and should, in my view) also be adopted to set the relationship between examiners (in essence, one kind of expert witnesses) and judges (fact-finder) in a way that is conducive to proper admission and use by judge of examination opinions.

As a logical extension of this transition, I would like to advocate one additional suggestion: Change the terminology from "Sifa Jianding" (literally "judicial examination") to "ZhuanJia Jianding" (literally "expert examination"). Normally change of terminology is not always necessary along with the transformation of substance of a legal process. Professionals with legal training will look at the statutory definition of the process to gain accurate understanding of the concept. However, change of terminology in this instance is highly desirable, even necessary in the specific context of the Chinese judicial system and legal culture.

The use of the adjective "judicial" is inaccurate, misleading and confusing under the current legal framework for forensic examination, which will become even more so with its transition to essentially similar to expert witness system in a common law jurisdiction. First, as noted by one Chinese legal scholar, forensic examination is "neither a judicial nor an executive activity," but "an activity of proof in judicial process utilizing scientific knowledge, technological means and specialized experience to provide technical support and professional services to litigations."[52] The essence of forensic examination resides in the fact that it is based on scientific, technological or specialized knowledge, not in the fact that it is a judicial (or executive) activity. Thus, the use of "judicial" is inaccurate. Second, in the Chinese context, the inaccurate use of "judicial" creates the misleading understanding that forensic examination is an official act of a government authority (either executive or judicial), which in turn leads to the confusion of forensic examination with officially confirmed evidence (which should not exist until the judge has made a decision at the conclusion of the fact-finding process). A simple substantiation of "judicial" with "expert" in this term can easily rectify the current inaccuracy and prevent any confusion or misunderstanding of the substance of this concept, which will also help demystify this process in the public mind.

Acknowledgments

The assistance of Wu Danlei and Crystal Gao of the School of Transnational Law, Peking University, for legal research and editing the notes.

Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.

 
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