|Year : 2018 | Volume
| Issue : 4 | Page : 221-228
On trends of the role transition from expert assistant to expert witness
Baosheng Zhang1, Shuai Dong2, Ping Yang2
1 Collaborative Innovation Center for Judicial Civilization and the Key Laboratory of Evidence Science, China University of Political Science and Law, Beijing, China
2 Institute of Evidence Law and Forensic Science, China University of Political Science and Law, Beijing, China
|Date of Web Publication||27-Dec-2018|
Dr. Baosheng Zhang
Collaborative Innovation Center for Judicial Civilization and the Key Laboratory of Evidence Science, China University of Political Science and Law, Beijing 100088
Source of Support: None, Conflict of Interest: None
In the context of Chinese evidence law, the role of the expert assistant is to “offer opinion on the forensic expertise or specialized issues.” This role is multiple-facet, somewhat similar to a lawyer's role, and to some extent similar to that of a forensic expert or a witness. For this simple reason, the views on the legal status of opinions of the expert assistant also vary from “cross-examination method,” “forensic expertise” to “witness testimony.” This confusion regarding the role of the expert assistant often results in difficulties in deciding whether to admit the expert assistant opinion as evidence at trial. The regulation that the expert assistant opinion “can be taken as evidence for determining facts of a case after cross-examination” stipulated in Paragraph 2 of Article 15 of the Supreme People's Court Interpretation of the Law in the Conduct of Environmental Civil Public Interest Litigations promulgated in 2015 could be seen as trends of a transition in the role of the expert assistant towards that of the expert witness. This article attempts to analyze reasons, significance, and prospects of such a transition, and give suggestions to improve the application of examination rules for the expert witness and admissibility rules for scientific evidence.
Keywords: Admissibility rules, expert assistant, expert witness, role transition
|How to cite this article:|
Zhang B, Dong S, Yang P. On trends of the role transition from expert assistant to expert witness. J Forensic Sci Med 2018;4:221-8
| The Significance of Establishing a System of the Expert Assistant in China|| |
The double-edged sword role of scientific evidence
Scientific evidence plays an increasingly important role in proceedings in contemporary China. A survey conducted in Beijing, Qingdao, and Hohhot shows that there was an average of 3.15 pieces of forensic expertise per criminal case in the three cities in 2007. Statistics also show that in 2015 the number of forensic examination done by forensic institutes registered in Chinese judicial administration authorities (not including those forensic institutes within the public security agencies) totaled 2,088,547, among which, 878,616 were for civil proceedings, 329,028 for criminal proceedings, accounting for 47.35% and 17.73%, respectively. As is a group of statistics for reference, in that year the number of first instance criminal cases and civil cases concluded at all courts in China was 1,099,000 and 6,228,000, respectively.
The essence of scientific evidence lies in its scientific property. Nevertheless, the application of scientific knowledge is subject to multiple properties due to the fact that it involves the expert, who might err as a human being. On the one hand, experts, if based on a correct application of their scientific knowledge and experience, might offer scientific explanations to specialized issues and statistics, and thus can assist the trier of fact to understand the evidence. On the other hand, there is also a possibility that their inferences may build on a wrong understanding of the scientific theories and technical methods involved, and consequently what they provide might be incorrect expertise, hence resulting in a wrongful conviction by the trier of fact. Just like science, scientific evidence is also a “double-edged sword.”
The statistics published in 2009 by the “Innocence Project” of the U. S. Cardozo School of Law show that of the 225 wrongful convictions corrected by DNA tests, 116 convictions (over 50%) were caused by the use of unverified or inappropriate forensic science evidence. “Unverified or inappropriate forensic science evidence” means: (1) a lack of scientific standards; (2) inappropriate forensic science testimony; (3) misconduct. Another data published in 2018 revealed that of the 362 cases involving wrongful convictions corrected by DNA tests, about 45% of them also admitted unverified or inappropriate forensic science evidence.
So far, there have been no available statistics in China on the proportion of wrongful-conviction cases caused by scientific evidence. However, it is recognized that forensic expertise almost constituted the common cause of erroneous fact-findings in wrongful convictions corrected in recent years. For example, in the case of Nian Bin accused of poisoning, in which the defendant Nian Bin was sentenced to death penalty in all his first-trial, second-trial and several retrials during 2008 to 2011, and at last was found non-guilty by the Higher People's Court of Fujian Province on 2014 August 22, there raised a lot of unresolved contradictions and unexplained doubts over the forensic expertise provided by the police, which were used to prove that the defendant committed the poisoning. The Higher People's Court of Fujian Province made the following decision on these forensic expertise at the final trial that: (1) the process of how the samples were collected from the kettle, the pressure-cooker and the wok was not clear; (2) the contradictions and doubts raised by the evidence related to sources of the samples did not get properly explained; (3) examination process of the samples was not in line with relevant regulations; (4) therefore, the reliability of the examination results was problematic, and the physical and chemical examination report was insufficient to be admitted as basis for deciding the facts in the case. It thus concluded that “the finding that the water in the kettle was poisoned was lack of basis, the verdict in the previous trial that found Nian Bin poisoned rat drug in the kettle lacked sufficient factual foundation, with the key chain of evidence missing.” In this case, due to the forensic examination report was not admissible, the fact of consequence drawn from it that “the defendant committed poisoning” failed to be justified.
Expert assistants assist judges to play the role of gatekeepers to scientific evidence
The above wrongful convictions caused by scientific evidence not only have challenged our blind belief in the reliability of scientific evidence but also aroused our refreshed attention to the “gatekeepers” to scientific evidence. In the United States, “the Supreme Court has interpreted FRE 702 to require trial judges to act as gatekeepers to the admissibility of expert testimony. The trial judge must be convinced that the expert is testifying on the basis of knowledge acquired in a reliable way and applied appropriately to the case at hand.” However, some scholars found that in China, “the judges, as gatekeepers to the truthfulness of evidence, even believed that 99.65% of the DNA evidence submitted by the prosecution were true.” The judge's blind belief in scientific evidence has almost resulted in the loss of their function as “gatekeepers” to the admissibility of scientific evidence, which is regarded as a major reason for the occurrence of wrongful convictions.
Judges cannot do well as gatekeepers to the admissibility of scientific evidence without the assistance of expert assistants. The emergence of the role of expert assistants in China demonstrates that China is learning from the expert witness system in the common law jurisdictions and the forensic expert system in the civil law jurisdictions, and attempting to integrate both in practice. It has changed the previous scenario where forensic expertise can rarely be challenged, so that the judge has the opportunity to listen to both sides before making a decision. “The expert assistants employed by one party … would inevitably fiercely contest their opinions with opinions detriment to this party offered by forensic experts, other types of experts, and expert assistants for the other party. This competition would undoubtedly lay a solid foundation for judges to reasonably evaluate the competence and probative value of relevant forensic expertise and other expert opinions…” A different opinion by the expert assistant may help us to eradicate our blind belief in scientific evidence, and enables the judge, in acting his or her role of “gatekeeper,” to conduct a comprehensive evaluation and deliberation of opinions given by the forensic expert or the expert assistant, thereby raising the accuracy of fact-finding.
| The Multiple Identities of the Expert Assistant and Drawbacks Incurred|| |
As far as the extension of concept is concerned, the roles played by Chinese forensic expert plus the expert assistant might equal to that of expert witness in the common law jurisdictions. But according to Chinese laws, the identity of a Chinese expert assistant is three-fold: one is similar to the lawyer of the party; the other one serves as a witness of the parties concerned; and the third one is akin to a party in trial. This confusion in the expert assistant's identity has led to many drawbacks.
Should the expert assistant be allowed to cross-examine the forensic expert?
The issue of forensic examination and the forensic expert's testifying
In China, forensic examination can be divided into three types: the first one is usually initiated by the private prosecutor in criminal proceedings or the plaintiff in civil proceedings, as a litigation right of the parties, with the selection of forensic institutes and the providing of materials entirely subject to the parties. The second one is unilaterally appointed by the investigation and procuratorates to resolve specialized issues in a case. The third one is designated by the court, or initiated under the application by the parties to the court. In generally, the selection for a forensic institute should be agreed on by the two parties. Otherwise, it is up to the judge to designate one or randomly choose one from the list of forensic institutes provided.
Regarding the rules on the forensic expert's testifying, Paragraph 3 of Article 192of the PRC Criminal Procedure Law stipulates that “Where the prosecution or a party or the defender or litigation representative thereof raises any objection to a forensic expertise, the forensic expert shall testify before court if the people's court deems it necessary. If the forensic expert refuses to do so after being notified by the people's court, the forensic expertise may not be used as a basis for deciding the case.” And Article 78 of the PRC Civil Procedure Law stipulates that “Where a party raises any objection to a forensic expertise or a people's court deems it necessary to require a forensic expert to testify, the forensic expert shall testify. If, upon notice by the people's court, the forensic expert refuses to testify, the forensic expertise shall not be used as a basis for deciding facts …”
In sum, there are three important conditions for the forensic expert's testifying: (1) the existence of an objection to the forensic expertise; (2) the necessity to testify deemed by the court; and (3) the forensic expertise will be excluded if the forensic expert refuses to testify upon notice by the people's court.
Is the expert assistant capable of cross-examining the forensic expert?
The relationship between the expert assistant and the forensic expert in trial is usually established when the former give objections to the latter's opinion. Paragraph 4 of Article 61 of the Supreme People's Court Provisions on Evidence in Civil Procedures in 2001 stipulates that “The persons with specialized knowledge may examine the forensic expert.” Obviously, “examine” here refers to the cross-examination of the forensic expert, which would inevitably confuse the expert assistant's role in proceedings with that of the lawyer.
To avoid this obvious confusion, evidence rules provided in Article 79 of the PRC Civil Procedure Law promulgated after 2012 neither used the concept of “examine,” nor took “the forensic expert” as the target of inquiry. Instead, it regulated that “A party may apply to the people's court for notifying a person with specialized knowledge to appear to offer an opinion regarding a forensic expertise issued by a forensic expert or regarding a specialized issue.” Paragraph 2 of Article 197of the PRC Criminal Procedure Law similarly provides that “The prosecution or a party or the defense counsel or litigation representative thereof may request the court to call a person with specialized knowledge to appear to offer an opinion on the forensic expertise.” However, in trial practice, that the expert assistant to appear “to offer an opinion on the forensic expertise” is generally regarded by the judge as “cross examination in court,” which is well demonstrated by Paragraph 2 of Article 27 of the Supreme People's Court Rules on Court Investigations under General Procedures in the First Instance of Criminal Cases, that “…Should theforensic expertise be made by a number of forensic experts, both the forensic expert and the person with specialized knowledge who will cross-examine the forensic expert can appear in court at the same time.…” As for how such kind of cross-examination is conducted, there are two scenarios in practice as follows:
The first one is where the expert assistant is responsible for cross-examining the forensic expert. For example, in a civil case in the Long you County court of Zhejiang Province in 2013, three expert assistants appeared and “cross examined the forensic expert on what they considered to be problematic,” and the forensic expert “responded in court to the cross-examination by the expert assistants and the party concerned.” In this scenario, the expert assistants, unlike the lawyer, had never received systematic legal training, not to mention the training on cross-examination. One can imagine the effects of their cross-examination. To make things worse, what the expert assistants did was beyond their duty and ability.
The other scenario is where the lawyer of a party direct-examines the expert assistant, in efforts to guide the expert assistant to refute or confront against the forensic expertise of the other party. For example, in the final trial of the Nian Bin case and the second trial of the Lin Senhao's poisoning case, when the expert assistant appeared, it was the defense lawyer who, by way of direct examination, guided the expert assistant to offer objections to the forensic expertise. In this scenario, the expert assistant actually returned to his or her role of the expert witness, with the cross-examination job falling on the shoulder of the lawyer.
Is the expert assistant a witness of the parties, or simply the parties?
Is the expert assistant a lay-witness of the parties?
On the relationship between the expert assistant and the parties concerned, Paragraph 2 of Article 61 of the Supreme People's Court Provisions on Evidence in Civil Procedures stipulates that “The judges and parties concerned may interrogate the persons with specialized knowledge that appear at trial.” Article 215 of the Supreme People's Court Interpretation of the PRC Criminal Procedure Law stipulates that “Where it is necessary, judges may interrogate the witness, the forensic expert, and the persons with specialized knowledge.” Paragraph 3 of Article 217 stipulates that “The appearance of persons with specialized knowledge should follow the same regulations on the forensic expert's appearance.”
The above regulations could be inferred that the expert assistant acts as a role of witness. Here, the expert assistant, the witness, and the forensic expert are all the objects of inquiry. This role of a witness has also been highly recognized by legislators. For example, in the Amendment to the Criminal Procedure Law (Draft) in 2011, Article 159 of the 1996 Criminal Procedures Law was amended into Article 191 and an additional paragraph was added, regulating that “The prosecution or a party or the defender or litigation representative thereof may request the court to call a person with specialized knowledge to appear as witness, to offer an opinion on the expertise of an forensic expert.” however, this amendment was not finally accepted by the 2012 Amendment to the Criminal Procedure Law.
Obviously, there lies a serious problem in the “Draft” mentioned above: If an expert assistant is regarded as witness, the concept of “the forensic expert” should not be adopted. Both are advised to be replaced by the concept of “expert witness.” Otherwise, a more serious conceptual confusion may occur. The reason is that, compared with lay witnesses who testify based on their “personal knowledge,” expert witnesses are special “witnesses” who testify based on their “specialized knowledge,” As lay witnesses are not allowed to offer their opinions as testimony, expert opinions are precisely exceptions to the opinion rules. Therefore, the idea that regards the expert assistant as witness and suggests that the expert assistant shall appear to confront with the forensic expert has gone to another extreme by neglecting the differences between lay witness and expert witness.
Is the purpose of the expert assistant's appearance to confront the opposing forensic expert?
In the civil law jurisdictions, confrontation not only occurs between the defendant and the witness, but also between witnesses. For example, Paragraph 2 of Article 58 of the German Code of Criminal Procedure stipulates that “A confrontation with other witnesses or with the accused in the preliminary proceedings shall be admissible if this appears necessary for the further proceedings.” Article 338 of the French Code of Criminal Procedure also contains provisions concerning the confrontation with witnesses.
However, without distinguishing expert witnesses from lay witnesses, Paragraph 3 of Article 61 of the Supreme People's Court Provisions on Evidence in Civil Procedures in 2001 provides that “Upon the approval of the People's court, the persons with specialized knowledge as applied for by each party concerned may confront on the issues concerned in the case.” Paragraph 1 of Article 123 of the Supreme People's Court Interpretation of the PRC Civil Procedure Law in 2015 adopted this rule by stipulating that “Persons with specialized knowledge, respectively, applied for by the parties may confront on the issues concerned in the case.” There are also cases where the court organizes expert assistants and forensic experts to “confront” in the trials.
The problem with the above provisions and cases is that the requirement of confrontation on the witness's personal knowledge and opinion evidence property of expert testimony are both neglected. Precisely because different witnesses witnessed the occurrence of the same event, and gained their personal knowledge of that event, it is necessary to verify their testimonial characteristics face-to-face, including whether their observation is accurate and have their memories any fault, whether they are honest, and is there any ambiguity in their statements, etc. “The so-called right to contact “face-to-face” includes: (1) the defendant's right to observe the witness in the trial, and (2) the defendant's right to make witness watch him or her.” Here, the mutual watch permits the defendant to directly observe the witness's speech and behavior, puts down psychological pressures on the witness to testify honestly, and also helps the fact-finder to evaluate the credibility of the testimony, thus meets the requirement for impeaching the four qualities of direct knowledge demonstrated by the “testimonial triangle” theory.
In contrast, expert testimony is precisely a kind of opinion evidence. Opinion evidence rules that prohibit witnesses from offering their opinion testimony on factual issues are not applicable to the testifying of expert witnesses. Different experts (the forensic expert or the expert assistant) might draw different conclusions from specialized issues even when their inferences are based on the same specialized knowledge (scientific principles and methodologies). The reason is that scientific reasoning is creative. Squarely different from the confrontation with lay witnesses based on their personal knowledge, an expert may doubt with another's theories, methods, and conclusions, a scenario where the “testimony triangle” theory is rarely applicable. Therefore, “conflicts between opposing experts” is inevitable. “In two-thirds of the trials with expert testimony (57% of all trials) there were opposing experts in the same general area of expertise-most often, opposing medical experts. Similarly, for over two-thirds of the appearances by expert witnesses, there were opposing experts in the same general area. Again, such conflicts were particularly common for medical witnesses--their testimony was opposed by other medical witnesses 78% of the time. In sum, most expert witnesses were disputed by similar experts for the opposing side, and most juries had to resolve such disputes.” Obviously, if expert assistants were allowed to compete with forensic experts in confrontation, the trial court might turn into an academic forum with endless debates on lots of issues, which deviates from the judicial nature of trial finality.
Should opinions of expert assistants be deemed as statements of the parties?
The confusion in the identity of the expert assistant is also reflected in Paragraph 2 of Article 122 of the Supreme People's Court Interpretation of the PRC Civil Procedure Law in 2015, which stipulates that “Opinions proposed by persons with specialized knowledge in court on the specialized issues shall be deemed as statements of the parties.” This rule is highly debatable. First, opinions by persons with specialized knowledge and statements of the parties are different in knowledge foundation. Statements of the parties refer to statements of witnesses based on their personal knowledge of the case; opinions of expert assistants, in contrast are conclusions of their study on specialized issues, or opinions derived from scientific inferences. Second, both also differ in their positions. Expert assistants are required to be objective and netural, “adhere to the principle of objectivity and impartiality”, while the parties have interests to offer evidence for their claims, with their statements highly subjective, self-interests driven, and not supposed to be cross examined in court. Third, the legal consequences are different when they refuse to testify. According to Paragraph 2 of Article 75 of the PRC Civil Procedure Law, which provides that “The deciding of facts of a case by a people's court based on evidence shall not be affected by a party's refusal to provide a statement,” if opinions of expert assistants are regarded as statements of the parties, a dilemma would be encountered, where, is it a must for opinions of expert assistants to be cross-examined, or should expert assistants be allowed for a refusal to offer statements?
| The “lin Senhao's Poisoning Case” and the Dispute over the Nature of the Expert Assistant Opinion|| |
Introduction of the “Lin Senhao Case”
The No. 2 Branch of Shanghai Municipal People's Prosecution Service accused that the defendant Lin Senhao and the victim Huang Yang were both master students majored in medicine of the Shanghai Medical College of Fudan University and had been living in the same dormitory since August 2011 with an inharmonious relationship. In mid-March 2013, Huang Yang topped the list of PhD Graduate Entrance Examination of the university, while Lin Senhao, for some reason, failed to apply for the examination. On March 31, Lin Senhao took the reagent of DMN (short for “dimethyl nitrosamine,” a highly toxic chemical) out from the laboratory and injected it into their water dispenser when no one was in the dormitory. In the morning of April 1, when Lin and Huang were both in the dormitory, Huang Yang got poisoned after he took and drank the water from the water dispenser where Lin Senhao previously injected DMN, and died finally in hospital on April 16 after an ineffective rescue. The forensic examination showed that Huang Yang's death was consistent with the symptoms of multiple organs (liver and kidney, etc.) injury and functional failure caused by DMN poisoning.
The defendant Lin Senhao argued that, he committed poisoning just out of the motivation to play a trick on Huang Yang on April Fool's Day and thus had no intention to kill Huang. The defense lawyer did not disagree with the accusation in the indictment that Lin committed the crime of intentional homicide, but defended that Lin did so with an indirect intention and confessed his crime truthfully, thus suggested that a lighter punishment should be given to him according to the PRC Criminal Law.
The fact ascertained by the court of the first instance was as followed: the defendant Lin Senhao committed the behavior of intentional poisoning for venting his anger, resulting in the death of the victim Huang Yang, and thus constituted the crime of intentional homicide. Neither the defendant's argument that he had no intention of killing, nor the defender's defense opinion that Lin committed the homicide with an indirect intention, was consistent with the facts found by this court, thus both of them were inadmissible. According to the criminal law, the defendant Lin Senhao was sentenced to death for his crime of intentional homicide. If the defendant refused to accept the verdict, he enjoyed a right to appeal.
In the second instance of the case by the Shanghai High People's Court in December 2014, the expertise by the forensic expert on the cause of Huang Yang's death was “in line with the symptoms of a secondary failure of multiple organs caused by acute hepatic necrosis, which resulted from DMN poison caused acute liver failure,” Hu Zhiqiang, a medical examiner who served as an expert assistant for the defenseside, argued in court that the cause of Huang Yang's death was “fulminant viral hepatitis type B caused acute hepatic necrosis, and multiple organs failure.” Besides, according to the current pathological examination report, the verdict that Huang died of poisoning was lack of evidence support, and it was not “objective and scientific” to determine that his death was due to the specific DMN poisoning.
The prosecutor refuted the expert assistant opinion by arguing that Hu Zhiqiang did not participate in the autopsy, whose conclusion was thus mainly based on documents, reports, etc.
The judge decided that the opinion of the expert assistant Hu Zhiqiang did not belong to the forensic expertise as is regulated in the Criminal Procedure Law; it shall be used as a cross-examination opinion on the forensic expertise and cannot alone be taken as a basis for deciding facts in the case.
What is the nature of the expert assistant opinion?
That the expert assistant opinion was not accepted by the court of second instance for “Lin Senhao's poisoning case” aroused a debate over the nature of the expert assistant opinion. To sum up, about three viewpoints regarding the nature of expert assistant opinion have been developed, namely, (1) merely “a method of cross examination,” (2)“forensic expertise,” and (3)“witness testimony.”
The first viewpoint best fits the current regulations. According to Paragraph 2 of Article 197of the PRC Criminal Procedure Law, the task of an expert assistant to appear at trial is “to offer an opinion on the expertise of a forensic expert.” It is precisely a correct application of the above provision that the judge of the second instance court of “Lin Senhao Case” excluded the opinion of the expert assistant on the ground that the opinion “should be used as a cross-examination opinion on the forensic expertise.” However, the problem is that confining the expert assistant opinion to a method of cross examination, simply for impeachment purposes, would fall into the following predicament: The opinion of the expert assistant, even if admitted by the court, might at most bring about the inadmissibility of relevant forensic expertise; while it is more likely a case that the expert assistant opinion, as in the “Lin Senhao Case,” would not be accepted by the judge, and thus have no substantial impact on the verdict.
The second viewpoint regards opinion of the expert assistant as the forensic expertise, which also seems unreasonable. As was doubted by the prosecutor of the “Lin Senhao Case” over opinion of the expert assistant that “Hu Zhiqiang did not participate in the autopsy, whose conclusion was mainly based on documents, reports, etc.,” in a nutshell, if an expert assistant has not participated in forensic examination, how can his or her opinion be treated equally with a forensic expertise? The implication is that opinion of the expert assistant can only be used as a reference in fact-finding, rather than as a basis for deciding facts in a case.
The third viewpoint that regards opinion of the expert assistant as testimony of witness, to some extent, is reasonable. What must be clarified is that there are two kinds of “witness:” one is lay-witness or eyewitness, which means a person who “has direct or personal knowledge of the fact in the case” and testifies only based on what he or she perceived by senses, instead of providing an opinion. The other kind is expert witness, such as a forensic expert, expert assistant, etc., who may provide expertise based on their own specialized knowledge or skill. Were this not distinguished, there would appear the biased notion mentioned above that the expert assistant can confront against the forensic expert, or the opinion of an expert assistant would even be mistaken for statement of a party.
| Issues Related to the Transition from Expert Assistant Opinion Towards Expert Testimony|| |
Paragraph 1 of Article 15 of the Supreme People's Court Interpretation of the Law in the Conduct of Environmental Civil Public Interest Litigations in 2015 stipulates that “Where a party applies for notifying a person with specialized knowledge to appear to offer an opinion on an forensic expertise by an forensic expert or regarding a specialized issue such as the casual relationship, …the people's court may grant such an application.” And Paragraph 2 of the same Article stipulates that “The cross-examined expert opinions as prescribed in the preceding paragraph may be taken as the basis for determining facts.” For the reason that environmental public interest litigation would constitute criminal allegations in civil cases, the provisions above actually go beyond the limits of Paragraph 2 of Article 197of the PRC Criminal Procedure Law, which regulates that the expert assistant should be confined to “offer an opinion on the forensic expertise.” Article 26 of the Supreme People's Court Rules on Court Investigations under General Procedures in the First Instance of Criminal Cases in 2018 also stipulates that “A person with specialized knowledge may appear concurrently with a forensic expert, to question him or her after the forensic expert testifies, and to offer an opinion regarding a specialized issue in the case.” So far, the scope of expert assistant opinion, in both civil and criminal proceedings, is no longer limited to the scope of the other party's forensic expertise, which also extends to other specialized issues in the case.
The significance of the provisions above is that the expert assistant is on equal terms with the forensic expert in litigation status and his or her opinion also has equal evidential effects with that of the forensic expertise, which is rather similar to the expert testimony stipulated in Rule 702 of the Federal Rules of Evidence. It is in this sense that we argue that the role of Chinese “expert assistant” presents trends of a shift towards that of “expert witness” in the common law system and has adapted to the need for “scientization of factual inquiry.” This role transition also raises new theoretical and practical issues as followed:
The implementation of direct-examination and cross-examination rules
According to the analysis of Dr. Yang Tao, in the trial of “Lin Senhao's Poisoning Case,” it is by direct-examination that the defense lawyer guided the expert assistant to offer his opinion on the forensic expert opinion. After the expert assistant withdrew from the court, the forensic expert appeared and refuted the expert assistant's doubts on his forensic expertise. “With this arrangement, it is easy for people to believe that the object and focus of the court investigation at this stage is the expert assistant opinion, rather than the forensic expertise.” Hence, Dr. Yang suggested a sequential rule for the expert assistant appearance: (1) the expert assistant offers his opinion on the forensic expertise; (2) the expert assistant examines the forensic expert; (3) at the request of the defender and then with the permission of the court, the expert assistant may examine the investigators and technicians, who are responsible for the extraction, custody and inspection of the physical evidence; (4) the prosecutors and the forensic expert may cross-examine the expert assistant; (5) judges of the collegial panel may examine the expert assistant; (6) when the above procedure of examination is over, the judges should announce the withdrawal of the expert assistant and the forensic expert from the court.
The ordering rules above were designed according to the traditional role of the expert assistant and still deeply influenced by the “blind belief” in scientific evidence. Hence, they are not only trivial, peculiar, but also contradicts with Article 26 of the Supreme People's Court Rules on Court Investigations under General Procedures in the First Instance of Criminal Cases, which regulates that expert assistants shall “assist his or her party in cross-examining the forensic expertise for the other party.” It should be noted that the “specialized knowledge” of expert assistants and forensic experts is not legal knowledge. Allowing them to examine each other in court is not only difficult to be regulated by law but also trespasses the litigation role and responsibility of lawyers. Nowadays, the training for forensic experts and expert assistants on cross-examination is precisely a reflection of this confusion in roles, which no doubt will have an embarrassing result. In fact, all these problems could be easily solved, as long as the role of an expert assistant is returned to that of an “expert witness.” Citing a metaphor from the Bible, we should “give to Caesar what is Caesar's, and to God what is God's.” As long as the role of expert assistant is recognized as “expert witness,” according to the production and cross-examination order for expert witnesses from the prosecution and the defense, respectively, the direct-examination and cross-examination rules could be applied. The shift of the expert assistant's role toward that of expert witness is also of great significance for advancing the substantiation of court trial, though it will absolutely bring about new requirements for the training of lawyers' cross-examination skills.
New requirements for improving the admissibility rules of scientific evidence
In addition to the fact that the expert assistant opinion didn't meet the form requirements for forensic expertise provided by the PRC Criminal Procedure Law, the reason why the expert assistant opinion on the cause of the victim's death in “Lin Senhao Case” was excluded by the judge of second instance court was apparently influenced by the prosecutor's objection that “Hu Zhiqiang did not participate in the autopsy, whose conclusion was mainly based on documents, reports, etc.” Some scholars called the “person with specialized knowledge” as “non-forensic expert,” and held that “the non-forensic expert in China possesses dual features of being both an expert assistant and an expert witness.” Other scholars argued that “compared with the strict process and final report writing involved in producing forensic expertise, the production of expert assistant opinions is relatively more causal and shows greater randomness.”
In fact, nor does Federal Rules of Evidence 702 (Testimony by Expert Witnesses) have the regulation that experts themselves shall do the job of forensic examination before providing their expert testimony. Nevertheless, whether they participate in forensic examination would obviously affect reliability of expert testimony. And probably for this reason, Professor Capra proposed to revise the original FRE702 to Rule 702(a) Testimony by Expert Witnesses “In General,” and add Rule 702(b) “Forensic Expert Witnesses,” regulating that “If a witness is testifying on the basis of a forensic examination (conducted to determine whether an evidentiary sample is similar or identical to a source sample), the proponent must prove the following in addition to satisfying the requirements of Rule 702(a): (1) the witness's method is repeatable, reproducible, and accurate – as shown by empirical studies conducted under conditions appropriate to its intended use; (2) the witness is capable of applying the method reliably and actually did so; and (3) the witness accurately states the probative value of (the meaning of) any similarity or match between the samples.”
Were the rule modified as above, according to Rule 702(b), forensic expert witness shall prove the repeatability and accuracy of the forensic examination method, the reliable application of the method, as well as the accurate description of the meaning of the forensic expertise. Obviously, to realize the role transition from expert assistant towards expert witness in China, it would be necessary to have a deeper study on the relationship between ordinary expert witnesses and forensic expert witnesses, as well as a series of other complex issues such as the principle of test material distribution between the two parties' forensic expert witnesses, and learn from the latest achievements of foreign legislations and legal research.
| Conclusion|| |
- The role transition from an expert assistant to an expert witness is driven by the inherent contradictions within Chinese forensic expert system characterized with “the forensic expert and the expert assistant,” and is regarded as the best solution to the predicaments of proof and evidence admissibility in using scientific evidence
- The basic requirements for the role transition from the expert assistant to the expert witness are as followed: One is to achieve an equal litigation status between an expert assistant and an forensic expert, as well as an equal evidential effects between expert assistant opinions and forensic expertise; the second is to return the duty of cross-examination, which was unreasonably imposed on the expert assistant, to the lawyer, and change an expert assistant's role to that of an expert witness; the third is to implement rules of direct-examination and cross-examination, especially to strengthen the lawyer's cross-examination ability
- With the role transition from the expert assistant to the expert witness, the difference in the reliability between testimony of expert assistants and that of forensic experts has put forward demands for improving the admissibility rules of scientific evidence.
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Conflicts of interest
There are no conflicts of interest.
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