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 Table of Contents  
REVIEW ARTICLE
Year : 2016  |  Volume : 2  |  Issue : 1  |  Page : 33-38

Practical Straits of the Forensic Examination in China


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

Date of Web Publication3-Feb-2016

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


DOI: 10.4103/2349-5014.175615

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  Abstract 

With the revision of the Criminal Procedural Law of the PRC and the Civil Procedural Law of the PRC in 2012, it has entered a new historical stage of litigation system and made significant progress in forensic examination system in China. However, for a long time, the illegal forensic examinations have been commonly seen in forensic practice, the right to start the forensic examination process only lies with public security and judicial authorities, while the parties only have the limited right to apply for supplementary forensic examination or re-examination. To the problem of experts' refusal to appear in court to testify, the Criminal Procedural Law and the Civil Procedural Law have further improved the expert testimony system, but the situation has not fundamentally changed. To compensate for judges' lack of knowledge of professional issues, the expert advisor system is introduced, but there are no workable rules. Besides, judges depend too much on and accept the expert opinions blindly become a common phenomenon in the proceedings.

Keywords: Expert advisor, expert opinion, forensic examination


How to cite this article:
Zhang Z. Practical Straits of the Forensic Examination in China . J Forensic Sci Med 2016;2:33-8

How to cite this URL:
Zhang Z. Practical Straits of the Forensic Examination in China . J Forensic Sci Med [serial online] 2016 [cited 2020 Nov 24];2:33-8. Available from: https://www.jfsmonline.com/text.asp?2016/2/1/33/175615


  Introduction Top


With the progress of science and technology, more and more cases need to prove facts by high-tech means. [1] According to statistics of judgments made by the court of some cities, at present, almost all criminal cases involve scientific evidence and forensic examination, and this trend has been enhancing by years. [2] As scientific evidence has become a new generation of "king of evidence," [3] the scientificity and standardization of forensic examination has attracted more and more attention. With the revision of the Criminal Procedural Law of the PRC and the Civil Procedural Law of the PRC in 2012, it has entered a new historical stage of litigation system and made significant progress in forensic examination system in China.

First, it has improved types of evidence and changed "expert conclusion" to "expert opinion," which can achieve more accurate positioning of properties of evidence and meet essential characteristics of forensic examination in judicial proceedings. [4] It suggests that an examination result is only the expert's personal opinion but not the final arbiter conclusion. The change has enhanced judge's role in investigation and verification to the forensic examination results, which means "the end of the era of representation" [5] and a grasp of scientificity of forensic examination. [6]

Second, it has standardized the expert testimony system. If the parties concerned has an objection to the expert conclusion or the court thinks it is necessary for the expert to appear in court, the expert shall appear in court to testify. If the expert refuses to appear in court to testify upon the court's notification, the expert opinion may not be used as the basis for fact-findings. To eliminate experts' scruple about testifying, legislation adds an expert protection system and sets the same specific protection measures as ordinary witnesses.

Third, it has established an expert advisor system. During a court hearing, the parties may request the court to notice a person who has the expertise to appear in court to give opinions about the expert opinion or about professional issues. The expert advisor system is considered to be "the only way of correctly adopting expert conclusion," [7] as it changes the situation where the expert rules the roost in exert opinion and to a large extent compensates for lack of knowledge of the prosecutor and the defender as well as the judicial officers.

Nevertheless, it is undeniable that the forensic examination system in China is not perfect, for example, in management system, codes of conduct, technical standards, use of evidence, and legal liability. In particular, due to the diversified examination systems and the trend of "privatization" of examination institutions, [8] forensic examination has deviated from the principles of public benefit, neutrality, and scientificity, [9] and low-quality expert opinions can be seen in various litigation activities. This has led to multiple-authority and repeated examinations. Therefore, it needs to further develop and improve the forensic examination system in China.

Grand Justice Shen, Executive Vice-President of the Supreme People's Court, pointed out that, "in study and improvement of the evidence system, China should consider national conditions and draw lessons to explore an evidence system aligned to national conditions. Furthermore, it should study and actively learn experience from other countries." [10] China's forensic examination system is different from Western countries' expert witness system. For improvement of China's forensic examination system, the first consideration is the country's forensic practice. In view of this, the study Evidence Law Development Index of China which was conducted in 2013 regards forensic examination as a primary indicator to be inspected, including forensic examination management system, qualification of forensic examination institution and expert, forensic examination procedure and methodology, right to start forensic examination for the parties, expert and expert advisor testimony and judge's review and judgment on scientific evidence. From September 1, 2013 on, the study made a 4-month survey on cases where court evidence regulations apply at 10 courts in China. In addition to questionnaires for 750 respondents, it also involved symposia, interviews, attending trials, and collecting written data, to survey implementation of the forensic examination system and explore applicability of expert opinion. This study touched upon implementation of forensic examination especially new situation and new problems in practice, providing a practical foundation for improvement of the forensic examination system in China.


  Illegal Forensic Examinations are Very Serious Top


For a long time, illegal forensic examinations have been commonly seen in forensic practice in China, which has seriously affected probative value of expert opinion and weakened people's confidence in scientific evidence. This has to a large extent been confirmed by the above-mentioned study. Commonly, illegal forensic examinations include:

  • Forensic examination institutions initiatively "grab cases" from the court to tout forensic examination services by illegal means, such as false advertising, promising to give back "referral fees." The survey shows that there are 5.1% of the judges "often" encounter such a situation, and 22.1% of the judges said that such problems occasionally occur
  • The parties "buy" forensic examination, and the experts do "personal examination" as the forensic examination supervision and management mechanism is still not perfect, forensic examination largely relies on self-regulation of the industry, and there is a lack of rigid regulations. Some practitioners may set aside their judicial position for bribery or personal relationships. [11] The government has been cracking down on provision of examination services for bribery or personal relationships, [12] but such problems can still be common. In the survey, 50.6% of the judges said there may be provision of forensic examination services for bribery or personal relationships in their cases
  • Expert opinions may still be adopted even though the experts and the forensic institutions do not have the legal authorization. The forensic examination institutions' operation beyond the statutory scope will lead to the disability of expert opinion evidence. [13] In the survey, 37.1% of the judges said they experienced that the experts and the forensic institutions perform forensic examination beyond the scope of their authorization during the review of expert opinion. One more serious problem is that 38.4% of the judges would adopt expert opinions issued by unqualified experts or the forensic examination institutions
  • The forensic examination process does not comply with the technical standards and technical specifications of the relevant areas of expertise. Many judges, in the review of expert opinion, often encounter the problem with illegal operations of forensic examination personnel. The probability that submissions do not meet the forensic examination requirements is 55.6%; the probability that the forensic examination process is not recorded in real time or signed is 40.1%; the probability that experts shall avoid arousing suspicion but fail to do so is 30.2%; the probability that expert opinions are nonstandard in form, content, signature or seal is 51.0%; and the probability that experts does not comply with technical standards or technical specifications for relevant areas in forensic examination is 42.4%.
The forensic examination institutions or experts intentionally make forensic false examination but are not necessarily be punished. In accordance with Article 13 of the Decision of the Standing Committee of the National People's Congress on Administration of Forensic Examination (hereinafter referred to as the Decision on Administration of Forensic Examination), if an expert intentionally makes a false forensic examination, which constitutes a crime, the expert shall be investigated for criminal responsibility; if it does not constitutes a crime, the expert shall be given penalty as the circumstances may require, such as warning, order to make corrections and deregistration. In the survey, the probability that experts or forensic examination institutions are punished for intentionally making false forensic examination is only 44.6%; and the actual probability is only 10.7%. The real-world situation is even worse. According to statistics, in 2013, China's judicial administrative authorities at all levels received a total of 1436 complaints about forensic examination, and only 36 or 2.5% of them involved administrative penalty. [14]


  The Parties Concerned have no Right to Start Forensic Examination Process Top


In criminal proceedings, the right to start the forensic examination process only lies with public security and judicial authorities. In accordance with Article 144 of the Criminal Procedural Law, in an investigation, when any professional problem in the case needs to be solved, the public security organ may assign or engage a professional to conduct a forensic examination. In accordance with the second paragraph of Article 191, when the court conducts evidence investigation, it also may conduct a forensic examination. However, the parties concerned have no right to start the forensic examination procedures or right to choose an expert; they may only apply for supplementary forensic examination or re-examination when they refuse to accept the expert opinion. This not only breaks the balance between the two parties in adversarial trial, but also leads to deviations from legitimacy of the forensic examination system. [15] In this regard, many scholars have suggested that, "China should introduce the adversarial spirit from the law systems of Western countries, to stipulate that both parties shall be free to delegate an expert without approval of the judge." [16] In particular, this voice has been even louder since the "Case of Xinghua Qiu" is taken in 2006.

Nevertheless, the Criminal Procedural Law did not make any modifications on this regard. Most powers of the right to start the forensic examination process lies with investigation authorities, and the parties only have the limited right to apply for supplementary forensic examination or re-examination. Such a system design easily leads to suppression of rights of the defense. On the other hand, there is a lack of restriction mechanism for the investigation authority's or the public prosecution organ's right to start the forensic examination process, and there is a doubt whether the principle of impartiality can be followed. [17] Besides, legislation gives courts the right to be free to start the forensic examination process, which is contrary to the neutrality requirement for judicial power and inconsistent with the current trial mode. [18]

Relatively, the civil parties concerned have greater autonomous right to start the forensic examination process. The first paragraph of Article 76 of the Civil Procedural Law provides not only have the right to apply for the forensic examination but also have the right to negotiate determination of expert for both parties. However, the Civil Procedural Law does not allow any party concerned to unilaterally start the forensic examination procedures, and it stipulates that the court delegates forensic examination ex officio, which is identified that "it substantially helps one party to supplement evidence, which is unfair for the other party." [19]

In the survey, judges varied in opinions about the right to start the forensic examination process for the parties. 16.9% of the judges held that the status quo should be maintained; and only 14.1% believed that suspects and the accused should have the full autonomous right to start the forensic examination process. Most of the judges thought the existing forensic examination starting mode should be reformed but they varied in specific reform plan. 34.7% of the judges held that the prosecutor and the defender should enjoy only the right to apply for the forensic examination and that the right to decide forensic examination should lie with courts; and 24.1% believed that public security and judicial authorities' right to decide forensic examination should be restricted on the basis of the existing forensic examination starting mode.


  Experts' Refusal to Appear in Court to Testify is Common Top


Experts' refusal to appear in court to testify was once considered to be the problem that is "the most prominent and most difficult to solve" in the field of forensic examination in China. [20] The problem has been there for a long time. According to a survey made by Jiangsu Province made in 2001, the proportion of cases that expert appears in court to testify was <1%. [21] As the expert does not appear in court, only a written expert opinion is read for court investigation. [22] Both the Decision on Administration of Forensic Examination and the Regulations on Evidence of Death Penalty Cases clearly stipulate experts' obligation to appear in court to testify, but the implementation is not ideal.

To prevent "junk science" from straying into court, the Criminal Procedural Law has further improved the expert testimony system, providing rules for exclusion of expert opinion, measures to force experts to appear in court to testify and corresponding sanctions in addition to reaffirming experts' obligation to appear in court to testify. If the prosecutor, the prosecutor, any parties or their agents have any objections to the expert opinion or the court thinks it is necessary for the expert to appear in court but the expert refuses to appear in court to testify upon the court's notification, the expert opinion may not be used as the basis for a decision on a verdict; if the witness fails to appear in court to testify upon the court's notification without a justified reason, the court can force he/she to appear in court. In serious cases, a detention of 10 days or less may apply. Besides, the Civil Procedural Law adds experts' obligation to appear in court to testify and legal consequences of experts' failure to do so, including the provision that the expert opinion may not be used as the basis for fact and examination fees shall be returned.

However, it is disappointing that the situation has not fundamentally changed with implementation of the above measures. In the survey, in the past 3 years, the proportion of cases that expert appears in court was only 25.9%; and 36.5% of the judges even said the proportion was <5%. As the expert does not appear in court to testify, the expert opinion cannot be strictly reviewed by the prosecutor or the defender or regulated by court proceedings. In this case, scientificity, accuracy and reliability of the expert opinion are almost totally determined by the expert's competence, professionalism and ethics, and thus it is difficult for science and technology to give play to its evidentiary value in litigation. [23]

It is generally believed that the reason why experts refuse to appear in court to testify is that they are worried about retaliation, and there are indeed many cases that experts are threatened or injured by the parties concerned. [24] According to the survey, however, the main reason why experts refuse to appear in court to testify is legislation. 81.6% of the judges thought the inadequateness of regulations on adverse consequences of experts' refusal to appear in court to testify has caused the problem. Moreover, reasons also include unsound protection of experts and lack of support for fees for experts' appearance in court to testify. In this regard, some scholars have suggested that regulations on payment of fees for experts' appearance in court to testify should refer to the regulations on payment of fees for witnesses' appearance in court to testify; otherwise, rate of experts' appearance in court to testify could not be much improved. [25]


  The Expert Advisor System Needs to be Improved Top


To strengthen cross-examination of expert opinion and compensate for judges' lack of knowledge of professional issues, the second paragraph of Article 192 of the Criminal Procedural Law adds an expert advisor system, "the public prosecutor, any party concerned or his/her agents may request the court to notice a person who has expertise to appear in court to offer opinions about the expert opinion." In addition, Article 79 of the Civil Procedural Law includes the same provision. Legislation gives both parties the right to engage expert advisor for the purpose of "ensuring that both parties can deeply understand and effectively use the influence of professional issues on the case." [26] This legislative innovation has been well accepted and supported by judges. In the survey, 70.4% of the judges made it clear that, if any parties request the court to notice an expert advisor to appear in court, they would approve the request.

For professional problems in litigation, only the peer experts can raise any substantive problem during cross-examination. The establishment of the expert advisor system to a large extent reflects the needs of development of judicial practice in China. By questioning the expert and querying the professional problem, this can effectively expose weaknesses of the expert opinion and avoid any one-sided statement. This is beneficial not only to substantiation of expert opinion evidence cross-examination procedures, but also to avoidance of judicial officers' selective listening, thus is good for judges' review and rational authentication of the expert opinion. [27]

Yet it must be recognized that the expert advisor system in China is immature. There are only the above-mentioned general provisions, while there are no other workable rules. Selection, qualification, litigation status, rights, and obligations of expert advisors and effectiveness of their expert opinions need to be further standardized.


  Judges Depend too much on and Accept the Expert Opinions Blindly Top


Compared with other evidences, the expert opinion has the advantage that it has a high technical content. When an expert opinion is submitted to the court as evidence, it is generally considered to be a correct conclusion drawn by an expert through scientific computation by using expertise and precision instruments and even "the product of combination of science and technology with judicial activities". [28] As expert opinions are regarded to be "scientific," there is an excessive expectation of evidentiary value in them. Judges often accept them without review. [29] A survey shows that the rate of court's acceptance of DNA evidence submitted by prosecutor reached 99.65%. [30] As effectiveness of expert opinion is exaggerated and even deified, blind acceptance of expert opinions has become a common phenomenon in the proceedings. [31]

Of course, it is not to say that judges do not make any review of expert opinions, but to say that reviews are most formalistic. In the survey, 81.3% of the judges said review of an expert opinion primarily includes whether the forensic examination institution or the expert is qualified, whether the expert opinion gets beyond the scope or competence of the forensic examination institution or the expert, whether the expert opinion meets legal requirements and whether the expert opinion is consistent with the fact of the case.

For different expert opinions about one matter, 44.6% of the judges would think that probative value of the expert opinion issued by the forensic examination institution at the higher level is better than that of the expert opinion issued by the forensic examination institution at the lower level. Besides, judges have greater trust in an expert opinion issued by the forensic examination institution or an expert entrusted by the court. If an expert opinion issued by an expert entrusted by the court conflicts with one issued by an expert entrusted by the party concerned, 61% of the judges would adopt the former as a basis for conviction.

An expert is not a rational judge, and an expert opinion is not a rational judgment. [32] The expert opinion is an important kind of evidence that plays a significant role in proving the fact of a case. However, experts' examination activities are always affected by various subjective and objective factors which may more or less affect accuracy of expert opinions. [33] Judicial officers must recognize that expert opinions have no predetermined probative force just as other evidences. [34] In fact, as long as judges can correctly understand probative value of expert opinions and treat expert opinions without prejudice by making use of common sense and experience, they can make accurate judgments about probative force of expert opinions. [31]


  Conclusion Top


Since 2012, the forensic examination administration authorities have been vigorously promoting rule of law on forensic examination and playing an important role in promoting justice, preventing miscarriages of justice, safeguarding legitimate rights and interests of the people, and keeping social harmony and stability. [35] However, it is necessary to recognize that the forensic examination system in China still has many shortcomings and problems. Identifying difficulties in and obstacles to implementation of the forensic examination system and continuously exploring solutions to them are important for further development of the forensic examination system China.

First, the administrative system of forensic examination should be strengthened; rule of law on forensic examination administration should be achieved; codes of conduct and technical standards for forensic examination should be continuously improved; and illegal forensic examinations should be eradicated.

Second, the start process of forensic examination should be improved; engagement of the parties concerned in the forensic examination starting process should be enhanced; and the parties should be given the right to start forensic examination process when conditions permit.

Third, the expert testimony system should be strengthened; experts' refusal to appear in court to testify should be strictly limited; exclusion opinions given by experts who refuse to appear in court to testify should be intensified; and measures for protection of experts should be identified.

Fourth, litigation status of expert advisors and legal attributes of expert opinions given by expert advisors should be identified; rules on selection and qualification of expert advisors should be set; rights and obligations of expert advisors should be standardized; and procedures of engagement of expert advisors in proceedings should be defined.

Fifth, expert opinion review and judgment rules for judges should be standardized; expert opinion adoption criteria should be defined; strict restrictions on supplementary examination and re-examination conditions should be implemented; judges' excessive dependence on or blind acceptance of expert opinions should be avoided; and multiple-authority and repeated examinations should be addressed.

Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.

 
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Abstract
Introduction
Illegal Forensic...
The Parties Conc...
Experts' Refusal...
The Expert Advis...
Judges Depend to...
Conclusion
References

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