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 Table of Contents  
REVIEW ARTICLE
Year : 2016  |  Volume : 2  |  Issue : 3  |  Page : 151-159

Examining Scientific Evidence in US and Chinese Courts: A Comparative Study


Department of Law, Institute of Sciences, East China University of Political Science and Law, Shanghai, China

Date of Web Publication30-Sep-2016

Correspondence Address:
Bangda Chen
Long Yuan Road No. 555, Institute of Sciences, East China University of Political Science and Law, Shanghai
China
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Source of Support: None, Conflict of Interest: None


DOI: 10.4103/2349-5014.191468

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  Abstract 

The critical examination of scientific evidence is crucial in attempting to distinguish genuine science from "junk science" and provides judges with an important basis upon which to determine the credibility of expert witnesses giving scientific evidence. From studying the law in the USA, we learn that the process for examining scientific evidence in court is based upon full discovery of the proposed evidence before trial and the availability of expert witnesses at trial to testify orally and be examined and cross-examined. Empirical studies suggest that the opportunities to critically examine scientific evidence in Chinese courts are not so freely available. Discovery is neglected, thus limiting the effectiveness of cross-examination, and current rules do not encourage oral testimony or effective cross-examination. To solve these problems, the disclosure duty should be put on the prosecution, rather than on the defendant. Scientific evidence should be discovered. Disclosure must include the basis, process, material relied upon, and methods of forensic appraisals. In the trial process, the prosecution has transferred the case file to court, where the defendant will be able to copy the scientific evidence. The neutrality of expert assistants established by article 192 of the new Criminal Procedural Law should be strengthened.

Keywords: Cross-examination, cross-examination of expert witnesses, discovery of evidence, forensic appraisals, scientific evidence


How to cite this article:
Chen B. Examining Scientific Evidence in US and Chinese Courts: A Comparative Study. J Forensic Sci Med 2016;2:151-9

How to cite this URL:
Chen B. Examining Scientific Evidence in US and Chinese Courts: A Comparative Study. J Forensic Sci Med [serial online] 2016 [cited 2020 Oct 20];2:151-9. Available from: https://www.jfsmonline.com/text.asp?2016/2/3/151/191468


  Introduction Top


The critical examination of scientific evidence is a very important way to distinguish genuine science, for example, forensic science, from "junk science;" it also provides the basis for judges to evaluate and determine the probative value of scientific evidence. However, due to the knowledge gap between scientists and laymen, finding ways to examine and to prove scientific evidence, particularly in the course of a lawsuit, remains a difficult task. The Criminal Procedural Law of the People's Republic of China (2012 Amendment) stipulates some standards regarding the procedure for examining scientific evidence. In particular, the amended regulations provide as follows: first, they clarify the circumstances under which expert witnesses must testify in court; [1] second, they stipulate the results when expert witnesses refuse to testify before court after receiving notice to attend from the people's courts; [2] third, they establish a system called "persons with expertise attending in court." [3] This last provision seeks to assist parties in the examination and cross-examination of expert forensic evidence already before the court and where appropriate, provides knowledge to challenge this evidence. In these ways, this "expert assistance" may provide further basis for judges to evaluate and accredit scientific evidence.

However, due to the lack of disclosure of scientific evidence and the lack of specific and effective rules for examination and cross-examination, the current environment for examination of scientific evidence is not so ideal in China, particularly when compared to the situation in the USA, a country relatively experienced in assessing scientific evidence in the courtroom. Through consideration of the development of processes to examine scientific evidence in US courts, we may learn and improve the process for examining scientific evidence in Chinese courts.


  An Overview of Examination of Scientific Evidence in the USA Top


The process for examining scientific evidence in US courts has two stages: first, requiring the discovery of scientific evidence (expert reports) and second, requiring experts to give their oral evidence in court subject to direct examination and cross-examination. Only by satisfying these criteria are judges regarded as able to achieve the goal of accurately evaluating scientific evidence.

The discovery of scientific evidence

The development of the discovery of scientific evidence


Before 1946, adversarial judicial theory justified litigants, who had collected their own evidence, keeping their evidence from opposing parties until it was presented at trial. To be required to disclose one's evidence to an opponent prior to trial was regarded as against the principle of adversarial fair play. [4]

In the USA, discovery of scientific evidence was developed through legislation first in civil proceedings, because if litigants do not have the opportunity to inspect an opponent's scientific evidence, they are not able to decide whether to accept or reject the basis of the expert witness's testimony. [5]

Most US states now allow judges to request a litigant who possesses scientific evidence to present the information to the opposing party, so as to narrow the focus and to address controversy over scientific evidence. This helps prevent abuse of evidence and increases the efficiency of proceedings. [6]

In the Anglo-American legal system, an indictment usually covers the cause of action, but rarely describes the fact and evidence. Thus, defendants normally have little or no knowledge of the evidence that the prosecuting attorney has acquired. This is highly unfair to the defendants. This practice has caused some problems in the judicial system. For example, scientific evidence was raised as an issue of doubt by a few defense attorneys; both parties cannot quickly define the issue of controversy over scientific evidence. As a result, examining scientific evidence would be a waste of time in the criminal proceedings. To solve these problems, the investigation of scientific evidence was extended to criminal proceedings. The Federal Rules of Criminal Procedure amended in 1946 stipulate that the prosecution and defense are required to disclose scientific evidence, including the reports of examinations and tests, and the expert witnesses to be called. Rule 705 of the Federal Rules of Evidence also stipulated the provision of facts and data by expert testimony. For example, in a murder case, an expert may be required to disclose the mass spectrogram he used for toxicological analysis.

The development of disclosure of scientific evidence was one reflection of the development of adversarial litigant theory. The Fifth and Fourteenth Amendments to the US Constitution concerning due process give defendants the right to obtain information favorable to them from the government. Trial should resolve the disputes of both parties based on the facts of the case. The impartiality of judgment depends on finding out the truth of a case, rather than the abuse of skills. [7] Article 16 of the Federal Rules of Criminal Procedure enlarged the scope of evidentiary disclosure and adjusted the discovery duties from the "one-way street" disclosure, meaning only the prosecution has the duty to disclose evidence, to the "two-way street" disclosure, meaning both parties have the duty to disclose evidence.

The pros and cons of disclosure of scientific evidence

The purpose of disclosure of scientific evidence is to make sure that both parties understand scientific evidence in the pretrial process, so they can evaluate its competency and probative value, and prepare for the litigation or the plea bargain.

The disclosure of scientific evidence has the following functions: first, the detailed disclosure of scientific evidence prevents prosecuting attorneys from abusing the scientific evidence provided by experts, and thereby helps them to find out the truth; [8] second, the disclosure of scientific evidence works just like a quality control mechanism, because it urges the expert witnesses to obey the procedural rules strictly and deliver the forensic appraisals seriously so that expert testimony can withstand peer review; third, by obtaining disclosure, opposing litigants are able to consult their own expert witnesses, who can help them to prepare for cross-examination and promote effective presentation. [9],[10]

However, opponents argue that the disclosure of scientific evidence encourages expert witnesses to commit perjury and encourages defendants to bribe or threaten expert witnesses, making the current reluctance of experts to testify before a court even worse. The Fifth Amendment to the US constitution grants defendants the privilege against self-incrimination. This gives rise to one-way disclosure, meaning only the prosecuting attorneys have to disclose evidence, as the defendant has no obligation to disclose evidence that might incriminate him or her in the crime charged. This "one-way street" disclosure causes lopsided outcomes. [11]

Some arguments refute the above opinions. First, the fear that the disclosure of scientific evidence would lead to information leakage and the distortion of the facts is not realized in practice. This is because once the evidence is discovered, expert evidence cannot be easily distorted. [12] Second, there is no empirical evidence showing that expert witnesses will be threatened merely because their scientific evidence will be examined by peer review. [13],[14] Even if the expert witnesses face some threats, these problems can be solved by certain protection measures. For example, legislatures can pass "Witness Protection Acts" to protect expert witnesses or allow prosecuting attorneys to disclose the information of expert witnesses to lawyers, but not allow lawyers to inform the litigants. They may also not disclose the personal information of experts but allow lawyers to inquire in the prosecuting attorney's office. Finally, the clause against self-incrimination has been interpreted by the Supreme Court as not providing any obstacle to the disclosure of scientific evidence. [15]

The scope of scientific evidentiary disclosure

Rule 16 of the Federal Rules of Criminal Procedure stipulates the scope of the disclosure of scientific evidence by both the government and the defendant. [16] Rule 16(a) applies to government disclosure and stipulates the scope of evidence including the reports of examinations and tests, such as the reports of any physical or mental examination and of any scientific test or experiment, and expert testimony. Rule 16(b) stipulates the scope of evidence that the defendant must disclose to the prosecuting attorney. Rule 16(a)(g) stipulates the content of the expert testimony that the prosecution must disclose. If the prosecuting attorneys intend to produce scientific evidence in the trial process, they are required to provide a summary of expert testimony to the defendant in the pretrial process, upon the defendant's request. Usually, the summary must contain information such as the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications.

At the request of the defendant, the prosecuting attorneys must allow defendants to inspect, copy, or photograph any reports or statements of experts made in connection with the particular case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons. The following are the probable situations: (1) the item is within the government's possession, custody, or control; (2) the attorney for the government knows - or through due diligence could know - that the item exists; (3) the item is material to preparing the defense, or the government intends to use the item in its case-in-chief at trial.

Rules governing the examination of scientific evidence

The steps of examination


The legislative theory of cross-examination in criminal cases originates from the right of a defendant to be confronted with witnesses who testify against him, which is the principle under the Sixth Amendment of the US Constitution. [17] Professor John Henry Wigmore extolled cross-examination as the greatest legal engine ever invented for the discovery of the truth. [18]

The steps of examination include the direct examination as well as cross-examination. Direct examination is the way scientific evidence is introduced by the party calling the expert witness to testify about that evidence. Through consulting the expert witnesses, lawyers try to introduce favorable scientific evidence, so as to persuade the jury and judges to accept their theory of the case. Usually, direct examination includes the following: (1) to introduce expert testimony favorable to the lawyer's own party; (2) to show that the expert meets the requirements of an expert witness and that he/she has sufficient relevant professional knowledge, skills, or career background; (3) to show the reliability of the basic knowledge, skills, and experience on which the expert bases his/her testimony; (4) to manifest that the expert has applied correct theory and proper methods to identify his or her conclusions; (5) to verify that the expert is objective and unbiased in delivering his/her appraisals. [19] An expert witness usually works through three steps to deliver his or her appraisals: (1) to verify his/her qualification as an expert witness and competency for the job, (2) to set forth the facts underlying his/her opinion, (3) to explain the basis and grounds for his/her forensic appraisal. [20]

Cross-examination is the inquiry of the opposing party conducted by the expert witness. The purpose of cross-examination is to question the reliability of the expert testimony or to acquire trustworthy materials such as data and information that are favorable to a party. In cross-examination, experts will attempt to maintain consistency with what they have said in direct examination, and the opponent will try to pinpoint their defects. [20]

The angles of examination of scientific evidence

Because scientific evidence is much more complex than most other evidence, its examination is more difficult. The scrutiny of scientific evidence will generally cover the following aspects:

Gateways to admissibility

Before scientific evidence is put before the jury, an opponent may object to its tender and argue that the evidence should be ruled "inadmissible" by the judge as a preliminary matter under Rule 104(a). If a party's expert testimony cannot help to prove the case's facts (i.e., is irrelevant), the rules permitting expert testimony are not satisfied (Rules 702, 703), its probative value is substantially outweighed by the danger of unfair prejudice under Rule 403, there may be confusion in the issue, or it may hinder the jury in identifying the facts, [21] the judges may exclude the evidence as "inadmissible."

The admissibility of expert evidence under Rule 702

Rule 702 of the Federal Rules of Evidence stipulates that before expert evidence may be put to the jury at all, scientific, technical, or other specialized knowledge relied on must be able to assist the trier of fact to determine a fact in issue; the witness must be qualified as an expert by knowledge, skill, experience, training, or education; and then he/she may be permitted to testify before the jury to deliver his/her opinion.

In order to testify, experts must have professional knowledge or skills, through either education or experience. In the USA, the management of expert witnesses does not adopt the system of "pretrial registration," which means experts will not be permitted to provide forensic evidence until they register in the administrative department; the qualification of expert witnesses does not depend on what titles the experts have. Legislation gives judges the power of evaluating an expert's qualifications, and the expert may be examined and cross-examined in the absence of the jury at what is called a "voir dire hearing" to assist the judges to determine whether the expert is qualified, [22] and whether his/her evidence may be put before the jury (when the expert will again testify subject to direct and cross-examination).

To determine who is qualified as an expert witness is a daunting problem more often than it would first appear, despite there being standards in both the federal and state courts addressing qualifications of experts. For example, some courts have admitted testimony from psychological experts and doctors, while some courts do not admit such testimony. [23]

To assist the judges in solving these tough problems, both parties may question the witness at the voir dire hearing about whether the expert is qualified as an expert witness. Examination may cover aspects such as the expert's professional field, educational background, work experience, proficiency in forensic science, and so on. For example, through questioning, the opposing litigant may intend to show that the expert witness is professional only in a particular field and that he/she is, therefore, not qualified to deliver his/her opinions in other fields. If there are any collisions or controversies of ideas, the expert testimony will not be admitted by the judges. In Daubert v. Merrell Dow Pharmaceuticals, Inc. Justice BLACKMUN delivered the opinion of the court:

Expert opinion, which is not based on the epidemiological evidence, is not admissible to establish causation. Thus, the animal-cell studies, live-animal studies, and chemical-structure analyses on which petitioners had relied could not raise by themselves a reasonably disputable jury issue regarding causation. [24]

Usually, the two parties use electronic databases and sources such as Westlaw to search information regarding expert witnesses. The lawyers and experts usually ask the opposing party's expert witness some questions such as follows:

Q: Do you belong to a certain forensic institute? [25]

Q: Is your certification for a limited time?

Q: Do you have your certification currently?

Q: Do you have a long enough period of practice in the relevant field of expertise?

The main purpose of the above questions is to manifest that the witness is not qualified as an expert to give his opinion on this case. [26]

Whether the expert is objective and neutral

After the judge has ruled the expert evidence admissible, the expert will be called to testify before the jury. The party calling the expert will conduct an examination to show the qualifications and establish the neutrality of his expert witness. In many cases, the opposing party will cross-examine to try to show that the expert has a strong bias, that he is contributing his opinion because of financial benefits rather than for the sake of uncovering facts. Although lawyers realize that the expert may be a "tool" hired by his litigant to give favorable testimony, the jury may be oblivious to this very ironic fact. Therefore, in cross-examination, the opponent seeking to discredit the expert evidence will often ask questions such as the following:

Q: How much payment did the expert get?

Q: What is the ordinary fee of an expert? [27]

Q: How many times has the expert been hired by the same litigant? [28]

Q: Is the expert biased by interest? [29]

Questioning will be supervised by the court to ensure it is kept within civilized limits.

(4) Whether the Basis of Scientific Evidence is Reliable

The data upon which the expert delivers his forensic appraisals includes his/her professional knowledge derived from education and experience, first-hand information, and secondary sources. An expert can base his/her forensic appraisals on facts to which other witnesses have attested in court. This category includes documents, exhibits, facts, data, and opinions admitted through other witnesses. For example, an expert can base his/her opinions on the testimony from a nurse claiming the patient suffered pain when he was hospitalized. The expert may deliver his/her opinions based on certain assumptions or facts advanced at the trial, usually elicited by a hypothetical question or heard by the expert in attendance in court.

Questions about which facts an expert has relied upon and which facts an expert has omitted in delivering his or her expert evidence can weaken the reliability of a party's expert testimony. The first foundation that can be questioned is the first-hand out-of-court observations upon which expert opinions are based. In cross-examination, the opposing counsel should identify exactly which facts the expert has relied upon and which facts the expert has omitted in arriving at his or her opinion. [30] For example, an opponent can examine whether the data that the expert used to form his testimony is reliable and provide an adequate basis for juries to evaluate scientific evidence. Even if expert testimony is based on specific data, the method by which the data was established might be unreliable. Through cross-examination, the litigant will try to indicate that the opposing party failed to take all these matters into consideration, that it merely collected a portion of the information that was favorable to it.

The second method is to further inspect the data, facts, evidence, and opinions that were accepted. An expert witness based his opinion on certain factors, including data, facts, and the opinion of other experts; the opponent can rebut the witness's reliability through pinpointing the errors or inadequacy of the hypothesis. If the expert's testimony was based on authoritative treatises, the opponent can challenge its reliability by pointing out its defects. If the expert regard the opinions in the treatise as authoritative, the opponents could enumerate certain opinions from the books, which could totally contradict the expert's opinions. If a lawyer is not confident that he can prove the expert's testimony to be problematic, he had better not refute the testimony directly. Instead, he should point out experiments that the expert performed to prove that his forensic appraisals are contrary to the theory analyzed in the treatise. If the expert failed to explain the reasons clearly, it would seem to the judges and the jury that his forensic appraisal might be defective. [31]

The third method to vouch for reliability is to manipulate the testimony based on a hypothesis, such that opponents can rebut the expert's opinion by revealing incorrect or inadequate factual assumptions, or by showing that the expert relied on incorrect or inadequate reasoning in reaching his/her conclusions. [30] Opponents may also try to modify the preliminary conditions given to the expert to check whether the expert can change his/her opinions correctly. For example, some litigants in court asked the expert witness such questions as "if fact A doesn't exist, what is the result, in your forensic opinion?"


  The Guidance for Examination of Scientific Evidence in the USA Top


The comparative study of the process of the examination of scientific evidence in the US courts allows us to summarize the features and experience of this process. These experiences may provide us some guidance on how to improve the examination process of scientific evidence in Chinese criminal proceedings.

Emphasize the disclosure of scientific evidence

In the US adversarial system, both judges and juries play the role of "gatekeepers" of scientific evidence. The functions of "gatekeepers" were performed through the application of various rules of evidence. We have just realized that trial must be at the center of criminal proceedings in current Chinese judicial reform. However, the adversarial trial system has long given much attention to trial-centered. In order to ensure that scientific evidence is accepted by judges and juries, both parties pay much attention to its disclosure process. The USA implements the rule of "mere-indictment information," which requires that the indictment cover in precision the plea of the trial as a basis to accomplish trial fairness, but, to fairly prove this plea, the disclosure of scientific evidence is required. Due to the difficulty of understanding scientific evidence, a party must seek information about expert evidence, and consult its experts so as to prepare for examination of scientific evidence at trial. Disclosure of scientific evidence before trial and the rights of both parties to consult their experts performs the following significant functions: (1) prevents time wastage and the destruction of scientific evidence in the trial process, (2) provides reference for the defendant to determine whether he should seek advice from the expert consultant, and (3) promotes protection of the innocent in criminal proceedings.

Consult experts at the disclosure of scientific evidence

Disclosure of scientific evidence gives both parties opportunities to understand the information and data behind, and basis of, expert testimony. This process enables the two parties to fully realize what expert evidence the opponent has acquired and prepare for the examination. In order to rebut the opinion of the opposing litigant's expert witness, a lawyer should consult his expert first. The expert witness helps to discover the existing flaws in the expert testimony, explain the professional term in the testimony, and find evidence that supports their case.

Obey admissibility rules of scientific evidence

There are some relatively sophisticated rules for the admissibility of scientific evidence. The reason for this is that the US congress has accumulated sufficient experience for the admissibility of scientific evidence through a long period of judicial practice. For example, "general acceptance" was established as the standard after Frye v. United States, and "general observation" was established after Daubert v. Merrell Dow Pharmaceuticals, Inc. All these admissibility rules of scientific evidence provide guidance to the judges and juries in the trial process.

In fact, these admissibility rules of scientific evidence have a profound impact on the process of examination of scientific evidence, and they have become the focus of debate for both parties. Direct examination and cross-examination provide opportunities for both parties to introduce scientific evidence and debate with each other. With regard to the judges, they evaluate scientific evidence on the voir dire through the mechanism of various admissibility rules of evidence and decide whether to allow the expert evidence to be tendered before the jury. Once the judges rule it admissible, the juries will decide whether the scientific evidence is reliable, finally fulfilling their duty of "gatekeepers."

Adjust the partisan system to make the expert neutral

Under the adversarial system doctrine, US criminal procedure allows both parties to control proceedings and tender, and examine evidence. As a result, the system suffers from a lack of neutrality. Before litigants decide to hire an expert witness, they consult several experts and choose the one whose opinion is favorable to their desired litigation outcomes. Due to their tendentiousness, expert witnesses were once satirized as the lawyer's "saxophone." [32] To solve these defects, congress introduced reforms to the system of choosing expert witnesses, with the purpose of avoiding the tendentiousness. Congress has tried to reform the expert witness system. Take the duty of experts, for example: expert neutrality is more emphasized than ever before. Experts must be liable to the court. They should help the judges and juries find out the facts of the case rather than helping the litigants win the case.

Therefore, in the USA, congress emphasizes the liability of expert witnesses. In recent years, the increase in the liability of expert witnesses compels experts to testify objectively in court. Experts tend to be more honest when they are delivering their opinions than they were previously, [33] simply because if they violate the obligation of honesty, they face liability and will even suffer strict punishment from the rightful forensic science association.


  The Current Situation of Examination of Scientific Evidence in China Top


The current situation of scientific evidentiary disclosure in Chinese courts

The concept of "scientific evidence" is not mentioned in the code of Chinese Criminal Procedural Law. However, according to the definition and category of "scientific evidence," forensic appraisals such as fingerprint identification, forensic medical appraisals, forensic psychiatry appraisals, and so on all belong to the category of scientific evidence. Fundamentally, this is because prosecutors and judges control proceedings rather than parties, as is the situation in the USA. Therefore, scientific evidence such as forensic appraisals does not have the disclosure process either. We may find that in Chinese criminal proceedings. The Criminal Procedural Law in China has only a few mechanisms with functions similar to the disclosure of scientific evidence. That includes the right of the defense attorney to inspect, take passages, and copy records of the files in the pretrial proceedings. However, the scope of evidence that the defense attorney can copy depends on the files transferred by the prosecuting attorney. The 1996 Criminal Procedural Law in China required the prosecuting attorneys to transfer case files to the court in a paper list containing the main copies of evidence. Therefore, the evidence that the defense attorney could inspect was limited. This is a result of some evidence that is favorable to the defendant being excluded from the case file. The Criminal Procedural Law of the People's Republic of China (2012 Amendment) requires the prosecution to transfer the entire file containing all of the evidence to the court. This change represents progress in the amendments of China's Criminal Procedural Law. However, the defense attorney still cannot get all the scientific evidence in this process. Forensic appraisals were transferred with the case file to the court, but most forensic appraisals do not describe its basis or technical criteria. [34] The defense attorney cannot fully acquire the information of scientific evidence and prepare for the cross-examination.

The current situation of examination of scientific evidence in China

Expert not testifying before court makes it impossible to cross-examine


In order to achieve the purpose of cross-examination of scientific evidence, expert witnesses are required to testify before court. [35] However, experts attend court sessions at a rate that is < 5%, according to the statistics. [36] In order to increase the rate at which experts attend court sessions, the new Criminal Procedural Law first stipulates the circumstances under which experts should appear in court. Second, the amended Criminal Procedural Law stipulates the results when experts do not appear in court. Third, the new law heightens the safety protection of expert witnesses to encourage them to appear in court. However, empirical studies show that ever since the new Criminal Procedural Law was implemented, the current rate at which experts appear in court is still not ideal. [37] Even in cases with experts attending court proceedings, the examination effect is not ideal either.

Imperfect rules make the examination ineffective

Due to the imperfect rules of examination, opportunities to critically examine scientific evidence in Chinese courts are not so freely available. Empirical study shows that at present, the questions from both parties in the examination process of scientific evidence may be summarized as follows: (1) some issues have little connection with the procedure for inspecting scientific evidence; [38] (2) some issues are mainly about the qualification of experts; (3) some controversies are about the validity of the forensic appraisal process; (4) there is still some debate about whether the expert meets the requirements of the challenge system; and (5) finally, there is some argument about whether the basis of forensic appraisal is reliable.

The standards of expert assistants are still not satisfactory

Article 192 of the new Criminal Procedural Law has established the system called "Persons with Expertise attending in court." [39] This system means that both parties are entitled to request the court announce a person with expertise to attend in court, to give their opinions on forensic appraisals. This system intends to assist both parties to direct-examine and cross-examine scientific evidence. However, this new system has some problems.

First, the expert assistants do not have the same rights as expert witnesses have. According to the new Criminal Procedural Law, the expert assistant can only give his/her opinion on the forensic appraisals delivered by the opponent's expert. Furthermore, expert assistants are not entitled to do forensic identification. They do not have the right to get the sample for forensic appraisals. All they can do is give their opinions based on the forensic appraisals.

Second, at present, there is no legal responsibility to urge expert assistants to be objective and neutral. The scope of the crime of perjury in Chinese criminal law is limited to four kinds of persons, namely witnesses, expert witnesses, recorders, and translators. "Persons with expertise" do not belong to any of these categories. They cannot be found guilty of perjury. On the other hand, since expert assistants were hired by their litigants, it is inevitable that they provide biased opinions favorable to their employer. Their function is to substantiate arguments favorable to the litigant, and this function is similar to the lawyers' role. It is difficult to urge them to be objective and unbiased.


  The Prospect of Examining Scientific Evidence in Chinese Courts Top


The bodies of disclosure of scientific evidence

There are two solutions to the problem of identifying the appropriate bodies to which scientific evidence should be disclosed. The first insists that both parties should disclose scientific evidence to each other. The second opinion insists that only the prosecuting attorney has the duty to disclose scientific evidence to the defendant. Which solution is better for the bodies of disclosure in Chinese criminal proceedings? To have a better understanding, we should take the application of forensic identification into account. In China, the forensic identification process can only be initiated by judicial organs such as the police, the prosecution, and the court. Litigants only have the right to apply for re-identification. Hence, the disclosure duty in criminal procedure will be put on the prosecution, rather than on the defendant.

The way to disclose scientific evidence

Scientific evidence should be discovered together with other evidence because by the time prosecuting attorneys transfer the case file to the court, scientific evidence has already been collected. Therefore, there is no need to arrange another time for both parties to discover scientific evidence. Otherwise, it will waste time in the criminal proceedings.

The scope of disclosure of scientific evidence

The scope of disclosure of scientific evidence is summarized as follows: first, the disclosure of scientific evidence should cover information about the expert's forensic institute, qualification, and professional background. In China, most forensic institutes are supervised and registered by the judicial departments of all levels, but those forensic institutions attached to police and prosecution are administrated and registered by police and prosecution departments. Discovering the qualifications and professional backgrounds will help litigants determine whether the expert is qualified to provide expert evidence.

Second, the disclosure should include the basis, process, material relied upon, and methods of the forensic appraisals. By discovering the above information about scientific evidence, both parties will understand the basic theory and scientific methods of the forensic appraisals, in order to further inspect whether the sample collection process is valid and whether the sample has been polluted or been changed. In practice, both parties acquire little information about the forensic appraisals, because they merely focus on the conclusion of forensic appraisals, neglecting the process of identification. The first reason is that people tend to be over-trusting of scientific evidence and are reluctant to challenge its authority. The second reason is that laypersons have limited knowledge of forensic sciences and fail to distinguish its authenticity. The systems for discovery of forensic appraisals and expert assistance will help determine the admissibility of forensic appraisals.

The period of scientific evidentiary disclosure

There are two concurring opinions about the period of disclosure for scientific evidence. The first regard it as appropriate to put scientific evidentiary disclosure into the investigative process. The second thinks it appropriate to discover scientific evidence in the trial process. The latter deems it harmful to put disclosure into the criminal investigation process, because it will lead the defendant to destroy evidence. In the trial process, the prosecuting attorney has transferred the case file to the court, where the defendant will be able to take notes and copy the scientific evidence.

The performance of expert assistant functions

The new Criminal Procedural Law has established the category called "person with expertise attending criminal proceedings," but its status in litigation is still unclear. To clarify its status is important to the understanding of the rights and obligations it confers. Some Chinese scholars argue that we should emphasize its objective baseline. [40] Expert witness bias has already caused a lot of problems in the USA. Litigants tend to choose experts whose opinion is favorable to their case. The expert has a bias and loses his/her authority. As a matter of fact, expert witness bias has attracted the attention of the US. It introduced reforms to avoid this problem. For example, it expects expert assistants to be reliable in court, to assist the judges in finding out facts, rather than simply help their litigants win the case. The experience of expert witnesses in the USA may give guidance to our country. We must require "persons with expertise" to be objective, so as to perform their roles professionally.

In order to establish an object and a proper mechanism, we should improve the selection process of "persons with expertise" and strengthen their work ethic. The "person with expertise" should help judges evaluate forensic appraisals. In order to select neutral experts, it is a wise decision for Higher People's Courts to establish an "expert database" so as to provide expert assistants for judges according to the requirements of both parties. In order to guarantee his/her neutral position, the cost for a "person with expertise" appearing in court should be subsidized by the judicial budget.


  Conclusion Top


According to Professor Mirjan R. Damaska, scientific evidence has played an increasingly significant role in the proceedings:

An ever-increasing number of facts of importance for the legal process can now be established only by sophisticated technical instruments. And as the gulf widens between reality as perceived by our natural sensory apparatus and reality as revealed by prosthetic devices designed to discover the world beyond the reach of this apparatus, the importance of human senses for factual inquires has begun to decline. [41]

It helps to identify the facts of the case with technology and science, and reduces the reliance on the defendant's confession. However, evaluating scientific evidence is still a difficult task. Examination of scientific evidence is a useful tool to distinguish scientific evidence from junk science. The comparative study of how scientific evidence is examined in the US and Chinese courts reveals that the disclosure of scientific evidence enables the litigants to acquire scientific evidence and prepare to argue for its exclusion on grounds of admissibility where appropriate and for the cross-examination of expert testimony that is admitted and tendered at trial. There are some specific gatekeeping rules that permit judges to evaluate scientific evidence prior to trial and rule it inadmissible. The examination of scientific evidence involves substantive aspects and procedural aspects. Determinations of admissibility include factors such as the expert's qualification, the basis of scientific evidence, and so on. We may summarize some features from the examination of scientific evidence in the US. US law emphasizes the disclosure of scientific evidence. It enables litigants to consult experts for the disclosure of scientific evidence. It provides gatekeeping admissibility rules to ensure that only relevant and reliable expert evidence is put before a jury. It establishes a sound procedure for cross-examination at trial.

In China, the Criminal Procedural Law (2012 Amendment) has stipulated some provisions regarding the examination of forensic appraisals. However, the current situation of evidentiary disclosure is not ideal; the defense attorney cannot fully acquire the scientific evidence and prepare for the examination. An expert rarely testifies before court, which makes the critical examination of scientific evidence extremely difficult. The imperfect regulations make cross-examination not so effective. The function of an expert assistant is still not ideal. We may learn from the US experience to improve the examination process of scientific evidence in the criminal proceedings in Chinese courts. We should establish the discovery mechanism of scientific evidence. The disclosure duty should be put on the prosecution, rather than on the defendant. Disclosure of scientific evidence must cover information about the expert's professional background and basis, process, material relied upon, and methods of forensic appraisals. In the trial process, the prosecution has transferred the case file to court, where the defendant will be able to copy the scientific evidence. The neutrality of expert assistants established by Article 192 of the new Criminal Procedural Law should be strengthened.

Financial support and sponsorship

Research funds project of Ministry of Justice P.R.C (Grant No. 14SFB30019), China Post Doctor Science Research Funds Special Aid Project (Grant No. 2015T80420), and ECUPL science research funds project (Grant No. A-3101-14-144512).

Conflicts of interest

There are no conflicts of interest.

 
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