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 Table of Contents  
REVIEW ARTICLE
Year : 2022  |  Volume : 8  |  Issue : 1  |  Page : 32-40

Comparison of adult defendants' forensic psychiatric evaluation in criminal courts between Mainland China and Taiwan China: From law to clinical practice


Department of Psychology, Chung Yuan Christian University, Taoyuan City, Taiwan, China

Date of Submission12-Dec-2021
Date of Decision13-Dec-2021
Date of Acceptance17-Dec-2021
Date of Web Publication17-Mar-2022

Correspondence Address:
Wai-Cheong Carl Tam
Department of Psychology, Chung Yuan Christian University, 200 Zhongbei Road, Zhongli, Taoyuan City 320314, Taiwan
China
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Source of Support: None, Conflict of Interest: None


DOI: 10.4103/jfsm.jfsm_76_20

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  Abstract 


The defendant's mental capacity is often crucial in criminal procedure, and an expert witness may be requested to conduct a forensic psychiatric evaluation. This paper analyzes the law and clinical practice of adult defendants' forensic psychiatric evaluation in criminal courts between Mainland China and Taiwan China. Results indicated that the law in Taiwan China explicitly mentioned more mental illness and mental capacity than the law in Mainland China regarding forensic psychiatric evaluation. Concerning expert witnesses, Mainland China has established a registration and management system, but in Taiwan China, the judge decides the expert witness's admissibility. Furthermore, clinical evaluation guidelines have been promulgated in Mainland China, while none in Taiwan China. Implications of the findings were discussed.

Keywords: Criminal responsibility, expert witness, forensic assessment, legal competence


How to cite this article:
Tam WCC. Comparison of adult defendants' forensic psychiatric evaluation in criminal courts between Mainland China and Taiwan China: From law to clinical practice. J Forensic Sci Med 2022;8:32-40

How to cite this URL:
Tam WCC. Comparison of adult defendants' forensic psychiatric evaluation in criminal courts between Mainland China and Taiwan China: From law to clinical practice. J Forensic Sci Med [serial online] 2022 [cited 2022 Jun 24];8:32-40. Available from: https://www.jfsmonline.com/text.asp?2022/8/1/32/339796




  Introduction Top


Forensic psychiatric evaluations are often implemented during the criminal court when there are queries about defendants' mental capacity,[1] a required legal procedure in many countries.[2] However, due to the differences in law, there may have dissimilarities in the forensic psychiatric evaluation systems and processes in different places. Comparing other jurisdictions' laws and practices often reveals valuable and inspiring thoughts to enhance fairness and justice in mentally ill defendants' trials.[2],[3]

The populations in Mainland China and Taiwan China are about 1.43 billion and 23.8 million in 2019, respectively, accounting for almost one-fifth of the world population.[4] The law and legal system in Mainland China first followed the Soviet Union and revised several times in her directions. Accordingly, legal professionalism develops gradually. In 2014, the Fourth Plenary Session of the Eighteenth China Communist Party Central Committee launched some of the most significant legal reforms in decades including revising law articles, legal procedures, and the judicial system. For example, there was an emphasis on the legitimacy, transparency, and fairness of courts' procedures and decisions, and continual judges' evaluation would be required. At present, the law and legal system in Mainland China is a complex and unique judicial system.[5],[6],[7],[8] The roles of judges and other legal professionals in Mainland China differ from those in Western countries. The Chinese legal system appears to balance respect for the authority of legal institutions and populism, in which social stability is the priority of consideration.[7] On the other hand, Taiwan China uses the legal codes and system established after the Qing Dynasty's fall, which followed the example of Meiji Japan by enacting Western -style (especially German-style) codes. Thus, Taiwan China uses the civil law system, and its laws are therefore basically oriented toward the modern West. These codes and structures have been revised to adapt to the political and social environment in Taiwan China.[9],[10] However, as Taiwan China is a Chinese society with its traditional beliefs, values, and culture, the operation of some of these transplanted Western-style laws may not be the same as in Western countries, particularly on the protection of defendants' human rights.[10] For example, the Criminal Procedure Law in Taiwan China states that the trial should be suspended if the defendant is in a severely mentally impaired state. However, the court rarely orders competence to stand trial evaluations. Thus, nearly all mentally disabled defendants must appear in court trials regardless of their mental status (detailed discussions below). In addition, the overemphasis on the professionalism and formality of law restricts its flexibility in deliberation and application. Thus, some judicial rulings are awry with societal expectations, resulting in public disappointment with the court.

This comparison focuses on the law involving adult defendants' mental capacity in three legal procedures in criminal courts that probably needs the initiation of forensic psychiatric evaluation and the clinical practice systems established under these law articles and regulations in Mainland China and Taiwan China. These three procedural areas are competence to stand trial, criminal responsibility, and sentencing. Much less research has been done in Chinese society than the Western countries on the operations of the law and the forensic psychiatric evaluation in these three procedural areas. The relevant law articles are mainly found in criminal law and criminal procedure law. The first part of this analysis compared these law articles between Mainland China and Taiwan China on competence to stand trial, criminal responsibility, and sentencing. The second part of this analysis investigated the professionals' qualifications, administration, and clinical practice in conducting forensic psychiatric evaluation in Mainland China and Taiwan China. Comparing the present status in the law and clinical practice between these two places leads to the possibilities for discussion in the future amendment of law and clinical practice systems changes.


  Part I: Criminal Procedure Top


In Mainland China, the Criminal Law and Criminal Procedure Law were most recently revised in 2017 and 2018, respectively (abbreviated as MC-CL2017 and MC-CPL2018 in this analysis).[11] On the other hand, the Criminal Law and Criminal Procedure Law in Taiwan China were most recently revised in 2019 and 2017, respectively (abbreviated as TC-CL2019 and TC-CPL2017 in this analysis).[12]

Competence to stand trial

Competence to stand trial denotes the defendant's mental capacity to understand the legal process in court and communicate efficiently with the counsel; otherwise, the legal process is unfair and pointless.[1] If in doubt, forensic psychiatric evaluation is initiated to clarify whether the defendant possesses the competence to stand trial or not. If not, the trial will be suspended till the defendant restores the capacity.

Mainland China

Article 206 of the MC-CPL2018 states that the trial may be suspended temporarily if the defendant cannot be present in court due to severe illness; the trial should be resumed after the above reason no longer exists. Although mental illness is not mentioned explicitly in the article, the term jibing, which means illness, generally includes both medical and mental illness.

Also, Article 14 of the MC-CPL2018 stipulates that the court and public security organs should protect the litigation and defense rights of the defense. Therefore, the competence to stand trial may be initiated by the defense to the court.[13]

Taiwan China

TC-CPL2017 Article 294 states that if the defendant is in a severely mentally impaired state, the trial should be suspended until the defendant's recovery.

Discussion

In Mainland China, the defendant''s need to possess the competence to stand trial has not been spelled out clearly. Still, it can be inferred in law, which might account for the scarcity of forensic psychiatric evaluation conducted for this purpose.[13],[14] Although the consideration of the defendant's competence to stand trial has been stated in the Criminal Procedure Law in Taiwan China, there are very few referred evaluations for this purpose,[15] compared to large numbers of these in the United States.[1] Therefore, it appears that law enactment is not an essential factor in the initiation of competence to stand trial evaluation. Possible explanations might be the effects of mental illness stigma in Chinese culture[16] or the insufficiency of human rights protection in Mainland China and Taiwan China.[15],[17]

Criminal responsibility

The mental state at the time of the offense is often an important issue in criminal trials, and the insanity defense has a long history in law. Criminal responsibility refers to determining whether the defendant's mental status at the time of the offense affected their cognitive ability (appraisal of right or wrong) or volitional capacity (behavior control).[1],[18]

Mainland China

The law for determining criminal responsibility because of mental illness is written in MC-CL2017 Article 18. There are three levels of criminal responsibility: Irresponsibility, diminished responsibility, and total responsibility. The determination is based on either the defects of the defendant's cognitive ability (not knowing what is doing or its consequences) or volitional capacity (lack of behavior control) or both. The cognitive or volitional defects, which may be severe or moderate, are due to the influence of having a mental illness. If there are no significant defects, the defendant will take total criminal responsibility. This article also states that the defendant who commits a crime under alcohol intoxication should bear total criminal responsibility.

In the Interpretations on the Application of the MC-CPL issued by the Supreme People's Court,[19] Article 532 states that the court of the first instance should initiate a forensic psychiatric evaluation if the defendant is suspected of meeting the conditions of involuntary commitment during the trial process. According to MC-CPL2018 Article 302, the court may order the defendant to involuntary commitment for treatment if the following conditions are met: (1) The defendant has conducted violent acts which endangered public security or caused death or injury to others; (2) has received forensic psychiatric evaluation and been determined to be criminally irresponsible; and (3) is considered to remain a risk to the safety of the public. Therefore, the court should initiate criminal responsibility evaluation if the defendant is suspected of meeting the irresponsibility conditions stipulated in MC-CL2017 Article 18.

Article 331 of the Provisions on Procedures for Handling Criminal Cases by Public Security Organs[20] stipulates that forensic psychiatric evaluation for the suspect should be implemented under the following condition: If public security organs suspect that the suspect, who although has involved in violence, public security, or jeopardizing other citizens' safety, maybe criminal irresponsible due to mental illness.

Taiwan China

TC-CL2019 Article 19 states that if the defendant cannot judge the illegality of their behavior or act conforming to their judgment due to mental illness or psychological defect while committing an offense, the offense is unpunished. The penalty may be reduced if there is a noticeable diminution in the above judgment or behavior control ability. If the above conditions in mental capacity are caused by the defendant's cause-free behaviors (actio libera in causa), they should bear full responsibility for the offense.

Article 87 of the TC-CL2019 stipulates that the defendant with no criminal responsibility by Article 19 may be committed to a suitable institution for custodial protection if they are predicted to re-offend or endanger public safety. Similarly, suppose the defendant with diminished criminal responsibility is expected to re-offend or endanger public safety. In that case, they may be committed to a suitable institution for custodial protection after execution or remission of the penalty.

Discussion

In law, some countries, such as the United Kingdom, the United States, Canada, Australia, and New Zealand, use a dichotomous concept in criminal responsibility (sane-responsible vs. insane-irresponsible). Other countries, such as the Netherlands, Germany, Belgium, Spain, and Japan, use a graded system in determining criminal responsibility (e.g., insanity-irresponsibility, diminished mental capacity-diminished responsibility, and sanity-total responsibility).[2],[21],[22] Since the adoption of the Western model of law and order in both Mainland China and Taiwan China does not have a long history, it appears to be shared that the lawmakers in these places may integrate the elements of other countries' law into their own.[21],[22] Accordingly, the legal standards for criminal responsibility in both Mainland China and Taiwan China are similar to the criteria in the American Law Institute Model Penal Code,[23] except that the level of diminished responsibility is established into the Articles of the Criminal Law of these two places.

Regarding the disposition of not guilty by reason of insanity acquittees, both the law in Mainland China and Taiwan China gives the court the power to commit them to treatment or protection if they are predicted to have a threat to public safety. This arrangement implies that forensic professionals' risk assessment for violence or recidivism may be initiated to provide a scientific opinion to the court. Articles 302–307 in Chapter 5 of Section 5 of Mainland China Criminal Procedure Law, concerning the involuntary commitment of not guilty by reason of insanity acquittees, were added in 2012. This revision is frequently regarded as a significant step in mental health care in Mainland China.[24],[25],[26] Nevertheless, both the law in Mainland China and Taiwan China have not designated the locations for the disposition of not guilty by reason of insanity acquittees. In Mainland China, the acquittees may be sent to An-Kang hospitals (secured forensic hospitals) or general psychiatric institutions.[24] In Taiwan China, since there are no forensic hospitals, the acquittees may be sent only to general psychiatric institutions.

Since there are few referrals for evaluating the defendant's competence to stand trial, the number of referrals for criminal responsibility evaluation has become the most considerable portion of criminal forensic evaluations conducted per year in Mainland China and Taiwan China. However, there appears to have no exact statistics reported.[14],[15],[27]

Sentencing

In the defendant's sentencing stage in criminal court, a forensic psychiatric evaluation may involve competence to be sentenced or executed, risk assessment, culpability, and treatment needs. Competence to be sentenced or executed means understanding the implementation of punishment. Risk assessment refers to the prediction of possible future violence and recidivism. Analyzing the factors leading to the criminal behavior, corrigibility, and potential therapeutic or correctional components of the defendant also help determine the appropriate sentence.[1],[28],[29]

Mainland China

According to MC-CPL2018 Article 265, for the defendant sentenced to fixed-term imprisonment or detention, one of the conditions for serving a sentence outside prison is having severe illness and requiring medical parole. As mentioned above, the term jibing includes both medical and mental illness, generally.

Article 72 of the MC-CL2017 stipulates the requirements for probation. In addition to being sentenced to criminal detention or fixed-term imprisonment of fewer than 3 years, one of the requirements is no recidivism risk.

Besides, Article 348 of the Interpretations on the Application of the MC-CPL issued by the Supreme People's Court states that the review of the death penalty or death penalty with reprieve should inspect, among other conditions, the criminal responsibility of the defendant.

Taiwan China

According to TC-CL2019 Article 57, sentencing should consider all the factors contributing to the crime's commitment such as motivation, purpose, environmental stimuli, conduct, intelligence, living conditions, injury or danger induced, attitude after the offense, and others.

Article 5 of the Recommendations for Sentencing and Penalty Execution Decision issued by the Judicial Yuan[30] states that, in sentencing, the court may request expert witnesses, hospitals, schools, or other organizations to conduct the psychiatric, psychological, or social evaluation of the defendant.

TC-CPL2017 Articles 465 and 467 stipulate that, for the defendant sentenced to imprisonment, detention, or the death penalty, one of the conditions for suspending the sentence is in a severely mentally impaired state.

Discussion

Despite the need for evaluating the defendant's mental illness and recidivism risk in sentencing for both Mainland China and Taiwan China, the assessment for much broader topics in the biological, psychological, or social perspectives about the defendant is recommended in Taiwan China court. Adopting a holistic view of defendants and their commitment to crime in criminal justice has also been advocated in Mainland China.[31]

The law in Mainland China and Taiwan China reflects the importance of risk assessment in criminal procedure nowadays. Many states in the United States have incorporated risk assessment into the sentencing process.[28],[32],[33] Risk assessment, a psychological technique, relies on behavioral science and the principles of causality or determinism. Recent criminological theories often coincide with the biopsychosocial model of human behavior, which involves biological, psychological, and social factors to explain an action. Nevertheless, the fundamental assumptions in law and criminal justice are individuals' free will or volition, the presumption of responsibility, and personal control. Thus, there is a difference in the philosophical basis of risk assessment and judicial sentencing. Despite the assumptive dissimilarity, the trend of accepting risk assessment reports as legal evidence in sentencing is irreversible.[34]


  Part II: Clinical Practice Top


As law establishes the need for psychiatric or psychological opinions on the defendants during the legal process in some criminal cases, expert witnesses are summoned to conduct forensic psychiatric evaluations. In psychiatry or psychology, the professional who performs the evaluation is often called the evaluator. In the law of both Mainland China and Taiwan China, the term jiandingren indicates the person who conducts the forensic evaluation. Generally speaking, the definition and function of jiandingren are quite similar to those of the “expert witness” in the common law system (“expert witness” is used for jiandingren in this paper unless differentiation is needed).[3]

Expert witness

Mainland China

MC-CPL2018 Article 146 stipulates that persons with specialized knowledge should be assigned or invited to evaluate to resolve some specific problems. This article has been further explained by Article 87 of the Interpretations on the Application of the MC-CPL issued by the Supreme People's Court. Article 87 states that persons with specialized knowledge should be assigned or invited to evaluate if there are no legitimate forensic evaluation organizations or appropriate legal regulations for examining the specific problems in court procedure. According to Article 11 of the General Rules for the Procedures of Forensic Evaluation issued by the Ministry of Justice,[35] forensic evaluations should be referred to registered forensic evaluation organizations. Forensic evaluation organizations are institutions offering forensic evaluations for criminal and civil cases and must meet the established requirements and register with the government to obtain the operation license. The details of the administration of forensic expert witnesses in Mainland China are described in detail below.

According to Article 192 of MC-CPL2018, the expert witness conducting the forensic evaluation will be subpoenaed to appear in court if the court decides that this is necessary because of the procuratorate or defense's disagreement on the expert witness''s evaluation opinion. Furthermore, Article 197 states that persons with specialized knowledge will be subpoenaed to appear in court if the court approves the initiation by the procuratorate or defense upon requesting them to offer opinions on the jiandingren's evaluation report.

In the Decision on the Management of Forensic Evaluation of the Standing Committee of the National People's Congress,[36] forensic psychiatric evaluation is one type of forensic medical evaluation. This description means that forensic psychiatry specialty is included in forensic medicine, which reflects the present status of medical training in Mainland China.[13],[37]

The Ministry of Justice promulgated the Regulations of the Management and Registration of Forensic Expert Witness.[38] Article 12 laid down the requirements for forensic expert witness registration. To be a registered forensic expert witness in forensic psychiatry, that is, to be eligible to conduct the forensic psychiatric evaluation, the person must have one of the following in the related field (i.e., forensic medicine or psychiatry): (1) A high-rank professional title (e.g., professor, chief psychiatrist, etc.); (2) a license of practice (e.g., licensed forensic physician or psychiatrist); or (3) a higher-education degree and at least 5 years of working experience. Moreover, to conduct a forensic psychiatric evaluation, the registered forensic expert witness must be employed by a registered forensic evaluation organization.

Taiwan China

TC-CPL2017 Article 198 states that the judge or prosecutor selects the expert witness. The expert witness must have specialized knowledge or experience on the matter evaluated or commissioned by the government to perform the forensic evaluation. Besides, Article 208 stipulates that the court or prosecutor may also request hospitals, schools, or similar institutions or groups to conduct the evaluation.

According to TC-CPL2017 Articles 166 and 206, the expert witness may be subpoenaed to appear in court to report and be cross-examined by the court, prosecution, and defense.

As stated in TC-CPL2017 Article 207, if the evaluation is incomplete, the number of expert witnesses may increase, or different expert witnesses may be ordered to continue the evaluation or make a new evaluation.

Discussion

There are several similarities in expert witness between Mainland China and Taiwan China. The law mandates that the expert witness is appointed by the court, or the procurator or prosecutor, which is in accord with the civil law system. More than one expert witness may be selected if necessary. Expert witnesses may be subpoenaed to appear in court if necessary.

The MC-CPL2018 articles mention expert witness and forensic evaluation but not forensic evaluation organizations. In practice, following the government rule, forensic evaluations are referred to registered forensic evaluation organizations, which will assign registered forensic expert witnesses to conduct the evaluation. In Taiwan China criminal procedure, the court or prosecutor may appoint expert witnesses or hospitals, schools, or other similar institutions or groups to conduct the forensic psychiatric evaluation. In practice, most of the evaluations are assigned to hospitals, which will select suitable psychiatrists to carry out the evaluations.[39]

In Mainland China, the forensic expert witness must possess specific qualifications and register with the government. There is no forensic expert witness management in Taiwan China, and thus, any individuals or organizations appointed by the court may conduct the forensic evaluation. Despite this difference, the validity and bias of forensic psychiatric evaluation of both places have sometimes been a concern.[13],[40],[41],[42],[43]

Registered forensic expert witnesses conducting forensic psychiatric evaluation in Mainland China are either fayishi (i.e., forensic physician) or psychiatrists. Nevertheless, these two professions may have weaknesses in performing the assessment. Due to their respective training models, the forensic physician may have insufficient practical experience in clinical psychiatry, while the psychiatrist may not be educated in law and justice.[13],[44]

The situation in Taiwan China is not better than that in Mainland China. In Taiwan China, forensic psychiatric evaluations in the criminal court are almost conducted by psychiatrists, with a few assigned to university professors or other professionals. Although every psychiatry resident receives some basic forensic psychiatry training, there is no credential or professional recognition system for forensic psychiatrists.[45] The forensic expert witnesses' expertise is sometimes suspected to be insufficient.[42],[46],[47] In 2020, a new optional system of a certified forensic psychiatrist is implemented by the Taiwan Academy of Psychiatry and the Law to increase professional competence.[48] The Forensic Physician Law was enacted in 2005,[49] stipulating that forensic psychiatry is a specialist in forensic medicine. This law, somewhat like that in Mainland China, is expected to create a new forensic physician system in Taiwan China.[50] However, as there are relatively few licensed forensic physicians to date, this recently introduced system's impact has yet to be observed.

Evaluation procedure

Mainland China

According to Article 19 of the General Rules for the Procedures of Forensic Evaluation issued by the Ministry of Justice, a team of two or more forensic expert witnesses should conduct the forensic evaluation together.

The Bureau of Public Legal Services Administration of the Ministry of Justice has issued several clinical guidelines regarding forensic psychiatric evaluation with mental-ill defendants in criminal courts. These guidelines include mental status examination, competence to stand trial, criminal responsibility, and competence to be sentenced.[51]

Taiwan China

TC-CPL2017 Article 203 stipulates that the judge or prosecutor may permit the expert witness to evaluate outside the court if necessary. The defendants may be sent to hospitals or other appropriate institutions for <7 days for their mental status evaluation. Article 203-3 states that the above period may be extended to a maximum of 2 months.

Discussion

In Mainland China, as a team of two or more forensic expert witnesses is mandated by law, the forensic psychiatric evaluation is usually conducted by two to three evaluators in collaboration.[3],[13],[14],[37] Only one evaluator is generally responsible for the evaluation in Taiwan China.[39] In both Mainland China and Taiwan China, the defendant is usually required to go to the evaluation organization or hospital to undertake the evaluation, often completed within a ½-day or 1 day only.

Other professionals without the legal status of the expert witness may also help in the evaluation process. In Mainland China, psychologists sometimes work together with the evaluators and administer psychological tests.[13] In Taiwan China, besides psychologists, social workers, nurses, or clinical laboratory technologists may also join the evaluation team and provide relevant information to the evaluator for reference.[39]

Clinical evaluation guidelines are used to standardize the evaluation process to achieve credibility improvement.[52],[53] There are official guidelines in Mainland China. That is, evaluators are mandatory to comply with the guidelines in their evaluation work. In contrast, there are no clinical evaluation guidelines in Taiwan China, except only a document on the criteria for criminal responsibility judgment for psychiatrists' reference.[54]


  General Discussion Top


The above thematic analysis and comparison of the criminal procedure and clinical practice of adult defendants' forensic psychiatric evaluation in criminal courts between Mainland China and Taiwan China is summarized in [Table 1]. The court's legal standards on criminal responsibility are similar between Mainland China and Taiwan China. On the other hand, besides official evaluation guidelines, Mainland China has regulations on the qualifications and registration system of expert witness and forensic evaluation organizations. Taiwan China has none of these. There is no comparison of the statistics on the legal and clinical operation outcomes between Mainland China and Taiwan China due to the lack of relevant published data on these topics. The contrast between Mainland China and Taiwan China leads to the following general discussions.
Table 1: Thematic Comparison of Forensic Psychiatric Evaluation in Criminal Courts between Mainland China and Taiwan China

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From the above comparison of the Criminal Law and Criminal Procedure Law between Mainland China and Taiwan China regarding forensic psychiatric evaluation, the law in Taiwan China explicitly mentions more mental illness and mental capacity than the law in Mainland China. The law enacted in a society at a particular time reflects the general attitudes and culture of the people living in that society.[55],[56] When mental illness and mental capacity are stated in criminal laws, the purpose is usually to promote fairness and justice or protect mental-ill defendants' rights.[57] Research indicated an apparent stigma on mental-ill people in both Mainland China and Taiwan China.[16],[58],[59] The stigma levels were relatively high compared to other Western countries.[60],[61] However, it was also shown that mental health literacy in Mainland China was lower than that in Taiwan China.[61] Therefore, perhaps the difference in the ranks of stigma and attitudes toward mental-ill people between Mainland China and Taiwan China leads to the different frequencies of mentioning mental illness and mental capacity in the law. Other factors, such as legislative systems, opinions and decisions of the judiciary, and public views, may also affect the law's enactment regarding forensic psychiatric evaluation. However, there is no relevant published research about Mainland China or Taiwan China on these issues. Future law amendments may follow the trend of increasing mental-ill defendants rights and promoting fairness in the judicial system.

The defendant's mental illness and mental capacity are considered in some law articles in criminal justice, but the legal profession is specialized in law. Forensic psychiatric evaluation is to help the criminal procedure by providing professional opinions on the defendant's mental status, which is the chief purpose of having expert witnesses in criminal procedure.[1],[62] Although judicial decision power rests in the hands of the triers of facts, the concordance between evaluation conclusions and court decisions was reported to be over 90% in both Mainland China and Taiwan China.[14],[27],[37],[63] This figure is compatible with about 81%–95% in the United States.[1]

The validity and bias in forensic psychiatric evaluation have been discussed in Mainland China and Taiwan China,[43],[45],[64],[65] and other countries.[66],[67],[68] Psychiatry and psychology are science. There always exists the probability of errors in solving problems with scientific methods.[62] For example, studies reported that the inter-rater reliability (intraclass kappa) of mental disorder diagnoses among clinicians ranged from 0.45 to 0.88 for the International Classification of Diseases 11th Revision[69] and from 0 to 0.78 for the Diagnostic and Statistical Manual of Mental Disorders 5th Edition.[70] These studies showed that there is inconsistency among clinicians in making mental disorder diagnoses. Other sources of bias in forensic psychiatric evaluation include psychological and systemic factors. Psychological factors refer to the expert witness's psychological characteristics such as stereotypes, beliefs, and personality.[66],[71],[72] On the other hand, systemic factors originate from the criminal procedure, such as selection bias (take sides)[66],[68],[71],[72] and the differences of the fundamentals and methodology between law and science.[62]

Accordingly, bias control and validity improvement methods in forensic psychiatric evaluation have been suggested. These methods include (1) credential requirements and management of expert witnesses; (2) establishing evaluation guidelines; (3) creating rules of scientific evidence admissibility; and (4) improving the scientific (psychiatric and psychological) knowledge of the legal profession.[62],[66],[67],[71],[72],[73],[74]

Also, there has been discussion on whether the adversarial or inquisitorial legal system is better for bias control and validity improvement in forensic evaluation.[75],[76] In the adversarial system, all parties in the criminal trial may request expert witnesses and initiate forensic evaluations, and cross-examination of the expert witness is necessary. Thus, expert witnesses must encounter direct inquiry and confrontation.[77] On the other hand, in the inquisitorial system, the power of requesting expert witnesses and initiating forensic evaluation usually rests in the judge's hands. In general, the expert witness needs not be examined in court. Therefore, the neutrality of the expert witness can be maintained.[78] Some mixing of these two systems has also been recommended, which is already implemented in some jurisdictions.[71],[78],[79],[80]

In the past two decades, there have been significant changes in the law and clinical practice in Mainland China and Taiwan China to increase the validity and reduce forensic psychiatric evaluation bias. There is governmental management of forensic expert witnesses in Mainland China, including registration requirements, practice administration, supervision, and promulgation of forensic evaluation guidelines. In criminal procedure, there is an examination of the expert witness if necessary. In Taiwan China, the major modifications are the introduction of cross-examination of the expert witness in the criminal trial and the Forensic Physician Law's enactment. Although the legal systems in both Mainland China and Taiwan China originated mainly from the civil law system, they also integrated some adversarial components from the common law system.[14],[81],[82] Despite the endeavor, there has been no empirical study on the possible validity improvement in forensic psychiatric evaluation or comparing the evaluation validity between Mainland China and Taiwan China. Therefore, future research is recommended to investigate the forensic psychiatric evaluation's quality and validity in these places.

In legal history, the earliest forensic psychiatric evaluation was to determine whether the defendant was sane or insane at the time of the offense. The physician or psychiatrist was chosen to be the evaluator and expert witness. As time goes by, there are many other forensic psychiatric evaluation purposes such as risk assessment, culpability, and others, encompassing a wide range of mental capacity, cognition, and behavior in individuals.[45] Today, the study of mental disorders and human action involves the overlapping disciplines of psychiatry, psychology, and brain science. However, following routine practice, all forensic psychiatric evaluations in criminal courts are conducted by forensic physicians or psychiatrists in Mainland China and nearly all by psychiatrists in Taiwan China.

In conducting forensic psychiatric evaluation, although psychologists sometimes in Mainland China and often in Taiwan China participate and provide valuable unique psychological input in the process, they are generally not regarded as having expert witnesses' legal status. At present, the law in both Mainland China and Taiwan China states that the expert witness is the person with specialized knowledge or experience. Thus, there are no restrictions on the law for other mental health professionals such as psychologists to be expert witnesses in forensic psychiatric evaluations.[83],[84] There are similarities and dissimilarities in the expertise of the psychiatrist and psychologist. For example, psychiatrists prefer interviews, while psychologists frequently administer psychological tests.[85] A study reported that 74.2% of forensic psychiatric evaluations conducted either by psychiatrists or psychologists used structured assessment tools.[86] In Jenkins v. the United States (1962) ruling,[87] the United States Court of Appeals held that psychologists might be admitted as expert witnesses to give opinions on matters of mental disorders and mental capacity. Besides psychiatrists, psychologists have often been requested to be expert witnesses to conduct forensic psychiatric evaluation in the United States and Australia.[18],[88],[89],[90] As the law and justice system is increasing the need for professional mental health input and services, psychiatrists and psychologists might consider promoting more cooperation and teamwork in the future to meet the demand. The complementary roles of the two professions will create a win-win situation. Therefore, receiving forensic psychology training and becoming a forensic psychologist may be an attractive future career direction for psychologists in Mainland China and Taiwan China.

There are limitations to this study. Many forensic psychiatric evaluation issues have not been discussed from the law perspective, such as evaluation initiation, evidence admissibility, the historical development of current legal codes, background and reasons for law article amendment or law enactment, law enforcement, and international comparison. In the discussion of clinical practice, the following topics have not been investigated in this study: training programs and professional competence, evaluation methods and tools, quality of reports and testimony, ethical issues, and process of disposition and psychiatric treatment of insanity acquittees. Moreover, a comparison of the philosophy and methodology between law and science (including psychiatry and psychology) is also not in this study's scope. The length and focus of this comparison restrict the discussion and elaboration of the above-related issues.


  Conclusion Top


This paper is the first analysis to compare adult defendants' forensic psychiatric evaluation in criminal courts between Mainland China and Taiwan China. The Criminal Law and Criminal Procedure Law articles were analyzed to focus on competence to stand trial, criminal responsibility, and sentencing. It appears that the law in Taiwan China explicitly mentions more mental illness and mental capacity than the law in Mainland China regarding forensic psychiatric evaluation. This difference is speculated to be related to the levels of stigma and attitudes toward mental-ill people between Mainland China and Taiwan China.

Concerning expert witnesses, Mainland China has established a registration and management system, but in Taiwan China, the judge decides the expert witness's admissibility. In addition, clinical evaluation guidelines have been promulgated in Mainland China, while there is none in Taiwan China. Therefore, future research will be needed to investigate and compare forensic psychiatric evaluation's law enforcement, assessment methods and procedures, validity, and ethics between Mainland China and Taiwan China.

Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.



 
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