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

Forensic examination plays an important role in China's judicial system,especially in the fact-finding process of both civil and criminal proceedings.Since 2005,this system has experienced gradual,yet significant changes.This paper seeks to examine the major themes of these changes in the context of the continued conceptual reformulation and structural realignment of civil and criminal procedures and the ongoing effort to codify evidence law with transforming impact on China's judicial system and culture.Emphasis is given to the transition of the forensic examination system from an officially(both administrative and judicial)administered fact-finding mechanism with powerful impact on the courts'truth-seeking activities to,at least partially,an expert witness system with significant participation and control by the parties5 to judicial proceedings.A convergence of influence from both the continental inquisitorial tradition and the common law adversarial structure appears to have strongly informed the process and direction of the Chinese forensic examination reform.This paper attempts to explain the reasons for this convergence of influence,identify the trend and direction of this development,and provide observations and suggestions for further improvement of the forensic examination system in several key aspects with particular reference to the legal principles and judicial practices under the Federal Rules of Evidence of the United States.

On Trends of the Role Transition from Expert Assistant to Expert Witness

In the context of Chinese evidence law,the role of the expert asistant is to"offer opinion on the forensic expertise or specialized issues."This role is multiple facet,somewhat similar to a lawyer's role,and to some extent similar to that of a forensic expert or a witness.For this simple reason,the views on the legal status of opinions of the expert assistant also vary from“cross-examination method,""forensic expertise"to"witmess tcstimony."This confusion regarding the role of the expert assistant often results in ifcultics in deciding whether to admit the expert assistant opinion as evidence at trial.The regulation that the expert assistant opinion"can be taken as evidence for determining facts of a case after cross-examination"stipulated in Paragraph 2 of Article 15 of the Supreme People's Court Interpretation of the Law in the Conduct of Environmental Civil Public Interest Litigations promulgated in 2015 could be seen as trends of a transition in the role of the expert assistant towards that of the expert witness.This article atempts to analyze reasons,sigificance,and prospects of sucha transition,and give suggestions to improve the application of examination rules for the expert winess and admissibility rules for scientifc evidence.

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

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.

Comparison of Adult Defendants' Forensic Psychiatric Evaluation in Criminal Courts between China' Mainland and Taiwan region:From Law to Clinical Practice

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 China' Mainland and Taiwan region.Results indicated that the law in Taiwan region explicitly mentioned more mental illness and mental capacity than the law in China' Mainland regarding forensic psychiatric evaluation.Concerning expert witnesses,China' Mainland has established a registration and management system,but in Taiwan region,the judge decides the expert witness’s admissibility.Furthermore,clinical evaluation guidelines have been promulgated in China' Mainland,while none in Taiwan region.Implications of the findings were discussed.