|Year : 2017 | Volume
| Issue : 2 | Page : 85-89
Mandatory appearances of forensic examiner for cross-examination in court and related systemic improvement under china's criminal procedure
Jianye Qu1, Min Guo2
1 Senior Judge of the Third Rank with the Intermediate People's Court of Changzhou (Now Retired), Jiangsu Province, China
2 Judge of the Forth Rank with the Intermediate People's Court of Changzhou, Jiangsu Province, China
|Date of Web Publication||30-Jun-2017|
The Intermediate People's Court of Changzhou, The First Trial of Criminal Trial, No. 6 Yongning North Road, Changzhou City, Jiangsu Province
Source of Support: None, Conflict of Interest: None
In China's criminal procedure system, forensic advice is one of the key types of evidence. These advices play an important part in discovering the facts of a case, convictions, and sentencing, and they cannot be ignored in assessments of guilt and the death penalty. However, due to broad and flexible criminal laws, in actual litigation, the nonappearance of forensic examiner or mere provision of documentation of advice read in court has become the norm. This has led to the existence in name only of cross-examination rights, which directly damages the legitimate rights and interests of the parties and the objective and impartial rulings of referees. At present, there is no legal clarity in criminal proceedings that examiner should or should not be examined in court. In my opinion, the entire court system should require an appearance in court, which must be a clear mandatory appearance with specific exceptions. The system should guarantee the forensic examiner' mandatory appearances, which would inevitably improve the rules of evidence.
Keywords: Forensic examiner, mandatory appearance, cross-examination
|How to cite this article:|
Qu J, Guo M. Mandatory appearances of forensic examiner for cross-examination in court and related systemic improvement under china's criminal procedure. J Forensic Sci Med 2017;3:85-9
|How to cite this URL:|
Qu J, Guo M. Mandatory appearances of forensic examiner for cross-examination in court and related systemic improvement under china's criminal procedure. J Forensic Sci Med [serial online] 2017 [cited 2022 Jun 25];3:85-9. Available from: https://www.jfsmonline.com/text.asp?2017/3/2/85/209284
| Introduction|| |
The press published the forensic advice on the case of a “traffic accident by a BMW on June 20, 2015, that happened in Nanjing” focusing on the criminal liability of the suspect, Wang Jijin. “The suspect has acute and transient psychotic disorders, which limits the ability to attribute blame.” The citizens were upset about the advice. With the legal system improving and the development of scientific technology, forensic advice is extremely prominent in the effects and efficacy of the fact-finding, conviction, and sentencing of a case under criminal procedures. At present, there is no mandate that forensic examiner appear in court for cross-examination. However, the right to cross-examine witnesses is the basic consensus in Chinese judicial practice. Instead, it is common practice to read aloud the forensic advice without examining the witness. The cross-examination of the advice is formalism, which damages the lawful rights and interests of the parties and injures the objectivity and impartiality of the judgment, particularly in cases of guilt or innocence and when the sentence could be the death penalty.
| Appearance of Forensic Examiner for Cross-examination in Court under Chinese Criminal Procedure|| |
Status of forensic examiner
According to Article 106 of the Criminal Procedure Law of the People's Republic of China, “participants in the proceedings” refers to the parties, legal representatives, agents ad litem, advocates, witnesses, expert witnesses, and interpreters. Article 144 stipulates that, when certain special problems relating to a case need to be resolved to clarify the circumstances of a case, experts must be assigned or appointed to give appraisals. Thus, forensic examiner under Chinese jurisprudence is the “professional persons who stand for appraisal” and “independent participants in the proceedings,” which differ from “expert witnesses” in the common law system or “expert assistants” in the civil law system. These persons analyze and judge the special issues of a case and offer scientific opinions. Forensic examiner in Chinese criminal procedure is from authentication institutions or intermediaries, mostly from the former in criminal cases.
Classification of Chinese examiner
In 2005, the Standing Committee of the National People's Congress passed the Decision on Issues Concerning the Administration of Judicial Authentication. Through it, the state must implement the registration administration system of authentication witnesses and authentication institutions engaged in the following matters of judicial authentication. (1) Medicolegal authentication including medicolegal pathological authentication, medicolegal clinical authentication, medicolegal mental illness authentication, medicolegal material evidence authentication, and medicolegal poison authentication. (2) Authentication of physical evidence including document authentication, trace authentication, and micro authentication. (3) Authentication of audio and visual matter, including appraisal of truthfulness and integrity and of the situations and processes reflected in the sounds and pictures recorded in carriers such as tapes, video cassettes, and identical or in-kind identification of the language, bodies, and subjects in recorded sounds and pictures. (4) Other appraisals determined subject to the registration administration of authentication witnesses and authentication institutions by administrative authorities for justice in the State Council after consultation with the Supreme People's Court and the Supreme People's Procuratorate in light of the need for litigation.
On the use of doubtful advices in the Du Peiwu case in Yunnan
On April 22, 1998, the body of Du Peiwu's wife, a policewoman in the Kunming Municipal Public Security Bureau, and the body of Wang Junbo, a deputy superintendent in Kunming's Lu'nan County Public Security Bureau, were found by Kunming police shot to death in a vehicle. Du Peiwu was suspected of the murders. After 70 days of investigation and court trial, Du confessed that he was the murderer and described the crime scene. However, the pistol used as the murder weapon was missing. On February 5, 1999, the Kunming Intermediate Court found Du Peiwu guilty of murder and sentenced him to death. On appeal to the Yunnan High Court, the death sentence was suspended for 2 years. In June of 2000, the actual murderer was captured with the murder weapon.
The expert opinion regarding Du Peiwu was that the chemical composition of soil and the odor was identical to the soil and odor left by the murderer at the crime scene, which was the main evidence used for conviction. The forensic advice was at one point the focus of debate in the trial. The forensic examiner appeared in court as witnesses, but they merely read their advices without responding to the defendant's examination, and the court had no doubts about the authentication, which only relied on the written documentation for the record and a supplement on appeal, which led to the court's finding that Du was at the crime scene.
Reasons to cross-examine the forensic examiner
Forensic examiner must appear in court for examination during criminal trials under China's criminal procedure, which means that forensic examiner present statements to the court about the issues relevant to the authentication experts, proceedings, and advices. Accusers and defendants question the forensic examiner, and the judges investigate. There are three reasons that expert witnesses must appear in court for examination during criminal proceedings. First, there is a need to resolve practical problems. The facts of a case are revealed by examining the forensic examiner, explaining their advices, and interpreting the bases and consequences of authentications during lawful proceedings. Second, they must appear in court to find answers to controversial questions regarding authentication. When experts refuse to appear in court, and the advices of authentications are read without examination, it is difficult to overcome the doubts of the parties, which leads to repeating an authentication. On the one hand, this increases the cost of litigation and might trigger a complaint. On the other hand, it subverts the process of the trial. Third, expert witnesses in court give clear direction to the parties in the case and fortify the probative force of the evidence. Because the evidence includes dactylography, foot trace, ballistics, tool vestiges in ichnology, forensic physics, forensic physiology, and other professional fields, it is difficult to understand the forensic examiner' advices simply by reading the advice statement because the prosecutor and the parties do not have the technical background and mainly understand the legal aspect of the case. This is particularly problematic because there usually is more than one advice in a case. A court appearance could support the participants' understanding of the advices.
| Realistic Problems and Reason Analysis of the Cross-examination of Forensic Examiner|| |
In modern court proceedings, the key factor to the success of the procedure is the fact-finding, in which the advices of the forensic examiner have an irreplaceable function. The principle reason to cross-examine forensic examiner in court is to guarantee the persuasiveness of evidence and to discriminate among the problems related to the practical qualifications, ability levels, legality of acquired inspection materials, and the reliability of test methods. The appearance and cross-examination of forensic examiner is a key step in the court trial. Although the appearance and cross-examination of forensic examiner determine whether the relevant administration endorses the examiners and their agencies, their appearance is the biggest problem in discovery. In usual judicial practice, the absence or spotty formal appearance of examiner is a persistent problem.
When forensic examiner refuses to appear in court, the refusal has a direct influence on the persuasiveness of the evidence. According to statistics from relevant departments, in 2003, there were 2153 cases authenticated by the authorities in the High People's Court and Intermediate People's Court of Jilin Province. Only 17 cases (0.8%) had examined expert witnesses in court. The low rate of appearances leads to the advice that adversarial proceedings are without authenticated evidence, which is an obstacle to due process. Because the parties, their advocates, and their representatives have insufficient knowledge on judicial authentication technology, the cross-examination of expert witnesses on their advices mainly focuses on the issues of legality. The relevance of and objections to the advices rarely occur in China. When considering authentication opinions, judges must use not only their legal knowledge but also other sources of expertise. However, expert language might change the trial into a lesson and confuse the judge. The courts use expert assistants when necessary, but arguments between experts are inevitable. In that case, the judge is excluded from the expert field. The poisoning case that happened at Fudan University is an example.
At present, there is no evidentiary law or general rules of evidence in China nor is there a unified national judicial authentication law. Numerous departments have developed documentation to influence judicial authentication, and even the Decision on Issues Concerning the Administration of Judicial Authentication have made some progress, but improvements are still needed.
Correct protections for forensic examiner are missing
Under the current legal regime, the appearance of expert witnesses in court is emphasized as an obligation, but their privileges are ignored. Article 63 of the Criminal Procedure Law of the People's Republic of China explicitly sets forth the right to an allowance for the witnesses, but not for the forensic examiner. Pursuant to Article 62 of the Criminal Procedure Law of the People's Republic of China, when the personal safety of expert witnesses or family members who testify is threatened, the people's court, people's procuratorate, and the public security authority must employ one or more protective measures regarding crimes that endanger national security, terrorism, organized crimes of triad societies, or drug crimes. However, this type of protection is focused on the consequences, and there is no mention of protection during the various phases of the trial.
Lack of consequences for nonappearance of forensic examiner
Chinese Law stipulates that forensic examiner must be in court without providing consequences for their nonappearance. Article 187 of the Criminal Procedure Law of the People's Republic of China states the following.
Where the prosecutors, the parties or their advocates or agents ad litem for the litigation have opposition against the advices of expert witnesses, and the People's Court considers it necessary for the expert witnesses to appear in court, the expert witnesses shall appear in court to give testimony. Where, after the People's Court notifies the expert witnesses to appear in court to give testimony, they refuse to, their advice shall not be used as the basis for deciding the case.
The provisions of Decisions and Measures of the Ministry of Justice on the Administration of the Registration of Judicial Forensic examiner are too vague. There are no defined meanings of “significant relationship” or “serious circumstance,” the consequences, or the statutory basis. This vagueness leads to difficulties practicing law and a broad discretionary power with gaps in the regulations regarding the forensic examiner through which they escape their obligations.
Deviation from the importance of examiners' appearances in court
Authentication witnesses under China's criminal procedure are of two types, those from judicial authorities, which are the most common, and those from intermediaries. Judges could partially emphasize the opinions of authentications from judicial institutions and consider the advices regarding finding of fact as evidence without appearances by the witnesses. In addition, most judges believe that appearances by expert witnesses increase the workload and costs of a proceeding because of the increased quantity of tasks, which harass the people and waste money.
From the perspective of the authentication witnesses, first, the notion that they are obliged to be examined in court is not well accepted. Forensic examiner from the judicial authorities considers themselves representatives of the country and that the advices of their authentications are their obligations, but not as witnesses examined in court. Second, the quality of authentication witnesses is not the same among them, and some of them do not know how to express or explain the central points of contention to the participants and judges who have no expertise in that field. Thus, they are unable to face the situations in court and clearly answer the questions, which directly influence the evidence. Third, there is no faith in protection under the law for forensic examiner when retaliation might occur.
| Mandatory Appearance of Forensic Examiner for Cross-examination in Court and Exceptions under the Rules of Criminal Procedure|| |
This author's opinion is that all authentication witnesses should appear in court for cross-examination, and there must be a clear standard of boundaries for mandatory appearances and exceptions thereto.
Mandatory appearance of forensic examiner
The duty to appear in court for examination is the demand of legal justice, which is difficult to practice in the Chinese legal context. Under several circumstances regarding cases in which there is a dissent of opinion, a death sentence, or a felony, the forensic examiner must appear in court as witnesses to explain and respond to anything relating to the authentication opinions to clarify the specific questions.
Cases that repeat authentication or in which dissent of authentication is rendered
This type of case happens when the parties doubt the authentication opinion and have not received a reasonable and convincing response from the written advice. The distrust of the authentication opinion could transfer to become distrust of the trial and ruling, which could lead to doubts about the impartiality and authority of the procedure. That problem could be solved by the court appearance of the expert witnesses to inspire public confidence in the entire judicial process and encourage the parties to follow the legal proceedings and system.
Cases that render felony convictions or death sentences
According to Articles 23 and 24 of the Provisions on Several Issues Concerning the Examination and Judgment of Evidence on Death Sentence Cases, issued by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of State Security, and the Ministry of Justice, the opinions of the forensic examiner are procedurally scrutinized. If there are doubts about the authentication opinion, the People's Court must notify the forensic examiner to appear in court as a witness to explain or supplement the authentication. The death penalty is the most severe sentence because it deprives the criminal of his life. It is discreet to impose the death penalty and the procedure is sophisticated because of the high value of human life and to avoid rendering an incorrect judgment, forensic examiner must appear in court. This is also the case in felony cases.
Cases related to authentication of the criminal's mental capacity
Authentication of a criminal's mental capacity focuses on whether a certain sentence should be imposed on a criminal. In theory, a judge determines whether to accept the authentication opinion during trial, but it is difficult in practice to rule on the merits of the forensic advice. There are many different mental diseases. The complication in the judicial mental authentication theory and the abstract of the diagnosing standard are challenging for ordinary citizens to understand. Forensic examiner is the best individuals for understanding the mental health world and they reasonably and accurately assess the extent of responsibility of the accused. The only way to determine whether the authentication opinions are credible is through the examination of the forensic examiner in court.
To the author's knowledge, there are several situations that experts could use to refuse to appear with the approval of the court. First, two or more forensic examiner could offer identical opinions for which one forensic examiner appeared in court and the other forensic examiner provided written authorization. Second, an forensic examiner's death, illness, or inability to travel could be an exception. Third, nonappearance could be caused by force majeure, such as natural disasters or accidents. Fourth, geographical distance or inconvenient transportation could be an exception. Fifth, other unexpected reasons for not appearing could be approved by the court.
| Establish a System That Guarantees the Court Appearance of Forensic Examiner|| |
To guarantee the quality of judicial authentication and to increase the authority of forensic advices, the legal system must create a scientific method to support the process of forensic examiners' rights and appearance in court.
Improve forensic examiners' professional abilities during examination in court
Forensic examiner own specific knowledge. It is not only a challenge to their professional ability when they are in court as experts, but court appearance also challenges their skills. First, regarding differences of quality, it is important to establish professional forensic examiner examinations in court as a standard across the nation using the success of the national judicial examination as an example. Second, we should to establish a system of vocational training regarding examinations in court. Even after an forensic advice has been rendered, forensic examiner should appear in court to explain under examination about the processes and methods related to the advice. The forensic examiner should have the right to answer or refuse to answer the questions, which should be clearly stated.
The consequences of nonappearance by forensic examiner
No obligation means that there is no law. In the common law system and the civil law system, provisions exist on the consequences of nonappearance. Under the fundamental legal responsibilities set forth in Decision on Issues Concerning the Administration of Judicial Authentication regarding nonappearance of forensic examiner, it is stipulated in the Criminal Procedure Law of the People's Republic of China that there are consequences of nonappearance of witnesses that combine criminal prosecution, administrative punishment, and a fine.
Improve the protection of the forensic examiners' rights after they appear in court
The legal rights and obligations of forensic examiner should be proportional to each other. The law should endow relevant rights to forensic examiner and their appearance in court to ease their concerns during examination.
To consummate the judicial rights protections of forensic examiner
In China's criminal procedure, forensic advices are strongly related to individuals' freedom, even their lives, and compared to civil procedure; the likelihood of retaliation is much higher for an unwanted advice. Therefore, it is wise to establish protections for forensic examiner similar to witness protections. There should be immunity in cases where false advices are rendered because of technological problems, defective materials, or force majeure, similar to the immunity rights given to medical institutions.
Improve the financial compensation of the forensic examiner
Similar to the above situations, there are only principles in the provisions about financial compensation for forensic examiner. The related travel expenses, meals, and accommodations should be compensated by the administration finance similar to the compensation provided to legal aid or witnesses.
| Epilogue|| |
As one of the eight types of evidence stipulated in the Criminal Procedure Law of the People's Republic of China, expert witness opinions are not only the way to discover and reveal crimes, they are the basis of affirming the facts and nature of cases. Sometimes, they are the key element that determines the guilt of the accused. The examination of forensic examiner in court as expert witnesses is used to obtain explanations of the advice of the authentication. This process overcomes the parties' doubts about the forensic examiner and their advices. It provides advantages for the rights of the parties and the finding of facts by arguing the merits of the advice. It is the forensic examiners' obligation and responsibility to appear in court and their appearance is demanded through implementation of the rules of evidence and the procedures of the legal system.
Financial support and sponsorship
Conflicts of interest
There are no conflicts of interest.
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