|Ahead of print publication
Examining Scientific Evidence in the USA and Chinese Courts: A Comparative Study
Department of Law, Institute of Sciences, East China University of Political Science and Law, Song Jiang, Shanghai, China
Long Yuan Road No.555, Institute of Sciences, East China University of Political Science and Law, Song Jiang, Shanghai
Source of Support: None, Conflict of Interest: None
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 on 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 the defendant. Scientific evidence should be discovered. Disclosure must include basis, process, reliance material, and methods of forensic appraisals. In trial process, prosecution has transferred the case file to court, where the defendant will be able to copy the scientific evidence. Strengthen the neutrality of experts assistants established by the 192th article of the new Criminal Procedural Law.
Keywords: Cross-examination, cross-examination of expert witnesses, discovery of evidence, forensic appraisals, scientific evidence
| Introduction|| |
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, ways to examine and to prove scientific evidence, particularly in the course of a lawsuit, remain 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;  second, they stipulate the results when expert witnesses refuse to testify before court after receiving notice to attend from the people's courts;  and third, they establish a system called "persons with expertise attending in court."  This last provision seeks to assist parties in the examination and cross-examination of expert forensic evidence already before the court and, where appropriate, provide 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 rich in experience in assessing scientific evidence in the courtroom. Through consideration of the development of processes to examine scientific evidence in the USA 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|| |
The process for examining scientific evidence in the USA courts has two stages: First, requiring the discovery of scientific evidence (expert reports) and second, requiring experts to give their evidence in court orally 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
In the years before 1946, adversarial judicial theory justified litigants, who had collected their own evidence, to keep their evidence from opposing parties until it was presented at trial. To be required to disclose your evidence to an opponent, prior to trial was regarded as against the principle of adversarial fair play. 
In the USA, discovery of scientific evidence developed through legislation first in civil proceedings, the reason is that 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. 
Most of the states in the USA now allow judges to request litigant who possess 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 increase the efficiency of proceedings. 
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 prosecution attorney has acquired. This is highly unfair to the defendants. This practice caused some problems in 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, it 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 stipulates the prosecution and defense duties to disclose scientific evidence, including reports of examinations and tests, the expert witnesses to be called. Rule 705 of Federal Rules of Evidence also stipulated the provision of facts and data by expert testimony. For example, in a murder case, 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 adversary litigant theory. The 5 th and 14 th amendments to the Constitution of the United States of America concerning due process, give defendants the right to obtain information favorable to them from the government. Trial should resolve the disputes of both parties, rather than letting litigants to expand them over the minimal divergence. The impartiality of the outcome of judgment depends on finding out the truth of a case, rather than the abuse of skills.  The 16 th article of Federal Rules of Criminal Procedure enlarged the scope of evidence disclosure; 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" disclosures, meaning both parties have the duties to disclose evidence.
The pros and cons of disclosure of scientific evidence
The purpose of scientific evidence disclosure 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 prepare for the plea bargain.
The disclosure of scientific evidence has the following functions: First, the detailed disclosure of scientific evidence prevents prosecution attorneys from abusing the scientific evidence provided by experts, and thereby help to find out the truth.  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 it can withstand peer review. Third, by obtaining disclosure, opposing litigants can consult their own expert witnesses, who can help them to prepare for cross-examination and promote effective presentation. ,
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 5 th amendment to the Constitution of the USA grants defendants the privilege against self-incrimination. This gives rise to one-way disclosure, meaning only the prosecution 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 lop-sided outcomes because only the prosecution has the duty to discover evidence to the defendant, but the defendant does not have to discover incriminating evidence to the prosecution. 
Some arguments refute the above opinions. First, the opinion that "the disclosure of scientific evidence will lead to the information leakage and the distortion of the facts" does not occur in practice. This is because once the evidence is discovered, expert evidence cannot be easily distorted.  Second, there is no empirical evidence showing that expert witnesses will be threatened merely because their scientific evidence will be examined by peer review. , Even if the expert witnesses face some threats, these problems can be solved by certain protection measures. For example, legislatures can pass "Witnesses Protection Acts" to protect expert witnesses, or allow prosecution attorneys to discover 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 prosecution attorney's office. Finally, the clause against self-incrimination has been interpreted by the Supreme Court not to provide any obstacle to the disclosure of scientific evidence. 
The scope of scientific evidence 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.  Rule 16(a) applies to government disclosure and stipulates the scope of evidence including reports of examinations and tests, such as reports of any physical or mental examination and of any scientific test or experiment, expert testimony. Rule 16(b) stipulates the scope of the evidence that the defendant must discover to the prosecution attorney. Rule 16(a)(G) stipulates the content of the expert testimony that must be disclosed by the prosecution. If the prosecution 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 under 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 prosecution attorneys must allow defendants to inspect, copy, or photograph any reports or statements of experts made in connection with the particular case, including 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; and (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 6 th amendment of USA Constitution.  Cross-examination was extolled as the greatest legal engine ever invented for the discovery of the truth, according to the sayings of Professor Wigmore. 
The steps of examination include direct-examination as well as cross-examination. Direct-examination is the way that 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 case. Usually, direct-examination includes the following contents: (1) To introduce expert testimonies favorable to his own party; (2) to show that expert meets the requirements of an expert witness, and he or she has sufficient relative professional knowledge, skills, or career background; (3) to show the basic knowledge, skills, and experience which the expert formulates his or her testimony is reliable; (4) to manifest that expert has applied correct theory and proper methods to identify his or her conclusions; and (5) to verify that the expert is objective and unbiased to deliver his or her appraisals.  Expert witness usually work through three steps to deliver his or her appraisal opinion: (1) To verify his or her qualification of an expert witness and competency for the job; (2) to set forth the facts underlying his or her opinion; and (3) to explain the basis and ground of his or her forensic appraisal. 
Cross-examination is the inquiry to the expert witness from the opposing party. 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 is 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. 
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
Prior to scientific evidence being put before the jury at all, 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 (is irrelevant), or the rules permitting expert testimony are not satisfied (Rules 702, 703), or under the Rule 403, its probative value is substantially outweighed by the danger of unfair prejudice, or there may be confusion in the issue or it may hinder the jury in identifying the facts,  the judges may exclude the evidence as "inadmissible."
The admissibility of expert evidence under Rule 702
Rule 702 of Federal Rules of Evidence stipulates that before expert evidence may be put before 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 or she may be permitted to testify before the jury in the form of an opinion or otherwise.
In order to testify, experts must have professional knowledge or skills, either through education or through experience. In the USA, the management of expert witnesses does not adopt the system of "pretrial registration," which means experts will not permitted to provide forensic evidence until they register in the Administrative Department; the qualification of expert witness does not depend on what titles the experts have. Legislation gives the power of evaluating expert's qualification to the judges, 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 an expert is qualified  and whether his or her evidence may be put before the jury (when again the expert will testify subject to direct- and cross-examination).
To determine who is qualified as an expert, witness is more often a daunting problem than it would first appear, despite that there are standards in both the federal and states courts addressing qualifications of experts. For example, some courts have admitted testimonies from psychological experts and doctors, while some courts do not admit such testimonies. 
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, working experience, proficiency in forensic science, and so on. For example, by questioning specification of the professional field, the opposing litigant may intend to show that the expert witness is professional only in a particular field A; therefore, he or she is not qualified to deliver his or her opinions in other fields. If there are any collisions or controversies of ideals, the expert testimony will not be admitted by the judges. In the case Daubert v. Merrell Dow Pharmaceuticals, Inc. Justice Blackmun delivered the opinion of the court:
"Expert opinion that is not based on 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." 
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 like these:
- Q: Do you belong to a certain forensic institute? 
- Q: Is your certification in limited time?
- Q: Do you have had your certification currently?
- Q: Do you have 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. 
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 examine 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 because of financial benefits rather than for the sake of uncovering facts. Although lawyers realize the fact 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. So, in the cross-examination process, the opponent seeking to discredit the expert evidence will often ask questions such as:
- Q: How much payment did the expert get?
- Q: What is the ordinary fee of an expert? 
- Q: How many times has the expert been hired by the same litigant? 
- Q: Whether the expert is biased by interest? 
Questioning will be supervised by the court to ensure it is kept within civilized limits.
Whether the basis of scientific evidence is reliable
The data upon which expert delivers his forensic appraisals include the following aspects: The first is his or her professional knowledge derived from his or her education and experience. The second is first-hand information. The third is secondary sources. An expert can base his or her forensic appraisals on facts that other witnesses have testified in court. This category includes documents, exhibits, facts, data, and opinions admitted through other witnesses. For example, an expert can base his or her opinions on the testimony from a nurse claiming the patient suffered pain when he was hospitalized. The expert may deliver his or 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.
To question 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.  Take the data, for example, opponent can examine whether the data that the expert used to form his testimony is reliable and provide adequate basis for juries to evaluate scientific evidence. Even if expert testimony is based on specific data, the method by which the data were 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; they merely just collected a portion of information that was favorable to their own benefits.
The second method is to inspect further those data, facts, evidence, and opinions that were accepted. Expert witness based his opinion on certain factors, including data, facts, and other expert's opinion; the opponent can rebut the witness's reliability through pinpointing the errors or inadequacy in hypothesis. As far as the treatise is concerned, if the expert's testimony was based on authoritative treatises, the opponent can challenge its reliability by pointing out its defects. If the expert regards the opinions in the treatise to be authoritative, the opponents could enumerate certain opinions from the books, which could totally contradict to the expert's opinions. If a lawyer is not confident to prove expert's testimony to be problematic, he had better not refute the testimony directly. Instead, he should point out experiments that expert performed to prove his forensic appraisals is 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. 
The third method to vouch for reliability is to manipulate the testimony based on 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 or her conclusions.  Opponents may also try to modify the preliminary conditions given to the expert to check whether the expert can change his or her opinions correctly. For example, some litigants in court asked the expert witness some questions like this: "If fact A does not exist, what is the result in your forensic opinion?"
| The Guidance of Examination of Scientific Evidence in the USA|| |
Based on the comparative study of examination process of scientific evidence in USA courts, we may summarize the features and experience of the examining processes of scientific evidence in the USA. These experiences may provide us some guidance to improve examination process of scientific evidence in the Chinese criminal proceedings.
Emphasize the disclosure of scientific evidence
In the adversary system of the USA, both judges and juries play the role of "gate keepers" of scientific evidence. The functions of "gate keepers" were performed through the application of various rules of evidence. We have just realized that trial must be the center of criminal proceedings in the current Chinese judicial reform. However, much attention has been given to it by the common law adversary trial for a long time. In order to ensure that scientific evidence is accepted by judges and juries, both parties pay much attention to the disclosure process of scientific evidence. The USA implements the rule of "mere-indictment information," which requires that the indictment to cover in precision the targets of trail as a basis for accomplish fairness of trail, but to fairly prove this target the disclosure of scientific evidence is required. Due to the difficulty of understanding scientific evidence, a party must seek for the information of the expert evidence, and consult their experts so as to prepare for examination of scientific evidence in trial. Disclosure of scientific evidence before trial and the rights of both parties to consult their experts perform the following significant functions: (1) Prevent 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 toward the innocent in criminal proceedings.
Consult experts at the disclosure of scientific evidence
Disclosure of scientific evidence gives the opportunities for both parties to understand the information, data, and basis of expert testimony. This process enables the two parties fully to realize what expert evidence the opponent has acquired and prepare for the examination. In order to rebut the opinion of the opponent litigant's expert witness, lawyers should consult his expert first. The expert witness helps to find out the flaws existing 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 admissibility rules of scientific evidence. The reason is that in the USA, the legislature has accumulated sufficient experience for the admissibility of scientific evidence through a long period of judicial practice. For example, "general acceptance" was established after the case Frye v. the United States, and "general observation" was established after the case Daubert v. Merrell Dow Pharmaceuticals, Inc. All these admissibility rules of scientific evidence provide guidance to the judges and juries in the trail 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. The direct-examination and cross-examination provide opportunities for both parties to introduce scientific evidence and debate with each other. With regards 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 tender of the expert evidence before the jury. Once ruled admissible by the judges, the juries will decide whether the scientific evidence is reliable, finally to fulfill their duty of "gate keepers."
Adjust the partisan system to make expert neutral
Under the adversary system doctrine, the criminal procedure of the USA allows both parties to control proceedings and tender and examine evidence. As a result, lacking of neutrality is the defect of the system. Before litigants decided to hire an expert witness, they will consult several experts, and choose the one whose opinion is favorable to their litigation outcomes. Due to its tendentiousness, an expert witness was once satirized as the lawyer's "saxophone."  To solve these defects, legislature introduced reforms to the system of an expert witness with the purpose of avoiding the tendentiousness. They try to reform the expert witness system. Take the duty of experts, for example, it emphasizes more on the experts' neutrality than ever before. Experts must be liable to the court. They should help the judges and juries to find out case fact rather than helping the litigants win the case.
Therefore, in the USA, legislature emphasizes the liability of expert witness. In recent years, the raise of the liability of expert witnesses urges experts to testify objectively in court. Experts tend to be more honest when they were delivering their opinions than before,  simply because if they violate the obligation of honesty, they will accept the liability, and even will suffer strict punishment from his rightful forensic science association.
| The Current Situation of Examination of Scientific Evidence in China|| |
The current situation of scientific evidence disclosure in Chinese courts
The concept of "scientific evidence" is not mentioned in the code of Chinese Criminal Procedural Law. However, according to its definition and category, forensic appraisals such as fingerprint identification, forensic medical appraisals, forensic psychiatry appraisals, and so on, belong to the categories of scientific evidence. Fundamentally, because prosecutors and judges control proceedings rather than parties, as is the situation in the USA. Therefore, scientific evidence such as forensic appraisal does not have the disclosure process either. We may find that in Chinese criminal proceedings. In the Criminal Procedural Law in China, there are only a few mechanisms with functions similar to the disclosure of scientific evidence. That includes the part where the defense attorney has the right 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 prosecution attorney. The 1996 Criminal Procedural Law in China required the prosecution attorneys to transfer case file to the court in a list of paper containing the main copies of evidence. Therefore, the evidence that 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 information to the court. This change is progress in the amendments of Criminal Procedural Law. However, in this process, the defense attorney still cannot get the entire information of scientific evidence. Forensic appraisals were transferred with the case file to the court, but most of the forensic appraisals do not describe its basis or technical criteria.  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 for cross-examination
In order to achieve the purpose of cross-examination of scientific evidence, expert witnesses are required to testify before court.  However, the rate that experts attending court sessions is only <5% according to the statistics.  In order to increase the rate of experts attending in court sessions, the new Criminal Procedural Law 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 heightened 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 of expert's appearing in court is still not ideal.  Even in the cases with experts attending court proceedings, the examination effect is not ideal either.
The imperfect rules make the examination not effective
Due to the imperfect rules of examination, the 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 examination process of scientific evidence may be summarized as follows: (1) Some issues have little connection with the procedure of inspecting scientific evidence;  (2) some issues are mainly about the qualification of experts; (3) some controversies are about the validity of forensic appraisal process; (4) there are still some debates concerning whether the expert meets the requirements of the challenge system; and (5) finally, there are some arguments concerning whether the basis of forensic appraisal is reliable.
The standards of expert assistant is still not satisfying
The 192 th article of the new Criminal Procedural Law has established the system called "persons with expertise attending in court,"  this system means that both parties are entitled to request the court to announce a person with expertise to attend in court, to give their opinions on the forensic appraisals. This system intends to assist both parties to direct-examine and cross-examine scientific evidence. However, there are some problems existing in this new system.
First of all, 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 or her opinion on the forensic appraisals delivered by the opponent 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 could do is just to 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. From the view of the crime of perjury in the Chinese Criminal Law, the subjects of this crime is only limited to four kinds of persons, namely witness, expert witness, recorder, and translator. "Person with expertise" does not belong to any of these categories. They cannot be the subject to commit crime of perjury. On the other hand, since the 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 Prospective of Examining Scientific Evidence in Chinese Courts|| |
The bodies of disclosure of scientific evidence
There are two ways of solutions to the bodies of disclosure of scientific evidence. The first insists that both parties should discover scientific evidence to each other. The second opinion insists that only the prosecution attorney has the duty to uncover scientific evidence to the defendant. Which way of solution is better for the bodies of disclosure in the Chinese criminal proceedings? To have a better understanding, we should take the initiated process of forensic identification into account. In China, the forensic identification process can only be initiated by the judicial organs such as the police, the prosecution, and the court. Litigants only have the rights 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 discover scientific evidence
Scientific evidence should be discovered together with other evidence. Because by the time prosecution 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 may be summarized as follows: First, the disclosure of scientific evidence should cover the information about expert's forensic institute, qualification, and professional background. In China, most of forensic institutes are supervised and registered by the Judicial Departments of all levels, but for those forensic institutions attached to police and prosecution, they are administrated and registered by Police and Prosecution Departments. To discover, the qualification and professional background will help litigants check out whether the expert is qualified to provide expert evidence.
Second, the disclosure should include the basis, process, reliance material, methods of the forensic appraisals. By discovering the above information of scientific evidence, both parties will understand the basic theory and scientific methods of the forensic appraisals, to further inspect whether the sample collection process is valid, whether the sample has been polluted or been changed. In practice, both parties only acquire little information of 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 over-trusting of scientific evidence and are reluctant to challenge its authority. The second reason is that laymen have limited knowledge in forensic sciences and fail to distinguish its authenticity. The systems of discovery process of forensic appraisals and expert assistance will help check out the admissibility of forensic appraisals.
The period of scientific evidence disclosure
There are two concurring opinions on the period of scientific evidence disclosure. The first regards it appropriate to put scientific evidence disclosure in the investigation process. The second thinks it appropriate to discover scientific evidence in the trial process. The latter deems it harmful to put the disclosure in the criminal investigation process because it will lead to defendant's destruction of evidence. In the trial process, prosecution attorney has transferred the case file to the court, where the defendant will be able to take notes and copy the scientific evidence.
Perform the functions of expert assistant
The new Criminal Procedural Law has established the system 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 its rights and obligations. Some Chinese scholars argue that we should emphasize its objective baseline.  From the experience of expert witness of the USA, the bias of expert witness has already caused a lot of problems. Litigants tend to choose the expert whose opinion is favorable to his case. The expert has a biased tendency and loses his or her authority. As a matter of fact, the bias of expert witness has attracted the attention of the Legislation Department. They introduced reforms to avoid this problem. For example, they expect the 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 an expert witness in the USA may give guidance to our country. We must require "Person with Expertise" to be objective, so as to perform their roles professionally.
In order to establish an object and proper mechanism, we should improve the selecting process of "Person with Expertise"; strengthen the work ethic of "Person with Expertise". 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 "expert database" so as to provide expert assistants for judges according to requirements of both parties. In order to guarantee his or her neutral position, the cost for "persons with expertise" appearing in court should be subsidized by the judicial budget.
| Conclusion|| |
"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."  According to Professor Damaska, scientific evidence has played increasingly significant role in the proceedings. It helps identify the case facts with technology and science, reduces the reliance on 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. Based on the comparative study of examination of scientific evidence in the USA and Chinese courts, the disclosure of scientific evidence enables the litigants to acquire the information of 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 gate-keeping rules that permit judges to evaluate scientific evidence prior to trial and rule it inadmissible. The examination of scientific evidence involves substantial 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 USA. It emphasizes the disclosure of scientific evidence. It enables litigants to consult experts at the disclosure of scientific evidence. It provides gate-keeping admissibility rules to ensure that only relevant and reliable expert evidence is put before a jury. It established a sound procedure of cross-examination at trial.
In China, the Criminal Procedural Law of the People's Republic of China (2012 Amendment) has stipulated some provisions regarding the examination of forensic appraisals. However, the current situation of evidence disclosure is not ideal; the defense attorney cannot fully acquire the information of scientific evidence and prepare for the examination. Expert rarely testifies before court, which makes the critical examination of scientific evidence extremely difficult. The imperfect regulations make the cross-examination not so effective. The function of expert assistant is still not at its best. We may learn some experience from the USA 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 the defendant. Disclosure of scientific evidence must cover the information of expert's professional background and basis, process, reliance material, and methods of forensic appraisals. In trial process, prosecution has transferred the case file to court, where the defendant will be able to copy the scientific evidence. Strengthen the neutrality of experts assistants established by the 192 th article of the new Criminal Procedural Law.
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.
| References|| |
The<Criminal Procedural Law of the People's Republic of China (2012 Amendment)> has made some amendments concerning the examination of forensic appraisals. According to the regulation of Article 187 of the<Criminal Procedural Law of the P.R.C 2012>, where the prosecutor or a party raises any objection to an expert opinion, the identification or evaluation expert shall testify in court if the people's court deems it necessary. See Criminal Procedural Law of the People's Republic of China (2012 Amendment).
According to the regulation of Article 187 of the<Criminal Procedural Law of the P.R.C>, if the identification or evaluation expert refuses to do so after being noticed by the people's court, the expert opinion may not be used as a basis for deciding the case.See Criminal Procedural Law of the People's Republic of China (2012 Amendment).
According to Article 192 of the<Criminal Procedural Law of P.R.C>, the public prosecutor or a party or the defender or litigation representative thereof may request the court to call a person with expertise to appear before court to offer an opinion on the expert opinion of an identification or evaluation expert. See Criminal Procedural Law of the People's Republic of China (2012 Amendment).
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Georage Raland. Discovery Before Trial.Chicago: Callaghan and Company; 1932. p.267.
Brennan WJ, Jr. The Criminal Prosecution: Sporting Event or Quest for Truth? Wash. U.L.Q.279; Spring, 1990.
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Giannelli PC, AKE v. Oklahoma. The right to expert assistance in a post-daubert, post-DNA world. Cornell Law Rev 2004;89:1305, 1312-3.
Judge Jack B. Weinstein, science, and the challenge of expert testimony in the courtroom. Oregon Law Rev 1998;77:1005, 1008.
Wright CA, Miller AR. Federal Practice and Procedure. Civ.3d § 252, at 36-37.Westlaw; 2013.
American Bar Association. ABA Standards for Criminal Justice. Prosecution function and defense function. Washington DC. American Bar Association; 1993.
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Rule16 of the <Federal Rules of Criminal Procedure>stipulated the scope of evidence disclosure, including the following 5 types of evidence: Defendant's Statement; ? Defendant's Prior Record; ƒ Documents and Objects; ? Reports of Examinations and Tests;… Expert Witnesses. See United States, supreme court. Federal rules of criminal procedure. Washington:U.S.G.P.O.
Article 6 of the amendment of Constitution of USA stipulates that in all criminal prosecution, the accused shall enjoy the right to be confronted with the witness against him. See principle, Michaelluis. Bills of right: a comparative constitutional analysis. Dubuque, lowa: Kendall/Hunt 2000.
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United States Court of Appeals, Fifth Circuit. Jules R. Viterbo, et ux, (patricia viterbo), Plaintiffs- Appellants, v. The Dow Chemical CO., Defendant- Appellee. 826 F.2d 420 C.A. 5 (Tex.) 1987, the court performed the Rule 403 balancing test and excluded the scientific evidence provided by two experts because the data they relied upon to form their appraisals was so unreliable and lacking in probative value that it could not be used as a basis upon which a reasonable expert could base his appraisals. An expert diagnosed the plaintiff's condition merely by relying on the plaintiff's oral history, without having examined him. The fact that this expert had a "preconceived theory", coupled with the fact that the only support for his contention was a single published article, was sufficient for the court to exclude his testimony. The other expert had no specialized training in the particular field and relied on research by another person whose qualifications were unclear. It was also uncertain as to what examination he had performed on the plaintiff.
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, petitioners, v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579, 113 S. Ct. 2786.
United States Court of Appeals Sixth Circuit. Raymond Tank and Elizabeth Tank, Petitioners, v. Commissioner of Internal Revenue, Respondent. 270 F.2d 477 C.A.6 1959.
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In the current practice of forensic identification in China, most of the forensic appraisals do not precisely describe the technical criteria, standard regulations of the forensic appraisals. Therefore, the standing committee of people's congress of Fujian Province in China has examined <the Administrative Regulations of Forensic Appraisal in Fujian Province (draft)>, which requires that forensic appraisals should contain the information of the process, the technical criteria of forensic identification. See Ya-dong W, Fujian Province Plans to Examine the Regulation Require Forensic Appraisal to Contain Information of Process and Technical Criteria, China Legal Daily; 13 (03) June, 2014.
According to the regulation of Article 187 of the <Criminal Procedural Law of P.R.C>, where the prosecution attorney or a party concerned or the defender or agent ad litem thereof raises any objection to a forensic appraisal, the forensic expert shall testify before court if the people's court deems it necessary. If the forensic expert refuses to do so after being noticed by the people' court, the forensic appraisal may not be used as a basis for deciding the case. See Criminal Procedural Law of the People's Republic of China (2012 Amendment).
Rui-Hua C. Front Issues in Criminal Proceedings. Beijing: China Renmin University Press Co., Ltd. 2000. p. 56.
Ming HU. Empirical study on expert witness' appearing in court and the role played by expert assistants. J Legal Sci Res 2014;4:191, 208.
Zhi-Chun D, Gen-Wei L. On the improvement of cross-examination system of forensic expert in China. J Legal Sci 2011;7:80, 86.
The 192th article of the new <Criminal Procedural Law of P.R.C>stipulates that the public prosecutor or a party or the defender or litigation representative thereof may request the court to call a person with expertise to appear before court to offer an opinion on the expert opinion of an identification or evaluation expert. "Persons with Expertise" is also called "Expert Assistant" by some scholars in China. See Criminal Procedural Law of the People's Republic of China (2012 Amendment).
Jian W. Study on expert's attendance in proceedings. J East China Univ Pol Sci Law 2012;5:113, 117.
Damaska MR. Evidence Law Adrift. London: Yale University Press; 1997. p. 143.