| An effective normalized examination of expert witnesses can offer sufficient guarantees to the correct assessment on the reliability of expert opinions. However, it has become a mere formality in judicial practice for its complexity and professionalism and lapsed into a predicament for difficulties to carry it out and loss of its goals on account of our skin-deep knowledge thereof. The expert opinion “under the guise of science” leads to its high credibility and strict compliance by parties. Expert witnesses have a higher possibility of not appearing in court than ordinary witnesses, which in turn aggravates the chaos in examination of expert witnesses and results in some major wrong cases. The criminal procedure of 2012 th version rephrased the expert opinion and laid down some preliminary rules for appearance of experts in court and expert assistance. Nevertheless, it failed to interpret the subjects, objects and manners to be employed in implementing the rules and provide a practical procedure tailored thereto. In consequence thereof, the foregoing reforms attempted fall short of common expectation. In witness whereof, it will be conducive to resolve the difficulties in carrying out the rules by paying close attention to the peculiarity of the examination, interpreting and generalizing overseas modes, cross analyzing it in different stages, with multiple subjects and interdisciplinary study and pondering on our indigenous rules. For the purpose of safeguarding justice in merit and procedure, a research into ways to draft rules for expert examination is obviously significant both in theory and practice when carried out against the background that judicial reforms pivoted on case trial are raging on in China when commitments, such as “judicial justice”, “strict administration of judicial practice”, “overall fulfillment of rules for evidence adjudication” and “continual improvement of rules for appearance of witnesses and expert witnesses”, have been made in the resolution passed by central committee of CPC.This thesis will target at the rules for examination of expert witnesses in criminal proceedings and make an extensive analysis of related issues. The overall thesis can be broken down into three parts: introduction, main body and closing remarks.The first part of this thesis is introduction, focusing on the background for topic selection, its value both in theory and practice, ways to research, gist and innovations.The second part of this thesis is the main body, consisting of six Chapters.Chapter One is on some basic theoretical problem governing the rules for examination of expert witnesses. The examination of expert witnesses is an evidential investigation activity of finding the fact pushed by the procecution,the defence and the adjudicator,which not only include discovery of expert opinions and appearance of expert witnesses so as to prepare the trial and defend actively,but also include questioning of witnesses and expert-assisted examination.The examination of expert witnesses have its own particularity, such as examining subjects` dual characteristics of pluralism and expert leading, examining object`s dual attributes of oral evidence and derived evidence, examining content`s universality and complexity, examining means` orality and technology.The value and purpose of enacting the rule for the examination by expert opinion is to substantialize impartial trial, substantive justice and efficiency of litigation,during which,however,the principle of immediateness and orality and of evidentiary adjudication should also be carried out. The immediateness and orality principle has dual function of both the security for fact-finding and of the right for confrontation at court,whereas,the principle of evidentiary adjudication,is to highlight its fundamental or kernal efficiency during the entire procedure of confrontation at court. The concept “fair trial” boasts its core value in the system of the examination. The fairness unlashed from the system of examination for criminal appraisal opinions consists of four justifiable essential ingredients, i.e., “equality of arms”, “adversarial hearing”, “the confrontation right”, “reasoning of judicial decisions”,which,in effect,are presented in every phase of the system of the examination by expert opinion such as pretrial discovery, expert witnesses to testify, cross-examination at court hearing, the expert auxiliary examination and the effect of examination security.Chapter 2 focuses on the rules for pretrial discovery of expert opinions. The rules for pretrial discovery of expert opinions can effectively serve as such positive functions as prevention of the unfair surprise revealed at trial, promoting the substantialization of examination, promotion of the efficiency of examination and realization of fair trial. However, in spite of the positive functions having been mentioned,discovery of expert opinions in criminal cases are typically one-directional from the government to the defense and far less developed than in the civil context.As one of the constituents in the adversarial system,the rule for discovery of expert opinions has been well developed, the basic principle, discoverable items,systems for starting the discovery process and pretrial conference on material issues has been regulated.In China,there is no any rule for the discovery of expert opinion but merely a notice for the expert opinion or access to the case files,for which relevant law is roughly made so that many legal disputes occurred in real juridical practice. In this regard, for the purpose of improving the system of discovery of expert opinions in China,we should first and foremost stress the prosecutors` automatic disclosure obligations, clearly confirm concrete scope of discovery for both the prosecutor and the defendant, create the proper conditions for the defendant inspecting,copying or photographing the physical evidence,authorize the expert assistant's intervening the procedure of pretrial discovery,make the pretrial conference playing an important role during clarifying the issue and then make every effort to improve the procedure of the judicial remedy.Chapter 3 centers on rules for appearance of expert witnesses in court. The expert presenting himself or herself at court as a witness is the essential precondition for the expert to face the examination,which may entirely ensure the confrontation right authorized to the criminal defendant.Nowadays,nevertheless,the rate for expert presenting himself or herself at court is in general very low,the primary cause of which is that the confrontation right has not been secured. We find that,after a comparative study, there are two modes at present for securing the right of confrontation with the expert witness.One is the mode under the security of constitution of the USA. Another is the mode under the security of European Court of Human Rights based on the confrontation right of the international norm for the fair trial.The shared character of the said two modes is to validate the right of confrontation as the fundamental litigation right of the accused as an essential right of the criminal defendant through legislation and,at the same time, acknowledges that there exist lawful exceptions of confrontation at court, which is generally agreeable with the requirement for impartial trial.In accordance with the judicial status quo in China,we should adopt mode of confrontation of the European Court of Human Rights.That is to say, we should confirm the right of the confrontation at court through legislative power while accepting its realistic function and should secure the right of the confrontation at court in judicial practice,i.e.,carrying out a relatively loose and somewhat abnormal examination concerning the request of the accused for the expert presenting himself or herself at court as a witness. The relevant operative procedure may follow the subsequent aspects: the criminal procedure law and the criminal procedure law concerned should clearly regulate that the criminal defendant shall be entitled to enjoy the right of confrontation; the concept“adverse witness” in its broadest sense should be adopted to amplify the scope of the subjects of court confrontation;both the requested confrontation and empowered confrontation should be synthetically adotped;compulsory rules and exceptional rules should be created so as to restrict the judge's abusing power of discretion and then the judicial remedy should be improved.Chapter 4 deliberates on rules for questioning of witnesses. Cross-examination is the very concrete reflection of the defendant`s confrontation right,and is also the efficient methold of finding truth.On cross-examination of expert witness,America has ample successful experience and standard practice. Examining subject,object, order, content and rule of examining expert witness have been regulated detailedly, and related auxiliary rules also have been established.In China,the mode of examining expert witness may be regarded as the generalized cross-examination, but in juridical practice there still exit lots of problems: the suitable rate is low, the efficiency is very poor, the cross-examination procedure is also disordered because of examining subject`s pluralism, the factuality and strength of the competition between the prosecutor`s expert and the defendant`s expert under cross-examination can`t be assessed accurately,it focuses more on the function of fact-finding, less on guarantee of the right of cross-examination,the rules of cross-examination are too simple and the scope of cross-examination is also too narrow. In this regard, for the purpose of improving the rule of cross-examination of expert witnesses in China,we should first and foremost create advanced litigation idea and institutional environment for implementing the cross-examination,such as establishing the concepts of “the disadvantageous witness” or “the confrontation right”,improving the rules for pretrial discovery of expert opinions and the rules for appearance of expert witnesses in court, highlighting the “the principal line” role of examining witness,striking a balance between the litigant leading and the litigation command power of the presiding judge. Secondly,the court should exercise reasonable control over the order and the competition strength of the cross-examination and the proper cross-examination rule should be regulated. Lastly,the special procedure should be normalized, such as the procedure aimed at the different expert opinions and the absent expert`s written reports.Chapter Five expounds on rules for expert-assisted examination. Examination assisted by experts is an important part of those for examination of expert witnesses. Besides the low rate of testifying at courts, China face another dilemma:the confusion of ideas and practices related to the system of expert-assisted examination, the main problems exit below: the related legislations are vague,the litigation value of this system are also obscure, the litigant status of expert assistants and the evidential status of the opinions offered by expert assistants are also vague, there exits no uniform and normative procedure related to the expert-assisted examination,the litigants have no access to expert assistants, the court often restrict the expert assistants appearing in court. In order to breaking through the above dilemma,we should jump out of the present research approach and transfer to the core right for Assistance of expert-assisted to achieve the innovation in studying method. By comparative study, in countries ruled by law and many international laws for human rights protection, the right to expert assistance by criminal defendants is a fundamental right of action and is protected in judicial practice by virtue of equality of arms and adversarial proceedings. In reference to the advanced ideal and normal practice overseas and based on China`s condition, the key to improve China`s rule of expert-assisted examination is to confirm the right for expert assistance by legislation, and to bring it into the rights system for defence along with the confrontation right and the right to have the Assistance of expert, so as to realize the balance between “fair trail” and “fact-finding”. Under such premise,we should confer the litigant Participants role on the expert assistants, confirm the evidential status of the opinions offered by expert assistants, establish expert database, make it lenient to review the necessity of expert assistants` appearing in court, normalize the procedure for expert-assisted examination and offer free expert assistance for the poor and felonious defendants.Chapter 6 elaborates on securing the effect of examination of expert witnesses. With regard to the yet insufficient expert-assisted examination, necessary guarantee needs to be afforded to the effect of examination so as to realize the goal of substantive fairness in examination. Notwithstanding the positive aim of standardized and effective examination pursued in the first place as for the effect of examination of expert witnesses, the reality abounds with negative circumstances – ineffective examination. The following progressive train of thought shall be followed to guarantee the effect of examination of expert witnesses-“ineffective examination” shall be contained to guarantee “standardized” and “effective” examination; the containment of “ineffective examination” shall take “ineffective expert testimony” as the key object for prevention and control; and different participants in examination shall be separately controlled to realize the overall control of the effect of examination(especially the words and deeds of appraisers, procurators and judges). Based on the thought of separate control of different participants in examination, the specific mechanism for the guarantee of the effect of expert opinion is as follows: first, to fully guarantee the right of expert assistant on the part of defendant; second, to fully guarantee the right of the defense lawyer; third, to establish the code of conduct and technical specification for experts; fourth, to implement accountability mechanism for misjudged cases on the part of procurators to promote the effectiveness of their objective obligations; and fifth, to implement the accountability mechanism for misjudged cases on the part of judges to regulate their discretion, thus establishing appropriate legal standards and scientific standards for the admission and in-admission by the judges of expert opinion.The last part is the closing remarks, which makes it clear that in addition to the above-mentioned rules to be enacted, we should design the rules for examination of expert witnesses within the entire framework of “trial at the center of reforms of legal proceedings”, guarantee court hearing play a key role in protecting the litigant right, adopting evidence, ascertaining the fact and adjudicating impartially, realize to examine expert witnesses in court, to ascertain the fact of the case in court, to opine on the expert evidence at court and to form the adjudication reason in court. |
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