Research On Cross Examination Of Expert Opinions

The "trial-centered" litigation system is an institutional guarantee to achieve procedure legalization and judicial fairness proposed on the four plenary sessions of the18 th National Congress of the Communist Party of China.The substantive court trials are essential for implementing the trial-centered litigation system.Each evidence must be verified in court before it can be used for the verdict.Expert opinion,as litigation evidence,is verbal evidence in one way,however,different from witness testimony,statements of parties and confession.Scientific evidence,in another way,expert opinion is different from objective existences like physical evidence,documentary evidence.There have been constant reforms and innovations on cross-examination of expert opinion.There are also valuable discussions in the academic circle.Since there are still disputes,it is necessary to sort out the nature of expert opinion and factors that affect the authenticity of expert opinion to solve the problems in court cross-examination.Cross-examination on expert opinion as the research object,this article suggests a new mechanism of cross-examination on expert opinion in China.Apart from introduction,this article consists of six chapters.Chapter ? "Nature of expert opinion ".The logical start point of this article is the nature of expert opinion.Forensic identification contain two elements: the lawsuit procedure element and the science and technology entity element.These two basic elements have determined that expert opinion must follow scientific and technological norms and litigation rules.Expert opinion are both judicial and scientific in nature.Judicial,they are statutory evidence for litigant activities,that are subject to litigant rules and that must be cross-examined and verified in the litigant procedure,which is not the main concern of this article.Scientific,they are the foundation of expert opinion as legal evidence.Expert opinions are based on scientific principles and technical methods.Scientific ideas and skills are the core elements that distinguish expert opinion from other evidence.In its nature,expert opinion is judgment and inference made by judicial authenticator on the specific issues in a case using scientific principles,methods,and techniques,rather than an objective presentation.Opinion evidence is inevitably strongly subjective.This chapter analyzes the nature of expert opinion from three aspects.The first section emphasizes the differences between expert opinions and scientific discoveries in three aspects: objects,thinking modes,and time limit.The second section explores into the hermeneutic properties of expert opinion from three aspects: interpretation,the non-unique interpretation frame,and the influence of background information.The third section focuses on the fact that expert opinions are close to the truth.It develops in four aspects: the openness of opinion expression,the non-uniqueness of standards,the impossibility to pass the test of time,and not being the product of competition.Chapter ? "legal basis of cross-examination on expert opinion ".Each evidence must be verified by court investigation procedures as presentation,cross-examination and so on before they can be used for verdict.Expert opinions,whose value mainly lies in procedures and entities,are of no exception.This chapter develops from three aspects:procedural equilibrium theory,entity reality theory and good faith principle.The first section,the theory of procedural equilibrium,discusses realization of equal procedure-involvement rights to utilize knowledge equally in litigation from three aspects: new connotation of procedural equality,qualification of equal cross-examination,and equal confrontation status.The second section,theory of entity authenticity,goes from three aspects to state how cross examination on expert opinion ensures entity authenticity of expert opinion: intellectual fraud,eliminating flaws in expert opinion and maintaining the credibility of expert opinion.The third section,the good-faith principle,restricts appraisal activities in two aspects: subjective good faith and objective good faith.Appraisers must conduct appraisal with fairness and impartiality,while following every scientific and objective appraisal specification to conduct each appraisal activities such as inspection,analysis,and judgment.Chapter ?,"empirical analysis of cross-examination on expert opinion".At present,the introduction of expert assistant and technical investigators(only applicable to intellectual property cases)in the practice of expert-opinion cross-examination,ensures that both parties use knowledge equally in cross-examination,which,in the meanwhile,raises new problems.This chapter looks into expert assistant and technical investigators from three perspectives.The first section probes into system designing to prove its legal validity and to find problems and puzzles of this practice in judicial practice.The second section is cross-examination on expert opinion in practice.It analyzes and summarizes application of the expert opinion and the cross-examination in China by citing existing judicial cases in Pkulaw web and listing field investigation data.The third section is the actual dilemma of expert opinion in cross-examination.The research comes to six main problems: 1 flawed forensic identification system before the trial.2 defective procedure for new identifying.3 absence of appraisers in court.4unclear qualification of expert assistant.5 less options for expert opinion.6 loss of factual jurisdiction.Chapter ? "Study and reference of expert opinions in British and American Law System ".Expert assistant originates from British and American laws.Looking back into the evolution of expert witness rules in their system,helps reshaping China's cross examination procedures on expert opinion.This chapter develops from three aspects.The first section is on evolution of British expert opinion evidence,examining typical cases and statutes: Folkes v Chadd Case in 1782;Severn,King and Co.v.Imperial Insurance Co.Case;Gillespie v Russell Case in 1850;Supreme Court of Judicature Act of 1875 and Civil Procedure Rules of 1998.The second section is on evolution of United States Federal Scientific Evidence Rules.The four most typical cases in the United States in the 20 th century are mentioned: Frye v.United States Case in 1923;Daubert v.Merrell Dow Pharmaceuticals Case in 1993;General Electric Co.v.Joiner Case in 1997 and Kumho Tire Co.v.Carmichael Case in 1999,with revision and reshaping on the content of US Federal Rules of Evidence.The third section is on inspiration from cross-examination on experts' opinions in British and American Law System.Analysis of typical cases and statutes in the previous two sections can help China's cross examining on expet opinion in four aspects: the basic principles of expert opinion cross-examination,the scope of expert opinions,the judge's responsibility for reviewing expert opinions,and the future of expert opinions in judicial practice.Chapter ? "inherent conflicts of cross-examination on expert opinions".This chapter suggests three causes to current situation and dilemma of China's cross-examination on expert opinions: exclusiveness of the confirmation mechanism of the evaluation opinion,which manifests in three aspects.Firstly,evaluation opinion is inference of expertise,while ordinary evidence is statement of perceived content.Secondly,judgment of evaluation opinion relies on specialized knowledge,and ordinary evidence is by common sense.Thirdly,cross-examination does not help judge the validity of expert opinions,while it does with ordinary evidence.The second section analyzes contradiction between due process and scientific truth:a.conflict of judicial process value and scientific value;b.the rule of illegal evidence exclusion to the limitation of appraisal materials and reliance on knowledge authority.The third section explores the incompetent mechanism approaching disputes on expert opinions.The litigation mechanism,in nature,is objection mechanism.The litigation objection mechanism is inherently incompatible with the scientific dispute resolution mechanism.At the same time,the openness of appraisal opinions leaves the door for disputes.The negative opinion of one party will be questioned because it will affect their own physical rights.Chapter ? "Reconstruction of the mechanism of cross-examination on expert opinion".With full understanding of the nature of the expert opinion and thorough analysis of the problems and causes that expert opinion encounters in cross examination,this essay studies the trend of expert opinion in judicial practices in British and American Law System and suggests reshaping China's cross-examination mechanism on expert opinion in four ways.Section I is establishment of scientific consultants.In view of existing problems with expert assistant and technical investigators in judicial practice of our country,this article suggests scientific consultants to solve the problems in the identification and cross-examination of opinions,and describes the feasibility of scientific consultants as alternative from four aspects.a.reasons for scientific consultants as alternative,b.the very specific nature of scientific consultants,c.targeted training for scientific consultants,and d.advice on choice of expert opinions for scientific consultants.Section II is formulation and disclosure of appraisal technical standards.One factor of objective reliability of expert opinions is based on scientific reliability.Confirmation of recognition and disclosure of appraisal technology standards ensures fair forensic identification and reliable expert opinions.A national appraisal technical certification expert committee should be organized to update unscheduled appraisal technical standards and ensure that unpublished appraisal principles and technologies shall not be accepted,and that confirmed appraisal principles and technologies shall not be the focus of cross-examination.The committee also guarantees disclosure of technologies of trade secret attributes not be refused.Section III is on regulations on proper storage of materials.Since fouling of materials directly affects the accuracy and authenticity of expert opinions,strict rules must be made to ensure complete circulation record and access to query for both parties on the record,and to ensure opinions against the rules not be accepted.Section IV is on relevant measures that ensure authenticity of expert opinions.Each evidence must be judged and verified by the judges after cross-examination.Guidelines for expert opinions must be complied to facilitate professional trials.Judges with higher level of scientific literacy must be cultivated to exercise judicial adjudication power.