Some Ideas On Establishing A Criminal Expert Witness System In China

In the field of criminal litigation, the expert conclusion provided by an expert witness is one of the seven categories of evidences and the expert witness provides the professional knowledge which the court lacks, and thus on this point, expert witness together with his conclusion usually has the power to influence or even decide the results of a decision. However, currently the provisions which regulate the related procedure are far from satisfactory, the check and supervision by the judicial departments to expert witness and his conclusion are not strict enough, and the party' s procedural right of requesting expert conclusion is not fully ensured which causes problems when judges make a decision on those fairly professional issues, and as a result, there are cases in which people are unjustly, falsely or wrongly charged or sentenced, which adversely affect the authority of the court and the judge. Hence, reform on the expert conclusion system of China has begun to attract attention and emphasis from researchers as well as practicers.When looking at the results made by researchers and the efforts by parcticers, we may find out that many people cannot get rid of the limitation and constraint of the traditional thinking patterns and the status quo of the judiciary, so they are not able to provide a systematic method or framework for reform. The current criminal expert witness systemhas already shown its congenital deficiencies and in practice conflicts and clashes are deepen in the society where human rights are intensified today. Based myself upon the actual situation of China and the problems emerged from the trial practice, with reference to the legislations of the developed countries, I, the author, purpose some fundamental thoughts on setting up a criminal expert witness system which is adapt to the situation of our country, with the aim to systematically establish a litigation system which is in conformity with the existing criminal procedural law and the trail pattern, so as to remedy the loopholes and insufficiencies in the existing expert witness system and further the judge' s knowledge and ability to make judgments related to those professional issues during the litigation, and thus ensure the lawful rights of the vulnerable groups. The system will safeguard human rights when at the same time crack down crimes, and help to achieve the ultimate goal of procedural and substantial justice.This assay consists of five chapters, including the introduction of the fundamental elements of the criminal expert witness system, its connotation, legal status, rights and liabilities, selection methods, scope, the exhibits, cross-examination and authentication of the evidences provided by an expert, which systematically and fully present some thoughts on establishing a criminal expert witness system of our country. I will give a brief introduction as follows.In the first chapter is the brief introduction of the criminal expert witness system. First, I introduce the expert witness systems in various countries, including the related legislations of the leading countries of the two major legal systems. Second, I discuss the legislation pattern in our country, point out its deficiencies from the point of both legislative and judicial practices, and put forward the basis and significance for establishing a criminal expert witness system withChinese characteristics.In the second chapter, the purpose is to define the concept of expert witness. Firstly, I introduce its definition in foreign research fields and legislations. Secondly, according the traditional features of our criminal judicial work, I put forward the connotation and legal characteristics that should be included in the expert witness system, and the qualifications for being an expert witness.In the third chapter, I emphasize on the legal status of the expert witness, his rights and liabilities in the criminal procedure. First of all, I point out the deficiencies in which the criminal procedural law defines the person who has professional knowledge of a certain area and who participates in the criminal litigation process as expert witness. Criminal expert witness is a witness, but not an ordinary one with his legal status; moreover, the expert witness has the features of independence, passiveness for the selection procedure, reasonableness and accuracy for the content, flexibility for the way to present the evidence, and so on. Then, I present the significances for the law to define expert witness' rights and liabilities by analyzing several essential rights and liabilities of an expert witness.In the fourth chapter, I further analyze the way of selecting criminal expert witness and its scope of presenting evidences. At the beginning, the shortcomings for the selecting of expert witness provided by the existing laws are brought forth. With comparison to the different practices of expert witness systems within the two major legal systems, I present the method to select expert witness in our country. Following the above points, I analyze under what situation expert witness must be provided, be excluded, and when the judge have the power to decide whether to invite an expert witness to provide evidences or not.In the fifth chapter, I mainly introduce the exhibit of evidences provided by expert witness, cross-examination and authentication issues in the court session. We all know that the exhibits, cross-examination and authentication are comparatively unified and broadly applied rules, hence I am not expatiating the details, but emphasizing the unique characteristics of criminal expert witness, and the issues closely related to the evidences provided by an expert witness. For example, the evidence provided by the expert witness is complicated, professional, not easy to be understood and caught by ordinary people, so what is its features for the time and the way to exhibit it? As the expert evidence appears as an opinion report, what' s the content and way for cross-examination? I also purpose that the rule of preexisted force for the evidence provided by an expert witness should be excluded, and the evidence should not be presented for authentication in the courtroom.