Discussion On The Evidential Property And Application Of Expert Opinions In Criminal Procedure

In recent years, criminal miscarriages of justice happened quite frequently. Judicial appraisal procedure always becomes the "regulars" in criminal case in the proceedings, appraisal opinion from judicial appraisal procedure formed as a "king of evidence", the key evidence to find fact in the case, but also vaguely evolve the boost to form criminal misjudged cases. Judicial appraisal procedure can be initiated by public security organs and justice organizations, but the defense is merely entitled to apply for re-identification or supplementary identification, for appraisal opinion, it’s difficult for the defense to form sufficient evidence to compete with the prosecution. In 2012, the new Code of Criminal Procedure increased the content of people with expertise participate in litigation, and both parties can apply people with expertise to attend the court to comment on the appraisal opinion and other specialized issues related to the case. People with expertise involve in litigation to assist the defense to cross-examine on the appraisal opinion, so that the defense can compete with the prosecution equally, and balance the situation of the prosecution monopoly appraisal right to start judicial appraisal; and help to make up for the insufficient expertise of judges, the prosecution, the parties, the defense and litigation attorney, in particular, can enhance the strength of the defense’s cross-examination; and also improve the efficiency of lawsuit, save appraisal resources.People with expertise involving in litigation is a major highlight of the proceedings, however, the Criminal Procedure Code and subsequent judicial interpretations issued by Supreme People’s Court are merely do a simple provision for people with expertise, elective qualifications, rights and obligations of people with expertise, and expert Comments specific procedures, expert opinion evidential property issues and so on, none of those are in detail provisions, so that people who have expertise have to stay in an awkward position in criminal proceedings. From February 4, 2015, the implementation of the Supreme Court on the application of Chinese Civil Procedure Law interpretation(hereinafter referred to as judicial interpretation of Civil Procedure) take effect, in Civil Procedure, people with expertise in court raise opinions on the professional issues, can be considered as statements of the parties. This provision makes clear the evidential property of expert opinions in Civil Procedure, but also provides a legislative basis for paper to discusses the evidential property of expert opinions in criminal proceedings and classification. Missing confined to litigation status and specified evidence attributes of expert opinions of people with expertise, etc. in criminal lawsuit legislation, so, what the author discuss in this paper are intended to determine the evidential property of the Criminal expert opinions, and to explore what kind of evidence can be attributed on this basis.This paper is divided into five chapters discussed.Contents of the first chapter is talking about people with expertise in criminal proceedings, there are some major fundamental issues of people with expertise to elaborate. The first section is mainly about how to clarify the definition of person with expertise, including related appellation differentiation, this article is tend to call people with expertise as expert witness, therefore this section is primarily about changing the appellation, which leads the main body who propose the expert opinions in this thesis, and explains it’s concept. Secondly, further clearing the legal position of the expert witness after the appellation determination, and state my point of view, expert witnesses should be viewed as independent participants in the proceedings, by talking different theories targeted on expert witnesses. Thirdly, by comparing the expert witness with appraiser, defender, law-agent and person with expertise in civil litigation to define the legal attribute of the expert witness in criminal proceedings. Finally, commenting the present legislation, not only should we definite the necessity of expert witnesses’ existence in criminal proceeding, but also point out defects that the provisions in the legislation.The second chapter mainly discusses the status of the judicial application of expert opinions in criminal proceedings. First, introducing the trial instance of expert witnesses involved in criminal proceedings, through elaborating on the police trap door case and Nian Bin case and the trials, to indicate that the role played by expert opinions in criminal proceedings. Secondly, talking about the inspiration from judicial practice to define the evidential property, and discusses the inspiration from the expert opinions’ application in the aspect of theory and practice. Then, is about expert opinions’ legal characteristics and comparison, by comparing with common witnesses’ testimony, appraisal opinion to indicate that there are differences between the two types of evidence and the expert opinions, and then discusses the reasons to clear evidential property, and the principles and methods to determine the expert opinions’ evidential property.The third chapter is about more outside experts and reference system. Here, we focus on the Expert Witness System in the common law system and the Italian technical consultant system. This chapter is mainly introducing the characteristics, legislation, evidential property, litigation status and other aspects of the expert witness in common law countries and the Italian technical consultant, and their advantages and disadvantages of the two systems, from which to obtain inspiration about criminal proceedings expert opinions’ evidential property in China.The fourth chapter is about expert opinions’ evidential property and their classification. First, analyzing the expert opinions’ evidential property and classification in civil litigation, by analyzing the Judicial Interpretation of Civil Procedure Law, in which the expert opinions is viewed as the parties’ statements, and discuss it’s legal effect, to provide reference in criminal proceedings’ legislation. Then, discussing the comparison of classification of expert opinions in criminal proceedings, the paper list two kinds, one is regarding expert opinions as testimony of witnesses, and the other is regarding expert opinions as independent kind of evidence. By discussing its rationality and feasibility, in my opinion, it’s more reasonable that regard the expert opinions as a separate type of evidence. At last, analyzing in-depth, to discuss the positioning and classification arguments of expert opinions from three levels, the legal arguments, litigation value and the actual value effect.The fifth chapter is about improving the judicial applicable procedures of the expert opinions in criminal procedure. First, this chapter discusses the improvements of experts’ qualification, and the expert witnesses’ rights and obligations. Secondly, discusses the expert opinions’ review procedure, from three aspects, expert opinions’ presence, pre-trial disclosure and review, to improve the review procedure. At last, it’s about the rules of admissibility of expert opinions, from the full cross-examination, reinforcement, and denies reasoning these four aspects to perfect.