Meeting Cheat Sheet for March 14: Overview of Proposals on "Judicial Science, Forensic Mechanisms, and Expert Witnesses"

1-4-1 Integrate scientific forensic mechanisms such as forensic medicine, lie detection, and scientific forensics to enhance the technology and application of science-based investigation and strengthen the judiciary's capacity to discover the truth

1. Current Status Description（See Ministry of Justice PPT）

   1. Scope of Criminal Judicial Forensics

      In addition to firearms, documents, lie detection, fingerprints, DNA, and traffic accidents commonly seen in general criminal cases, there are also food and drugs, soil and water conservation, environmental protection, medical disputes, computer software and hardware, intellectual property, engineering, construction, procurement, sexual assault, labor safety, etc.

   2. Main Forensic Institutions

      1. Institute of Forensic Medicine, Ministry of Justice
      2. Criminal Investigation Bureau, National Police Agency, Ministry of the Interior
      3. Ministry of Justice Investigation Bureau
      4. Military Police Command, Ministry of National Defense
      5. National Fire Agency, Ministry of the Interior
      6. Forensic units within the operational scope of various administrative agencies
      7. Other academic and research institutions

   3. Operational Relationships Among Agencies

      1. Forensics within routine jurisdictions and business scopes
      2. Requests for re-examination by judicial authorities

   4. Staffing and Talent Sources（See responses from Institute of Forensic Medicine and Investigation Bureau）

      1. Institute of Forensic Medicine

         Currently has 29 established positions, with 27 budgeted positions actually filled, supplemented by outsourced personnel (11 adjunct researchers, 22 research assistants, 6 outsourced assistants, 3 temporary workers, totaling 42 personnel). Most forensic personnel graduate from forensic-related graduate institutes at various universities and pass the Special Examination for Judicial Personnel in Forensic Science categories.

      2. Investigation Bureau

         • Most forensic talent comes from the Special Examination for Investigation Personnel. Those who pass the "Medical Forensics Group" and "Chemical Forensics Group" and complete training are assigned to work in the Forensic Science Division. After more than half a year of on-the-job training, they are able to independently perform forensic work.

           Forensic personnel must attend domestic and foreign training courses or seminars during their employment and also undergo continuous professional development according to regulations.

         • Regarding lie detection personnel, incumbent investigators are selected to undergo a 10-week "Lie Detection Technology Training Course" upbringing training, and affiliated lie detection personnel are required to obtain membership in the American Polygraph Association; among the current 8 forensic personnel, 6 have obtained the aforementioned international certification.

           The lie detection instrument is the LX-4000SW computer polygraph produced by Lafayette Instrument Company in the United States. This equipment is currently the mainstream model commonly used by countries worldwide, and domestic lie detection units also use instruments produced by the same company, with no plans to change lie detection instruments at present.

2. Existing Problems（See Judicial Yuan Report, Member Li Chun-i's Supplementary Opinion Brief）

   1. Judicial Yuan Compilation

      1. Honest Errors

         Including: insufficient or malfunctioning forensic equipment, insufficient professional forensic personnel or lack of adequate professional competence, lack of nationwide uniform standards for forensic personnel qualifications and forensic quality control processes, lack of an independent evaluation system for forensic processes, etc.

      2. Dishonest Errors

         Including: forensic personnel misrepresenting their forensic capabilities, performing forensic work they are incapable of executing, forensic samples being intentionally or negligently contaminated, forensic personnel intentionally misreading forensic results, etc.

      3. Lack of Uniform Standards

         There is no consensus in the scientific community regarding what research methods must be adopted to obtain correct forensic results. Even if the technology itself is undisputed, differences in forensic results may still arise due to differences in the subjective judgment of forensic personnel.

      4. Rapid Technological Advancement

         With technological progress, forensic conclusions may also change, and technologies previously considered reliable may soon be proven prone to producing erroneous results.

      5. Report Presentation Methods May Lead to Incorrect Judgment Results

         Conclusions of forensic reports are usually required to be definitive and positive, and forensic personnel often have to modify scientific conclusions to meet the requirements of the entrusting party. Therefore, forensic results are not 100% objective and immune to challenge.

   2. Professor Li Chun-i's Compilation

      1. Forensic guidelines and standards have not been established
      2. Forensic competence and ethics have not been regulated
      3. Standard reference material databases have not been established
      4. Research and development are neither integrated nor publicly published
      5. Wrongful convictions and miscarriages of justice are not reviewed
      6. Independent forensics is not implemented

3. Reform Directions

   1. Whether to Establish a National Forensic Unit

      Proposal	Proponent	Opinion
      Establish a unified national forensic institution	Judicial Yuan	Judicial Yuan Supplement Authorities and responsibilities of current agencies engaged in forensic work are not single-minded, functions overlap, forensic workflows and standards may differ, and having technical personnel from forensic units within police agencies perform forensics also raises doubts about forensic neutrality and impartiality. Various forensic units can be integrated, making their personnel, organization, and funding independent of investigative agencies, to establish an independent professional forensic organization. Consideration can also be given to establishing it in the form of a non-profit foundation to coordinate with the establishment of a forensic fee-charging system. Before the aforementioned proposal is implemented, various forensic units should at least follow certain mechanisms (such as regular or irregular meetings, or jointly establishing research academic societies) to develop uniform forensic workflows and forensic standards across various scientific forensic fields.
      Oppose the establishment of a unified national-level judicial science organization; suggest establishing a forensic "review mechanism"	Ministry of Justice, Criminal Investigation Bureau	Ministry of Justice Supplement Merging institutions cannot achieve the effect of integrating forensic resources There are numerous types of forensics, and a single agency (institution) cannot complete massive forensic operations Institutional reorganization and personnel adjustments face insurmountable difficulties The field of forensic science is constantly developing and leaping forward; a single agency (institution) cannot handle rapidly changing and diverse forensic items A single institution cannot achieve the effect of mutual corroboration National forensic agencies (institutions) in countries around the world do not adopt a single-agency (institution) system Can think along the lines of building a "review mechanism" to accept commissions for judicial case "reviews" when necessary Criminal Investigation Bureau Supplement Forensic manpower and equipment facilities should not be transferred or integrated into other non-police agencies. Forensic units outside the police system each have their own institutional organizational missions and operate independently during normal times; in major events, mutual cooperation and support models are adopted. Regarding forensic results, if the courts and prosecutors deem it necessary, they can ask the original forensic unit to re-conduct forensics or send it to other agencies; if controversial or significantly inconsistent forensic results are discovered among different forensic units during the process, it seems that the controversy can be clarified through a "committee review" mechanism.
      Establish a national-level judicial science organization	Members Li Chun-i, Chao I-shan, and Huang Chih-hao	Explanation by Member Li Chun-i Use advanced testing technology to strengthen forensic medicine and forensic efficacy Introduce expert witness systems and establish a judicial science community Plan education, training, and licensing systems for experts (鑑定人), promote laboratory accreditation, establish judicial science forensic guidelines and standard procedures, and review flawed forensics Promote judicial science education to reduce judicial miscarriages of justice Formulate evidence custody regulations Establish a national-level judicial science organization to promote judicial science policies

   2. Enhancing Forensic Capabilities

      Proponent	Opinion
      Ministry of Justice	Continue promoting laboratory accreditation work for criminal and forensic science agencies (institutions) Constantly enhance the professional competence and literacy of forensic personnel Various forensic agencies (institutions) should take reaching a national-level scale as their organizational development goal, and mutually corroborate forensic outcomes when necessary Establish a forensic science research center Provide sufficient budget to purchase the most advanced forensic instruments, and enrich and cultivate high-quality forensic personnel
      Investigation Bureau	Strengthen laboratory forensic capacity (increase personnel and budgetary expenses) Require all forensic items to reach TAF accreditation standards
      Institute of Forensic Medicine	Increase staffing and actively cultivate forensic professional talent Enrich high-tech forensic instruments and equipment, research and develop forensic technologies, and elevate the standard of forensic science Construct international standard forensic laboratories, continuously promote laboratory accreditation, and ensure case forensic quality Enhance the professional competence and literacy of forensic personnel Forensic talent training
      Criminal Investigation Bureau	Strengthen forensic ethics requirements within standard operating procedures inside forensic laboratories Research results of technological projects need to be publicly published Evaluate the feasibility of "integrating scientific forensic mechanisms such as forensic medicine, lie detection, and scientific forensics" Evaluate the feasibility of "improving rules of evidence and evaluating the establishment of an expert witness system" Budgets for courts and prosecutors should be balanced, investigation and forensic expenses must be in place, meeting the requirements of meticulous investigation Expand forensic manpower and strive for funding to enrich forensic capacity

   3. Strengthening the Judiciary's Capacity to Discover the Truth Through High-Quality Forensic Outcomes (Ministry of Justice Proposal)

      1. Detailed and thorough recording of forensic reports to facilitate court judgment
      2. Implement cross-examination by judicial authorities to test the impartiality, objectivity, and accuracy of forensics
      3. Establish a "review" mechanism for major controversial cases upon judicial request
      4. In the face of forensic limits, apply the principle of leniency in case of doubt (in dubio pro reo)

1-4-2 Improve rules of evidence, and evaluate the establishment of an expert witness system

1. Current Status Description（See Judicial Yuan Report）

   1. The Code of Criminal Procedure stipulates that only the presiding judge, designated judge, or prosecutor may appoint an expert

      On the one hand, forensic reports submitted by the defendant are excluded, while on the other hand, forensic reports submitted by prosecutors and judicial police are permitted, raising concerns about whether this violates the principle of equality of arms.

   2. Experts are not necessarily required to appear in court to be cross-examined by the parties; written forensic reports they produce can still be used as evidence

      This may prevent the defendant or defense counsel from confirming the credibility of forensic results through cross-examination, yet such reports can still serve as the basis for conviction by the court, thereby raising concerns about whether the defendant's right to defense has been infringed or whether Article 14, Paragraph 3, Subparagraph 5 of the International Covenant on Civil and Political Rights has been violated.

   3. In institutional forensics, it is often unclear who actually performed the forensics, or the person who performed the forensics is unwilling to appear in court for cross-examination

      However, the aforementioned circumstances do not affect the validity of the forensic report being used as evidence. Aside from potentially infringing upon the defendant's right to litigation, this has also drawn criticism for unclear attribution of responsibility or backroom operations.

2. Reform Directions（See Judicial Yuan Report）

   1. Replace the current forensic system with an expert witness system, grant defendants the right to appoint their own expert witnesses, and ensure the credibility of expert testimony through cross-examination of expert witnesses.
   2. Amend provisions related to the current forensic system, such as granting defendants the right to appoint experts, abolishing institutional forensics, and explicitly stipulating the obligation of experts to appear in court for cross-examination.
   3. Maintain the current forensic system and resolve practical problems through legal interpretation.
      • Upon application by a party, summon the expert to appear in court for cross-examination.
      • Regarding institutional forensics, forensic institutions cannot refuse to disclose the person who actually performed the forensics, and such expert cannot refuse to take an oath or appear in court for cross-examination.

Summary of Judicial Yuan Reform Proposals

Should the reform approach adopt the Anglo-American expert witness system to replace the current criminal forensic system, or merely amend the current forensic system?

• The focus of legal amendment does not lie in what the person performing forensics in court is called—whether expert or expert witness—but rather on whether this professional can effectively assist the court in discovering the truth, and whether the institutional aspect can safeguard the defendant's right to litigation (right to defense) through more comprehensive rules of evidence.
• Maintaining the provisions of the current forensic system and strengthening the protection of defendants' rights through legal interpretation is also an improvement method; however, unless such interpretations become the consistent view in practice through precedents or Judicial Yuan interpretations, judges' authority to interpret and apply laws independently must still be respected under the principle of independent adjudication (therefore, whether practical problems can be solved merely through legal interpretation remains to be seen).

Dissenting Opinions from the Criminal Investigation Bureau（See CIB Report）

1. Impact Assessment of the Expert Witness System on Judicial Adjudication

   1. Do not recommend adopting the "expert witness" system
   2. Expert witnesses are appointed by parties, so their qualification suitability will be controversial
   3. Expert witnesses hold the status of witnesses and are less objective than experts (鑑定人)
   4. Need to consider the problem of financially disadvantaged parties being unable to hire expert witnesses
   5. Under Anglo-American legal systems, expert witnesses are appointed by the parties and then reviewed by judges for qualification suitability. After passing suitability review, they must state their opinions in court before their professional opinion statements possess admissibility. If the expert witness system is introduced in Taiwan, who should evaluate and review their "suitability" also involves many issues requiring deliberation; improper appointments might affect the fairness of judicial adjudication. In addition, expert witnesses still hold the status of witnesses in American courts, so they are less objective than experts and prone to bias toward one party. Furthermore, consideration must be given to the fact that financially disadvantaged parties will be unable to hire expert witnesses, both of which will affect judicial adjudication.

2. Impact of the Expert Witness System on Current Forensic Work

   Compared to the current forensic system, forensic personnel under the expert witness system may have to appear in court for cross-examination significantly more often than in the past. Under unchanged existing staffing levels, this will inevitably cause delays in forensic cases.

3. Predicaments of Current Forensic Personnel Appearing in Court for Cross-Examination

   Courts currently mostly issue subpoenas in the status of witnesses to require forensic personnel to appear in court to testify. Such status is inappropriate under the Code of Criminal Procedure, and provisions punishing non-attendance with fines and mandatory detention clearly show a lack of respect for experts. It is recommended that when experts are required to appear in court to testify, official documents should summon them in the status of experts to comply with the relevant provisions of Section 3, Chapter 12 on Forensics and Interpretation of the Code of Criminal Procedure.