Statement: Why Do Wrongful Conviction Victims Have to Suffer? Amendments to Expert Evidence Provisions Compromised—Statement on the Legislative Yuan's Passage of the Expert Evidence Chapter of the Code of Criminal Procedure Today

The Legislative Yuan passed the draft amendments to the Chapter on Expert Evidence of the Code of Criminal Procedure today. When the Judicial Yuan originally submitted the draft, it contained three progressive advancements: "allowing parties to privately retain expert witnesses," "requiring institutional expert witnesses to appear in court for cross-examination," and "restricting the use of polygraph evidence." However, due to the Ministry of Justice stubbornly holding its ground and strongly opposing these changes during executive-legislative negotiations, and the Judicial Yuan's failure to uphold the progressive ideals of its original draft and subsequent compromise, these reform goals have almost entirely fallen through, rendering the reform merely nominal. In response, our Foundation feels deeply disappointed and issues the following 3-point statement:

1. When Expert Witnesses Are Hard to Summon to Court, How Can We Bear the Plight of Wrongful Conviction Victims?

   The primary focus of this legislative amendment is to enable expert witnesses who conduct forensic evaluations for execution agencies to appear in court for cross-examination, thereby verifying the credibility of their written evaluation reports. The importance of this reform can be illustrated by the following well-known forensic errors in wrongful conviction cases:

   Wrongful Conviction Case	Chiang Kuo-ching Case	Su Chien-ho Trio Case	Hsu Tzu-chiang Case
   Original Judgment	Death Penalty	Death Penalty	Death Penalty
   Original Expert Report	Semen detected in tissue paper bloodstain analysis	Knife marks on bones indicated three or more types of weapons used in the crime	Sulfuric acid splashed on the victim's body surface, followed by soil coverage
   Flaw	Erroneous method of using blood test reagents to detect semen	Impossible to determine based solely on knife marks; violated biomechanics	Splashing with sulfuric acid would logically cause rapid carbonization of skin and flesh
   Criminal Compensation Amount	NT$ 103,185,000	(For three persons) NT$ 15,840,000	NT$ 28,120,000

   Forensic errors are the most common cause of judicial miscarriages of justice. In the three exonerated death penalty cases mentioned above, the defendants, the judiciary, and the state all paid a painful price for the mistakes of expert witnesses. The exoneration of these cases all relied on summoning expert witnesses to court for cross-examination, through which errors were uncovered and the truth clarified via rigorous judicial proceedings.

   Taking the Hsu Tzu-chiang case as an example, forensic pathologist Hsiao K'ai-ping analyzed the crime scene photographs and concluded that the corpse had been splashed with a large amount of sulfuric acid. However, it was not until the retrial at the seventh instance when he took the stand and directly faced the defense counsel's question, "Why is the skin on the corpse in the photograph intact and uncorroded?" that Hsiao K'ai-ping replied, "Concentrated sulfuric acid requires a very long time of soaking to corrode the skin." This exposed his utter ignorance of the chemical characteristic that concentrated sulfuric acid rapidly causes carbonization of skin and flesh, leading the court to reject his conclusion regarding the photographic evidence and make a factual finding favorable to Hsu Tzu-chiang. This clearly demonstrates the importance of expert witnesses appearing in court for cross-examination.

   This direction of reform encountered strong resistance within the Executive Yuan. The primary reason was that expert witnesses within administrative agencies—including forensic pathologists, medical examiners, and police/investigative forensic experts—resisted appearing in court for cross-examination.

   In this legislative amendment, the Judicial Yuan's original version intended to reform this bad practice, but it compromised with the Ministry of Justice during the Legislative Yuan negotiations, broadly recognizing that written evaluation reports issued by expert agencies or institutions recognized by competent authorities possess admissibility as evidence. Although this amendment requires experts who actually conduct the evaluation to sign their names on the report to take responsibility, as a result, it still means that we cannot demand expert witnesses to appear in court for cross-examination.

   Our Foundation expresses strong condemnation of this sudden about-face in the legislative amendment.

2. Private Retention of Experts Only Half-Granted; Reform Stagnates!

   In current criminal justice, evaluations concerning physical evidence, eyewitness testimony, and defendants are overwhelmingly conducted by internal units of investigative agencies or units with which they have long-term cooperative relationships. In practice, it is held that written evaluation reports commissioned independently by defendants are "out-of-court statements" and generally cannot be used as evidence; yet on the other hand, evaluation reports submitted by prosecutors and police are deemed exceptions to the "hearsay rule" and can be admitted as evidence, raising concerns of violating the principle of equality of arms. For defendants, even with the assistance of defense counsel in court, it is extremely difficult to challenge the results of these scientific evaluations, leaving them unilaterally in an unfavorable position. Moreover, now that the lay participation system (國民法官制度) has been implemented, this unilateral disadvantageous situation may become even more severe.

   In the drafts originally proposed by the Judicial Yuan and the Executive Yuan, "private retention of experts," which allows parties to independently commission experts, was fully recognized. However, after negotiations, only the option of "privately retaining an institutional expert" was retained. In other words, parties cannot seek out professionals who possess professional competence and meet statutory qualifications on their own; they must commission an agency or organization.

   However, regarding "hospitals, schools, or other equivalent agencies, institutions, or organizations" mentioned in the statutory provisions, very few are able to accept commissions from the public to conduct evaluations in our country's litigation reality compared to specific investigative agencies. The current amendment has also yet to materialize the fees and procedures for institutions accepting evaluations. For the general public, seeking private expert evaluation remains a fruitless endeavor!

   In response, our Foundation strongly questions how much reform efficacy can actually be achieved by a half-granted private expert retention mechanism?

3. Polygraph Evidence Unrestricted; When Will the Causes of Wrongful Convictions End?

   According to an investigative report on polygraphs conducted by the Control Yuan, in the exonerated Chiang Kuo-ching case, the Air Force Taoyuan Base Ammunition Depot theft case, and the Lü Chieh-min murder accusation case, peer review by experts found that the polygraph procedures and chart interpretation results in all three cases failed to comply with current polygraph evaluation standards. Yet, the polygraph evaluation results in these three cases swayed the direction of the investigation and the judgments, leading to a series of wrongful convictions. In addition, errors caused by wrongful convictions include the Lo Ming-ts'un case, Ts'ai Lin-yüan case, Mr. Hsieh's case, and Liu Cheng-fu case, which are too numerous to list exhaustively. In 2018, the Control Yuan published the book *The Chaos of Polygraphs, The Loss of Human Rights*, pointing directly to the various problems of polygraph evaluations and clearly explaining how polygraphs become a cause of wrongful convictions.

   Polygraph results involve questioning the examinee about their subjective thoughts regarding the existence of facts, the course of events, or the examinee's opinions or judgments on the case through certain methods. Since polygraph examinations cannot prove facts, they naturally must not be used as evidence to determine the existence or non-existence of criminal facts. In this regard, Article 160-1 added by the Judicial Yuan version merely clarifies this rationale without completely excluding the use of polygraphs.

   Regrettably, the Legislative Yuan failed to pass the provision on "restricting the scope of use of polygraph provisions," causing the resolutions of the 2017 National Judicial Reform Guiding Conference to fall through once again.

Regarding this reform of the Chapter on Expert Evidence of the Code of Criminal Procedure, the Ministry of Justice stubbornly held its ground, and the Judicial Yuan failed to uphold the progressive ideals of its original draft, which is disappointing. In the future, we will continue to promote legislative amendments to the criminal expert evidence system to fulfill the unfinished business of reform.

Press Contacts

Lü Cheng-yen, Attorney at Law, Director of the Department of Legal Policy, Judicial Reform Foundation
Telephone: 02-2523-1178#37
Email: elvin@jrf.org.tw