Statement | From "Resisting Reform" to "Regressive Amendment": Medical Appraisals Must Not Go Backward

Yesterday (26th), the Social Welfare and Environmental Hygiene Committee of the Legislative Yuan reviewed a proposal sponsored by Legislator Lin Shu-fen and others to add Article 100-1 to the Medical Care Act. The proposal modifies the requirement for the "Medical Review Committee (MRC)"—when accepting commissions to conduct medical expert examinations—to have "the persons who actually conduct the expert examination take an oath and sign the written report," changing it to "signing the report in the name of the Committee" and expressly excluding the application of Article 208, Paragraph 2 of the Code of Criminal Procedure. In addition to the aforementioned proposal, Legislators such as Liu Chien-kuo have also put forward proposals with similar intent, which are scheduled to be submitted for a first reading tomorrow.

In response, the Taiwan Bar Association, Taipei Bar Association, Taiwan Criminal Defense Lawyers Association, and Taiwan Association for Innocence have all issued statements opposing the proposals. JRF likewise opposes these proposed amendments and urges the authorities not to roll back reform of the expert-evidence system. We therefore state as follows:

1. The right to cross-examine expert witnesses must not be hollowed out.

2. Regressive amendments would undermine the reform of the expert-evidence system.

3. The MRC's refusal to conduct expert examinations has led to the current controversy; JRF urges lawmakers not to create a harmful precedent.

1. The Right to Cross-Examine Expert Witnesses Must Not Be Hollowed Out

Article 208, Paragraph 2 of the current Code of Criminal Procedure stipulates: "In the circumstances of the preceding paragraph [where an agency or institution is entrusted with an appraisal], the person who actually conducts the expert examination or review must be a person qualified under Article 198, Paragraph 1, Article 202 shall apply mutatis mutandis [Note: required to take an oath prior to the appraisal], and that person must sign the written report." This paragraph was introduced as part of the 2023 reform of the expert-evidence system. Its purpose was to ensure that the person who actually conducts the examination can be required to appear in court and undergo cross-examination, allowing the prosecution and defense to test the reliability of the expert opinion.

However, the current draft amendment introduces a provision stating: "When the Medical Review Committee accepts an expert examination commissioned by judicial or prosecutorial authorities, the written report shall be issued in the name of the Committee, and the provisions of Article 208, Paragraph 2 of the Code of Criminal Procedure shall not apply." Because the individual experts would not sign the report, courts could be left without a clearly identified expert to summon for explanation and cross-examination, effectively hollowing out the adversarial testing of expert evidence in MRC cases.

2. Regressive Amendments Would Undermine the Reform of the Expert-Evidence System

Prior to the amendment of the expert-evidence provisions in the Code of Criminal Procedure in December 2023, scholars had long strongly criticized the practice in judicial practice that exempted "institutional expert examinations" from the oath requirement. They argued that the duties to appear in court, take an oath, and provide an oral explanation are procedural safeguards that expert evidence should satisfy before it is treated as admissible and reliable evidence. It was even argued that the 2023 amendment still opened up exceptions that did not require taking an oath, leaving the reform incomplete.

Our Foundation believes that requiring expert witnesses to "take an oath" and "appear in court for cross-examination" is not an arbitrary or unnecessary demand. Looking back, although appraisal opinions in most cases can generally be relied upon as being given by professionals, there have also been instances in past cases where errors in expert opinions were exposed precisely through in-court cross-examination.

For instance, in the famous wrongful death penalty case of Hsu Tzu-chiang, forensic pathologist Hsiao Kai-ping reviewed photographs from the crime scene and concluded that a large amount of sulfuric acid had been sprayed on the corpse. However, it was not until the seventh retrial when he appeared in court and directly faced the defense counsel's challenge: "Why is the skin on the corpse in the photo completely intact and uncorroded?" that Forensic Pathologist Hsiao replied, "Concentrated sulfuric acid requires a very long time of soaking to corrode the skin." This exposed a serious problem with his understanding of the chemical properties of concentrated sulfuric acid, which rapidly carbonizes skin and tissue. The court therefore declined to credit his photo-based expert conclusion and reached a finding favorable to Hsu Tzu-chiang. This clearly demonstrates the importance of appraisers appearing in court to undergo cross-examination.

Accordingly, strengthening expert-evidence procedures is not merely a technical issue of court proceedings. Requiring appraisers to take an oath and appear for cross-examination is an essential verification opportunity to determine whether an expert opinion is professionally sound, whether it contains omissions, and whether it may be erroneous. Lacking procedural verification through cross-examination, expert opinions of varying quality may enter the courtroom without meaningful adversarial testing.

3. The MRC's Refusal to Conduct Expert Examinations Has Led to the Current Controversy; JRF Urges Lawmakers Not to Create a Harmful Precedent

Since the amendment of the appraisal provisions in 2023, the MRC has refused to conduct expert examinations under the new system, resulting in a backlog and paralysis of cases awaiting expert examination in practice. The explanatory notes of the current draft also state that "since the implementation of the amendment [the 2023 appraisal reform], it has caused a huge impact on the current medical appraisal system. In practice, medical expert examinations are generally performed by personnel assigned by hospitals or medical centers, and requiring individual signatures, and the potential personal responsibility associated with them, may expose participating physicians to litigation, pressure, and reputational risks. It may also subject appraising physicians to lobbying, harassment, or even retaliation, creating psychological pressure; furthermore, physicians' primary profession is medical care, and their current clinical workload is already enormous, making it difficult to bear court appearances. Consequently, many medical institutions have become unwilling to assign personnel to participate, causing criminal-case medical expert examinations handled by the Ministry of Health and Welfare's Medical Review Committee to come to a complete standstill."

Our Foundation believes that medical and other professionals may understandably resist legal requirements that appear to increase their obligations when they provide expert opinions, and may even become unwilling to accept appraisal commissions. However, the significance of the 2023 appraisal reform lies in improving the phenomenon of "uneven quality" among appraisal opinions appearing in court, preventing the recurrence of wrongful convictions and other miscarriages of justice caused by erroneous expert opinions. If medical expert examinations are allowed to create this precedent, could experts in other fields demand the same exemption? If so, how can courts reliably discover the truth and reach sound judgments? Once this precedent is set, the rights and interests of everyone will be compromised; naturally, this includes professionals from all walks of life who face judicial trials.

Regarding the current legislative amendment, Legislator Lin Shu-fen, who sponsored the proposal, stated at today's meeting of the Legislative Yuan's "Social Welfare and Environmental Hygiene Committee" that this amendment is not an opposition to the completeness of appraisal procedures, but rather a a policy response intended to resolve practical difficulties. The Judicial Yuan also stated in its written report: "The legislative purpose of amending Article 208, Paragraph 2 of the Code of Criminal Procedure, promulgated by the President on December 15, 2023, is for the person conducting the appraisal for an agency to 'sign their name,' facilitating future 'oral explanations in court.' This truly belongs to the core of the 'accountability system.' Through 'signing,' the prosecution and defense are enabled to further cross-examine the person issuing the appraisal opinion and inspect their qualifications, professionalism, neutrality, and the process of conducting the appraisal, thereby ensuring the credibility of the appraisal results and safeguarding the defendant's procedural rights. The provision in the subject draft stating 'signed in the name of the Committee' seems somewhat inconsistent with the aforementioned basic principles; however, in order to alleviate the current dilemmas in practical operations, this Yuan respects the policy decisions of the legislators and competent authorities."

Our Foundation expresses deep regret over the MRC's boycott of due legal process requirements through a "refusal to review," which has led to the accumulation and delay of cases awaiting expert examination in practice, thereby generating the current legislative controversy. The fundamental solution is to improve the legal framework governing expert-evidence procedures. While ensuring that commissioned experts are subject to meaningful cross-examination, we must also avoid placing additional legal and psychological pressure on them, so as to prevent professionals entrusted with appraisals from developing a psychological aversion to accepting commissions due to factors other than due process requirements. Only then can sound legislation and workable practice be both comprehensively balanced.

Press Contact

Liao Weicheng, Associate Researcher, Judicial Reform Foundation

Phone: 02-2523-1178 #20

Email: wayne@jrf.org.tw