Forensic Systems and Forensic Science

Expert forensic knowledge is often something judges and prosecutors need in order to reach their decisions but do not themselves possess. Yet the opinions experts provide have a major influence on the outcome of trials, and flawed expert opinions can even lead to wrongful convictions. That is why forensic expertise matters so much in today's justice system.

JRF began working on reform of the forensic expert system early on. In 2002, it began focusing on reform of the forensic medicine and crime scene investigation systems, and the following year it held a forum on guidelines for the initial handling of crime scenes. That year's Judicial Reform Forum also took "Expert Evidence and Adjudication" as its theme. In 2004, JRF launched efforts to reform expert review in medical malpractice and traffic accident cases. In 2008, as part of the Alliance for Criminal Justice Human Rights Legislation, JRF helped draft a civil society amendment to the Code of Criminal Procedure that called, among other things, for the introduction of an expert witness system.

To prevent wrongful convictions caused by flawed forensic evidence, JRF has also worked with experts in various fields to help exonerate the wrongfully convicted. The best-known example is its collaboration with forensic scientist Dr. Henry Lee in the case of Su Chien-ho. In 2011, the Taiwan Association for Innocence was founded with the primary goal of exonerating people wrongfully convicted on the basis of flawed scientific evidence, and the two organizations have worked closely together ever since.

In 2014, JRF formed a Forensic Expert System Reform Working Group. On the one hand, the group files complaints with the Control Yuan about individual cases involving flawed forensic opinions, using the shortcomings in those cases to highlight weaknesses in the system. On the other hand, it seeks legislative amendments that would require each scientific field involved in the justice system to establish standard operating procedures (SOPs) for forensic examinations.

From its early work to the present, JRF's main demands for reform of the forensic expert system are as follows:

1. Establish standard operating procedures for forensic examinations in every scientific field

   To ensure that expert opinions are of high quality and open to scrutiny, the most basic requirement is that each scientific field establish SOPs for forensic examinations. Unfortunately, Taiwan has long lacked such SOPs. For example, there are no clear SOPs for evidence collection in forensic autopsies and cause-of-death determinations. As a result, when a death is initially judged to be a suicide, evidence collection and the preservation of trace evidence may be skipped entirely. When family members or others later question whether the death was really a suicide, the chance to collect evidence at the outset has often been lost, the truth can never be recovered, and disputes drag on endlessly.

   Similarly, forensic psychiatric evaluations are often conducted differently by different doctors or experts, reaching different conclusions with no standard against which to test them. Polygraph examinations are another example: the Investigation Bureau and the Criminal Investigation Bureau not only use different polygraph methods but also lack SOPs for individual examinations, and there has been no thorough review of the scientific basis, reliability, and validity of these procedures, or of whether a uniform approach should be adopted.

2. The quality of expert opinions must be tested in court

   The quality of expert opinions must be substantively tested in court so that the court has enough information to decide whether an opinion can serve as the basis for a judgment. In Taiwan, many experts seem to regard being questioned in court as an insult to and a sign of distrust in their expertise, and are therefore unwilling to appear for cross-examination. Because the Code of Criminal Procedure allows expert opinions to be issued in the name of an agency—a collective body rather than an individual—no one need appear in court for cross-examination. And because some judges simply want to decide cases according to the expert opinion, without dealing with the problems or errors it may contain, many expert opinions are presented in court as a single written document stating only a conclusion. Under these circumstances, the process and basis by which an expert reached a conclusion, which cannot be seen on paper, are very hard to examine. A court's reliance on a particular expert opinion can thus easily become blind faith in expert authority rather than a conclusion reached through rational deliberation.

   For these reasons, JRF advocates introducing an expert witness system. First, each party to a case should be able to appoint its own experts to give professional opinions. Second, these experts must appear in court for examination, so that it can be tested whether their opinions are truly sound and reliable (even if opinions issued in an agency's name are retained, the person mainly responsible for the opinion should appear in court for examination). Finally, so that expert opinions and examination results can be reviewed by other experts in the same field, another expert should be allowed to review existing opinions or results.

3. Train and ensure qualified forensic experts

   The quality of an expert report depends on the expertise of the person who prepares it. How to train qualified professionals and ensure that experts are truly competent is therefore a key concern for JRF. Taiwan has long suffered from a shortage of forensic pathologists and from inadequate expertise. Some argue that forensic pathologists should continue to be required to be licensed physicians, and that doctors should be attracted to the field through higher pay, better working conditions, and subsidies for further training. Others argue that, accepting the reality that doctors are unwilling to become forensic pathologists, Taiwan should adopt a post-baccalaureate forensic medicine program and actively train graduates of medical-related programs who are not physicians to serve as forensic pathologists. Whatever the final choice, the goal is to ensure the quality of forensic work.

   JRF has also recently begun advocating mechanisms to hold experts accountable for erroneous opinions as a way of ensuring their competence. Obtaining the status of an expert does not mean that one's opinions are always correct. JRF calls for all past opinions of a so-called "expert" to be re-examined when that expert's work is found to be inconsistent with the current state of scientific knowledge in their field. Where necessary, an expert who has violated professional ethics should be disciplined, and one whose expertise is inadequate should undergo retraining and be certified as competent before being allowed to continue forensic work.

4. Establish independent and impartial forensic organizations or institutions

   Without organizations or institutions that guarantee their independence and impartiality, even well-qualified forensic experts will find it difficult to give opinions based solely on their expertise. In Taiwan, the Ministry of Justice's Institute of Forensic Medicine has appeared at times to tailor its reports to the courts' need to convict or to prosecutors' (including former military prosecutors') need to prosecute. In several well-known wrongful conviction cases—the analysis of knife wounds in the Su Chien-ho case, the analysis of the type of object used to sexually assault the young victim in the Chiang Kuo-ching case, and the analysis of whether the victim had been doused with sulfuric acid in the Hsu Tzu-chiang case—there is reason to suspect that the Institute produced opinions to fit the need for a conviction.

   Views differ on how independent and impartial forensic organizations or institutions should be established: some call for forensic examinations to be conducted in university laboratories, while others call for a national forensic science center. The consistent demand, however, is that there must be forensic organizations or institutions independent of the authorities responsible for prosecuting crime (including the Ministry of Justice, prosecutors offices, and the Criminal Investigation Bureau), serving as a check on those authorities and preventing them from monopolizing forensic work, so as to prevent wrongful convictions.