The International Journal of Evidence & Proof

Through analysis of Deborah Cao’s ‘translation proficiency’, the criteria and strategies for translating legal terms are proposed and then applied in translating the legal term ‘物证(Wu Zheng)’, having reference to law dictionaries and common usage in America, the UK, Hong Kong and Taiwan.

Criminal justice authorities of EU countries currently engage in dialogue and action to build a common area of justice and to help increase the mutual trust in judicial systems across Europe. This includes, for example, the strengthening of procedural safeguards for citizens in criminal proceedings by promoting principles such as equality of arms. Improving the smooth functioning of judicial processes is also pursued by works of expert working groups in the field of forensic science, such as the working parties under the auspices of the European Network of Forensic Science Institutes (ENFSI). This network aims to share knowledge, exchange experiences and come to mutual agreements in matters concerning forensic science practice, among them the interpretation of results of forensic examinations. For example, through its Monopoly Programmes (financially supported by the European Commission), ENFSI has funded a series of projects that come under the general theme ‘Strengthening the Evaluation of Forensic Results across Europe’. Although these initiatives reflect a strong commitment to mutual understanding on general principles of forensic interpretation, the development of standards for evaluation and reporting, including roadmaps for implementation within the ENFSI community, are fraught with conceptual and practical hurdles. In particular, experience through consultations with forensic science practitioners shows that there is a considerable gap between the intentions of a harmonised view on principles of forensic interpretation and the way in which works towards such common understanding are perceived in the community. In this paper, we will review and discuss several recurrently raised concerns. We acknowledge practical constraints such as limited resources for training and education, but we shall also argue that addressing topics in forensic interpretation now is of vital importance because forensic science continues to be challenged by proactive participants in the legal process that tend to become more demanding and less forgiving.

The exclusion of illegally obtained evidence has long been the focus of theoretical research and legislative reform in China. After years of efforts, the exclusionary rule has finally found a foothold in Chinese statute. However, after the exclusionary rule has been officially established, the initial fervour for reform has given way to a difficult slog of changing actual practice. This article is based on a comprehensive empirical survey on the implementation of the exclusionary rule conducted by the author as the primary investigator. This article will address three key issues that stood out in the empirical surveys: the definition and scope of illegally obtained confession, proof of illegally obtained confession, and suppression hearing. In addressing each issue, the author will follow the similar structure: first share the empirical findings on the implementation of the exclusionary rule across the country, then examine the contributing factors causing the failure of implementation and identify the existing challenges that China encountered in implementing the new rules, and finally put forward some potential solutions to these problems based on comparative study and China’s special situation.

Witness testimony is a fundamental component of any modern, adversarial judicial system. The criminal trial is particularly reliant on the testimony and cross-examination of witnesses to furnish to the judge and/or jury the relevant facts of the case. Chinese law and regulation, in particular the Chinese Criminal Procedural Law of 2012, stipulates that witnesses have a general responsibility to testify and establishes a series of supporting measures to facilitate witnesses testifying at trial. However, the appearance rate of witnesses to orally testify at criminal trials in China is and has long been extremely low. In keeping with common and civil law pre-trial preparation, it is common in China for witnesses to provide written statements at police stations or to procurators prior to trial. The difference is that these written statements often form the principal, and sole, evidence of the prosecution case at trial without appearance, examination or contradiction of the source witness. Chinese judges decide guilt on the written witness statements which are made pre-trial and at varying times prior to the trial. We briefly examine the detriments of this non-oral scrutiny of evidence. We examine the Chinese cultural adherence to a written criminal trial, despite provisions for an oral examination in the Chinese Criminal Procedural Law, and explain nine reasons why witnesses do not appear at trial. Our reasons are based on empirical study conducted in ten pilot programmes across District or Intermediate Courts in mainland China. We argue that our review of the need for an oral-based scrutiny of procurator-led evidence in criminal trials in China is indicative and instructive of the need for China to continue its current focus on considering and adapting common and civil law-based methods of judicial scrutiny and oversight into its criminal justice system.

Impartiality of expert witnesses means that such experts operate within scientific principles and legal procedures. By doing so, they assist the trier of fact. There are two aspects to the requirements for the impartiality of expert witnesses: the individual perspective and the industry perspective. Each expert witness must follow individual standards, including avoiding irrelevant information affecting his or her opinions; applying reliable methods; employing reasonable analysis; and providing the findings in comprehensive reports (including a precise description of personal background and expert activity). They must also follow industry standards of forensic science regarding objective technical accessible demands, laboratory management and career management. Biased expert witnesses, however, will damage impartiality and impede the goal of assisting the trier of fact. Based on psychological theories such as dual process theory, authoritarian personality and intergroup threat, this paper classifies expert witness bias into four categories: (1) cognitive bias; (2) bias in the analytic process; (3) bias resulting from the position of the expert witness at trial; and (4) the social bias arising from social pressure or economic pressure. Because bias influences the relevance, credibility and impartiality of experts, steps should be taken to restrict certain categories of bias, which can be and must be controlled. Reflecting the differences between the Anglo-American legal system and the Chinese legal system, in China the bias of expert witnesses should be controlled in terms of actions, occupational management and independence of laboratories.

This paper compares the conception of justice grounded on the liberal political thought and the Chinese notion of justice deeply rooted in Confucian and Legalist theories from the standpoint of the political culture they each supports. It argues that whereas the former supports the liberal culture marked by the plurality of reasonable doctrines and by seeing persons as free and equal, the latter supports an authoritarian culture based on a dogmatic, comprehensive moral doctrine. Such cultural differences have made it difficult for the Chinese elite holding a Confucian view to negotiate and appreciate the political conception of justice as fairness. This paper suggests that it is important for a modern state to formulate philosophies that accommodate the plurality of diverse and often incompatible doctrines and also to think about justice in procedural terms. For China to achieve this requires a change of political culture.

The public policy discretion at common law in Australia was established in the High Court case of Bunning v Cross. The discretion has subsequently been interpreted and applied to permit courts to exclude evidence obtained by improper, unlawful or illegal conduct on the part of ‘the authorities’. The discretion has not been held to be enlivened for exercise in circumstances where the impugned conduct is on the part of private persons unconnected with law enforcement. This article argues that this fetter on the availability of the public policy discretion has been wrongly interpreted from the decision in Bunning and that, to the extent that the fetter now forms part of the common law discretion, it should be abandoned. The argument is made on the basis of the language, context, development and rationale of the public policy discretion as conceived in Bunning. The statutory Uniform Evidence Law, which applies in certain Australian jurisdictions, enacts a public policy discretion in s. 138 drawn from the common law public policy discretion. The Uniform Evidence Law is examined to indicate the absence of any fetter to the s. 138 discretion applying only to conduct by authorities as a basis for revising the understanding of the common law discretion. The comparable powers to exclude unlawfully obtained evidence in the United States and United Kingdom are examined to distinguish the rationale of the Australian discretion as requiring a broader scope of application. The internet is considered as a modern advent permitting previously unknown capacity for private persons to unlawfully police each other. Private criminal investigation through the internet is argued to be a further basis to mark the need for the extension of the Australian public policy discretion to all persons not only the authorities. The overarching thesis of this article is to demonstrate why the Australian common law public policy discretion should be enlivened by improper, unlawful or illegal conduct, regardless of the source of that conduct.

In the process of judicial proof, the court has to make findings of fact concerning events that happened in the past. But the triers of fact have no direct knowledge of the past events. Therefore, the triers can only find the truth by means of the ‘mirror of evidence’, which inevitably differs from the original facts of the case. It is the truth reconstructed in the trier’s mind, and only a product of thought. The ‘mirror of evidence’ doctrine explains that what the fact-finder could find is only a plausible account of the truth. As the evidence-based information cannot be entirely achieved, the facts reconstructed under the ‘mirror of evidence’ doctrine seem like ‘flowers in a mirror’. The judicial proof process is mostly deemed to be a probabilistic reasoning process. But its deepest foundation is the plausibility approach. The plausibility approach properly explains judicial proof better than the probability explanation. Compared with the western countries’ undergoing evolvement of the judicial proof theory from probability to plausibility, Chinese scholars are fighting against the statutory determination of evidence doctrine. The research on probability and plausibility will provide significant enlightenment in China in terms of rejecting the traditional theory of pursuing absolute certainty in judicial proof. We hope that by progressively renewing the understanding of judicial proof, the plausibility of judicial proof can be recognised and applied gradually in the judicial practice in China.

The different contexts of forensic science and juridical decision making are explored to identify the nature of juridical proof, the role of formalized probability theory in it, and how factual inquiry proceeds in the differing domains.

Whether a death sentence is fair or not is an fundamental question for a country’s criminal justice system, yet in practice, similar cases still occasionally receive differing judgments. In response to this problem, this paper has proposed to take sentencing evidence as the breakthrough for the balanced application of death penalty. This paper begins by analysing written judgments from 40 cases, which involve 69 individuals and have been sampled from all those archived under the Gazettes section by the Beidafabao,¹ Peking University Centre for Legal Information. This analysis provides considerable insight into the type of sentencing evidence admitted in capital cases, as well as the impact that principal evidence has on where death sentences are imposed. Next, in accordance with the basic problems of evidence law, this paper separates out sentencing evidence of capital cases from conventional theories that confuse it with convictions. Taking sentencing evidence as the core, the objective of the empirical analysis and theoretical discussion is to establish guidelines as well as a policy analysis for capital cases in China in the future.

Since the 1700s, lawyers have controlled interactions with witnesses in court. In England and Wales, witness familiarisation, endorsed in R v Momodou [2005], ¹ aimed to demystify the process and through practical guidance assist witnesses to give their best evidence in legal proceedings, with the result that they are less likely to be confused, misled or unduly influenced by the process of cross-examination. This paper outlines empirical research which indicates that familiarisation can be helpful; though it argues that justice systems should develop best practices for the elicitation of accurate evidence and not leave it to witnesses to combat the system’s shortcomings. Given that this is particularly acute for vulnerable witnesses (and familiarising witnesses to cross-examination is in its infancy), the paper draws attention to R v Lubemba [2014], ² which suggests that there is no right to put a case to a witness in child cases. The article also discusses witness approaches in the context of the right to challenge concept.