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Renmin University of China Law School
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MAR 2018 FOCUS:COMPARATIVE PERSPECTIVES ON EVIDENCE LAW: EAST AND WEST

                                           

                                              Editor,s Note


      The world of evidence law feels like a small one because of the InternationalAssociation of Evidence Science and its biennial International Conference on EvidenceLaw and Forensic Science (“ICELFS”). Since 2007, the 1st ICELFS was held in Beijing,China, six conferences have been convened, respectively in China, Australia and theUnited States. Over a decade, ICELFS kept on making breakthroughs and has beengrowing into a prime platform of communications for evidence law jurists and forensicscientists in China and around the world. The 6th International Conference on EvidenceLaw and Forensic Science (“ICELFS 2017”) has been held during August 14–16, 2017 inBaltimore, Maryland, the United States, co-hosted by the International Association ofEvidence Science, China University of Political Science and Law and the Office of theChief Medical Examiner, State of Maryland, U.S., while sponsored by the “2011” Plan of China Collaborative Innovation Center of Judicial Civilization and by the “111” Plan ofChina Evidence Science Innovation and Talent Base. More than 150 delegates from fivecontinents, including countries like the United States, China, United Kingdom,Switzerland, Netherlands, Australia and Japan, attended the ICELFS 2017, with morethan 80 paper submissions and 14 panel discussions at a high inter-disciplinary andintelligence level.

      This conference is an organization committed to reform. Its members are not mereacademic theoreticians. Rather, they are engaged scholars who devote a significantpercentage of their energy to effect changing in the evidentiary rules. The keynotespeaker panel of the Day One: Professor Ronald J. Allen is John Henry WigmoreProfessor of Law at Northwestern Pritzker School of Law and the President ofInternational Association of Evidence Science who has been at the forefront of draftingevidentiary reform proposal for Tanzania and played a significant role in China’sevidence law development. Professor ZHANG Baosheng was Professor Ronald Allen’s student at Northwestern back to the year of 2002 and the former Vice President of China University of Political Science and Law (“CUPL”) who founded the Institute of EvidenceLaw and Forensic Science of CUPL, China’s first academic institute specializing inevidence science and the nation’s first doctoral degree program in evidence law. BothProfessor Ronald Allen and Professor ZHANG Baosheng have been the driving forcebehind the International Association of Evidence Science. Professor Edward J.Imwinkelriedis Edward L. Barrett, Jr. Professor of Law Emeritus at U.C. Davis School ofLaw who is the one of the most authoritative scholars on the admissibility of scientificevidence and evidence of uncharged crimes in United States. Professor Paul Roberts isProfessor of Criminal Jurisprudence at the University of Nottingham School of Law whohas co-authored and helped publicize a series of authoritative papers for the RoyalStatistical Society of the United Kingdom. Professor Daniel Capra is Reed Professor ofLaw at Fordham University School of Law who is the long-term Reporter for theAdvisory Committee for the Federal Rules of Evidence in the United States. ProfessorVictor W. Weednis Professor of Forensic Sciences at George Washington UniversityDepartment of Forensic Sciences who is the former President of the American Academyof Forensic Sciences during one of the most turbulent periods of forensic science whenthe federal and state governments were intervening in multiple ways to influence theevolution of forensic science in the United States. They are the leaders of the world in thefield of evidence who not only discuss about change but have constantly devoted theirtireless efforts to bring about change.

      Within this special issue, first we would like to introduce to you three articles focusing on practical issues of evidence law reform in both emerging countries like China and the developed countries like the United States.
      The first article is “Rethinking Chinese Evidence Theories and ReconstructingSystem of Evidence: A Thread for the Pearls of Chinese Evidence” by Professor ZHANGBaosheng and his Ph.D. student Mr. YANG Ping at China University of Political Scienceand Law. This article makes a systematical review on the current existing structure ofevidentiary rules and regulations in China with a critical observation — the vast body ofevidence rules in China is currently like a pile of pearls without a thread. The lack of acore, systematic theory to underpin evidence law development has become a serious issueto adjudication by evidence in China. This article further points out that the major reasonwhy a modern system of evidence rules has not been established over a long period oftime in China is that fundamental principle of relevancy has yet to be put in place as thelogical thread. In the end of the article, as a highlight, the authors laid out an outline ofEvidence Rules of the Supreme People’s Court of China (drafted judicial interpretation), ablueprint of the construction of a modern system of evidence for China in the future.

      Professor Edward Imwinkelried’s article “The Form of Reform: Revisiting the Choice Among a Creed, a Code and a Catalogue” discussed fundamentals in evidentiary reformfrom a different perspective. It starts with the basic choice facing the drafters of anylegislation which is among a creed, a code and a catalogue. Although a code limits judicial discretion to a greater extent than a creed, the code accords judges with asignificant measure of flexibility while a catalogue consists of detailed regulationsdictating the judge’s evidentiary ruling in as many specific situations as the drafters cananticipate. The article further points out that a code is generally preferable if a jurisdictionrelies on trial as the primary means of resolving lawsuits and the drafters want thatreliance to continue. On the other hand, if a nation wants to encourage pretrial dispositionof cases, the catalogue model with more specific rules becomes more attractive. A thirdconsideration is the degree of confidence that the reformers have in the judiciary that willbe tasked to administer the evidentiary rules. Although Professor Imwinkelried in thisarticle is talking about his life-time experience in the U.S. evidentiary legislations,including experience in both the Federal Rules of Evidence and in the California Evidence Code, he actually directly addresses to evidentiary reformers of other countries,especially the Chinese audience.

      The third article “Rulemaking Possibilities: Efforts of the United States Judicial Conference Advisory Committee on Evidence Rules to Address the Challenges toForensic Expert Testimony” is written by Professor Daniel Capra, Reporter of the JudicialConference Advisory Committee on the Federal Rules of Evidence in the United States.This piece is very special since it vividly shows to the readers how a rule in the U.S.Federal Rules of Evidence, arguably the most sophisticated and advanced evidentiarycode in the whole world, would be amended or added. If the aforementioned ProfessorImwinkelried’s article is considered as a piece of addressing practical questions of evidentiary reform, this article by Professor Capra really goes to a deeper level of detailsand techniques in rule making, which provides the readers, particularly reformers of othercountries, a rare opportunity to observe. In this article, as a bonus, Professor Capra alsointroduces some latest developments in the United States in regulating the forensicevidence.
      Of course, as a tradition, International Conference on Evidence Law and ForensicScience would not just have talks addressing practical matters. More sub-topics of theICELFS 2017 focused on substantive evidentiary matters. Within this issue, we have alsoselected two featured articles, one on a major topic of this conference — the forensicchallenge in adjudications encountered by all countries and the other article regarding acritical evidentiary problem with Chinese characteristics — the admissibility of pre-trialtestimonial transcript (or to say, dossier internal-transfer mechanism betweenprocuratorate and trial judge in China) — in context of comparative laws.

        Professor Paul Roberts’ article “The Forensic Challenge” discusses the issue in the
United Kingdom in a very systematic and thorough way, which breaks down into fourparts: (1) Forensic Complex — basically it is observations and reflections of a mix ofmajor events, milestones and turning points in the U.K. forensic service since early 1990suntil the latest featured stories. (2) Comparative Diagnostics — a classic “top twenty”most frequently encountered criticisms and problems in forensic evidence summarized and refined by the author based on his profound understandings of the industry andpractice. This part is truly an interaction between local factors and universal truth. (3)Regulating Expert Evidence — in this part Professor Roberts actually showed more onlimits, dilemma and mistakes in regulating expert evidence in U.K. over the years. And (4)Methodological Prescriptions — Professor Roberts reminds readers the significance oflocal institutional, social and economic conditions, the importance of critical pretrialstages and the function of “hard-working soft law” in taming forensic evidence.

         Last but not least, as Professor ZHANG Baosheng addresses in his paper, “if the proof
of a fact is based on the observation of a person, such person shall be examined at the main hearing. The examination shall not be replaced by reading out the record of aprevious examination or reading out a written statement.” This principle, however, hasnot been established in China, where witnesses usually do not testify in court and hearsayevidence are largely admitted as the basis for conviction. Together with my graduatestudent of law at the CUPL, Miss HUANG Yanni, in the article titled “The Admissibilityof Pre-Trial Testimonial Transcript: A Discussion Over Practice of China and TheInternational Criminal Tribunals,” we have looked into the reasons behind thistroublesome status quo and found out that one critical reason is Chinese judges’ widelyadoption of or even preference to the admission of pre-trial testimonial transcript. For along period of time, fact findings in criminal proceedings in China have centered on“dossiers” which are archives of working products of law enforcement and the procuratorate in preparing criminal charges against defendants, including the “pretrial testimonial transcript” as a major part. Interestingly, records indicate that throughout the years of judicial reform in China since the 1996 Amendments to P.R.C. Criminal Procedural Law, there have been internal incentives and efforts in direction of abolishingthe dossier internal-transfer mechanism, but such movements almost always failed. There is strong hint that such pre-trial dossier mechanism cannot be ended due to somedistinctions in Chinese legal culture. Instead, all we can do is to optimize it in a justifiedway. We have looked further for some similar practices in other jurisdictions of the worldand found that the written testimony rules of the International Criminal Tribunals to be agood starting point to compare and to learn from.

        As Professor Ronald J. Allen once stated, the laws structuring dispute resolution —
evidence and procedure — have universal aspects. And of course, accurate disputeresolution involves rational people deliberating upon reliable evidence, which introducesmore universal attributes into the mix. Much of the discussions reflect just how much thestudy of evidence is really the study of the human condition, and that as a result the samekinds of problems pop up in virtually all legal systems sometimes with analogoussolutions being conceived, tried, rejected and so on. However, structuring disputeresolution is not just a matter of optimizing these universal aspects of the enforcement ofrights and the meaning of rationality. It also has a heavily contextualized component,often reflected in local factors, practice and culture. The various issues that I have discussed above and the authors address below illuminate the depth and profundity ofconceptual foundations and implications of evidence, and together provide a glimpse ofan ongoing joint effort to the reform of the law of evidence in a given country and around
the world.

       The focus are consisted of five articles:

RETHINKING CHINESE EVIDENCE THEORIES .pdf

THE FORM OF REFORM.pdf

RULEMAKING POSSIBILITIES.pdf

THE FORENSIC CHALLENGE.pdf

THE ADMISSIBILITY OF PRE-TRIAL TESTIMONIAL TRANSCRIPTS.pdf

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