Is it useful for defense lawyers to submit expert opinions in criminal cases? This has always been a controversial topic. Last year, Dong Mingzhu invited five well-known legal scholars to Zhuhai to discuss a case, which once again pushed the expert opinions to the forefront. I have also seen many expert opinions when I was a prosecutor. I have also organized several expert discussions in the cases I participated in after resigning, and invited well-known experts, so I would like to share my own views.

The role of expert opinions in argumentation

Firstly, judicial authorities also require professional opinions.

Although some judicial personnel may say it's useless and not even look at it, they will definitely look at it and analyze it in detail. I have been working in the procuratorate for over ten years, and of course, I am familiar with it, especially in the public security, procuratorial, and judicial organs in the capital. It is common for them to seek the help of experts and scholars to handle cases. From the Supreme People's Court and the Supreme People's Procuratorate to various grassroots judicial organs, there are not only expert advisory committees, but also vice presidents or deputy procurators who are appointed by experts and scholars. Experts and scholars are also invited to give lectures, training, etc. on a regular basis. When encountering difficult and complex cases, the procuratorate or court will also organize expert discussions, which are basically the same as the form of lawyer organizations. Therefore, it is impossible for the public security, procuratorial and judicial organs not to attach importance to expert opinions.

Secondly, expert argumentation can indeed make the case more thorough, clear, or open up new ideas.

The vast majority of experts and scholars participate in the drafting, soliciting opinions, argumentation, and final approval process of each law, with very little involvement from practical department personnel. Therefore, experts and scholars are better able to grasp the essence of the law and apply it more accurately. The judicial interpretations of the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security were issued by themselves, but in the process of promulgation, there were also numerous discussions, arguments, and revisions by experts and scholars. Experts' theoretical research is not only more profound than that of judicial personnel, but they have also seen more bizarre and difficult cases. Therefore, they have broader knowledge and experience, and are capable of analyzing and solving difficult and complex cases.

Thirdly, in the process of intense confrontation between the prosecution and defense, expert opinions are more neutral and objective, making them more persuasive.

Regardless of which side of the prosecution or defense organizes expert argumentation, experts will only analyze the case based on their own observations and will not be influenced by the opinions of the organizers. It is also common for organizers to fail to obtain the desired conclusions. Experts usually take good care of their reputation and will not come to conclusions against their will just because one party spends money. And it will not allow organizers to write expert opinions, which is also to avoid organizers having biased opinions during the writing process, distorting or altering the true opinions of experts.

I fully acknowledge the positive role of expert opinions, but not all cases are suitable for expert argumentation.

Which cases are suitable for expert argumentation? What kind of expert argumentation is more likely to be adopted by judicial authorities?

Based on my experience, the following types of cases can be argued by experts:

The first category: new cases refer to cases without clear legal basis.

Social life is constantly changing, and legal provisions are always lagging behind. When a certain behavior has not been treated as a crime before, but now the judicial authorities consider it to have social harm and intend to pursue criminal responsibility, there is a significant controversy over whether it can be convicted and sentenced based on existing laws. Neither violating the principle of "legality of crime and punishment" nor expanding the interpretation of legal provisions, such cases are often uncertain by judicial authorities. At this point, the defense lawyer organizing expert argumentation will have a significant impact on the judicial authorities' determination.

The second category: difficult and complex cases in terms of legal application.

Legal provisions are always based on principles and generalizations, and judicial officials often do not understand the legislative intent and lack a profound understanding of the meaning of legal provisions, which can sometimes lead to confusion and disagreement when applied. The common problem among judicial workers in our country is that they dare not interpret the law and rely heavily on legal provisions and judicial interpretations. I dare not explain not because of my lack of ability, but because I cannot gain recognition from my superiors. The conservative and error free approach to handling cases suppresses the initiative of judicial personnel. If the application of the law affects the conviction, experts can be invited to analyze the legislative purpose, social background, and targets of the law, and provide accurate interpretations.

The third category: cases with significant social impact.

Some cases, due to their sensitive points, have been reported by the media and have had a significant impact on society, attracting public attention. Judicial authorities are often cautious in handling such cases, and the results must withstand social evaluation and historical testing. Such cases often have clear points of controversy, which means there is room for defense, such as the Yu Huan case, the Tianjin Auntie case, and the Kunshan anti murder case. This type of case should be discussed by experts, who should propose reasonable and evidence-based solutions to the key issues present in the case. How to handle sensitive cases legally, reasonably, and properly is also the most headache inducing issue for judicial organs, so expert opinions are more valued than general cases.

The above three types of cases are suitable for expert argumentation, and impartial and accurate expert opinions can provide useful guidance for case handling. But sometimes defense lawyers also propose to conduct expert arguments to demonstrate their diligence or to put pressure on judicial authorities. But this is not beneficial except for wasting the money of the parties involved.

Some cases are not suitable for expert argumentation, and even if they are submitted to the judicial authorities, they will not be accepted.

I think there are two types of cases that are not suitable for expert argumentation:

Category 1: Cases related to sentencing issues.

When there is no dispute over the conviction, it is meaningless to make expert arguments solely for the purpose of lenient sentencing. Because judges have more experience and confidence in sentencing than anyone else. Firstly, the Supreme People's Court has sentencing guidance, and there will be no significant deviation in the calculation of several months. Secondly, sentencing is the judge's discretionary power, and as long as it is within the legal scope, the judge can control it themselves without being influenced by others. Again, for a certain charge, there are sentencing standards accumulated through long-term experience, and judges will grasp the balance with other cases when sentencing, without significant differences. There are slight differences in sentencing between different regions, but a balance will be maintained within the local area. So, sentencing is a matter of judgment that judges have the power, experience, and confidence to make, and will not be influenced by expert opinions.

The second category: cases related to evidence issues.

It is not suitable to conduct expert argumentation on whether one or some evidence can prove facts and which facts can be proven. The credibility of evidence depends first on its ability, followed by its probative value. Only when all the evidence in the case can be mutually confirmed and there is no contradiction, can the judicial personnel's inner confirmation be formed. Although there is no specialized evidence law in our country, there are relevant provisions on evidence in the Criminal Procedure Law and multiple judicial interpretations. The analysis of evidence involves the process of evidence collection, preservation, and cross examination, among others. There are a series of rules and standards involved, and any detail may render the evidence invalid or without probative value. This is a complex, interrelated, and repeatedly compared and tested process, which is more about accumulating experience rather than theoretical guidance. Moreover, experts cannot provide detailed grading and meticulous argumentation, making it difficult for expert arguments to be effective.

What kind of expert opinions submitted by defense lawyers are more likely to be adopted by judicial authorities?

The judicial personnel carefully analyze the submitted expert opinions, absorb their viewpoints as the approach to the case, and even directly adopt their conclusions. This is a successful expert opinion. If the investigator just flips through and ignores it, then your work will be in vain.

I think a high-quality expert opinion should be done as follows:

Firstly, please address the experts.

Based on the case being argued, select well-known experts in the field with targeted approaches. Experts need to be well-known, otherwise the judicial authorities will not attach importance to them. For the arguments involving well-known experts, the judicial authorities will at least carefully analyze them, regardless of whether they can ultimately adopt the opinions. Especially experts who are often invited to give lectures to the public security, procuratorial and judicial organs, or experts serving on the expert advisory committee of the judicial organs, are more likely to be valued by judicial personnel. In a departmental law, there are more specialized research topics, such as criminal law scholars who specialize in financial crimes and those who specialize in job-related crimes, and have written books or offered courses. When hiring experts, it is best to choose experts with outstanding research characteristics or achievements, which can not only obtain more valuable conclusions, but also gain the attention of judicial authorities.

Secondly, it is essential to consult experts to understand all the evidence materials.

Listening to both sides leads to understanding. Only arguments and opinions based on comprehensive facts and evidence are more objective and fair, and can be valued and adopted by judicial authorities. Some lawyers selectively show evidence materials to experts in order to make them reach conclusions that are favorable to the defendant, resulting in the experts issuing conclusions that are not objective and therefore not accepted by judicial authorities. When holding a discussion meeting, lawyers should not only introduce the views of innocence or leniency, or even try to persuade experts to accept their views, but should objectively and comprehensively introduce the case and the viewpoints of both the prosecution and defense, especially the prosecution's viewpoint, which must be clearly explained. So rigorous and responsible experts will require a clear list of evidence to be written in the opinion letter, and declare that the conclusion is based on this evidence to protect their professional reputation. It is reasonable to organize expert discussions during the review, prosecution, or trial stage, as lawyers cannot access all evidence materials during the previous investigation and arrest stages.

Thirdly, the expert shall designate a writer, and the expert opinion cannot be written by a lawyer.

As the defense counsel for the defendant, the role of a lawyer determines that their position is difficult to be objective and neutral. Some expert opinions are written by lawyers, and the results are not much different from the defense arguments. Prosecutors or judges can easily recognize that the defense opinions are written by lawyers, which immediately reduces the credibility of the opinions. So rigorous and responsible experts will designate a writer and refuse lawyers to write opinion letters. The author fully participated in the expert discussion, thoroughly understood the facts and evidence, carefully understood the expert opinions, and accurately reflected the conclusions of each expert in the opinion book. Such opinions are more persuasive in terms of structure, hierarchy, and content, including their theoretical applications, and are more likely to be adopted by judicial authorities.