Psychiatric Evaluation in Chinese Criminal Proceedings:A Legal Perspective
| DOI | 10.1177/13657127211051771 |
| Date | 01 January 2022 |
| Published date | 01 January 2022 |
| Author | Zhiyuan Guo |
| Subject Matter | Articles |
Psychiatric Evaluation in
Chinese Criminal Proceedings:
A Legal Perspective
Zhiyuan Guo
China University of Political Science and Law
Abstract
Psychiatric evaluation is widely used in criminal cases to screen people with mental dis-
order because insanity can either exempt the offender from criminal responsibility or miti-
gate his/her criminal punishment. The operation of psychiatric evaluation in China used to
carry a typical characteristic of civil law tradition, but recent reforms have strengthened
the procedural safeguards for psychiatric evaluation and stressed the requirement of its
presentation and examination in criminal trials. This article will explore how psychiatric
evaluation is conducted, and how the expert opinion is presented and examined as evi-
dence in criminal trials in China. Part I will give a historical overview of psychiatric evalu-
ationinChina’s criminal cases. Part II will introduce the current legislation on psychiatric
evaluation in China. Part III will explore problems with current legislation and practice. In
this part, high-profile cases will be cited to illustrate loopholes in the psychiatric evaluation
law and practical problems with the operation of evaluation. Potential solutions to these
loopholes or problems will also be explored. Part IV will focus on the presentation and
examination of psychiatrists’expert opinion in criminal trials. Although expert witnesses
are also required to testify before the court in China, very few of them take the stand
in practice. This part will discuss why reforms kept failing and what should be done to
bring expert witnesses to court. Psychiatrists are important expert witnesses; the discus-
sion of live psychiatrists will shed light on the appearance of all the expert witnesses in
Chinese criminal trials.
Keywords
China, criminal proceeding, expert witness, psychiatric evaluation
Corresponding author:
Zhiyuan Guo, China University of Political Science and Law.
Email: guozhiyuan@hotmail.com
Article
The International Journal of
Evidence & Proof
2022, Vol. 26(1) 81–99
© The Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/ 13657127211051771
journals.sagepub.com/home/epj
Introduction
Over the past few decades, the proportion of the Chinese population with mental health problems has
been growing rapidly with the country’s modernisation.
1
The faster pace of life and more competitive
work environment impose tremendous stress throughout the Chinese society. The by-products of eco-
nomic growth such as polarisation of wealth and social immobility have worsened the inequality of
opportunities and income and thus has created many psychological problems among the society.
As more and more mentally disordered people become involved with the justice system, psychiatric
evaluations are more widely used to screen those with mental health problems. In China, as elsewhere,
mental disability can be an important factor when civil or criminal liabilities are determined. In civil
cases, people with mental disability do not have full capacity to engage in transactions or other civil activ-
ities, and what they have done will be claimed invalid or revocable if a psychiatric evaluation can deter-
mine them as persons with no legal capacity.
In criminal cases, mental disorder can either exempt criminal responsibility of the offender or mitigate his/
her criminal punishment. When a criminal offender claims to be insane at the time of committing the crime, a
psychiatric evaluation will be arranged to determine his/her mental status during the crime. A psychiatric
evaluation in China could generate one of three conclusions depending on the existence of mental illness
and its severity. If the offender could not tell right from wrong and could not control himself at the time
of committing a crime because of serious mental illness, he will be determined not criminally responsible
(insanity); if the offender’s capacity of controlling himself at the time of crime was affected by his mental
illness but he can still tell right from wrong, he will be determined criminally responsible to a limited
extent (equivalent to diminished capacity in American theory) and his mental illness could be used as a miti-
gating factor in sentencing; if the offender doesn’t suffer from any mental illness, or he wasn’t in the period of
mental disorder when committing the crime, he will be determined criminally responsible.
Psychiatric evaluation is not only decisive on the issue of criminal responsibility, but it also has pro-
cedural implications. The evaluation result can dictate further proceedings. When a psychiatric evaluation
finds the accused completely or partially responsible, the criminal proceeding will continue.
2
In cases of
limited criminal responsibility, mental illness will not only be used as a mitigating circumstance in sen-
tencing, but special protection will also be provided to the accused such as right to free counsel. When the
psychiatric evaluation finds the accused not criminally responsible because of insanity, the criminal
charge will be dropped and the accused will be either released to his guardian’s custody or be commit ted
to a mental hospital after a criminal commitment hearing, depending on the severity of his mental illness
and the potential dangerousness to the society.
Therefore, it is critical for anyone who wants to use mental disorder as excuses to alleviate his/her legal
liabilities to know that the substantial standards or procedural safeguards for psychiatric evaluation are
properly regulated in a certain jurisdiction. This article will explore psychiatric evaluation in criminal
cases from both the legislative and the practical perspectives. Part I will give a historical overview of psy-
chiatric evaluation in China’s criminal cases. Part II will introduce the current psychiatric evaluation law
in China. Part III will explore problems with current legislation and practice. In this part, high-profile
cases will be cited to illustrate loopholes of psychiatric evaluation law and practical problems with the
evaluation operation. Potential solutions to these loopholes and problems will also be explored. Part
IV will focus on the presentation and examination of psychiatrists’expert opinion in criminal trials.
Although expert witnesses are required to testify before the court, very few of them take the stand in prac-
tice. This part will discuss why reforms kept failing and what should be done to bring expert witnesses to
1. The World Health Organization reported that approximately 100 million people—accounting for 7 per cent of China’s population
—experience some form of mental illness. See Chinacdc.cn (Ewing, 2010).
2. In cases in which the evaluation finds no mental illness, the defendant still enjoys the right to challenge the prosecution’s cases on
other grounds.
82 The International Journal of Evidence & Proof 26(1)
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