TRƯNG CẦU GIÁM ĐỊNH BỔ SUNG TRONG TỐ TỤNG HÌNH SỰ VIỆT NAM / SUPPLEMENTARY EXPERT EXAMINATION IN VIE

1. General overview:

Judicial expertise activities play a foundational role in determining the objective truth of a criminal case. By definition, “expert examination” means the review and conclusion regarding an object or phenomenon that a state authority needs to study and determine. In criminal proceedings, expert conclusions are prescribed as one of the sources of evidence (Point d, Clause 1, Article 87 of the 2015 Criminal Procedure Code (“CPC”)). This constitutes an important scientific basis for proving a crime, identifying the person who committed the criminal act, and determining the elements of the offense or the applicable penalty bracket.

In the context of increasingly complex cases in terms of science, technology, medicine, and economics, reliance on expert conclusions is indispensable. Expert examination results, including conclusions supplemented or clarified through the procedure of requesting supplementary expert examination, are decisive for the objectivity and correctness of the judgment.

To ensure the effectiveness and accuracy of evidence, the CPC and the Law on Judicial Expertise provide two mechanisms to clarify expert conclusions: supplementary expert examination and re-examination. Supplementary expert examination is conducted where the initial expert conclusion is determined to be incomplete, unclear regarding matters requiring clarification, or where new issues arise relating to circumstances previously examined, requiring procedural authorities to request supplementary expert examination in order to comprehensively resolve the legal aspects of the case. In essence, supplementary expert examination is limited to clarifying missing points or newly arising issues, and is not intended to completely change the previous conclusion. Re-examination, by contrast, is conducted where there are doubts about the accuracy of the initial expert conclusion. This distinction is necessary for procedural authorities to properly determine the scope and purpose of the examination request, thereby avoiding waste of resources and time.

Regulations on supplementary expert examination are primarily governed by the 2015 CPC and the Law on Judicial Expertise (amended and supplemented in 2020). Specifically, Article 214 of the 2015 CPC provides for the procedure for notification of conclusions and the right of procedural participants to request supplementary expert examination. Meanwhile, Article 25 of the Law on Judicial Expertise provides detailed regulations on decisions on requesting expert examination, requiring that the decision clearly state that it is a request for supplementary examination or re-examination and specify the reasons. This legal framework aims to create a flexible yet strict mechanism to supplement scientific evidence during investigation, prosecution, and adjudication.

2. Regulations on requesting supplementary expert examination:

Authority to request supplementary expert examination: Pursuant to legal regulations, the following persons have the authority to decide on requesting supplementary expert examination: Heads and Deputy Heads of Investigation Authorities; Chief Procurators and Deputy Chief Procurators of the Procuracy; and the presiding judge of the trial.

The request for supplementary expert examination must be made in writing, specifically in the form of a Decision on Request for Judicial Expert Examination. Pursuant to Article 25 of the Law on Judicial Expertise (amended and supplemented in 2020), this decision must be sent together with the subject of examination, relevant information and documents, and must clearly state that it is a request for supplementary expert examination, and specify the specific reason for such supplementary examination. This requirement is intended to ensure transparency and to limit the scope of work for the organization or individual conducting the examination, enabling them to focus on missing contents or newly arising issues.

Conditions for application: Supplementary expert examination is applied where the initial expert conclusion does not satisfy evidentiary requirements, contains incomplete or unclear content requiring further clarification, or where new issues arise during the proceedings relating to circumstances already examined, and such issues require professional opinions of expert examiners for resolution of the case. Supplementary expert examination is not considered a re-examination of the entire contents already performed. Instead, it is limited to clarifying details or resolving issues arising from the previous conclusion. This condition requires the requesting authority to accurately assess the nature of the deficiency or newly arising issue, thereby avoiding abuse of the supplementary expert examination procedure to prolong procedural time.

Right to request: Pursuant to Clause 3, Article 214 of the 2015 CPC, suspects, defendants, victims, and other procedural participants have the right to request supplementary expert examination.

Person conducting supplementary expert examination: Pursuant to Clause 2, Article 210 of the 2015 CPC, supplementary expert examination may be conducted by the organization or individual that performed the initial examination, or by another organization or individual.

Article 214 of the 2015 CPC clearly determines the responsibility of competent procedural authorities. Within 07 days from the date of receipt of a request for expert examination from these persons, the procedural authority must consider and issue a decision on requesting examination. After obtaining the expert conclusion, the procedural authority must notify such conclusion to the suspect, defendant, victim, and other procedural participants within 07 days.

Of particular importance is the control mechanism over decisions of procedural authorities. Where the Investigation Authority, Procuracy, or Court does not accept a request for supplementary expert examination from procedural participants, they must notify in writing and clearly state the reasons. This regulation is considered a key mechanism to ensure the right to defense and the right to access evidence of the accused, while requiring procedural authorities to ensure transparency in their decisions, preventing arbitrary or purely formal refusals.

3. Shortcomings in legal regulations on supplementary expert examination procedures

Although the legal framework on judicial expertise has been significantly improved, practical application and lack of consistency among specialized legal provisions still create serious difficulties and shortcomings, particularly relating to the procedure for requesting supplementary expert examination:

First, shortcomings relating to handling difficult-to-preserve exhibits and requests for supplementary valuation.

A major shortcoming relates to handling exhibits consisting of wildlife or invasive plants, as regulated at Point d, Clause 3, Article 106 of the CPC. This provision requires such exhibits to be immediately transferred to specialized management authorities for handling after expert conclusions are issued.

The issue arising is that in many cases (e.g., illegal wildlife trading), procedural authorities need both expert conclusions (to determine species) and valuation conclusions (to determine asset value for purposes of criminal liability). However, if the exhibits (live animals) are released into the wild immediately after expert examination, when procedural authorities subsequently wish to conduct asset valuation, this becomes impossible because the exhibits are no longer available for valuation or cannot be recovered.

This deficiency shows that current regulations prioritize timeliness of conservation/specialized handling over completeness of economic evidence. The absence of timely valuation conclusions results in inability to correctly determine asset value (for determining penalty brackets or compensation), thereby reducing evidentiary quality regarding assets and causing difficulties in proper case resolution. If supplementary valuation is later requested, such request cannot be carried out. This constitutes a serious legal gap requiring adjustment to synchronize procedures for collecting scientific evidence and determining asset value for exhibits difficult to preserve.

Second, shortcomings regarding the scope of mandatory examination for monetary exhibits. 

Inconsistencies in interpretation and application of regulations on examination of monetary exhibits create unnecessary procedural burdens. Specifically, Point b, Clause 1, Article 90 of the CPC provides that exhibits being “money” must be examined immediately after collection. Meanwhile, Clause 5, Article 206 of the CPC only provides a mandatory request for examination when it is necessary to determine “counterfeit money.” This difference in wording leads to two approaches:

(i) The first view holds that all cases where exhibits are “money” must be examined immediately under Article 90 of the CPC.

(ii) The second view (supported by many scholars) holds that examination should only be requested where there are grounds to suspect “counterfeit money,” because Article 206 of the CPC mandates examination only when it is necessary to determine counterfeit money.

If the first view is applied (examining all money), procedural authorities will waste significant resources (time and costs) in cases where seized money is clearly genuine and unrelated to elements of the offense (e.g., ordinary theft cases). This lack of clarity leads to inconsistent application among authorities and localities, and unnecessarily prolongs procedural time limits. This indicates the need for unified guidance limiting mandatory examination of money exhibits to cases involving suspicion regarding authenticity or where origin must be determined for investigation of complex crimes (such as money laundering).

Third, challenges in managing time limits for supplementary expert examination

The 2015 CPC provides fixed maximum time limits depending on types of exhibits or matters requiring examination (e.g., not exceeding 09 days for injuries or narcotics; not exceeding 01 month for cause of death; not exceeding 03 months for mental condition).

Meanwhile, supplementary expert examination is often requested for complex issues requiring additional specialized techniques or new data compared to the initial examination. The strict and fixed timeframe under Article 208 of the 2015 CPC may not be suitable for the nature of supplementary examination. Therefore, in practice, examination organizations frequently apply the general provision of the Law on Judicial Expertise regarding notification of extension of time limits.

The need to continuously issue written notifications stating reasons and expected completion time, although lawful, creates significant pressure on time limits for investigation, prosecution, and trial preparation. Such interruption of procedural progress may affect the principle of timely resolution of cases and increase the risk of violating overall procedural time limits, especially where the accused is under detention. The lack of flexibility in initial timeframes for complex supplementary examination requests constitutes a major challenge in procedural management.

4. Recommendations for improving the legal framework and enhancing practical effectiveness

The above shortcomings not only increase administrative burdens and procedural costs but also risk reducing the comprehensiveness and accuracy of evidence, directly affecting determination of charges and penalty frameworks. Early amendment of the 2015 CPC, particularly Article 106, and issuance of guiding documents for uniform application relating to scope and time limits of examination are urgent requirements to enhance effectiveness and quality of judicial expertise in Vietnam’s criminal justice system, specifically:

First, amendment of Point d, Clause 3, Article 106 of the 2015 CPC is necessary, by adding the phrase “and valuation” into the provision. The amended provision should read: “Exhibits being wildlife or invasive plants shall, immediately after expert examination and valuation conclusions are obtained, be transferred to the competent specialized management authority for handling in accordance with law.”

At the same time, alternative evidence management measures should be adopted, such as mandatory detailed recording (photographing, video recording) and preliminary valuation at the time of seizure for exhibits difficult to preserve, in order to ensure that value information is not lost even after professional handling of the exhibits.

Second, regarding shortcomings relating to examination of monetary exhibits, a guiding Resolution of the Council of Judges of the Supreme People’s Court or an inter-agency circular among central procedural authorities should be issued to unify interpretation. The guidance should clearly determine that mandatory examination of money applies only where: (1) procedural authorities have grounds to suspect counterfeit money (consistent with Article 206 of the CPC); or (2) it is necessary to determine special legal characteristics of money (such as origin of funds in money laundering or complex corruption cases), rather than ordinary authenticity examination. This would eliminate unnecessary procedural burdens.

Third, to address challenges relating to time limits, a more flexible mechanism should be developed for complex supplementary expert examination requests. Although Article 26a of the Law on Judicial Expertise allows extension, more detailed regulations should be provided regarding agreement on supplementary examination time limits at the outset between the requesting authority and the examination organization, based on workload and technical complexity. This aims to minimize unexpected extension notifications and allow procedural authorities to better manage investigation and adjudication timelines.

Additionally, detailed guidance should be issued regarding “justified reasons for refusal” where procedural authorities reject requests for supplementary expert examination from procedural participants. This would ensure consistent application of Article 214 of the CPC, prevent arbitrary or purely formal refusals, and thereby strengthen objectivity and democracy in criminal proceedings.

Lawyer Phạm Thị Thảo - FDVN Law Firm