司法证明同一论

同一是人类思维活动的基本范畴,同一认定是人类认识活动的基本方法,也是司法证明活动中认定案件事实的基本方法.传统的同一认定理论把同一认定局限在物证技术鉴定的范畴.实际上,同一认定是刑事诉讼证明的最终目标,同一认定理论对整个案件的司法证明活动都有指导意义.在刑事诉讼中,整个案件的同一认定就是"人事同一认定".同一认定的依据是客体特征.同一认定的条件包括特征组合的特定性、稳定性和反映性.同一认定的基本方法是特征排除法,包括直接排除法和间接排除法.同一认定的基本步骤包括对客体特征或诉讼证据的分别审查、比较审查和综合审查.同一认定理论是刑事诉讼证明的基本原理之一.     

同一鉴定规则研究

同一鉴定是同一认定的重要组成部分,它在刑事司法实践活动中起着重要的作用。但是,目前学界对同一鉴定规则还存在一些误解,这些误解一定程度上影响着同一鉴定作用的充分发挥。在本文中,笔者试图廓清学者们对同一鉴定的一些误读现象。在此基础上进而阐述笔者对同一鉴定的几点认识,如同一鉴定的基础和条件、同一鉴定的基本类型、同一鉴定的基本步骤及方法、同一鉴定结论的证据价值及审查评断等。     

对“三同案件”集中审理好处多

一九八五年,我院审结了案由同一、争议标的同一、适用法律同一的“三同案件”共四十二案。可分为二类,一类是同一原告同时分别起诉多个被告拖欠货款纠纷,共十五案;一类是同一原告同时分别起诉多个被告拖欠加工费纠纷,共二十七案。从这二类案件看,有以下共同特点:第一,都是同一原告同时起诉多个被告;第二,案由同一、争议标的同一、适用法律同一;第三,案情简单,事实清楚,争     

论司法鉴定结论之同一认定理论

司法鉴定结论在诉讼中运用广泛,它和其他事物一样存在自身的理论基础。同一认定理论经过发展,逐步奠定其作为鉴定结论理论基础的地位。在同一认定的鉴定中由于鉴定客体本身具有同一性,同时具有相对稳定性和区别于它物的特殊性。在此基础上对鉴定客体进行同一认定,最终得出鉴定结论。在诉讼中要正确认识这一理论,同一认定并非要得出“完全同一”的结论,同一认定也不是种类认定,同一认定的客体必须在人们的认识过程中出现两次以上,不能作偏向理解。     

论有供述案件的同一认定

有被告人供述的案件和没有被告人供述的案件,在进行同一认定时,其证据的质和量应有所区别。有被告人供述案件,它的小同一认定之和达到一定量时,就可推导出大同一认定,即人、事同一认定结论;而没有被告人供述案件,只有当它的小同一认定之和等于大同一认定时,才能作同一认定结论。     

论刑法中重复评价的本质及其禁止

犯罪行为的本质是客观上侵犯了刑法所保护的法益,主观上反映出行为人反规范的人格态度。所谓重复评价,表面上是在定罪量刑时对存在论上的同一犯罪行为进行了重复使用,但本质上是对其所反映出来的同一不法内涵和同一罪责内涵进行了重复考量,结果导致重复处罚。禁止重复评价的本质则相应表现为禁止对反映同一不法内涵和同一罪责内涵的同一犯罪行为进行重复使用。     

再论刑事侦查中同一鉴定的几个问题——兼与高进同志商榷

<正> 拙文《刑事侦查中同一鉴定的几个问题》发表后,高进同志就拙文中"关于同一鉴定的概念问题"提出了异议.本文愿对此再作申述,并与高进同志商榷. 一、分歧的问题将同一鉴定称为"同一认定"的观点认为:"把进行同一认定的主体限定在‘侦查部门指派、聘请'的专家、鉴定人员的范围"是"不够全面的".理由是:"犯罪侦查中的同一认定是一个充满各种方法和技术的过程,这些方法和技术构成了同一认定不可分割的     

澄清同一认定

同一认定理论的流行让人认为它是有用的,但它实际上是无用的。运用现代逻辑方法分析同一认定命题,在特定案件中,被寻找客体是限定摹状词,受审查客体是专名,单称的同一认定命题是一个含有限定摹状词的句子,它赋予个体一个性质。同一认定涉及的是个体识别问题,全称的同一认定命题实际上是不存在的。全称的同一认定命题是在语言形式上对全称理论命题的模仿,在逻辑上制造了混乱,对同一认定命题意义的澄清可以消除这种混乱,在刑事技术中恢复清晰的逻辑。     

浅析同一认定结论的真假问题

同一认定结论是鉴定人在分析判断的基础上给出的命题,凡是命题就有真假之分。因此,作为司法工作者应在实践中正确看待同一认定结论,不能过分迷信;作为同一认定鉴定人员,则应完善基础理论,探求新方法,尽量提高同一认定结论为真的几率。     

同一认定特征体系的构建

针对同一认定理论中存在的误区和鉴定实践中存在的问题,理论上每个物体之间的特征总和都是不同的,这是同一认定的基础,但实际的认定过程中,我们不可能运用物体的所有特征,只要有发现的特征同时出现且来自于不同物体的概率小到一定程度,我们就得出同一的结论了。本文试着从同一认定的特征体系出发,以其为同一认定的逻辑起点,并由此对同一认定的概念,分类,认定标准进行了重新梳理。     

In situ identification and analysis of automotive paint pigments using line segment excitation Raman spectroscopy: I. Inorganic topcoat pigments

Several applications of Raman spectroscopy in the forensic sciences have recently been demonstrated, but few have involved the analysis of paints. Undoubtedly, this is a reflection of the sample degradation problems often encountered when a visible or near-infrared laser is focused on a light-absorbing matrix. In this study, a dispersive CCD Raman spectrometer (785 nm) was used in a configuration which collected scattered light from an excitation region 3 mm long and 80 microm wide, instead of from a focused spot. Sample degradation was not observed, and Raman spectra of automotive paints of all colors were readily obtained. Most of the paints analyzed were U.S. automobile original finishes (1974 to 1989) from the Reference Collection of Automotive Paints, and the inorganic pigments examined were those which had been identified previously by infrared spectroscopy in finishes from this collection. Prominent peaks of rutile were observed in Raman spectra of light-colored nonmetallic finishes for both monocoats and basecoat/clearcoat systems, and the rutile peaks are readily distinguished from those of anatase. The lead chromates (Chrome Yellow, Molybdate Orange, and silica-encapsulated versions of the two) are the strongest Raman scatterers among the pigments examined, and Chrome Yellow was identified by Raman spectroscopy in several yellow and orange nonmetallic monocoats for which infrared absorptions of this pigment were not observed. Raman spectroscopy also provides an unequivocal means to distinguish Chrome Yellow from Molybdate Orange. This is particularly helpful for the analysis of paints containing light pigment loads or encapsulated pigments since the two formulations cannot be differentiated by infrared spectroscopy in such cases. The iron-containing pigments, ferric oxide, hydrous ferric oxide, and Prussian Blue, are relatively weak Raman scatterers, but peaks of hydrous ferric oxide and Prussian Blue were observed in spectra of paints containing heavy pigment loads. Because no sample preparation is required. Raman spectroscopy provides an excellent means to rapidly screen reference panels for the presence of certain pigments, and some examples of the differences in Raman spectra which occur for paints having similar colors are presented.     

Simultaneous identification and δ¹³C classification of drugs using GC with concurrent single quadrupole and isotope ratio mass spectrometers

In this study, δ13C values of six cocaine samples were identified and classified using a single quadrupole mass spectrometer and an isotope ratio mass spectrometry (IRMS) as simultaneous gas chromatography detectors. Our instrument modification is simple to use and is useful (i) when the sample is of limited size or can only be injected once, (ii) to help identify peaks in a complicated IRMS chromatogram, and (iii) to help differentiate very simple systems when impurity profiling is not possible. The EI-MS confirmed the identity of cocaine in each sample. The IRMS data distinguished 12 of the 15 possible pair-wise comparisons at the 95% CL. Three samples could not be differentiated by their δ13C ratios for cocaine. ANOVA demonstrated that the measurement variance was consistently larger than the sample variance. As the δ13C values clearly show, this technique enables the exclusion of a potential common source even when two samples have otherwise identical chemical and physical properties.     

Identification of Different Forms of Cocaine and Substances Used in Adulteration Using Near‐infrared Raman Spectroscopy and Infrared Absorption Spectroscopy

Identification of cocaine and subsequent quantification immediately after seizure are problems for the police in developing countries such as Brazil. This work proposes a comparison between the Raman and FT‐IR techniques as methods to identify cocaine, the adulterants used to increase volume, and possible degradation products in samples seized by the police. Near‐infrared Raman spectra (785 nm excitation, 10 sec exposure time) and FT‐IR‐ATR spectra were obtained from different samples of street cocaine and some substances commonly used as adulterants. Freebase powder, hydrochloride powder, and crack rock can be distinguished by both Raman and FT‐IR spectroscopies, revealing differences in their chemical structure. Most of the samples showed characteristic peaks of degradation products such as benzoylecgonine and benzoic acid, and some presented evidence of adulteration with aluminum sulfate and sodium carbonate. Raman spectroscopy is better than FT‐IR for identifying benzoic acid and inorganic adulterants in cocaine.     

Is it a modacrylic fibre?

This study describes the characteristics of modacrylic fibres and includes over 80 samples (previous and current) representing 15 trade names. Fibre morphology was examined using brightfield microscopy. Signs of elongation were determined using polarised light microscopy. Fibre cross sections were also examined. The generic class of fibre was divided into sub groups using polymer composition as determined by FTIR-microscopy. Microscopically, some modacrylic fibres cannot be distinguished from acrylic fibres. Others display unusual optical and morphological features which are a strong indication of their generic class. The infrared spectra provide information about the co-monomer, termonomers added to produced dye sites, the presence of solvent residue, dyes, and additives, e.g. flame retardant material. The infrared spectra should always be recorded before and after any thin layer chromatographic examination of the dye, otherwise peaks attributable to dyes, which may be a valuable comparative feature in casework will be lost.     

红外差谱技术用于微量混合油漆的比对检验

对交通事故中的漆片检材进行同一物质比对时,某些情况下难以提取到单一的油漆碎片而是两辆车的油漆混合在一起,给物证比对带来困难。红外差谱技术具有辨别混合物中不同成分的功能,因此可应用于交通事故中混合油漆检材的比对检验。本文对一起交通事故的漆片检材,分别用三种方式提取、制样,用红外光谱仪进行分析,借助红外差谱技术对谱图进行处理,排除混合油漆的干扰。处理后得到的谱图与样本的谱图进行比对,结果显示两者主要官能团吸收峰位置、峰型、峰强度基本一致,可出具比对一致的结论。针对混合油漆检材的比对检验,红外差谱技术可提供支持。     

Prevalence and impact of PCR artifacts from soil samples using the Applied Biosystems™ GlobalFiler™ PCR amplification kit: Interference of non-human artifacts in DNA profiles from a homicide investigation

Non-human artifacts have been observed in a range of forensic typing methods. This is primarily due to the condition and potential environmental contamination of many evidentiary samples. Here, a case example of non-human artifact peaks is presented to illustrate ways in which to recognize potential artifact peaks as well as mitigate their effect on interpretation.     

Raman spectroscopy of blood samples for forensic applications

We investigated Raman scattering from human blood as a function of parameters that are relevant for forensic field analysis, such as substrate, sample dilution, individual from which the sample originates, and age of the sample. Peaks characteristic of blood components and in particular the hemoglobin peaks were routinely detected when blood was deposited on substrates that are not strongly luminescent, such as plastic, metal utensils and dry wall. Raman scattering from blood proved quite sensitive and blood samples with a dilution up to 1:250 could be measured for an excitation power of ～2 mW measured at the sample plane. The sensitivity of Raman scattering to diluted blood allowed measurement using blood reconstituted from fabric substrates, thereby alleviating issues related to luminescence and scattering from the substrate. The dependence of Raman scattering on sample age and individual was also investigated. We found that the relative intensities of scattering peaks depended on sample age and history. For example, the relative intensity of oxyhemoglobin peaks decreases after blood has dried. Fresh blood drawn directly from a donor without intermediate storage exhibits also scattering peaks at 1155 and 1511 cm(-1) which disappear after drying. The origin of these peaks is under investigation. We noticed, however, that they were not found in blood that had been stored for longer than one week in EDTA containers before analysis, thus requiring the use of fresh blood for future studies and validation purposes. The relative intensity of scattering peaks was also found to be somewhat dependent on the donor and, for a same donor, on the day on which blood was drawn.     

Cross-examination of liquid-liquid extraction (LLE) and solid-phase microextraction (SPME) methods for impurity profiling of methamphetamine

Impurities in 48 methamphetamine (MA) samples were analyzed by liquid-liquid extraction (LLE) and headspace solid-phase microextraction (HS-SPME) methods. MPS-2 autosampler was used to improve reproducibility of SPME method, and nonadecane (C(19)) diluted with potassium bromide (KBr) powder was used as an internal standard for standardizing retention time. Impurities identified by SPME method showed different patterns compared with LLE method. Non-volatile impurities like methamphetamine dimer were not identified by SPME method, but some volatile impurities like diphenylketone, caprolactam and lots of unknowns were identified only by SPME method. 1-Phenyl-2-propanone (P2P), 1-phenyl-2-propanol and benzylcyanide peaks could be discriminated clearly by SPME method without interference of amphetamine, an artifact originates from MA degradation. Differences in the impurity patterns resulted in different clustering results. When 48 MA samples were classified into 5 LLE and 5 SPME clusters, cross-matching of the clusters resulted in 8 sub-clusters. It shows that combination of the different extraction methods can distinguish the differences which cannot be distinguished by LLE or SPME method alone, and can improve reliability of the profiling results.     

Impurity profiling of methamphetamine hydrochloride drugs seized in the Philippines

Methamphetamine hydrochloride is one of the most widely used illicit drugs in the Philippines. In this study, we describe the application of cluster analysis of trace impurities in the profiling of the seized methamphetamine drug samples. Thirty milligrams of a homogenized drug sample were dissolved in 1 mL of pH 10.5 buffer solution and extracted with ethyl acetate containing three internal standards. The trace impurities were identified using gas chromatography-mass spectrometry (GC-MS) and quantified by gas chromatography with a flame ionization detector (GC-FID). Following previously reported methodologies, 30 impurity peaks were selected from the GC-FID chromatograms. The peak areas and retention times were referenced to the internal standards. The peak areas of the selected peaks were then grouped for cluster analysis. In order to check for consistency of clustering, two further cluster analyses were performed using 40 and 50 impurity peaks. Changes in clustering were observed in going from 30 to 40 impurity peaks, while analyses using 40 and 50 impurity peaks gave similar results. Thus, for the seized drug samples used in this study, cluster analysis using at least 40 impurity peaks showed better consistency of clustering as compared to analysis using 30 peaks only. Ten of the impurity peaks were identified, of which four were identified for the first time in methamphetamine drug samples. These are p-bromotoluene, N-benzyl amphetamine, N-ethyl amphetamine, and N-ethyl methamphetamine. The presence of phenyl-2-propanone (P2P), N,N-dimethyl amphetamine, and N-formyl amphetamine is indicative that these casework samples were synthesized using the Leuckart method.     

Discrimination of paper-based kraft tapes using Fourier transform of transmitted light images

This study focused on two-dimensional fast Fourier transform (2D-FFT) as a new technique for the discrimination of kraft tapes, which is a kind of adhesive packing tape. The 2D power spectrum (2D-PS) obtained by applying 2D-FFT to an image enables us to obtain information about the spatial periodicity, even if the periodicity is invisible within the image. However, in the case of kraft tape, peaks in the 2D-PS are too unclear to determine its periodicity. We developed novel analytical image processes combined with 2D-FFT. 2D-FFT was applied to 50 randomly selected areas in a transmitted light image of kraft tape. The 2D-PSs were calculated from each area without applying a logarithmic transformation, accumulated, and processed by the removal of the area surrounding the center, and finally normalized for visualization. These processes enhanced the peaks and eliminated local variations. Through an intra-roll comparison, the 2D-PSs collected from a roll were similar in the location of the peaks and in their patterns at low frequency area. Using an inter-roll comparison, the 2D-PSs from 50 commercially available brand-name products were classified into 26 groups based on these peaks and patterns. All results demonstrate that this method, which is convenient, rapid, and non-destructive, could be a valuable tool for the identification of kraft tapes.