论实物证据的鉴真与鉴定——以美国法为参照的分析

鉴真是指确定实物证据真品性的证明活动,“两个证据”规定为鉴真提供了明确的法律渊源.实物证据不存在真实性推定、事实和二级事实的区分以及证据可采信的预备问题是鉴真的三大理论基础.鉴真和鉴定都是确定证据真实性的方法,鉴真是鉴定的前提和基础,鉴定是鉴真的必要延伸和补充,它们与最佳证据规则相结合,最大限度地保障了证据的真品性和真实性.我国应构造诉讼化的鉴真程序.

On the Authentication and Forensic Appraisal of Physical Evidence——Analysis with American Law for Reference

Authentication is a kind of proof which verifies that physical evidence is genuine,and the two evidentiary rules have provided specific statutory sources for it.The three major theoretical foundations of authentication are non-genuine presumption of physical evidence,distinction between fact and secondary fact,preliminary issues of the admissibility.Authentication and forensic appraisal are both designed to prove the genuineness of evidence.however,as the threshold of forensic appraisal,authentication has its unique values and functions.Authentication is the precondition and base of forensic appraisal and forensic appraisal is the necessary extension and supplement to authentication.Combined with Best Evidence Rule,they can safeguard the authenticity and reliability of the evidence.The process of authentication should the introduced into China.