道路交通事故鉴定的原则和方法

结合交通事故鉴定实例,从车辆安全技术状况鉴定、交通事故痕迹鉴定、酒精检测等方面论述交通事故鉴定的原则是：从交通事故物证入手,以科学的理论、数据和常识,揭示物证特有性质,使之成为能够证明事故真相的证据。交通事故鉴定的方法就是怎样让物证说话。让物证说话的方法很多,一个物证它本身具有很多特有性质,需要鉴定人员根据自身的经验和专业知识,揭示物证能够证明事故真相的特有性质。     

The influence of car and driver stereotypes on attributions of vehicle speed,position on the road and culpability in a road accident scenario

Purpose. Laymen and legal professionals frequently make decisions on the culpability of drivers involved in collisions on the basis of incomplete and inconsistent information. Could attributions based on car and driver stereotypes influence decisions on culpability? Methods. In Experiment 1, ratings were collected on the perceived on‐road aggressiveness of drivers of different age and gender, and for models and colours of motorcars driven. In Experiment 2, participants read an accident scenario involving two cars and were asked to estimate relative speed, position on the road and blame. The ages of the drivers, colours, make and model of car driven were manipulated using the aggressiveness ratings collected in Experiment 1. In Experiment 3, participants read another scenario and were again invited to allocate blame; colour, model of car and driver's age were varied systematically to establish the relative contribution of the different elements of the stereotype. Results. Combinations of colour, car and driver rated high on aggression were judged as travelling faster, being further across the road and more likely to be the cause of an accident than those rated low on these dimensions. Conclusions. Pre‐existing car and driver stereotypes have a demonstrable influence on judgments of driver behaviour from conflicting accident statements. The possible implications for the handling of accident claims and legal cases are discussed.     

THE FORM OF REFORM: REVISITING THE CHOICE AMONG A CREED,A CODE,AND A CATALOGUE

In the past, international Evidence law reformers have focused primarily on substantive evidentiary doctrines. However, for reforms to be effective, the courts and legislatures must state the revised doctrines in a form that promotes the overall objectives of the legal system. The basic choice facing reformers is among a creed identifying broad goals, a code stating flexible principles, and a catalogue prescribing detailed rules. In the past, especially in the United States, there was a consensus among Evidence scholars that the code format is preferable. However, if a key objective of a national legal system is to encourage pretrial disposition of cases, the courts and legislatures should give serious thought to utilizing a catalogue format. That format is especially attractive in the doctrinal areas such as privilege in which evidentiary rules are intended to affect primary behavior outside the courtroom.     

Automated SEM/EDS Analysis of Airbag Residue.* I: Particle Identification

Abstract: Deployed airbags can be a valuable source of probative forensic materials. During an accident, trace evidence can be deposited on the airbag cover and in addition, the residue produced by the gas generation system is released into the passenger compartment of the vehicle as the airbag deflates. This residue can be used to associate a suspect with the vehicle at the time of the accident. This study identifies particles containing zirconium, strontium, and/or copper–cobalt along with other elements from the gas generation systems and aluminum silicon microfibers from airbag filters as the probative material which may be produced and deposited on a suspect’s hands and/or clothing. Scanning electron microscopy can be used to identify this metallic residue. Modification of the search criterion used for gunshot residue analysis allows for automated analysis of the samples. Proper collection of the airbag standard is essential to identify which materials were produced. Prompt collection of suspect samples allows the analysts the ability to make the proper identifications and associations. This analytical technique can be a probative tool in criminal investigations.     

对『司法会计鉴定结论能否回答法律性问题』的思考

司法会计鉴定结论是法定证据之一.由于司法会计技术人员一般都具备较高的综合素质,司法会计鉴定与查帐报告和审计结论有质的区别,司法会计技术人员对案件过程有比较全面的了解,对案件性质有比较深刻的认识,因此,司法会计鉴定结论对法律问题不应当采取一概回避或一律排斥的态度.又由于司法会计技术人员不具备对案件定性的权力,司法鉴定在本质上是一种科学研究活动,决定了它只能有限制地回答部分与鉴定要求有关的法律问题.     

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。     

论机动车交通事故责任强制保险的法律适用

机动车交通事故责任强制保险是以保护和救助生命为核心的制度,它与机动车第三者责任保险在法律依据、法律性质、责任划分、保险费率等诸多方面存在不同,在法律适用中不可混淆;若两者并存时,机动车交通事故责任强制保险优先适用,机动车第三者责任保险补充适用,以有效分散风险,同时,也为交通事故受害人设置了双重保护,更加有利于保证交通事故受害人得到及时救助;在诉讼中,机动车第三者责任强制保险的受害人可以以保险公司为被告,直接向其求偿;而机动车第三者责任险的受害人只能把保险公司列为无独立请求权的第三人。     

证明力规则检讨

中国的司法实践对证据的证明力表现出异乎寻常的关注,呼唤证明力规则、创造证明力规则并实践证明力规则。然而,当下的证据法学界对证明力规则往往持一种简单化的批判态度,其对于证明力规则的理性总结与学理思考相较于司法实务界倾注的努力不相适应。在以证明力为导向的证据法中,证明力规则的产生是一种必然。在证明力规则问题上,中国证据法学者在理论层面缺乏主体意识,但法律条文以及司法实践却显示了相当程度的主体性并保持了韧性。     

The transfer and persistence of automotive carpet fibres on shoe soles

The transfer and persistence of automotive carpet fibres to shoe soles was investigated. It was found that fibres were transferred with the normal activity of a car passenger. Carpet type and shoe sole parameters were significant determinants in the number of fibres that transferred. The average number of fibres was between about one and 33 per sole. Fibres that had been transferred after normal activity only persisted for a few minutes after walking. A survey of the shoe soles of people about to leave their car showed that fibres were usually present. The majority of shoe soles surveyed had less than five fibres with the greatest number of fibres found being 14. The likelihood of finding a large number of fibres on such soles is rare. Fibre composition of automotive carpets showed a high degree of variation. Grey was seen to be a common colour irrespective of the colour of the vehicle body.     

Driving across campus: Assessing the impact of drivers' race and gender on police traffic enforcement actions

This study examined the effect of drivers' race and gender on officers' decision to search a driver/vehicle and invoke a legal sanction, controlling for legal and extralegal factors. Logistic regression analyses of 10,210 traffic stops on a university campus indicated that drivers' race and gender had a significant effect on officers' decision to search a driver/vehicle and invoke a legal sanction. Black male drivers were more likely than White drivers to be searched, but were less likely to receive a legal sanction. Unexpectedly, the results showed that Asian drivers were less likely to be searched, but more likely to receive legal sanctions than White drivers. Findings, however, indicated that legal and extralegal factors (i.e., types of traffic violation, time, officer type) were found to have significant effects on officers' decisions during traffic stops.     

侦查实验笔录简论

侦查实验是指侦查人员在刑事诉讼过程中按照科学的原则和方法,在模拟案件原有条件基础上所设计、实施的．旨在查明与案件有关的事实的存在、发生的可能性或其状态、过程的法科学活动。侦查实验笔录是侦查实验过程及结论的载体．是侦查人员按照法定格式制作的,用于描述和证明实验过程中发生的具有法律意义的事实状况的书面记录。在证据法学视野内...     

Digital evidence and ‘cloud’ computing

The term ‘cloud computing’ has begun to enter the lexicon of the legal world. The term is not new, but the implications for obtaining and retaining evidence in electronic format for the resolution of civil disputes and the prosecution of alleged criminal activities might be significantly affected in the future by ‘cloud’ computing. This article is an exploratory essay in assessing the effect that ‘cloud’ computing might have on evidence in digital format in criminal proceedings in the jurisdiction of England & Wales.     

Fatal accidents and blood ethanol levels in adolescents and adults. The Wayne County experience, 1978-1988

The files of 874 fatal traumatic accident victims, aged 12-25 years, examined at the Wayne County Medical Examiner's Office during the period 1978-1988 were reviewed. Postmortem blood alcohol results of individuals who died after less than 15 min of hospitalization were utilized to approximate alcohol levels at the time of the fatal injury. Relationships between types of accidents, sex, age, race, and time of accident were examined. White victims were far more likely to have been drinking than blacks, and the data indicated that underaged drinkers were involved in fatal accidents at lower levels of blood alcohol than their counterparts of legal drinking age. Consistent racial differences in average alcohol levels were not observed, however. Unlike female and black victims, who much less frequently tested positive for alcohol when underage, white male victims 16-21 years of age were just as likely to have been drinking as those aged 21-25. The results of the study show that postmortem blood alcohol level can be used to identify differences in alcohol consumption among groups of accident victims in a major metropolitan area.     

我国刑诉法应增设证据保全制度

在刑事诉讼中,被追诉方申请证据保全与申请取证存在本质差异。增设刑事证据保全制度可以制衡追诉方取证过程中的随意性,避免证明犯罪嫌疑人、被告人无罪和罪轻的关键证据在以后难以取得,又能使无罪的被追诉者尽快摆脱涉讼之苦。同时,增设刑事证据保全制度有助于保持法律体系的完整性和系统性。其他一些国家和地区的立法中规定了刑事证据保全制度。我国刑事诉讼法中应该增设刑事证据保全制度,明确规定决定是否实施证据保全的机关、保全申请权的主体、申请证据保全的条件和方式、证据保全材料的审查及处理、实施证据保全的措施以及申请权的救济。     

刑事证据法的制度转型与研究转向——以非法证据排除规则为线索的分析

20世纪初美国法学界曾针对"非法证据排除规则"发生过激烈论争,证据学家威格莫尔与法律改革家豪尔乃是论争中对立的双方,其论争的历史贡献在于引出了近现代西方证据法(学)发展的两大论题:"证据法应以证明性为中心还是以可采性为中心"与"如何处理证据规则的实现和诉讼程序的构建之间的关系"。确立与构筑非法证据排除规则是我国《刑事诉讼法》再修改的重要环节,当前我国刑事证据法学界的诸多争论与威格莫尔和豪尔当年的论战存在诸多"历史相似性",故有必要进行关联审视。由于我国证据立法以证明性而非可采性为中心,证据规则的实践运行环境不容乐观,理论研究也因为一直受到证据学进路的统摄而不能获得独立。为摆脱困境,我国刑事证据法学界应当以学科建制的探讨为契机,实现中国证据法的制度转型,即构建以可采性规则为中心的证据规则体系,旨在防止误判与价值权衡。同时实现证据法学的研究转向,即实现中国的证据学之法学转型、人权法转型及相对于实体法的独立性转型。     

New visual technologies in court: directions for research

Litigation is being transformed by new visual communication technologies, including videoconferencing, PowerPoint, and computer animations. Yet the effects of these visual technologies on legal decision making are largely unknown. In order to understand better the most pressing issues surrounding technology in the courtroom, psychologists, lawyers, and representatives from technology companies and funding agencies attended a Research Conference on Courtroom Technology organized by the Federal Judicial Center. The goals of the conference were to identify issues raised by courtroom uses of new technologies that could be illuminated by empirical research and to suggest designs and methods for conducting that research. This paper emerged from that conference. The authors provide an overview of considerations that should guide research in this area, including a framework that takes into account features of the technology, the audience, and the legal strategy of the user of the technology. They outline a paradigm for conducting such research, illustrate it with several possible empirical studies of varying levels of experimental and conceptual complexity, and identify directions for subsequent research.     

Detection of polybrominated biphenyl ethers (PBDEs) in pediatric hair as a tool for determining in utero exposure

This study presents the prevalence of ethanol and illicit drugs in fatal road traffic accident victims in the Centre of Portugal between January 1990 and December 2007. Among the violent deaths, road traffic accidents presented the highest percentage (around 35%; n=3095), but decreasing throughout the years. Accidents were preponderant in males (about 80%; n=2402), between 21 and 30 years-old. Accidents involving drivers (55%; n=1310) were of the most common, being the car the main vehicle (45%), followed by the motorcycle (40%). An alcohol analysis request was present in 50% of the cases (n=1687), but increasing each year. Ethanol concentrations >1.2g/L, the legal limit in Portugal, were found in 55% (n=283) of the cases. Concerning drugs of abuse requests, only 4.4% (n=137) and 17.3% (58 cases) of the cases included the analysis at the Forensic Pathology Department (FPD) and at the Medico-Legal Office (MLO), respectively. Among the road accident cases analysed, 18 were positive, mainly in men (84%), between 21 and 30 years-old; opiates (47.1%; n=8) and cannabinoids (50%; n=4) were the most found, at the FPD and at the MLO, respectively. In conclusion, ethanol was identified as a key factor to traffic accidents, which explains the definition of specific legislation and methods of enforcement to prohibit this form of impairing. Nevertheless, ethanol still remains the psychoactive substance most frequently identified in the blood of divers killed in road-traffic crashes, recommending additional actions of supervision and control.     

The prevalence of drugs and alcohol found in road traffic fatalities: A comparative study of victims

Researchers have studied the involvement of drugs and alcohol in fatal road traffic incidents, but with particular emphasis on the possible impairment of the driver. This paper describes a comparative study of drug and alcohol findings in various victim groups (drivers of cars, vans or lorries, car passengers, motorcyclists, motorcycle passengers, cyclists and pedestrians) between 2000 and 2006. Post-mortem blood and urine specimens submitted were analysed by immunoassay, GC–NPD, GC–FID, GC–MS and HPLC–DAD. The results of 1047 cases indicated 54% of all victims were positive for drugs and/or alcohol, with the highest percentage of positive findings occurring in pedestrians (63%). Males between the ages of 17–24 were most likely to be involved in a road traffic accident, whether being in control of a vehicle (driver) or involved indirectly (car passenger, pedestrian, motorcycle passenger). A wide range of drugs were detected (e.g. drugs of abuse, anti-convulsants, anti-histamines, anti-inflammatories, anti-psychotics, cardiac drugs and over-the-counter products), but alcohol and cannabinoids were the most frequent substances across the victim groups. When detected, alcohol was commonly above the legal driving limit in blood and urine (> 63% in those in control and > 60% not in control). Overall, the presence of drugs and/or alcohol was of similar frequency in those victims in control (55% of driver, 48% of motorcyclists, 33% of cyclists) and not in control of a vehicle (52% of car passengers, 63% of pedestrians). This degree of frequency strongly implicates the involvement of drugs and alcohol in road traffic incidents and infers an effect on driving ability and individual impairment.     

A method for investigating specialised accidents with special reference to diving

This paper describes a format for the investigation of complicated accidents which result in diving deaths. It emphasises the necessity for communication between technical, medical and legal personnel to arrive at a reasoned appreciation of factors leading to an accident. Properly applied this can result in a meaningful accumulation of data, which can be periodically analysed and be used in formulating Regulations for prevention of further accidents.     

溯因推理新论——法律论证的视角

溯因推理具有显著的特征：或然性（假设性）、逆向性、非单调性、语用性和创新性.溯因推理研究的新进路在于,其发生了语用学的转向以及语用论证（论辩）的转向.在法律方法（法律适用）和法律逻辑的视域,溯因推理的研究及其运用,长期困固于刑事侦查领域中,对于其在司法判决（审判阶段中）作为一种法律论证方法以解决疑难案件的论证则少有使用.以法律论证为视角,用一例只有被害人陈述为直接证据的强奸案件为例,通过对传统证据链模式的分析,提出印证式证据链模式和排除式证据链模式,建立溯因推理的正向溯因推理模式和反向溯因推理模式,并在案件证据所呈现的情境下建构法律语境,展现溯因推理在具体案件中的法律论证,以期能为我国司法判决实现合理性和正当性,提供一种新的论证模式或方法.