专家证言的概念性挑战

本文重点考察了专家知识与案件审理模式之间的关系。总体而言，案件审理是一种教育性活动，其间，事实认定者应能够理解、处理和思考证据，并得出理性的结论。这一过程反映了审理中准确事实认定的根本重要性，若没有准确的事实认定，权利和义务便是空谈。专家证据通常涉及一种遵从性而非教育性的诉讼程序模式，从这一点上来说其有悖于常规的审判理想状态。本文讨论了这一发展过程、其形成原因及其后果。若要实现审判的理想状态，那么替代性措施（即所有证据应以教育性模式呈现）则更为优越。如果证据无法以此种方式（教育性模式）呈现，那么在审理过程中通过证据所展现的待证事项便无法与常规的审判理想状态保持一致。     

Error in expert assessment

On the basis of the statutory code of physicians' duties in Poland, the authors discuss a new category of professional error, namely "error in expert assessment." Expert assessment comprises: Issue of certificates stating temporary inability to work (L-4 forms); Issue of certificates allocating patients to appropriate disability categories; Issue of certificates entitling patients to special services; Issue of certificates for legal purposes According to regulation any physician can be required to provide an expert assessment, because institutions requesting such an opinion refer to persons or institutions so as to obtain special information. In certain cases physicians may request to be released from this obligation. Nevertheless, if they accept it and then pass an erroneous opinion they may be liable to a charge of malpractice. The authors have pointed out that errors in expert assessment usually result from: Inadequate professional knowledge; Examination of the records with no clinical examination; Failure to take account of information included in the patient's file; Illogical or unjustified conclusions about the cause and result relationship. The most common errors in the formulation of expert assessments are: "Overdiagnosis" of the results of an accident; Unjustified statements that death has resulted from an accident or from bad working conditions in cases of death from natural causes; Incorrect reconstruction of the events leading up to an accident or of the mechanism of injuries.(ABSTRACT TRUNCATED AT 250 WORDS)     

Resolving differing expert opinions

This paper explores procedural mechanisms to resolve differing conclusions when two experts have initially worked independently. These experts can be two human examiners or one of them may be a computer-based model. The resolving process is presented as part of the ACE-V protocol adopted widely in pattern recognition areas (e.g. fingerprints, footwear marks, toolmarks or handwritings/signatures comparisons). It set the conditions of operations and delineates a resolving process that is based on the principles of transparency and detailed argumentations. We predict a gradual but steady introduction of computer-based models in the forensic pattern recognition areas. In our opinion, the rules to resolve differing opinions ought to be articulated and documented in the form of standard operating procedures, before any deployment in casework practice.     

The dichotomy of the expert witness

The expert on either side is either right, partially right, wrong, or wrong and dishonest. Even strongly opposed testimony is not evidence of dishonesty, although it is clear at least one expert is wrong. Some differences are the result of legitimate differences of opinion. However, the author has identified several categories of testimony that show dishonest intent. It is clear that the growth of financial incentives has increased the number of cases in which there are opposing experts. If some kind of corrective action is not taken, expert witnesses will no longer be an effective force in the legal system. A multidisciplinary testimony review board separate from the ethics function is clearly one answer to the problem.     

专家陪审制度的研究

案件事实认定中诉讼专门性问题的高频化和复杂化使得法官更加依赖具有专门知识的人来解决,而现有诉讼专门性问题的解决途径存在不足.以人民陪审制度为基础,选取具有某一专门知识的专家作为陪审员参与诉讼专门性问题的事实认定,既有利于弥补现有诉讼专门性问题解决途径的不足,使法庭更为准确地认定案件事实,又能有效地发挥人民陪审员的民主价值.目前专家陪审制度在诸多地方法院自主实行,亟待进行统一的制度规范.     

Personal values and expert testimony

This paper explores challenges to personal values which are inherent in the situation that any expert witness with a scientific background finds himself or herself in when working in the legal context. Case histories are relied on to make the point that time is needed for psychologists and lawyers to develop an effective and ethically sound working relationship. The paper takes issue with the notion that the experts should be constrained in their behavior and their testimony by new rules and guidelines for testimony content. It further argues that the model of going public with psychological knowledge is a time-honored function of members of the American Psychological Association.The author was supported in the preparation of this article by grant No. DAR 7926805 from the National Science Foundation.     

Cognitive psychologists as expert witnesses

The first part of this paper defines a central problem for professional ethics: whether agents in professional roles are to act on their own moral perceptions or rather defer to those with special authority to make decisions within particular institutional settings. Specifically, should the psychologist decide for himself whether and how to testify as an expert witness, or should he allow the judge and lawyer to settle these questions for him? I argue that he must decide for himself and attempt to control the nature of his testimony. Given this preliminary conclusion, the second part of the paper argues on direct moral grounds first for a general presumption in favor of psychologists' testimony on the accuracy of eyewitnesses. Such testimony fits the legal criterion of reasonable doubt, if the psychologists' information is more accurate than that of the average juror and lawyer. Second, it is argued that the expert witness must resist intense adversarial pressures and present his testimony as impartially and objectively as possible.     

Assurance of the quality of expert reports

The operation of forensic chemical laboratories is investigated from the point of view of reliability, approaching the question from both practical and theoretical aspects. Questions of methodology such as the validation and continuous quality control and quality assurance of the expert's activity, the fulfilment of the legal requirements concerned with the operation of an expert organization are all discussed and backed up by a wide selection of reference.     

鉴定意见撤销问题研究——以对鉴定意见投诉解决为视角

鉴定意见作为一项兼具科学性和法律性的特殊证据,在诉讼中发挥着重要作用.近年来司法实践中出现了鉴定机构基于种种因素自行撤销鉴定意见的案例.本文通过分析鉴定意见撤销问题产生的原因、鉴定意见的基本属性与可撤销性的关系以及鉴定意见撤销的法律定位,提出了“以不撤销为原则、以有条件的撤销为例外”的解决思路,并对鉴定意见撤销的主体、标准、程序设计了具体方案.     

The notion and classification of expert errors

The author presents the analysis of the legal and forensic medical literature concerning currently accepted concepts and classification of expert malpractice. He proposes a new easy-to-remember definition of the expert error and considers the classification of such mistakes. The analysis of the cases of erroneous application of the medical criteria for estimation of the harm to health made it possible to reveal and systematize the causes accounting for the cases of expert malpractice committed by forensic medical experts and health providers when determining the degree of harm to human health.     

The admissibility and persuasiveness of expert evidence

Parenting plan evaluators are expert witnesses who offer their opinion. Courts in common law jurisdictions generally do not accept evidence of an opinion as it is not considered to be reliable evidence from which to establish a fact. An exception to that general principle is expert opinion evidence. In short, an opinion from a person with specialized knowledge or expertise about the area in which they are an expert may be sufficiently reliable to form an evidentiary basis from which to make a finding of fact, provided the opinion meets certain criteria. These criteria will be discussed in this article, as well as what is relevant, reliable and persuasive evidence. The relevant legal principles will be examined in an historical and contemporary, theoretical and practical context. The authors reflect on their considerable experience as consumers of expert evidence and apply this to parenting plan evaluations, as well as considering future challenges in the field.