论法庭证据评估体系的发展

随着法律和科学的发展,人们对部分传统的法庭科学产生了质疑。本文探讨了传统法庭证据检验的弊端和目前国际上法庭科学证据的接纳原则,推出了似然比法庭证据检验评估体系,包括似然比对证据强度的量化方法、检验结论的科学解释方法和法庭识别系统可靠性的评估方法。     

基于似然率方法的语音证据评价

法庭话者识别技术引入我国已有二十多年,目前该技术已经广泛应用于各类刑事和民事案件中。纵观世界各国的法庭证据评价体系,除了DNA证据以外,其他证据检验鉴定结论的表述通常有三种:同一认定、否定排除和倾向性意见。简单肯定和否定的结论存在很大的弊端,即过高估计了证据的力度,因而有时可能会造成错案。鉴于此,国外一些学者提出在鉴定结论的表述和价值评判上引入基于贝叶斯理论的"似然率"方法。本文结合目前的法庭话者鉴别方法,重点介绍基于贝叶斯理论下的"似然率"理论体系,并阐明该方法的优越性、局限性以及一些亟待解决的问题。     

英美证据法的程序性解构——以陪审团和对抗制为主线

证据法之谜是英美证据法学界理论发展的重要源动力,也是理解英美证据法制度演进的一条重要线索。对证据法之谜的解释在程序性层面主要有陪审团控制模式和对抗制控制模式两种命题。通过对两个解释性命题的梳理与解析,可以展现出英美证据法的多元程序性要素及其内在运作的机理,从而为我国的证据立法与证据法学研究提供重要的启示。     

死刑复核中法医鉴定结论审查的特点与建议——基于634例统计分析

本文通过对634例死刑复核案件中法医鉴定结论审查情况的回顾性分析,发现死刑复核案件中法医鉴定结论具有5个特点:(1)死刑复核案件中法医鉴定结论需要移交法医审查的数量较多:(2)死刑复核案件中法官对鉴定结论或其他技术性问题审查的能力普遍不足,且差异很大:(3)死刑复核案件中法医鉴定结论质量差异较大,经过一审、二审审理,死刑复核案件中的法医学鉴定结论仍然存在各种问题,其中结论依据不足,可能需要补充鉴定、重新鉴定或无法继续鉴定的约占8%左右;(4)死刑复核案件中法医鉴定结论是否需要移送法医审查,受鉴定结论本身和法官个人因素的影响:(5)随着死刑复核工作的开展,法官对法医鉴定结论审查的能力有所提高。根据统计的结果,本文对目前死刑复核案件中法医鉴定结论的审查模式给予了一定的肯定,并对审查模式的不足进行了初步分析,在此基础上提出了完善死刑复核程序中鉴定结论审查内容、审查程序,提高法官鉴定结论的审查能力,建立技术法官制度的建议。     

涉讼司法鉴定收费制度的检视与重构

我国司法鉴定机构正经历着体制性的变革,司法鉴定事务的逐步立法规范,新的运作方式使现在的鉴定机构已成为市场主体,鉴定人也成为从鉴定费中获取收益的个体。过高的鉴定费用成为公民运用法律保护其合法权益的瓶颈,因而对鉴定费规制问题必须引起足够的重视。我国鉴定费问题突出表现在收费法律依据、收费标准、收费管理以及司法鉴定法律援助几个方面。鉴定费的收取制度应沿此问题的解决路径出发进行建构,其实质是公民诉权的保障和合法权益的维护。     

Strength of Evidence,Extraevidentiary Influence,and the Liberation Hypothesis: Data from the Field

To examine relationships between strength of evidence (SOE) and extraevidentiary variables in the context of Kalven and Zeisel’s (The American Jury, 1966) liberation hypothesis, post-trial questionnaire data were collected from judges, attorneys, and jurors associated with 179 criminal jury trials. SOE ratings were strongly correlated with jury verdicts on the three most serious charges against the defendant, and several extraevidentiary variables (i.e., pretrial publicity, trial complexity, charge severity, and foreperson demographics) were moderately correlated with verdicts. Extraevidentiary-verdict relationships remained significant when SOE was controlled, although extraevidentiary variables yielded only modest improvement in classification accuracy beyond SOE. In partial support of the liberation hypothesis, several case-related extraevidentiary variables were significantly related to jury verdicts only when the prosecution’s evidence was rated as moderately strong.     

The Evidentiary Introduction of Psychopathy Checklist-Revised Assessed Psychopathy in U.S. Courts: Extent and Appropriateness*

We examine the application of Psychopathy Checklist Revised (PCL-R) assessed psychopathy in U.S. courts from the time of the introduction of the PCL-R in 1991, through the end of 2004, and consider the PCL-R in light of relevant evidentiary standards and the empirical support for the construct of psychopathy. Our review of the Westlaw legal database indicates that the evidentiary introduction of PCL-R assessed psychopathy extends across state and federal jurisdictions, and has increased considerably in recent years. We identify nine contexts in which PCL-R evidence has been introduced and examine the appropriateness of such introduction. In most contexts the PCL-R was considered with regard to the prediction of violence in the community, and in such context the introduction of PCL-R scores appears appropriate, at least with regard to European American male offenders. However, PCL-R assessments may not meet relevant evidentiary standards with regard to the prediction of institutional violence and violence among females, adolescents and ethnic minorities.     

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.     

证据科学的走向：国际视野与中国语境——对证据问题研究领域的初步分析

我国证据科学的出现既是英美证据法学知识传统发展演变的结果,也是回应国内司法证明领域转型的一个重要发展。证据科学的本质是司法证明领域诸多学科之间在应对新的时代问题所作出的一系列变动和整合,而变动和整合的方向则取决于社会需求和司法证明领域多学科之间的竞争。我国司法证明领域的转型所提出的一系列问题为司法证明领域诸多学科的互动提供了最基本的动力。中国证据科学应该以这些问题为核心,在解决问题的过程中形成中国证据科学的基本格局。     

Forensic anthropology in the global investigation of humanitarian and human rights abuse: Perspective from the published record

Forensic anthropologists have played key roles in the historical development of forensic science applications to global humanitarian and human rights issues. These anthropological initiatives can be traced back to the Smithsonian seminar organized by T. D. Stewart in 1968 and published in 1970. Key developments include the 1984 delegation sent by the American Association for the Advancement of Science to Argentina and the formation of the Argentine Forensic Anthropology Team. Subsequent highlights include major anthropological involvement in support of investigations by international criminal tribunals, formation of forensic anthropology teams in different countries and activities of the International Commission of Missing Persons and the forensic unit of the International Committee of the Red Cross. Recent developments feature the formation of the Humanitarian and Human Rights Resource Center of the American Academy of Forensic Sciences and its support of worthwhile projects in many countries. The published record provides historical perspective on these developments.     

证据科学的走向:国际视野与中国语境——对证据问题研究领域的初步分析

我国证据科学的出现既是英美证据法学知识传统发展演变的结果,也是回应国内司法证明领域转型的一个重要发展。证据科学的本质是司法证明领域诸多学科之间在应对新的时代问题所作出的一系列变动和整合,而变动和整合的方向则取决于社会需求和司法证明领域多学科之间的竞争。我国司法证明领域的转型所提出的一系列问题为司法证明领域诸多学科的互动提供了最基本的动力。中国证据科学应该以这些问题为核心,在解决问题的过程中形成中国证据科学的基本格局。     

Questions,propositions and assessing different levels of evidence: Forensic voice comparison in practice

This paper contributes to the ongoing discussion about the distinction between observations and propositions in forensic inference, with a specific focus on forensic voice comparison casework conducted in the UK. We outline both linguistic and legal issues which make the evaluation of voice evidence and the refinement of propositions problematic in practice, and illustrate these using case examples. We will argue that group-level observations from the offender sample will always be evidential and that the value of this evidence must be determined by the expert. As such, a proposal is made that experts should, at least conceptually, think of voice evidence as having two levels, both with evidential value: group-level and individual-level. The two rely on different underlying assumptions, and the group-level observations can be used to inform the individual-level propositions. However, for the sake of interpretability, it is probably preferable to present only one combined conclusion to the end user. We also wish to reiterate points made in previous work: in providing conclusions, the forensic expert must acknowledge that the value of the evidence is dependent on a number of assumptions (propositions and background information) and these assumptions must be made clear and explicit to the user.     

Forensic profiling of non-volatile organic compounds in soil using ultra-performance liquid chromatography: a pilot study

Soil is of particular interest to the forensic community because it can be used as valuable associative evidence to link a suspect to a victim or a crime scene. Liquid chromatography is a powerful analytical tool for organic compound analysis. Recently, high-performance liquid chromatography (HPLC) has proven to be an efficient method for forensic soil analysis, especially in discriminating soils from proximity locations. However, ultra-performance liquid chromatography (UPLC), which is much more sensitive than HPLC, has never been explored in this context. This study proposed a UPLC method for profiling non-volatile organic compounds in three Malaysian soils (red, brown and yellowish-brown soils). The three soils were analysed separately to assess the effects of individual chromatographic parameters: (a) elution programme (isocratic vs. two gradient programmes); (b) flow rate (0.1 vs. 0.2 mL/min); (c) extraction solvent (acetonitrile vs. methanol) and (d) detection wavelength (230 vs. 254 nm). The injection volume and total run time were set to 5 µL and 35 min, respectively. Consequently, each soil sample gave 24 different chromatograms. Results showed that the most desirable chromatographic parameters were (a) isocratic elution; (b) flow rate at 0.2 mL/min and (c) acetonitrile extraction solvent. The proposed UPLC system is expected to be a feasible method for profiling non-volatile organic compounds in soil, and is more chemical-efficient than a comparable HPLC system.     

Combined Statistical Analyses of Forensic Evidence in Sexual Assault: A Case Report and Brief Review of the Literature

DNA analysis has been widely used in the forensic field in order to contribute to identifying the perpetrator of a crime. Forensic investigation in sexual assaults usually focuses on locating and identifying biological fluids, followed by DNA analysis. The identification of certain compounds present in condoms can be useful to reconstruct the occurred event, especially in cases of sexual assaults where the DNA analysis did not show the presence of a male profile and where RNA analysis did not show the presence of sperm markers. Herein we describe the case of a woman reporting to be victim of sexual assault, who was not able to provide accurate information concerning the dynamics of the event; she remembered only forced penile–vaginal penetration by a single perpetrator. We performed short tandem repeat (STR) analyses and mRNA typing for forensic genetics testing on vaginal and rectal swabs collected on the victim, and Fourier-transform infrared spectroscopy (FTIR) followed by chromatographic analyses for the detection of condom compounds on the same swabs. The STR analysis showed only the victim’s genetic profile, and RNA analysis showed only the presence of vaginal and skin markers. In this situation, the identification of condom compounds residues on vaginal swabs became important as it complemented other collected evidences allowing the Court to reconstruct the events. A proposal of likelihood ratio (LR) calculation for the assessment of the weight of evidence in this case is described.     

The contact area of static and dynamic footprints: Forensic implications

When found at crime scenes, footprints may be evidentially valuable and can assist with the identity of a perpetrator based on their features and/or measurements. Footprints can be either static (made while standing) or dynamic (made while walking). While extensive research has been performed on the linear measurements obtained from static and dynamic footprints, research on the comparisons between the contact area of static and dynamic footprints in the forensic context are limited. The present study compares the contact area of static and dynamic bare footprints to determine if statistically significant differences exist between the two. Static and dynamic footprints were obtained from a sample of randomly-selected 461 Jatt Sikh adults (230 males and 231 females) of Indian origin between the ages of 19 and 32 years. The footprint contact area was calculated from each footprint (excluding the toes) using a PedoGRID® sheet. No statistically significant differences were observed between the contact area of static and dynamic footprints for each foot among males and females. However, statistically significant differences between both the sexes were found in the footprint contact areas of both footprint types. The right dynamic footprint contact area was found to be the most predictive measurement for classifying and estimating sex from a footprint’s contact area. The study has implications in the analysis of footprints recovered from crime scenes.     

Teaching Forensic Entomology,Forensic Anthropology,and Haematology & Serology during the COVID-19 pandemic: Practical activities for distance learning

As the COVID-19 pandemic upended college and university instruction throughout the world, instructors were hard-pressed to find suitable alternatives for practical activities typically carried out outside of classrooms—in laboratories, workshops, clinics, and in the field. In response to this unanticipated challenge, they relied on their ingenuity to achieve pre-pandemic goals under pandemic conditions that necessitated the shift to online teaching. The Forensic Science Undergraduate Program housed in the School of Medicine of the National Autonomous University of Mexico was not exempt from this educational upheaval but, due to its interdisciplinary nature, required creating and/or adopting a wide range of activities capable of training students to perform practical tasks associated with subject areas that span the natural and social sciences, the humanities, and the law. This report aims to describe the approaches undertaken in three subjects (Forensic Entomology, Forensic Anthropology, and Hematology & Serology) by interviewing instructors and examining their teaching materials. Also, through online surveys, students’ reactions to these approaches were elicited to learn about their suitability and teaching potential. Instructor’s experiences during the pandemic have proven to be a rich source of ingenious solutions, with implications well-beyond the current crisis, such as creating blended or fully online courses aimed at larger numbers of students, forensic and legal professionals, and even other instructors. The wide variety of forensic sciences offers the opportunity to innovate and improve the teaching and learning of science, particularly to the benefit of students that must combine their school tasks with professional and/or family duties.     

Self-Reported Aggression and Impulsivity in Forensic and Non-Forensic Populations: The Role of Gender and Experience

Gender differences in aggressive behavior are traditionally seen as extremely robust. Yet, on closer inspection, the reasons for these differences appear to be incredibly complex as a wide range of moderating variables appears to influence the behaviour. Further, the effect of these variables is often gender specific. We examined aggressive beliefs and self-rated aggressive behaviour and impulsivity in forensic (115 males, 133 females at three closed prisons in the North of England) and non-forensic populations (114 males, and 122 females at the University of Leeds). Participants completed the Revised EXPAGG Questionnaire, the Buss-Perry Aggression Questionnaire, the Aggressive Acts Questionnaire and the Barratt Impulsivity Scale. Violent men and women, while more aggressive than both undergraduates and non-violent offenders, were equally likely to report their involvement in physical acts of aggression and showed similar levels of aggression and impulsivity. Previous experience of aggression, together with elevated levels of anger and impulsivity were better predictors of aggressive behavior than gender in all participants. These results suggest that gender differences in self-report measures (on cognitive, affective, and behavioral dimensions) in forensic populations may be less clear-cut than many have previously believed, particularly in the most aggressive individuals.     

Meeting a Forensic Podiatry Admissibility Challenge: A Daubert Case Study

This article is an introduction to the United States Supreme Court's standard of admissibility of forensic evidence and testimony at trial, known as the Daubert standard, with emphasis on how this standard applies to the field of forensic podiatry. The author, a forensic podiatrist, provided law enforcement with evidence tying a bloody sock‐clad footprint found at the scene of a homicide to the suspect. In 2014, the author testified at a pretrial hearing, known as “a Daubert hearing,” to address the admissibility of this evidence in court. This was the first instance of forensic podiatry being the primary subject of a Daubert hearing. The hearing resulted in the court ordering this evidence admissible. The expert's testimony contributed to the suspect's conviction. This article serves as a reference for forensic podiatrists and experts in similar fields that involve impression evidence, providing evidentiary standards and their impact on expert evidence and testimony.     

Evaluative approach to semen transfer in a case of alleged sexual assault: A case study

This paper demonstrates a logical framework for evaluating forensic evidence, first described by Cook et al. [1,2], using a casework example of an alleged sexual assault involving semen transfer. Here we show in real time how the case strategy can change with additional information and how to use available experience and published data to interpret the findings obtained, given the background information provided. The findings of the case are interpreted using the Bayesian approach and are reported by giving the strength of support of scientific findings for one proposition rather than a competing proposition, as per the European Network of Forensic Science Institutes (ENSFI) guideline for evaluative reporting. We believe that using this paper as a template will aid other Forensic Science Practitioners (FSP) to add value and weight to their work by assisting them in evaluating and interpreting their own findings.     

219例损伤与疾病关系的尸检案例分析

目的探讨损伤与疾病关系案例的特点。方法对本教研室近20年的219例涉及损伤与疾病关系的尸检案例进行回顾性研究。结果①219例中,20~59岁青壮年占71.7%;伤后<24h死亡占48.9%。②损伤以拳、足等钝器伤为主,以擦伤和挫伤多见,主要位于头、胸部。③疾病以心血管疾病最多,CNS疾病次之。④损伤与疾病相关的案例占71.2%,最常见的是“疾病为主、损伤为辅”。结论损伤与疾病关系案例的死者多为男性青壮年,冠心病和病理性脑出血是两个主要的疾病;将损伤与疾病关系分为“单纯损伤致死、单纯疾病致死、损伤为主疾病为辅和疾病为主损伤为辅”四类简单而实用。