证人证言适格问题研究

出庭证人转述他人感知事实的陈述,新的证据规则排除其证据资格值得商榷;准许证人提交书面证言的情形并不是书面证言适格的要件,而是免除证人出庭义务的条件,不具备法定不出庭条件而提交的书面证言应当接受为证据;书面证言不是适格的证人证言,但却是适格的书证;出具书面证言并不免除其出庭义务。     

论书面证言及其运用

我国刑事诉讼中的证人证言目前基本上是书面证言形态。普遍应用书面证言违背了言词诉讼原则,损害了诉讼的客观性与正当性。但书面证言使用也有一定的外部必要性及内部(本身)可用性。各国及地区以不同方式设置限制书面证言及允许例外使用的规则,近年来我国台湾的经验尤其值得我们注意。我国目前的书面证言使用具有应用普遍、功能多样、证明力强以及公权信赖等特点。     

警察作证制度的理论推演与实证分析

警察作证是推进证人出庭作证制度完善的重要一环。证人的党派性不应成为证人能力限制的理由 ;警察作证的公务性有利于保障其证言的客观性。警察作证不仅有利于案件真实的发现和实体法律的正确适用 ,而且有利于激发刑事诉讼各方参与者的主动性 ,彰显程序自身的公正性 ,还可有力地约束警察的非法取证行为。警察作证的公务性、事后性、倾向性是警察证人与普通证人的区别所在     

Effects of inconsistent eyewitness statements on mock-jurors' evaluations of the eyewitness,perceptions of defendant culpability and verdicts

In attempting to discredit an eyewitness, it is a common strategy for an attorney to highlight inconsistencies in the eyewitness's recall testimony during cross-examination and encourage the jurors to infer, based on those inconsistencies, that the eyewitness's memory is faulty. An experiment was conducted to examine the effectiveness of this cross-examination strategy. Subjects viewed a simulated cross-examination and rendered judgmenets about the eyewitness and defendant. The type of inconsistent testimony was manipulated between subjects. Subjects exposed to inconsistent recall testimony about either central or peripheral details perceived the eyewitness as less credible (as evidenced by ratings on multiple dimensions) and the defendant as less culpable. Inconsistency on central details led to fewer convictions. Results point to the effectiveness of this cross-examination strategh.     

THE EMERGING FORENSIC ROLE FOR WORK PRODUCT REVIEW AND CASE ANALYSIS IN CHILD ACCESS AND PARENTING PLAN DISPUTES

An emerging forensic service is that of conducting a work product review of a court‐appointed child custody evaluator's evaluation and report. If the reviewer determines there are serious deficiencies in the work product, then the reviewer will provide consultation to the retaining attorney and expert testimony. The reviewer usually is in a hybrid role of consulting/advising the retaining attorney, testifying, and educating the court. Ethical issues in providing forensic services and rebuttal testimony as a reviewer are discussed. Both reviewers and evaluators have a duty to be objective and balanced in their analyses of data and issues. Both types of experts should strive to be helpful to the court and try to serve the best interests of children. Ethical nuances involving review work are discussed. Evaluator and reviewer share the same dataset. Evaluators need to take care to keep a high quality case record with legible interview notes. Reviewers provide a monitoring function for the court or a function of forensic quality control so the court will not be misled by expert testimony of evaluators that is based on flawed data collection and/or analysis. A list of questions is presented for reviewers to use in scrutinizing the quality of the custody evaluation. A list of questions is presented for examining the quality of the reviewer's own work product. The importance of a case analysis and use of conceptual frameworks by evaluators and reviewers is discussed.     

Is the Expert Admissibility Game Fixed?: Judicial Gatekeeping of Fire and Arson Evidence

Anecdotal evidence claims that in criminal cases, trial judges admit the prosecution's expert witnesses more readily than the defendants', and in civil cases the reverse is true; judges exclude plaintiffs' experts more often than civil defendants' experts. This occurs despite the fact that, with few exceptions, the same rules of admissibility apply to all parties and, in most jurisdictions, across criminal and civil cases. This article empirically tests this differential by reviewing judicial decisions to admit or exclude evidence holding the type of expert testimony constant, fire and arson evidence, across criminal and civil cases in the United States. The study examines the admissibility of fire and arson investigation experts in criminal and civil cases across all legal parties in fifty‐seven federal and state opinions in the United States. The findings offer empirical support of a bias in criminal cases and in civil cases which present expert witnesses at trial, and is less pronounced, but still evident, on appeal. Specifically, the role of the party that offers the evidence has a profound effect on whether arson evidence is admitted, even when factors around the judge's political affiliation, attorney experience, expert qualifications, and rules of evidence are taken into account.     

民诉法修改与证据制度的完善

民事诉讼证据制度是民事诉讼中一个十分重要的制度,修改民事诉讼法过程中,应注意证据收集制度、证人制度、鉴定制度与勘验制度的完善.在协同主义诉讼模式指导下,必须建立强有力的证据收集制度,法院应充分起到当事人的保障者与辅助者的角色.在证人制度上,应采取灵活的证人询问方式,强化证人出庭义务、增补证人拒证权、证人宣誓的规定.鉴定与勘验制度应借鉴德、日两国的相关理论,尽快弥补立法上的缺失.     

叶公好龙:刑事证人出庭的一个寓言

我国目前呼唤"证人出庭"是一个叶公好龙式的伪命题,无论是法官、控辩双方、被害人,还是警察等都没有做好证人出庭的准备。其中书面证言确认制度、"大司法机关"体制、证人全程伪证责任等因素促生法官不情愿证人出庭的心理,而警察出庭作证制度缺乏"怀疑权力"的文化传统和个人积极性。进而言之,目前关于证人出庭具体配套规则的对策也有难以克服的缺陷。而我们要认真对待实践而不至于做脱离实际的制度设计。     

Legal Representation and Dissatisfaction with Workers’ Compensation: Implications for Claimant Adjustment

This study examined relationships between attorney retention and adjustment outcomes for Workers’ Compensation low back claimants at post-settlement (N?=?1,464; 21 months post-claim settlement) and long-term follow-up (N?=?371; 72 months post-claim settlement). Claimants were classified into three groups: those who had not retained an attorney (no attorney group, 15%); those who had retained an attorney, but for reasons other than dissatisfaction with Workers’ Compensation medical treatment (attorney group, 31%); and those who had retained an attorney specifically because of dissatisfaction with Workers’ Compensation medical treatment (dissatisfied/attorney group, 54%). Groups were compared on demographic characteristics, Workers’ Compensation variables, and adjustment indicators of pain intensity, pain-related disability, general physical and mental health status, and pain catastrophizing. Relative to the no attorney and attorney groups, claimants in the dissatisfied/attorney group were younger, had longer time to settlement, and reported greater post-settlement socioeconomic stress and catastrophizing. At long-term follow-up, the dissatisfied/attorney group reported higher levels of disability and catastrophizing, as well as lower levels of mental health status, relative to the other groups. The results suggest that attorney retention that is motivated by dissatisfaction with Workers’ Compensation medical care is a significant risk factor for poor adjustment, not only in the intermediate time frame following claim settlement, but also over the long term. Findings are discussed in the context of “perceived injustice” in the Workers’ Compensation system and the mechanisms by which dissatisfaction and attorney retention may impact adjustment.     

Leveling the Odds: The Effect of Quality Legal Representation in Cases of Asymmetrical Capability

How much does attorney quality influence the outcome of cases in which one litigant is significantly more capable than the other? Using a unique dataset of all asylum merits decision from 1990 to 2010, we find that high quality representation evens the odds for asylum applicants and that not being represented by legal counsel is actually better than being represented by a poor lawyer. In this analysis, we draw on a modified party capability theory and create new measures of attorney capability. We find that variation in attorney capability is a primary driver of the disparity in asylum outcomes in U.S. immigration courts and that a likely causal mechanism for this influence is the judge‐specific reputation of an attorney.     

Negotiating Proximity: Expert Testimony and Collective Memory in the Trials of Environmental Activists in France and the United Kingdom

This article analyzes the role of expert witness testimony in the trials of social movement actors, discussing the trial of the “Kingsnorth Six” in Britain and the trials of activists currently mobilising against airport construction at Notre Dame des Landes in western France. Though the study of expert testimony has so far overwhelmingly concentrated on fact‐finding and admissibility, the cases here reveal the importance of expert testimony not simply in terms of legal argument, but in “moral” or political terms, as it reflects and constitutes movement cognitive praxis. In the so‐called climate change defence presented by the Kingsnorth Six, I argue that expert testimony attained a “negotiation of proximity,” connecting different types of contributory expertise to link the scales and registers of climate science with those of everyday understanding and meaning. Expert testimony in the trials of activists in France, however, whilst ostensibly able to develop similar bridging narratives, has instead been used to construct resistance to the airport siting as already proximate, material, and embedded. To explain this, I argue that attention to the symbolic, as well as instrumental, functions of expert testimony reveals the crucial role that collective memory plays in the construction of both knowledge and grievance in these cases. Collective memory is both a constraint on and catalyst for mobilisation, defining the boundaries of the sayable. Testimony in trials both reflects and reproduces these elements and is a vital explanatory tool for understanding the narrativisation and communication of movement identities and objectives.     

For the health of the economy and patent system: rationale and scope of patent attorney privilege

Legal context: There exists, in some countries, a patent attorney privilege.This privilege allows an actual or potential holder of patentrights to withhold from a court communications that it has hadwith its patent attorney. The privilege is not recognized inall jurisdictions and there is variation in the extent of theprivilege in those countries where it does exist. Key points: This article explores the rationale for the privilege in orderto see if there is a sound basis upon which to found it. Througha consideration of the justifications for other legal privileges,the article finds that patent attorney privilege is a justifiableprotection for communications between clients and their patentattorneys. If there was a possibility that the communicationswould have to be revealed in court, this may impact the fulland frank nature of the communications. Such communicationsassist patent attorneys, as professionals with expertise ina specialized field, to provide clients with appropriate andeffective advice. That advice goes directly to the maintenanceand benefit of the patent system and the overall economy. Practical significance: As a result of the variation in the extent of the privilegearound the world, there are moves afoot to reform its operation.This article reveals strong public policy reasons for the recognitionof a patent attorney privilege. These grounds also reinforcethe need to ensure that privilege is not unduly limited in itsoperation in any jurisdiction.     

Ultimate opinion proscriptions: A cosmetic fix and a plea for empiricism

In recent years, ultimate opinion testimony given by mental health experts in insanity trials has come under strident criticism as an unwarranted incursion into the legal arena. This article examines the merits of such criticism and concludes that attempts to eliminate such testimony will not achieve their intended goals but will obscure more substantive issues inherent in insanity evaluations and subsequent testimony. The article then recasts problems in expert testimony in a broader conceptual basis buttressed with empiricism.     

Two conjectures about the issue of expert testimony

This article responds to concerns about expert testimony in experimental psychology by conjectur that disagreements about the propriety of the testimony are camouflaged arguments about the strength of psychological knowledge. Differences between proponents and opponents of expert testimony are about the state of psychological knowledge and certainty, rather than about the proper standard for psychologists to use when deciding whether to testify. A second conjecture is stimulated by the assumption that laypersons generally overvalue eyewitness testimony and that expert psychological testimony is a required corrective. The truth of this assumption rests on the debatable assertions that eyewitness identifications, without more, are potent sole determinants of trial outcome, and that lay juries need instruction from experimental psychologists about aspects of human behavior of which the jurors are definitive producers and consumers. One need not resolve these debates in order to understand that psychologists should not rely on the legal community to set the psychologists' standards for expert testimony. And psychologists, in considering their role as courtroom experts, should guard against a self-serving critique of the acumen of lay juries.     

The effects of attorney presentation style,attorney gender,and juror gender on juror decisions

Extralegal characteristics of attorneys may play a significant role in the decision-making behavior of jurors. Presentation style, for example, is one factor to which trial lawyers pay a great deal of attention. However, a given style of speech may not be perceived equivalently when used by different speakers. The present study examined the effects of the defense attorney's presentation style and gender, and juror gender on jurors' verdicts and evaluation of the attorney and witness. Undergraduate college students read a brief summary of an assault-and-robbery case, viewed a videotape of either a passive or aggressive male or female attorney interrogating a witness, then rendered a verdict and rated the witness and attorney on characteristics such as competency, credibility, and assertiveness. The results indicated that, overall, aggressive attorneys were more successful at obtaining an acquittal for their clients than passive attorneys, and that male attorneys were more successful than female attorneys; presentation style also interacted with gender of attorney and juror. Some possible mechanisms for these effects are discussed.     

A comparison of three studies of the influence of expert testimony on jurors

Three conceptual replications of the effects of expert testimony on jurors' decisions and behaviors were compared. Taken together, these studies demonstrated significant increases in jurors' scrutiny of the evidence presented to them and significant reductions in their beliefs in the general accuracy of eyewitness testimony. The overall effect of expert testimony had a combined probability ofp=.0000084. This means that these combined results would occur by sampling bias alone less than one time out of 100,000. Expert testimony accounted for 3% of the variance in verdicts and 68% of the variance in the time jurors deliberated about eyewitness testimony. Several implications of these findings for psychologists investigating eyewitness identification and for the criminal justice system are discussed.I would like to thank James V. Devine, Judith P. Goggin, Elizabeth F. Loftus, and Gary L. Wells for their valuable comments on an earlier draft of this article.     

Jurors' perceptions of child victim-witnesses in a simulated sexual abuse trial

Two studies investigated the effects of a child witness's age (5, 10, or 15 years old), communication style (powerful vs. powerless), and prosecuting attorney questioning methods (leading vs. nonleading) on perceptions of her testimony in a videotaped mock trial. In Experiment 1, as predicted, ratings of a child witness's credibility were most extreme when the child's communication style contrasted with adults' age-related expectations. Results of Experiment 2 showed that the child's communication style strongly affected perceptions of the defendant as well.     

Judge-versus attorney-conducted voir dire

Broeder (1965) found that potential jurors frequently distort their replies to questions posed during the voir dire. Considerable controversy has arisen over whether more honest, accurate information is elecited by a judge or by an attorney. The experiment manipulated two target (judge-versus attorney-conducted voir dire) and two interpersonal style variables (personal versus formal). The dependent measure was the consistency of subjects' attitude reports given at pretest and again verbally in court. One-hundred-and-sixteen jury-eligible community residents participated. The results provide support for the hypothesis that attorneys are more effective than judges in eliciting candid self-disclosure from potential jurors. Subjects changed their answers almost twice as much when questioned by a judge as when interviewed by an attorney. It was suggested that the judge's presence evokes considerable pressure toward conformity to a set of perceived judicial standards among jurors, which is minimized during an attorney voir dire.