测谎在台湾地区为被告有利证明方法的检讨

台湾地区司法实务上使用测谎鉴定作为辅佐证据的情形相当普遍。法源主要依据台湾地区“刑事诉讼法”第161-1条：“被告得就被诉事实指出有利之证明方法。”此所指之证明方法没有绝对严格的限制,目的在发现真实、保障被告人权,故而台湾地区法院认可经被告同意施测之测谎结果具有证据能力。然而,测谎在台湾地区现已演进成“反客为主”的现象,刑事被告主动要求测谎,并且主张以测谎通过之结果作为被诉事实有利的证明;反之,未通过测谎的被告则上诉质疑测谎结果的可靠性,致使法院过去对于测谎结果多采肯定说之态度起了变化。相较于刑事案件,“民事诉讼法”第355条第1项明文：“文书,依其程序及意旨得认作公文书者,推定为真正。”致被告于民事庭审援引测谎鉴定报告的情形亦不遑多让。测谎成为被告另类脱罪、卸责的手段,对于台湾地区司法实务长期依赖测谎之使用,预料产生冲击与警惕之意义。实有重新检讨测谎作为证明方法之必要。     

测谎结论与证据的“有限采用规则”

识别谎言是司法人员的基本职能；人类在数千年的司法实践中一直在探索识别谎言的有效方法。测谎仪是一种科学的心理测试仪器，但是其结论并非百分之百的准确。测谎技术是犯罪侦查技术的组成部分，也是提高侦查科学化程度的途径之一。测谎技术可以在犯罪侦查中发挥重要的作用，这是毫无疑问的。但是，测谎结论能否成为诉讼中的证据，这是另外一个问题。我们应该给测谎结论以正确定位：它就是一种普普通通的证据，而且是“有限采用＂的证据。     

Trial by Polygraph: Reconsidering the Use of the Guilty Knowledge Technique in Court

Polygraph test results are by and large ruled inadmissible evidence in criminal courts in the US, Canada, and Israel. This is well-conceived with regard to the dominant technique of polygraph interrogation, known as the Control Question Technique (CQT), because it indeed does not meet the required standards for admissible scientific evidence. However, a lesser known and rarely practiced technique, known as the Guilty Knowledge Test (GKT), is capable, if carefully administered, of meeting the recently set Daubert criteria. This paper describes the technique, and argues for considering its admissibility as evidence in criminal courts.     

Who Wants Informal Courts? Paradoxical Evidence from a Yugoslav Attempt to Create Workers' Courts for Labor Cases

The comrades' courts of the East European socialist countries are considered by those who favor alternative means of dispute resolution to be admirable examples of informal courts in modern industrial societies. However, these courts have not been extensively investigated. This article presents the results of an intensive observational study of one kind of socialist alternative court, the Yugoslav Courts of Associated Labor, comparing them with an ideal model of informal courts and with the available data on comrades' courts in other East European socialist countries. We find that, in contrast with the latter, the Yugoslav courts are indeed workers' courts, in the sense that they are used by workers—over 90% of their cases are brought by individual workers. On the other hand, they are not workers' courts in the sense of being controlled by workers—they are instead dominated by legal professionals. We conclude that these Yugoslav courts are attractive to individual workers precisely because they are not informal, social courts, but rather are independent legal agencies from which workers may receive unprejudiced decisions and substantial remedies.     

The Court of Public Opinion: Lay Perceptions of Polygraph Testing

We sampled a total of 411 participants and randomly assigned them one of three brief trial vignettes that contained either no-polygraph evidence, evidence of a passed polygraph test, or evidence of a failed polygraph test. Participants rendered guilt judgments and answered a series of questions concerning the trial in particular, and polygraph tests in general. Similar to previous studies on the impact of polygraph evidence on jurors' guilt judgments, this sample of jury-eligible adults indicated that they did not find polygraph test evidence to be persuasive. Moreover, it mattered little to participants whether the results indicated the defendant passed a polygraph test, or that he failed a polygraph test. However, when our findings are compared to those of previous surveys involving experts in the field of psychophysiology, they differ in a number of important respects. The implications for decisions regarding admissibility (e.g., U.S. v. Alexander, 1975 and U.S. v. Scheffer, 1998) are discussed.     

在“非议”中成长的测谎理论与实践

测谎是科学技术发展的产物。测谎作为一种科学认识活动，它的质量可控并且具有极大实践价值。因而，无论在侦查破案还是司法审判中都得到了广泛的应用并发挥了不可替代的作用。现实中的“非议”非但没有阻碍测谎技术的发展，相反成为了测谎成长的推动力，为我国关于测谎诉讼制度的发展和完善提出了新的课题。     

Application of the clinical polygraph examination to the assessment,treatment and monitoring of sex offenders

Abstract

Post Conviction Clinical Polygraph Examination Testing (Lie Detector Testing) offers significant opportunities for assessing, treating and monitoring sex offenders. This article briefly reviews the historical development of polygraph techniques including the physiological measures employed, the administration of the polygraph and the interpretation of data collected. Criticisms of polygraphy are explored and information concerning the scientific acceptability of these procedures is given. The current influence of polygraphy in sex offender work is reviewed. Evidence is given of the utility of polygraphy in reducing denial, improving treatment outcomes and more effectively supervising sex offenders on probation or license. Cost benefit considerations are examined, as well as the need for further controlled research and future regulation of the polygraph, if it is to be introduced in Britain. Planned UK Trials are described.     

测谎的法律性质探究

测谎由众多环节组成,同时竞合了讯问、勘验、人身检查、鉴定的部分特征.测谎的法律性质应当由在测谎各环节中居于核心地位的图谱分析来决定.图谱分析是测试人员运用自己的专门知识对案件中的专门性问题进行的分析、判断,具有鉴定的科学属性和法律属性,应当被定位为鉴定.与此同时,由于测谎的测前谈话、图谱采集等环节具有基本权干预性质,测谎的鉴定属性具有一定的特殊性。     

Polygraph testing for deception in Australia: effective aid to crime investigation and adjudication?

Polygraph testing--or the monitoring and analysing of selected physiological measures of an individual who is being interviewed, for the purpose of detecting deception--is controversial in Australia. Considerable mythology surrounds this method of detecting deception. Embedded in popular perceptions of crime fighting and utilised in high-profile criminal cases in Western Australia, Victoria and Queensland, polygraph testing is also explicitly prohibited from being used in crime investigation in New South Wales. Unlike in the United States, polygraph testing has not hitherto routinely been used by government departments and authorities as a preemployment screening tool, but is increasingly being offered in the private sector in Australia. This article examines the current scope of polygraph testing in Australia, describes different approaches to testing, briefly reviews recent information relating to validity and evaluates State legislation prohibiting the use of polygraph testing for specified purposes in New South Wales. Consequent to the continuing controversy regarding the accuracy of polygraph testing in detecting deception (and, conversely, truth-telling), it is argued that the emerging use of polygraph testing is problematic and common law principles rendering the results of such testing inadmissible in court do not constitute sufficient safeguard against inappropriate and intrusive testing. Future research should identify specific polygraph testing techniques and consider the most socially beneficial way of regulating this emerging area of practice.     

The admissibility of polygraph evidence in court

Polygraph evidence is presently inadmissible in Canada and many jurisdictions of the United States. One of the major reasons for its exclusion lies in the belief (held by members of the judiciary) that jurors would accept such evidence without question due to its technical/scientific nature. The question of such blind acceptance was examined in two experiments on the influence of polygraph evidence on people's judgements of guilt. A second question that was also raised was whether a caution on the limitations of the polygraph would be effective in reducing people's weighting of such evidence. Although polygraph evidence was expected to exert some influence over judgements of guilt, it was not expected to be so great as to result in “blind acceptance”. The results of both experiments supported this hypothesis. The inclusion of a caution was also effective in reducing the influence of such evidence. The implications of these findings are discussed in the context of the need to reexamine the admissibility of polygraph evidence in a court of law.     

Integration of Pre-Employment Polygraph Screening into the Police Selection Process

The authors provide a polygraph primer for police psychologists involved in law enforcement personnel selection. Law-enforcement pre-employment polygraph examinations are a decision-support tool intended to add incremental validity to the personnel selection process. Problems stemming from the use of the polygraph may be related to misunderstanding of the polygraph test and to field practices surrounding the use of polygraphy in the police selection process. Potential problems can result from ineffective selection of test issues, poorly constructed test questions and misguided policies surrounding the use of the polygraph. The authors review the history of polygraph screening, research, and field practices, and suggest that using polygraph results alone to disqualify a candidate from employment is a misguided field practice. Suggestions are offered for maximizing the decision-support value of the polygraph. Polygraph examination targets are discussed, with emphasis on selecting actuarially derived predictors associated with increased success in law enforcement training and job performance. The authors provide recommendations for field practice, and propose that police psychologists may be most suited to effectively integrate the polygraph results and information into the hiring recommendation process.     

Children Exposed to Domestic Violence: Making Trauma‐Informed Custody and Visitation Decisions

This article explores the risks for young children and the challenges for courts that emerge when parents who are victims or perpetrators of intimate partner violence seek court decisions on child visitation or custody matters. We focus particularly on children age five and younger, a group that is disproportionately represented in families affected by intimate partner violence, and especially vulnerable to its traumatic impact. We examine the literature on children's response to violence between their parents and the literature on parental alienation, a counter‐charge that may arise when one parent alleges violence as a reason to limit the other parent's access to the children. We look at challenges faced by both mental health professionals and courts involved in custody determinations and make policy recommendations to help courts make trauma‐informed decisions that best serve children.     

In-house or in court? Legal challenges to university decisions

Every day, decisions are made in universities that affect students. When a decision adversely affects a particular student, what means of redress does that student have? The circumstances in which a student has a legal claim against their university are generally unclear. Courts have traditionally tended to draw a distinction between ‘purely academic’ decisions and disciplinary decisions. There has been reluctance on the part of courts to intervene in non-disciplinary decisions which involve academic judgment, for example, the grade to be given to a student's work. On the other hand, where the decisions are purely disciplinary, for example, in relation to a student's behaviour towards others or towards university property, the courts have made it clear that there is essentially no difference between this and disciplinary matters within any other public institution or organization. However, disciplinary decisions that are connected with allegations of academic misconduct, for example, cheating and/or plagiarism, have been more problematic for the courts. Historically, the debate was whether any such decision was justiciable in public law. Recently the question has also been whether an aggrieved student may succeed in a private law action against a university. The legal issues raised by university decisions affecting students have not yet been clearly resolved in all jurisdictions. Indeed, in some cases, judges have raised many more questions than they have answered. This article will review the framework for legal challenges to university decisions against a background of recent judicial attitudes in Australia, New Zealand, the UK and the US.     

Supreme Court Elections: How Much They Have Changed,Why They Changed,and What Difference It Makes

This essay draws on four recent studies of elections to state supreme courts in the United States to probe widely perceived changes in the scale and content of electoral campaigns for seats on state supreme courts. 1 Evidence from these studies and other sources indicates that changes have indeed occurred, though they are more limited than most commentaries suggest. These changes stem most directly from trends in state supreme court policy that have attracted interest‐group activity, especially from the business community. Like their extent, the effects of change in supreme court campaigns have been meaningful although exaggerated by many observers. What we have learned about changes in supreme court elections has implications for choices among selection systems, but those implications are mixed and complex.     

Punishment, Socially Deprived Offenders, and Democratic Community

The idea that victims of social injustice who commit crimes ought not to be subject to punishment has attracted serious attention in recent legal and political philosophy. R. A. Duff has argued, for example, a states that perpetrates social injustice lacks the standing to punish victims of such injustice who commit crimes. A crucial premiss in his argument concerns the fact that when courts in liberal society mete out legitimate criminal punishments, they are conceived as acting in the name of all citizens—on behalf of the whole political community. Resisting this premiss, Peter Chau has suggested that courts ought to be conceived as acting only in the name of “just citizens”: citizens who cannot be plausibly seen as having contributed to distributive injustice. When conceived in this way, Chau argues, courts can no longer plausibly be regarded as lacking standing to punish. This article uses the debate between Duff and Chau to explain why the question of whether to punish socially deprived offenders can only be answered adequately when connected to broader concerns of democratic theory. Specifically, it argues that Chau’s proposal is not available within the context of the kind of political community upon which (Duff rightly believes) a system of liberal criminal law depends for its justification and maintenance: a community in which citizens see the law as embodying shared norms whose specific demands they disagree about. State officials are morally permitted to see themselves as acting on behalf of a subset of the citizenry, I argue, only in circumstances of democratic crisis: circumstances in which a moral community can no longer be plausibly said to exist.     

事件相关电位与多道心理测谎的比较分析

事件相关电位测谎技术(简称ERP)作为近年来兴起的心理测试方式与传统的多道心理测试技术相比有很大的不同:在基本原理方面,事件相关电位测谎是根据被试对相关刺激的脑电反应来判别他与所调查事件的关系,而多道心理测试技术则是根据被试对相关刺激的呼吸和血压的变化来进行评判;在测试内容和程序方面表现为行为样本、评分标准和测试结论上的差异;在效度、信度方面,多道心理测试技术具有优于事件相关电位测谎的信度和效度研究成果。     

Stampede to judgement: persuasive influence and herding behavior by courts

We model appeals courts as Bayesian decision makers with privateinformation about a supreme court's interpretation of the law;each court also observes the previous decisions of other appealscourts in similar cases. Such 'persuasive influence' can cause'herding' behavior by later appeals courts as decisions progressivelyrely more on previous decisions and less on a court's privateinformation. We provide an example drawn from a recent UnitedStates Supreme Court decision finding unconstitutional a basicprovision of a law previously found constitutional by six circuitcourts. Herding on the wrong decision may remain uncorrected,since review of harmonious decisions is rare.     

Movement Litigation and Unilateral Disarmament: Abortion and the Right to Die

Detractors have long criticized the use of courts to achieve social change because judicial victories tend to provoke counterproductive political backlashes. Backlash arguments typically assert or imply that if movement litigators had relied on democratic rather than judicial politics, their policy victories would have been better insulated from opposition. We argue that these accounts wrongly assume that the unilateral decision by a group of movement advocates to eschew litigation will lead to a reduced role for courts in resolving the relevant policy and political conflicts. To the contrary, such decisions will often result in a policy field with judges every bit as active, but with the legal challenges initiated and framed by the advocates' opponents. We document this claim and explore its implications for constitutional politics via a counterfactual thought experiment rooted in historical case studies of litigation involving abortion and the right to die.     

Precedent, Parity, and Racial Discrimination: A Federal/State Comparison of the Impact of Brown v. Board of Education

Questions regarding Brown v. Board of Education 's short-term effect remain unanswered, particularly its comparative impact on federal district courts and state supreme courts. We test this through an analysis of racial discrimination cases in those venues in the twenty-year period bifurcated by the decision in May 1954. Our findings suggest that while federal district courts and state courts were similarly unresponsive to discrimination claims before that date, Brown exerted a significant impact on district court decisions but had little influence at the state level. Furthermore, a third pattern was found in federal appellate courts, where discrimination claims had a high likelihood of pro-minority decisions even before the Supreme Court directive.     

The myth of popular justice under communism: A comparative view of the USSR and Poland

This paper describes two ‘popular justice’ institutions which exist in both the USSR and Poland: people's assessors and social courts (workers' courts and residential tribunals). An attempt is made to assess these developments in light of the official national ideology. In addition, these institutions are placed within the context of contemporary Western debates on popular justice in order to test the applicability of Western ideas to the reality of Soviet-style communism. While the paper does not attempt to assess the adequacy of the critical Western voices which warn against the dangers or illusory advantages of community justice in Western democracies, it demonstrates that these ideas are indeed validated when tested within the communist reality. The social courts tend not only to reflect the authoritarian relations prevailing in the communist economy, but also serve to perpetuate them. The lay assessors who accompany judges in ordinary courts are extremely passive and their influence on the process and outcome of the adjudication seems to be minimal. Above all, they cannot influence the law itself or the legal structures in which they are participating.