实物证据的鉴真问题

在证据法中．鉴真（authentication）是指证明某一证据确实属于提出该证据的一方所声称的那一证据。《关于办理死刑案件审查判断证据若干问题规定》确立了实物证据的鉴真制度。根据所要鉴别的实物证据的不同，鉴真有两个相对独立的含义：一是证明法庭上出示、宣读的某一实物证据．与举证方“所声称的那份实物证据”是一致的；     

刑事审判中的证据引出规则

“证据引出”规则是在刑事审判过程中 ,要求控辩双方通过一定的方式使一项证据材料能够被允许作为证据在法庭上出示的规则 ,其实质是在控辩双方向裁判者展示自己的证据材料之前 ,对其准备在法庭上展示的证据材料进行前置性审查 ,以排除不具有证据能力的证据材料 ,使之不能在法庭上向裁判者展示。证据引出规则对于实现实体公正、程序公正和诉讼效率等程序价值都有现实意义。     

刑事诉讼中扣押、冻结财物的处理

刑事诉讼中扣押、冻结财物的处理耿景仪一、实践中存在的问题及立法的必要性在刑事诉讼中，与认定案件事实有关的财物是重要的证据之一。根据刑事诉讼法的有关规定，凡随案移送的扣押、冻结的财物，不论以实物还是以照片、文字材料等形式作为证据的，都应当在法庭上出示，...     

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.     

鉴定意见的审查判断问题

司法鉴定制度的改革不仅带来了司法鉴定体制的变化,而且促成了相关证据规则的完善。作为一种法定的证据种类,＂鉴定意见＂不再具有＂鉴定结论＂的效力,而要像其他证据一样,在证明力和证据能力方面经受法庭上的审查过程。违背法定的鉴定主体资格、鉴定程序、鉴真方法或鉴定文书的形式要件,鉴定人所提供的鉴定意见应被排除于法庭之外。有关鉴定意见的证据能力规则,不仅维护了法律程序的实施,而且可最大限度地增强该证据的证明力。从未来刑事证据法发展的角度来看,只有在宏观层面的司法体制和中观层面的鉴定程序方面发生实质性的变化,处于微观层面的鉴定证据规则才能有更大的制度空间。     

论刑事诉讼非法证据排除规则

当前,我国刑事诉讼法对证据问题规定的较为原则,缺乏可操作性,虽然刑事诉讼领域已建立了有限的证据排除规则,但仍存在对非法证据界定不够完整、没有规定非法实物证据是否排除和缺乏非法证据排除的证明规则等主要问题。随着我国民主和法制建设的发展,确立刑事非法证据排除规则已成为必然。     

借鉴“刑事免责”制度和“证据强制”规则之构想

刑事免责是美国刑事诉讼中的一项基本制度 ;证据强制是适用刑事免责的一个重要证据规则。本文阐述了“刑事免责”制度和“证据强制”规则的立法背景、二者的内涵关系以及适用的范围等 ;论证了我国确立“刑事免责”制度与“证据强制”规则的必要性 ,提出了借鉴其合理内容的一些构想 ,认为在我国确立“刑事免责”制度与“证据强制”规则对于缓解我国侦查机关的侦查取证困难有较大作用     

论刑事非法证据的排除

刑事非法证据排除规则的建立,应当从完善对于非法言词证据排除的相关规定入手,扩大非法言词排除的范围,建立非法实物证据排除规则,设立完整的非法证据排除程序,明确对于非法证据排除的举证责任。本文从确立我国刑事非法证据排除面临的问题、构建我国的刑事证据排除规则以及我国刑事证据排除制度的新动向等三个大的方面进行了分析论证。     

行政执法证据在刑事诉讼中的转化适用

确立行政执法证据向刑事证据转化的适用规则是“两法”衔接的重要环节,也是增强现有法律规定的可操作性,提高诉讼效率的必然要求.在行政执法证据转化过程中,实物证据可直接作为刑事证据使用;对言词证据,应适用“原则上不可但允许例外”的规则.行政执法证据在刑事诉讼中得以规范适用,还需由司法解释的出台、人员素质的提高和配套机制的完善来共同保障.     

中国内地与港澳台刑事证据制度比较论

证据制度是指法律规定的关于在诉讼中规范证据资格、证据收集和审查判断，以及司法证明活动的规则体系。证据制度是内地诉讼制度中亟待完善的部分。我国的香港、澳门特别行政区及台湾在法律的继承和发展过程中分别秉承英美法系当事人主义、大陆法系职权主义与混合折衷主义诉讼制度之精华，形成了各具特色且较为完善的刑事证据制度。对两岸四地的若干刑事证据规则和刑事证据证明制度进行比较分析，为内地刑事证据制度的改革与完善提供了重要思路。     

Bhartṛhari and Maṇḍana on Avidyā

The concept of avidyā is one of the central categories in the Advaita of Śaṇkara and Maṇḍana. Shifting the focus from māyā, interpreted either as illusion or as the divine power, this concept brings ignorance to the forefront in describing duality and bondage. Although all Advaitins accept avidyā as a category, its scope and nature is interpreted in multiple ways. Key elements in Maṇḍana’s philosophy include the plurality of avidyā, individual selves as its substrate and the Brahman as its field (viṣaya), and the distinction in avidyā between non-apprehension and misapprehension. A closer investigation shows that Maṇḍana is directly influenced by Bhartṛhari’s linguistic non-dualism in developing the concept of avidyā. This study also compares other key constituents such as vivartta and pariṇāma that are relevant to the analysis of avidyā. As the concept of counter-image (pratibimba) emerges as a distinct stream of Advaita subsequent to Maṇḍana, this study also compares the application of pratibimba in the writings of Bhartṛhari and Maṇḍana.     

Immigration,intermarriage and the changing face of Europe in the post war period

In this article we compare the propensity to intermarry of various migrant groups and their children who settled in Germany, France, England, Belgium and the Netherlands in the post-war period, using a wide range of available statistical data. We try to explain different intermarriage patterns within the framework of Alba and Nee's assimilation theory and pay special attention to the role of religion, colour and colonial background. We therefore compare colonial with non colonial migrants and within these categories between groups with ‘European’ (Christian) and non-European (Islam, Hinduism) religions. First of all, religion appears to be an important variable. Migrants whose faith has no tradition in Western Europe intermarry at a much lower rate than those whose religious backgrounds correspond with those that are common in the country of settlement. The rate of ethnic endogamous marriages in Western Europe are highest in Hindu and Muslim communities, often regardless if they came as guest workers or colonial migrants. Whereas differences in religion diminish the propensity to intermarry, colour or ‘racial’ differences on the other hand seem to be less important. This is largely explained by the pre-migration socialisation. Furthermore, the paper argues that the attention to institutions, as rightly advocated by Richard Alba and Victor Nee, needs a more refined and layered elaboration. Institutions, often as barriers to intermarriage, do not only emanate from the receiving society, but also—be it less formalized—within migrant communities. Especially religions and family systems, but also organized nationalist feelings, can have a profound influence on how migrants think about endogamy. Finally, strong pressures to assimilate, often through institutionalized forms of discrimination and stigmatization, not only produce isolation and frustrate assimilation (with resulting low intermarriage rates), but can also stimulate assimilation by 'passing' mechanisms. These factors, together with a more comparative perspective, are not completely ignored in the new assimilation theory, but—as this study of Western European intermarriage patterns stresses—deserve to be included more systematically in historical and social scientist analyses.     

Unraveling the <Emphasis Type="Italic">Kāvyaprakāśa</Emphasis>: Jayadeva Pīyūṣavarṣa’s idiosyncratic sequence of topics in the <Emphasis Type="Italic">Candrāloka</Emphasis>

In his twelfth century alaṃkāraśāstra, the Candrāloka, Jayadeva Pīyūṣavarṣa reverses the sequence of topics found in Mammaṭa’s Kāvyapr-akāśa, an earlier and immensely popular work. With such a structural revisionism, Jayadeva asserts the autonomy of his own work and puts forth an ambitious critique of earlier approaches to literary analysis. Jayadeva investigates the technical and aesthetic components of poetry in the first part of the Candrāloka, prior to his formal semantic investigations in the latter half of the text, thus suggesting that aesthetic evaluations of poetry beneficially inform scientific investigations of language. Jayadeva’s organization of his chapters on the semantic operations, moreover, intimates that the study of suggestive and metaphoric functions of language clarifies our understanding of denotation, which is conventionally understood to be the primary and direct path of verbal designation.     

Turning a Madhyamaka Trick: Reply to Huntington

Huntington (2007); argues that recent commentators (Robinson, 1957; Hayes, 1994; Tillemans, 1999; Garfield and Priest, 2002) err in attributing to Nāgārjuna and Candrakīrti a commitment to rationality and to the use of argument, and that these commentators do violence to the Madhyamaka project by using rational reconstruction in their interpretation of Nāgārjuna’s and Candrakīrti’s texts. Huntington argues instead that mādhyamikas reject reasoning, distrust logic and do not offer arguments. He also argues that interpreters ought to recuse themselves from argument in order to be faithful to these texts. I demonstrate that he is wrong in all respects: Nāgārjuna and Candrakīrti deploy arguments, take themselves to do so, and even if they did not, we would be wise to do so in commenting on their texts.     

Illumination,Imagination, Creativity: Rājaśekhara,Kuntaka, and Jagannātha on <Emphasis Type="Italic">Pratibhā</Emphasis>

Sanskrit poeticians make the visionary faculty of pratibhā a necessary part of the professional poet’s make-up. The term has a pre-history in Bhartṛhari’s linguistic metaphysics, where it is used to explain the unitary perception of meaning. This essay examines the relation between pratibhā and possible theories of the imagination, with a focus on three unusual theoreticians—Rājaśekhara, Kuntaka, and Jagannātha Paṇḍita. Rājaśekhara offers an analysis of pratibhā that is heavily interactive, requiring the discerning presence of the bhāvaka listener or critic; he also positions pratibhā in relation to Bildung (vyutpatti) and practice. For Kuntaka, pratibhā, never an ex nihilo creation by a poet, serves as the basis for the peculiar forms of intensified insight and experience that constitute poetry; these may also involve the creative scrambling and re-articulation of the object in terms of its systemic composition. At times, Kuntaka’s pratibhā comes close to a strong notion of imaginative process. But the full-fledged thematization of the imagination, and of pratibhā as its support and mechanism, is best seen in the seventeenth-century debates preserved for us by Jagannātha. A link is suggested between the discourse of poetic imagination in Jagannātha and similar themes that turn up in Indo-Persian poets such as Bedil.     

Preventing Homelessness for System‐Involved Youth

Too many youth and young adults find themselves on the streets, couch‐surfing with friends, in emergency shelters or worse, after exiting the child welfare and juvenile justice systems. In some circumstances, youth have had court hearings until their exit from the legal system, but those hearings have not focused on long‐range plans of youth and emergencies youth may encounter. In other circumstances, there has been little or no planning prior to discharge, especially for young people who leave the juvenile justice system. Courts can and should prevent, alleviate or end youth homelessness for youth who appear before them through strategies that are enumerated in the recently‐passed NCJFCJ resolution. This article expounds on three of these strategies – coordinating transition and re‐entry plans, insisting on effective legal representation of youth, and utilizing sound judicial leadership. It also describes the concurrent efforts of the Coalition for Juvenile Justice and the American Bar Association's Homeless Youth Legal Network to remove legal barriers and improve outcomes for youth and young adults experiencing homelessness.     

Best practices for structuring a family court parenting plan evaluation under the 2022 AFCC Guidelines

Evaluation appointment orders provide enforceable scaffolding for conduct of family court parenting plan evaluations, and use of the evaluator's reports, feedback, file, and testimony. Unlike a contract, a stipulated or adjudicated appointment order is directly enforceable by the family court. It unambiguously positions the evaluator as the family court's appointee – answerable directly to the court and, in some jurisdictions, protected by quasi-judicial immunity from damages claims. A well-crafted appointment order governs the roles and expectations of the court, the evaluator, the parties, the lawyers, and the collateral witnesses. An appointment order mandates the legal duties, rights, powers, and responsibilities of the professionals, the parties, and the collateral witnesses. At minimum, an appointment order articulates the legal basis for the appointment, the purpose and scope of the evaluation, compensation of evaluator, and the duty of the parties to participate in the process. A written evaluation protocol or procedures statement discloses in advance the methods of investigation and assessment that the evaluator intends to use. Together, the appointment order and written protocol help the evaluator, lawyers, parents, and judge manage the complexity of the evaluation process.     

The Supreme Array Scripture: A New Interpretation of the Title “Gaṇḍavyūha-sūtra”

This article argues for a new interpretation of the Sanskrit compound gaṇḍa-vyūha as it is used in the common title of the Mahāyāna text the Gaṇḍavyūha-Sūtra.The author begins by providing a brief history of the sūtra’s appellations in Chinese and Tibetan sources. Next, the meanings of gaṇḍa (the problematic member of the compound) are explored. The author proposes that contemporary scholars have overlooked a meaning of gaṇḍa occurring in some compounds, wherein gaṇḍa can mean simply “great,” “big” or “massive.” This general sense is particularly common in the compound gaṇda-śaila (a “massive rock” or “boulder”) and is found in such texts as the Bhāgavata Purāṇa, the Harivaṃśa and the Harṣacarita. Following the discussion of Gaṇḍa, the author examines the term vyūha (“array”) as it is used in the Gaṇḍavyūha-sūtra. The article concludes with the suggestion that a more appropriate translation of the Gaṇḍavyūha-sūtra would be “The Supreme array Scripture.”     

The Mūlāvidyā Controversy Among Advaita Vedāntins: was Śaṅkara Himself Responsible?

The concept of avidyā or ignorance is central to the Advaita Vedāntic position of Śȧnkara. The post-Śaṅkara Advaitins wrote sub-commentaries on the original texts of Śaṅkara with the intention of strengthening his views. Over the passage of time the views of these sub-commentators of Śaṅkara came to be regarded as representing the doctrine of Advaita particularly with regard to the concept of avidyā. Swami Satchidanandendra Saraswati, a scholar-monk of Holenarsipur, challenged the accepted tradition through the publication of his work Mūlāvidyānirāsaḥ, particularly with regard to the avidyādoctrine. It was his contention that the post-Śaṅkara commentators brought their own innovations particularly on the nature of avidyā. This was the idea of mūlāvidyā or ‘root ignorance’, a positive entity which is the material cause of the phenomenal world. Saraswati argues that such an idea of mūlāvidyā is not to be found in the bhāṣyas (commentaries) of Śaṅkara and is foisted upon Śaṅkara. This paper attempts to show that although Śaṅkara may not have explicitly favoured such a view of mūlāvidyā, his lack of clarity on the nature of avidyā left enough scope for the post-Śaṅkara commentators to take such a position on avidyā.     

Evaluation of six presumptive tests for blood, their specificity, sensitivity, and effect on high molecular-weight DNA

Luminol, leuchomalachite green, phenolphthalein, Hemastix, Hemident, and Bluestar are all used as presumptive tests for blood. In this study, the tests were subjected to dilute blood (from 1:10,000 to 1:10,000,000), many common household substance, and chemicals. Samples were tested for DNA to determine whether the presumptive tests damaged or destroyed DNA. The DNA loci tested were D2S1338 and D19S433. Leuchomalachite green had a sensitivity of 1:10,000, while the remaining tests were able to detect blood to a dilution of 1:100,000. Substances tested include saliva, semen, potato, tomato, tomato sauce, tomato sauce with meat, red onion, red kidney bean, horseradish, 0.1 M ascorbic acid, 5% bleach, 10% cupric sulfate, 10% ferric sulfate, and 10% nickel chloride. Of all the substances tested, not one of the household items reacted with every test; however, the chemicals did. DNA was recovered and amplified from luminol, phenolphthalein, Hemastix, and Bluestar, but not from leuchomalachite green or Hemident.