On The Conclusions Of The Scientific And Reviewing Judge

The modern legal process is confronting the challenges of the expert evidence. The expert evidence has been the most speculative and subjective element of proceeding. The judge, who presides over the proceeding, is in great need of the help of relevant theory. At the same time, it is very urgent for us to find out some methods to enhance the objectivity of the expert evidence.The debate about the scientific nature of expert evidence is very sharp around the world these years, the status and function of the expert evidence has never been challenged so strongly. Some scholars question the idea of judicial rationalism, and deny the scientific nature of expert evidence.The thesis analyzes the scientific nature of expert evidence, discusses the evaluation of the expert evidence, and review the guarantee of the scientific nature of expert evidence. The thesis concludes two parts, amounting to about 28, 000 words in all, besides the introduction.When the scientific nature of expert evidence is concerned, we should begin with its foundation. The first part of the thesis expatiates the, which includes the following two elements: the "scientific" foundation of the expert evidence and the particularity of the judicial identification. To some extent, the expert evidence comes from the judicial identification, the discussion about the foundation of the scientific nature of expert evidence also concerns the foundation of judicial identification.With regard to the "scientific" foundation of the expert evidence, the thesis discusses the relation between the judicial identification and the "science", which is the basis of the former, and analyzes the connection of the scientific truth and the pragmatism, the rationalism and the scientific truth. From the perspective of epistemology, it is proper for the scientific knowledge to be the foundation of the expert evidence, and the attempt to weaken the scientific nature of expert evidence by denying the science itself is merely a kind of nonsense. At the same time, we should recognize that judicial identification isn't equal to the traditional science, and in order to clarify the differences, we would better learn about the particularity of the judicial identification.Legal system deems the truth-seeking process as a kind of method of acquiring the justice. However, the scientific community regards the truth as the natural part of the knowledge. Although both look for truth in a fundamental way, there are great divergences between them in the function, value and the target The expert and the fact finder should acknowledge the differences, and put science to good use in the legal system.The second part of the thesis looks into the evaluation of the scientific nature of expert evidence. Based on the principle of "judicial priority", the evaluation of the scientific nature of expert evidence mainly takes place in the court. In China, the absence of the witness in court has been ignored for a long time. In fact, expert only appears in court in particular circumstances. Under the current legal system, the ability of the fact finder to evaluate the scientific nature of expert evidence fairly is still in question.Because of the differences of the legal tradition and model, the rules of evidence in common law countries are relatively systematic and formal. The thesis examines the relevant systems in common law countries using US as the example. From above analysis, we can find that the attempt to ensure the scientific nature of expert evidence by way of enacting rules of evidence can not take effect So, we have to come back to the beginnings of the problem, think about the foundation of the problem and explore the relevant resolutions.With regard to the method of evaluation of the scientific nature of expert evidence, both scholars and practitioners put forward some suggestions. However, these suggestions mostly confines to the traditional methods, failing to reveal the inner problems, at the same time, the discussion about the current problems still lacks the strength. The thesis puts much emphasis on fee "unsolved problems". In order to evaluate fee scientific nature of expert evidence efficiently, it is vital to learn about fee issues that influence fee scientific nature of expert evidence. From this viewpoint, besides fee discussion of fee methods of evaluation, fee thesis examines fee guarantee of fee scientific nature of expert evidence.In China, judges are in charge of fee evaluation of fee scientific nature of expert evidence, fee taxonomy of fee expertise may provide judges wife fee practical guides, and judges should apply different standards to different expertise.So, we should pay more attention to the systematic and feasible taxonomy of the expertise. Judges may face different kinds of expert evidence, it is important to apply different framework to different expertise. The taxonomy of expertise can provide the court with the practical guidance, with regard to the different expertise, judges should choose the relevant group of standards.The thesis conducts the study of the taxonomy of the expertise in judicial identification, based on the experimental-experiential spectrum, the thesis divides the expertise into 8 fields, including physical and natural science, industrial, clinical, observational, experimental social science, statistical, professional and anthropological expertise. Owing to the differences of the standards in different field, the thesis analyses the methods of choosing relevant standards.At last, the thesis discusses the relevant issues about the process of judicial identification. The criminal investigation is the foundation of the criminal procedure, from which the relevant problems of the judicial identification also comes. So, the thesis begins with the relation between judicial identification and the investigators, the relation between judicial identification and "case reconstruction" model and the systematic bias of the expert.In order to better grasp the effect of the expert evidence in the criminal procedure, the thesis analyzes the relevant issues of the judicial identification, including the information control and the inculpable bias of the single object for examination, discusses the influences of the adversarial system to the expert, the importance of discovery of the expert evidence, and some special issues in the judicial identification.