The Admissibility Of American Expert Evidence

The evidence based on the litigation rules proves to be a subjective "heart journey",which is the process of tracing back,digging out and collating important fragments of the information left in the subjective impression and objective substance by historical facts.In this process,expert evidence plays an important role.Admissibility research sets standards for whether expert evidence is accepted by the court.Observation of expert evidence admissibility research will be based on the qualifications of expert witnesses,expert testimony and reporting styles,objectivity of expert evidence,written admissibility rules,and compared with the civil law system and Chinese characteristics,it summarizes the unique characteristics of the admissibility of the American experts' evidence and the five aspects of reflections.The first chapter is the eligibility of American expert witnesses,which is the first step of admissibility research.Compared with ordinary witnesses,it is not difficult to find that the scope of the testimony between the two is obvious.The admissibility rules give experts the freedom to gather information and make space for conclusions,unlike the general testimony that strictly excludes the description of opinion and inference.It can be seen when comparing the similarities and substantial differences with the Amicus curiae that are easily confused,whether in terms of the role played in the trial,the manner and stage of participation in the trial,the weight of the professional knowledge provided in the trial,etc.,Both are very different.In addition,forensic scientists who take scientific evidence as the object and use scientific experience for logical deductions are an important group that has become an increasing proportion of expert witnesses in recent years.The concept of forensic scientists and the definition of scientific evidence are also worth discussing.According to this comprehensive description of the eligibility criteria and its unique characteristics of the expert witnesses recognized by the court.It should be emphasized that there are two ways for evidence produced by expert witnesses,including not only direct verbal evidence such as witness testimonies,but also documentary evidence such as expert reports.Oral testimony and written evidence are made at different stages of litigation,and are challenged and constrained by different rules respectively.The admissibility review they face is not the same.To separate the expert testimony and the expert report into separate chapters,based on the logical movement of experts from becoming expert witnesses to participating in complete litigation procedures,it is necessary to discuss the admissibility independently.This also leads to the content of the second chapter,and conducts admissibility research on the content and style of these two kinds of expert evidence.The second chapter describes the content and formation of American expert evidence,including the main content and style of expert testimony and expert report.The first section and the second section focus on expert testimony.The expert testimony is the oral evidence that the witness who has obtained the expert status sits on the witness seat and answers the lawyer 's main inquiry and cross inquiry in the lawsuit.Contrast with the comments of ordinary experts,it is observed that the differences between the two in the scene,the way of obtaining,and the content of the information provided are very clear,and the expert testimony has its own language characteristics,with a description language,and an analysis language as the framework expand the analysis.Sections 3 and 4 focus on expert reports.This part of the study is divided into two parts.One is to focus on the analysis of the reports of forensic science experts from the process of report formation,and the other is to introduce the main content and format of the report.As the most important group of expert witnesses,forensic scientists who use reasoning and interpretation based on scientific experience participate in litigation very frequently.Their report is based on forensic science,and the expert evidence produced is also called scientific evidence.There are three fields of scientific evidence that have a higher probability of being accepted in court hearings and a stronger force of proof approved by the referee.The first is to answer "Who is the offender" and find the individual's forensic scientific evidence.The second is to answer the "how to commit crimes" and reconstruct the forensic scientific evidence of the crime scene and crime method.The third is to answer "how is the legal capacity",and scientific evidence to identify the legal state-related mental status,legal capacity,degree of mental impairment,and intellectual disabilities.Based on this,the emphasis is on the "DNA evidence" answering the first question,the "Evidence of bullet trace identification" answering the second question,and the "Forensic psychiatric identification" answering the third question.The running state and the frontier issues in application also introduce the application of other forensic sciences in China and the United States.At the end of the first three main scientific evidence chapters,a Chinese translation of typical dispute cases is attached.The main content and style of the reports are introduced at the end.A comprehensive analysis of real case materials including affidavits,expert opinions on a certain piece of evidence,comprehensive reports,and so on,found the "judge-friendly" paradigm in the UK and the more arbitrary "expertfriendly" paradigm in the United States.Combine the relevant laws,industry norms and judicial practice to summarize the basic principles of writing reports,including concise and direct focus,avoid using speculative or overconfident statements,always reflect neutrality,adopt objective methods,and rationally express opinions.At the end,a more standardized and detailed Chinese compilation of an American expert report read so far is attached for reference.The third chapter studies the objectivity of expert evidence.Even if the content forms of the expert witnesses,testimonies and reports all meet the admissibility requirements,the expert evidence is not necessarily admissible,and the objective requirements should also be possessed.The satisfaction of objectivity is realized by the objective system guarantee provided by the law and the subjective guarantee of the neutral position of experts.The system that plays the most important role is the pre-trial disclosure system,which refers to the legal procedure for the parties to obtain information about the evidence held by the parties before the case is heard.In this regard,the degree and content of disclosure in the field of civil and criminal litigation in the United Kingdom and the United States are slightly different.The United Kingdom has written rules for disclosure.The right to disclose evidence in criminal proceedings in the United States is not directly granted by the Constitution,but rather this is achieved through the Supreme Court 's interpretation of the Articles 5 and 14 Amendments to the procedural provisions.However,the purpose of the discovery rules is to realize the function of fully guaranteeing the balance of confrontational forces.There are exceptions to disclosure,and four privileges are granted in the US Federal Civil Procedure Rules as a statutory exception to it.With the continuous development of practice,these exceptions are constantly changing.Typical disclosure rules for expert evidence have evolved from being restricted as exceptions to weakening restriction claims.This has also formed a major admissibility of US expert evidence's features.The system is obvious,and the subjective thoughts of witnesses are hidden.Therefore,the second section of this chapter opens the discussion of the major ethical challenge faced by scientific evidence appraisal,that is,the "antagonist alliance" phenomenon.Expert witnesses have changed a series of relationships from "gunshot" to secretly reaching "antagonist alliances" with employers,as well as the reasons behind and externalized performance.Both the United States and the United Kingdom have made their own reform attempts,but the results seem to be average.Because evidence can only be interpreted correctly in specific situations,the profession of a professional witness must inevitably analyze the evidence with an independent and prudent eye,and cannot set aside a reasonable relationship between the evidence and its situation and facts to be proved realistic needs of contact.It is worth noting that important expert witnesses such as court scientists,both scientific researchers and legal provers,walk between scientific truth and court truth.The pursuit of scientific truth and legal truth in the court is both unified and Varies.They are all part of objective truth,and they all attach importance to the identification of causality,and they cannot achieve absolute truth.But the science in the court is dedicated to discovering the truth,and the law in the court is never aimed at exploring the truth.Chapter 4 is the admissibility rules of American expert evidence.The expert testimony will not be automatically recognized by the court because of the authority of the subject.Therefore,the first section introduces and analyzes the three iconic precedents of the Frye case,the Daubert case,and the Kumho Tire case.The general acceptance principle established in the Frye case has both progressive significance and inevitability,as well as the possibility and limitation of being replaced.The admissibility rule established in the Daubert case that emphasizes scientific methods and encourages judges to review is an advancement of the general acceptance principle,but it does not bring less controversy than the crowded voice,nor does it provide comprehensive coverage of the Frye rules across the United States.The arrival of the Kumho Tire case ended the dispute over the scope of application of the Daubert rule,extending the rule to the field of non-scientific evidence,and affirming that the experience and skills are also applicable.Each rule is accompanied by a Chinese compilation overview,containting the basis of the judgment,and the results of the judgment for reference.At the same time,the admissibility rule in practice is not a dull application of ticking.In addition to meeting the requirements of the statutory evidence rules,the unwritten rules established based on iconic precedents and other precedents also need to meet the relevance,reliability and acceptability criteria.The second section discusses the three rules.None of these three rules are expressly reflected in the Evidence Law,which actually sets the threshold for accessibility standards.It is not a necessary rule that must be discussed in every case,but it can be used to reduce the credibility of evidence and even exclude it.Chapter 5 strips and reflects on the admissibility characteristics of American experts' evidence.The first section compares with the civil law system,observes that the United States relies on the adversarial review model,does not seem to rely on neutral expert witnesses to correct prejudice in the law system,and sets up unique rules and guidelines.In the process of comparison with Chinese characteristics,it is found that China is in the initial stage of application of expert evidence.The United States has experienced expert evidence disclosure from limited to loose,from focusing only on relevance to increasing reliability standards,and expert witness moral standards from low to high.The three unique evolution stages can provide some ideas for the future development of China's expert assistant system.The second section describes the expert evidence in the eyes of the judge and jury during the court trial.It is found that the judge's dependence on physical evidence is very serious in practice,and whether the expert evidence can be adopted is not only related to how the judge applies the rules to complete the role of the gatekeeper,but also is subject to the judge's own influences.The jury's opinion on the expert report and the acceptance criteria are crucial.In fact,after research,it was found that the jury did not use any high logical judgment,but adopted the skills of telling lies in daily life.The jurors first read the evidence with selfcognition and try to understand it.It first explores whether there are lies within the scope of cognition,and then consolidates or reduces the credibility of the expert evaluation through court statements,direct and cross-examination.Once complex scientific evidence is encountered,the jury will directly abandon these logics,and instead rely on peripheral information to judge the reliability of the evidence,such as the expert's personal charm,testimony experience,industry resume and the number of works.The third section is a reflection on the admissibility of expert evidence.Observations have found that in practice,over-reliance on expert evidence has led to "junk science" and "counterfeit experts" in court.Excessive litigation costs and delays in litigation are common.Expert negligence and malfeasance are as common as any industry field.The defendant unfairly assumed the burden of unreliable expert evidence and litigation costs beyond a reasonable scope.In addition,the lack of uniform standard laboratory practice and other loopholes have caused pseudo-science such as "dessert defense" and continue to interfere with the realization of justice,leading to the occurrence of unjust,false and wrong cases.It is also found that the risk of expert witnesses increasing their testimony gradually increases the probability of civil claims such as damages compensation and tort liability by the employer,and judicial judgments also support such claims,and even encourage them.From practicing doctors in medical malpractice litigation to psychiatrists who have not fulfilled their obligations to preventive measures,as well as expert witnesses who have failed to fulfill their moral obligation to inform potential victims and professional witnesses who have failed to fulfill their duty of care.The fourth section is the enlightenment to the admissibility of the evidence of China's expert assistants.In response to the policy background of China's smart courts,prosecutions and polices,and the historical opportunity for the smooth progress of judicial expert reform,the expert assistant system is on the verge of completion.Taking into account the experience and lessons of the United States,we have initially explored the admissibility of evidence in three aspects.The first is to clarify the necessity of establishing the admissibility rules,which is conducive to clarifying the litigation status of the expert,and is conducive to the establishment of the admissibility rules of the appraisal opinion,and is conducive to the standardization of the judgment documents.The second is a preliminary assumption of written admissibility rules,including formal review of the eligibility of experts,review of oral opinions of experts in court,and review standards for expert reports written by experts who did not appear in court.The third is to put forward three requirements on the objectivity of the evidence of expert,the review of the legality,the reliability and the regular review of the morality.The concept of expert witnesses in the Anglo-American legal system cannot be directly taken,and the concept of a solid expert in the domestic theory cannot be directly applied.It should belong to the "person with expertise" under the judicial assistant,and construct a sequence for it separately,and remove the false from the culture.Experts in logical thinking,choosing stable and reliable scientific theories,and adhering to an objective and fair scientific position to prevent the rapid changes that have occurred and born in the United States,and promote the reform and improvement of China 's evidence system and appraisal system.