First, the origin and development of expert witness system in Anglo-American legal system
(A) the origin of the expert witness system
The expert witness system originated in Britain in the14th century. It appeared as a judge's assistant and was appointed by the court. /kloc-in the 0/8th century, under the influence of the spirit of independent and free constitution, the parties were allowed to hire expert witnesses, who were generally only responsible to the parties and did not need to remain neutral. In the process of trial, the authenticity of expert witness testimony is generally determined by the cross-examination of the parties and their lawyers.
The expert witness system in Anglo-American legal system is the epitome of adversary litigation mode in Anglo-American legal system. The core idea of adversary system lies in "making use of the pursuit of victory by opposing parties to make the parties fully attack and defend in the lawsuit, while the judge or jury passively judges which party should win the case from the competition between the two parties." "{2} The reason why the Anglo-American legal system adopts the adversarial litigation mode is that this kind of evidence collection initiated by both parties has greater impetus and higher thoroughness than the evidence collected by any party or the court, and the opinion or appraisal as an expert witness with evidence effect is undoubtedly of great help to the equal confrontation between the two parties in court because of its high scientific, objective and credibility. Therefore, the parties' free choice of expert witnesses conforms to the partisanship advocated by the Anglo-American legal system, which is conducive to improving the efficiency of identifying the disputed points of the case through the struggle between the parties and revealing the truth of the case comprehensively through the mutual evidence of competing parties.
The expert witness system in Anglo-American legal system can not be separated from the hearsay evidence exclusion rule and cross-examination mechanism in Anglo-American legal system. First of all, the hearsay evidence exclusion rule is the embodiment of the "trial center" doctrine advocated by the common law system, which holds that all evidence should be presented directly to the judge on its own initiative during the trial. As far as hearsay evidence is concerned, it only applies to witness and non-material evidence, including two aspects: those who have direct perception of the case do not appear in court and others report on their behalf, and those who have direct perception of the case do not appear in court to testify and submit materials to the judge in writing.
The reasons for excluding hearsay evidence in common law system are as follows: for the defendant, hearsay evidence infringes on the defendant's pledge right and deprives the defendant of the opportunity to get a fair trial; For the jury, hearsay evidence makes it lack of personal perception of the witness, the content of the witness statement and the credibility of the witness statement. "The speaker's statement information does not exist directly in his brain" {3}. Therefore, for the expert witness system, in order to ensure the credibility and admissibility of testimony, expert witnesses must appear in court to accept cross-examination from both sides, so as to achieve the purpose of ascertaining the truth and provide a strong basis for the judicial justice of juries and judges. It can be seen that the rule of hearsay evidence exclusion is an important basis to ensure the operation of the expert witness system.
Secondly, the cross-examination mechanism in the common law system is also the "cornerstone" of the operation of the expert witness system. Anglo-American legal system believes that the main purpose of cross-examination is to question the testimony provided by the opposing witness while presenting the most favorable evidence, so as to reduce or even eliminate the credibility of the testimony in the eyes of the fact judge, thus forming the most favorable litigation point of view for the parties, and then obtaining the "fairest" judgment result. As far as the expert witness system is concerned, this kind of trial cross-examination procedure, which focuses on attacking the weakness or defect of the other party's evidence, means that although the parties are free to choose the expert witness that is beneficial to them, they may not be able to obtain favorable litigation results. On the contrary, the testimony of expert witnesses who can't stand cross-examination and "indiscriminate bombing" can't be the basis for deciding the case, and the relevant expert witnesses may also bear the legal responsibility for perjury. Therefore, the cross-examination mechanism provides a solid foundation for the effective operation of the expert witness system. If there is no cross-examination mechanism, it will easily lead to the abuse of expert witnesses and the arbitrary fabrication of false testimony, which will lead to low judicial efficiency and breed unjust, false and wrong cases.
In a word, the adversarial litigation mode, which is the basis of the expert witness system, provides it with the possibility. The hearsay evidence exclusion rule pushes the expert witness from "behind the scenes" to "in front of the stage", and the cross-examination mechanism examines whether the expert witness can "take the stage", thus ensuring that the final expert witness testimony is a "program" that can be recognized and satisfied by the public.
(B) deficiencies and development of foreign expert witness system
1. disadvantages of foreign expert witness system
In the course of hundreds of years' development, the expert witness system has played a more and more active role in judicial efficiency and referee justice, and has become more and more mature and perfect, but at the same time, various drawbacks have emerged and become increasingly serious, mainly including the following aspects:
(1) The commercialization of expert witnesses is serious. In the adversarial litigation mode, because the expert witness in the litigation is hired by the parties themselves, the parties are willing to hire experts who can give more favorable testimony at a higher price for their own interests, and the experts are willing to provide such services for the "food and clothing parents" in order to obtain higher remuneration. This leads experts to state their opinions objectively and truly, and the more neutral experts are, the more difficult it is to be hired. As LordWoolf pointed out in his final report "Close to Justice": "The laissez-faire of the admissibility of expert evidence in civil cases is a serious drawback, which has created a group of well-paid experts who give expert advice according to the needs of the clients who employ them. The price of this practice is to hinder the realization of judicial justice. " {4} The dependence of the expert witness on the client leads to the deviation of the neutrality of the expert witness and the loss of the impartiality of the expert evidence, which gradually leads to the expert witness becoming a "doll" of the client and lawyer, and how to manipulate it as he wants.
(2) The litigation cost continues to soar. Lord Wolff pointed out in the interim report of British judicial reform from 65438 to 0996 that the two reasons for the unnecessary increase in litigation costs are that evidence discovery is out of control and expert witnesses are out of control. In order to win the lawsuit, more and more parties hire one or more expert witnesses. With the progress of society and technology, the testimony of expert witnesses is becoming more and more important in litigation, and the asking price of experts is bound to be higher and higher. Take Britain as an example. In 2003, Your Witness, a British magazine, conducted five questionnaires on the charging standards of expert witnesses, including 1995, 1997, 1999 and 200 1. According to the investigation report, the average fee for expert witnesses to prepare expert reports is 1999. 65,438+099,65,438+000,2006,65,438+00,5438+0,2003,65,438+023; The average cost of a day in court has also soared year by year, reaching 893 pounds in 2003. {5} The same thing happened in America. It can be said that the intensity of litigation confrontation is too high, the unrestricted use of expert evidence is the main reason for the increasing litigation cost, and the professional level of expert witnesses charged by the hour is also adding fuel to the fire. At the same time, the high litigation cost has also led to the problem of unequal litigation status of the parties, and expert witnesses have become a luxury that the poor can't afford to go to court.
(3) The problem of litigation delay is aggravated. First of all, the intensification of court confrontation means that in order to win the case, more detailed expert reports must be prepared to deal with it; Secondly, the high remuneration and hourly charging mode also induce the expert report to become more and more lengthy; Thirdly, due to the complexity of social relations, especially expert reports, the cross-examination procedure has become more delayed. Not only the time for discovery of evidence and cross-examination in court, but also the time for judges to identify controversial issues has been forced to delay even more.
(4) Psychologists become witnesses. With the popularization of psychology and the development of expert witness system, psychologists have also stepped onto the court stage. Moreover, psychologists provide a wide range of expert testimony, including witness testimony, trial ability, child custody, insanity defense and so on. {6} But whether psychologists can become expert witnesses has always been questioned and criticized. Because for the subjective perception factors of psychology, it is really inappropriate to judge and draw conclusions with objective general standards under special circumstances, and if psychologists state their testimony as expert witnesses, it will affect the judgment of judges and juries at least to some extent, and may make the final judgment unfair. Therefore, it is necessary to be very cautious to use the witness testimony of psychologists as the basis for judging a case.
2. The development of foreign expert witness system
The problems of the expert witness system mentioned above seem to have formed a chain vicious circle. As long as one of the problems appears, other problems will also appear accordingly. Therefore, in the face of the urgency of practical problems and the general call for reform in academic circles, the expert witness system in Anglo-American legal system began to be improved in the mid-1990s. Take the most representative field of civil litigation in Britain as an example, which mainly includes the following aspects:
(1) emphasizes the priority obligation of expert witnesses to the court. American scholar Lambain once said, "American expert witnesses are like saxophones in the hands of lawyers, and lawyers can play whatever they want." "In view of the fact that the neutrality of the expert witness who should objectively and truly state the facts of the case has gradually lost, and the commercialization and tendency have gradually become obvious, the fifth paragraph of Article 35 of the new Civil Procedure Law, which came into effect in 1999, stipulates that the expert witness has priority obligations to the court: ① the obligation of the expert witness is to assist the court in handling affairs within the scope of his professional knowledge; (2) This obligation takes precedence over the obligation of the expert witness to the client who entrusts or employs him. At the same time, this measure to protect the impartiality and neutrality of experts also requires lawyers to inform them that lawyers have the obligation to make the parties understand that expert witnesses will testify objectively and truthfully without any bias.
(2) The cooperation between * * * and expert witnesses shall apply. Paragraph 7 of Article 35 of the new rules stipulates that when two or more parties wish to submit expert evidence on a specific issue, the court may only appoint one expert witness to submit expert evidence on the issue; When the instructing party fails to reach an agreement on the selection of expert witnesses, the court may select an expert witness from the list of expert witnesses compiled or proposed by the instructing party, or select an expert witness in other ways determined by the court. This shows that the new rules encourage the parties to use the same expert witness as far as possible in disputes, and can be enforced when appropriate. This major reform "embodies the value goal of civil procedural economy, and also reflects the change of litigant litigation mode and litigation culture" {7}.
At the same time, the new rules also put the cooperation between expert witnesses at a higher level, so as to reduce the intensified differences and find the facts of the case more effectively. At any stage of the proceedings, the judge may instruct experts from both sides to have a fair discussion. {8} The purpose is to ask the expert witness to confirm the relevant issues in the lawsuit and reach an agreement on the possible basis. The court may specify the issues that experts must discuss, or may require experts to submit statements to the court after discussion, explaining the issues that they have reached agreement and have not yet reached agreement, and explaining the reasons for the issues that have not reached agreement.
(3) Strengthen the court's restrictions on the use of expert evidence. With regard to the proliferation and serious commercialization of expert witnesses, Article 35 of the new rules (1) stipulates that the use of expert evidence is limited to when it is reasonably necessary to solve problems in litigation. Paragraph 4 of Article 35 stipulates: Without the permission of the court, a party may not call an expert witness or produce an expert report as evidence. If a party applies to the court to summon an expert witness, he needs to show the expert evidence field he wants to rely on and the expert he wants to summon has rich experience in this field. The reform of the new rules has also solved the problems of litigation delay and high litigation cost to some extent. In addition, article 35, paragraph 5, of the Civil Procedure Rules stipulates that expert evidence must be submitted in the form of a written report unless otherwise ordered by the court. This move is aimed at speeding up the proceedings and is also a restriction on the court's use of expert evidence. It entrusts the expert report with more important responsibilities to reduce the trial time, and requires the expert to answer the questions raised by the parties before the trial in the expert report.
Second, analysis and reflection on the introduction of expert witness system in China
(A) barriers to the introduction of expert witness system in China
China belongs to the civil law system, and the judicial expertise system has a strong authoritarianism color. In judicial practice, the usual practice is to give the appraisal right to specific institutions in advance, including public security organs, professional political and legal colleges authorized by judicial organs, medical accident handling committees and related designated hospitals. Generally speaking, China's judicial expertise system has the following characteristics: it is hired by the public security and judicial organs rather than freely chosen by the parties; It is neutral, its main duty is to assist the judiciary and apply the challenge system; Perjury is liable.