The general prohibition of character evidence is one of the most important doctrines in American Evidence law. Since the Supreme Court has held that the Eighth Amendment forbids status offenses in adult prosecutions, the doctrine has constitutional overtones. Federal Rule of Evidence 404(b) applies the prohibition to evidence of an accused’s other crimes and wrongs. Since such evidence can be inflammatory and the Rule’s limits sometimes confusing, Rule 404(b) generates more published opinions than any other provision of the Federal Rules of Evidence. Although the prohibition extends beyond other crimes, most of the controversy swirls around the Rule’s application to evidence of an accused’s uncharged crimes.As a 2023 United Kingdom Law Commission report points out, that country has abandoned a rigid, formal character prohibition and allows trial judges to balance the probative value of specific acts evidence against the incidental probative dangers of the evidence. The American Federal Rules of Evidence do not go that far, but in sexual assault and child abuse cases Rules 413-15 carve out exceptions to the character prohibition. Many leading American commentators have contended that the United States should move farther in the direction of narrowing the prohibition. In 2021, drawing on the work of previous commentators, Professor Steven Goode published an article making a persuasive case that federal courts ought to admit highly probative evidence of very specific propensities. However, Rule 404(b) seems to stand in the way of doing so.In early 2023, the lead author of this article and a coauthor published an article discussing the admission of prior racist acts in hate crime prosecutions. To a degree the article dovetails with Professor Goode’s contention; the article develops an argument that if adopted, could move American character law in the direction Professor Goode favors. The 2023 article presents seven different “gateways” for introducing evidence of prior racist acts. One potential gateway is of special importance in the current Age of Statutes. That gateway is a novel contextual statutory construction argument: Since Federal Rule 404(a) governing reputation and opinion character evidence states the general prohibition as applying to “character trait[s]” as well as “character” but Rule 404(b) governing specific acts testimony mentions only “character,” proof of a specific character trait could be considered a permissible purpose under Rule 404(b).This is essentially a contextual statutory construction argument. This is the textualist era. In this era contextual arguments based on related statutes carry special force. Textualists maintain that extrinsic legislative history materials are entitled to less weight because they are subject to manipulation by special interest groups and lack the force of law. Unlike those materials, contextual provisions enjoy the force of law; and assigning considerable weight to such provisions does not raise separation of powers concerns.The authors of the 2023 article do not describe themselves as textualists or suggest that a court may embrace their argument only if the court subscribes to textualism. However, the reality is that today textualism is clearly the dominant school of statutory interpretation, especially in federal court. Hence, the purpose of this article is to present a textualist analysis of the contextual statutory construction argument regarding the character/character trait distinction. The article reviews the pertinent text, contextual provisions, and extrinsic materials: the Advisory Committee Notes to Rules 404-05, 413-15, and 608-09.The contextual argument is certainly viable. Rule 404(a) is a salient part of the context for interpreting Rule 404(b); the two provisions are very close together in the same Rule. However, there are other parts of the context, other related statutes; and a close examination of the wording of those statutes reveals that the drafters used “character” and “character trait” loosely in those provisions. The same inconsistent use of the terms is evident in the pertinent Notes. Thus, it cannot be said definitively whether by omitting “character trait” in 404(b) the drafters intended to signal that character trait evidence is admissible under 404(b).The textualist analysis of the contextual argument demonstrates that one of the root causes of the present uncertainty about the scope of Rule 404’s character prohibition is a larger problem, namely, the loose usage in the pertinent Rules and Notes. The present article therefore identifies two possible courses of action for the Rules Advisory Committee. One is to provide working definitions of the terms, “character” and “character trait.” Commentators vary in their understanding of those terms; but given the inconsistent usage in the wording of the Federal Rules and the Notes, that variation is expectable. A second option would be for the Committee to invite a wider discussion of the policy issues that make the scope of the character prohibition such a controversial issue. The combination of Professor Goode’s 2021 article, the 2023 United Kingdom Law Commission report, and the recent 2023 article makes this an opportune time for that discussion. To be sure, resolving those issues would not be easy. However, in light of the enormous amount of time that the courts devote to disputes over Rule 404(b), addressing those fundamental issues might be worth the effort. If any Federal Rule deserves a hard look by the Committee, it is Rule 404(b).
ABSTRACT A vast literature has developed probing the law's aversion to statistical/probability evidence in general and its rejection of naked statistical evidence in particular. This literature rests on false premises. At least so far as US law is concerned, there is no general aversion to statistical forms of proof and even naked statistics are admissible and sufficient for a verdict when the evidentiary proffer meets the normal standards of admissibility, the most important of which is reliability. The belief to the contrary rests upon a series of mistakes: most importantly, mismodeling of the structure of legal systems and the nature of common law decision making. Contributing to these mistakes is the common methodology in this literature of relying on weird hypotheticals that mismodel the underlying legal relations and contain impossible epistemological demands. Collectively, these phenomena have distracted attention from issues that actually affect real legal systems.
美国《联邦证据规则》产生于法典化运动的背景下,一波三折的制定过程与四十多年来的发展历程是证据法领域独树一帜的存在.从《联邦证据规则》的演进历程来看,其主要发展趋势是:负责修订证据规则的专门机构从无到有,证据规则咨询委员会发挥愈加重要的作用;证据可采性的范围逐渐扩大,随着规则灵活性的增强,法官的审查义务逐渐加重;程序保障的程度不断增强;科技进步为证据认定带来便捷的同时,也动摇了传统的以证人为中心的证据法框架.对我国而言,证据法的发展面临着机遇和挑战,在立法上中国特色社会主义法治体系不断完善,司法上推进繁简分流和庭审实质化改革,技术上区块链等新兴事物层出不穷的新时代背景下,考察《联邦证据规则》的制定与发展趋势,可以为我国的证据法典化提供启发.
举证妨碍制度兼有救济和制裁性质,有助于诉讼中公正价值的实质实现,但由于存在制度定位不清、程序性不强以及一般条款与特殊条款不协调等不足,举证妨碍制度在知识产权侵权诉讼的实践中一直处于低效运行的状态,并未起到应有的救济作用."认识—道德两分理论"厘清了在事实认定规范中认识论和道德判断的界限问题,可以为我国举证妨碍制度的程序构建提供指引.举证妨碍制度是一种证明责任规范,其顺利运行有赖于法律的明确规定.可以通过解释论的视角,以现有条文为依托,构建以诉讼上的协力义务为核心线索的举证妨碍制度运行程序,解决举证妨碍制度在知识产权侵权诉讼中适用率低下的问题.
信息网络技术的发展在带来便利与快捷的同时,也为各种犯罪活动提供了支持.新型的犯罪形式借由信息网络技术的加持由传统的物理空间迁移到了网络空间上,其中许多犯罪行为无法按照传统刑法(共犯)理论进行解释.其经典犯罪模式可以被概括为"漠不关心"的分离射线型和"心照不宣"的链条型两种类型.网络帮助犯罪行为的犯罪主体之间的意思联络及行为共同性极弱,甚至为零,因此很难被评价为共同犯罪.基于此,《刑法修正案(九)》增设了"帮助信息网络犯罪活动罪"(以下简称"帮信罪").网络接入、资金结算等信息网络技术帮助行为,是典型的中性业务行为,天然地具有被犯罪分子利用以从事犯罪行为的风险."帮信罪"中规定的"明知"要件将中性业务行为与犯罪行为区分开来."明知"的范围应当是明确知道,而不包括可能知道与应当知道.推定是标志基础事实与假定事实之间法律关系的证据法范畴,从方法上说它是一种非论证性的推理,没有连续的推论环节.通过推定证明"明知"的方式具有扩大"明知"范围的风险,即无法排除可知与应知的情形,从而造成罪名的扩大适用,增加信息网络服务入罪的风险,阻碍网络科学技术与社会经济的发展.另外,推定的适用还为了满足司法实践的需求.在"帮信罪"中认定"明知"时,应当摒弃推定的适用,转而交由法官依据个案证据进行证据推论.
人脸识别技术作为一种快速发展的生物特征识别技术已经在刑事侦查领域逐渐得到广泛的应用.其对侦查机关准确锁定犯罪嫌疑人、查明案件事实、提高侦查效率具有一定的积极意义.人脸识别结果作为证据进入刑事诉讼领域已经成为不可逆转的趋势.但人脸识别结果的证据化运用可能带来事实认定错误、"黑箱"效应等风险.为在充分发挥人脸识别技术优越性的基础上防范、化解人脸识别结果证据化运用可能存在的危险性,我国有必要在技术层面建立有关人脸识别的严格技术性规范,并在程序层面完善人脸识别证据的审前公开机制、贯彻直接言词原则的要求、完善专家辅助人制度、规范人脸识别证据的审查判断.
互联网金融消费纠纷的司法审判,对于保证金融消费者权益、化解金融风险具有重要作用.在该类案件中,金融消费者相比于金融经营者总体上居于弱势地位,需要立法的倾斜保护.然而我国目前缺乏互联网金融的专门立法,现有举证责任分配规则也难以适应该类案件的特性,导致其审理过程中在举证责任方面暴露出公平性不足以及证明对象和举证责任主体混乱等问题,不利于金融消费者权益的保护.应在整合现有举证责任分配理论的基础上确立该类案件的举证责任分配规则,以法律要件分类说为主,修正规范说和利益衡量说为辅.厘清该类案件中权利产生要件事实,在此基础上根据互联网金融消费特点合理分配不同要件事实的举证责任,从而为相关案件的审理提供规范保障.
美国证据法法典化以《联邦证据规则》为节点,大致经历了前法典化准备时期、法典形成时期、法典修正困难时期、法典遭遇集中反思时期四个发展阶段.除了判例法的长期积累、理论准备的成熟及立法取径的反复调适,法典形成还受到法典发展的形式理性化、明确统一规则的现实需求与司法限权的实质需要等因素的促动.从理论层面来看,法典化形成过程与证据法的纯化路线有关,其此后遭遇的问题除了与这种路线选择有关之外,也与证据规则的基础是否牢固,成文证据法典与普通法的复杂适用关系以及立法稳定性与僵化性等理论问题都有所关联.而这种流变考察及理论问题的分析对反思我国证据立法模式同样具有启发意义.我国证据法法典化需要考虑法典立法的必要性,也需要考量证据法与诉讼法的关系和限制法官裁量权的方式,兼顾立法基础的既成性以及信息科技时代发展下立法的技术性问题.
The divergent views on the application mode of the empiric rule stem from differences in observation perspective. Setting the discussion of the application of the empiric rule in the realm of criminal judicial proof can ensure a comprehensive conclusion. In terms of substance, criminal judicial proof maintains an internal progressive structure which maps a mode of "from evidence to fact". Such structure can be explained by Tulmin model and Wigmore model. In terms of form, criminal judicial proof maintains an external zero-sum game structure which maps a connection among "prosecution, defense counsel and trial judge". Such structure can be explained by "three-level model". From the perspective of the criminal proof structure, the application of the empiric rule can be divided into three modes: proof of truth, proof of false and valuation. Firstly, by virtue of its normal regularity, the empiric rule, by functioning as the premise of evidentiary inference and the adhesive of compound inference, can be used to prove the truth of the proposition. Secondly, because the empiric rule takes characteristic of probability, by attacking and refuting the reliability of the application of the empiric rule, the opposing party can prove false of the proposition; thirdly, the application of empiric rule is influenced by personal cognition. The judge relies on his own understanding of empiric rule to evaluate the evidence and proof process put forward by both the prosecution and defense, and to test the proof strength of the final fact finding.
The restricted self-admission in private lending litigation in China can be divided into two categories: partial self-admission and conditional self-admission. The latter includes three specific forms:independent attack and defense methods attached, denial statements attached, and other relevant facts attached.By reviewing the existing norms and practice, it is found that the relationship between restricted self-admission and relevant systems such as defense, denial containing reasons, and self-admission in advance has not been reasonably clarified, and there are also differences in theory. To regulate the judicial application of the restricted self-admission system, the principle of separability of self-admission should be adopted, while respecting the intention of the self-admission person in order to avoid unjustified disbenefits to him or her. Specifically, the scope of application of Article 7 of the Civil Evidence Provisions should be “expanded once and narrowed once”,which should be expanded for cases where self-admission in advance is restricted or conditioned, and narrowed for cases that constitute denial containing reasons. The judgment of legal effect should shift from a single judgment mode of discretion to a dual judgment mode of formalization and discretion, and pay attention to the restriction of judge’s behaviors such as discretionary allocation for the burden of proof of additional facts of selfadmission in individual cases.
The obligation of the online platform to provide evidence is crucial to the finding of facts in internet related cases. Such obligation originates from Criminal Procedure Law, Civil Procedure Law, and Administrative Procedure Law, under which business organizations are required to provide evidence, and is continuously strengthened in the passage of specialized internet laws and their amendments. However, because the online platforms’ obligation to provide evidence which features data-driven, cross-region, and large in amount,are different from the traditional business organizations’, the online platforms face dilemmas of “lawlessness”in procedural rules while providing evidence, as well as a significant increase in cost burden and legal risk. In practice, the online platform establishes self-developed guidelines and other documents regulating assistance in evidence investigation in order to guide evidence collection and the standardization of providing evidence.Gradually, a model of exclusive service which projects platforms solely provide evidence to public authorities has been formed. However, these countermeasures also bear shortcomings, such as, difficulty in balancing interests of various parties, which include the government, online platforms and platform users, and inadequate protection of evidentiary right, such as the party’s right to obtain evidence. Therefore, under the comprehensive internet governance system, in order to effectively improve the quality and efficiency of online platforms’ performance in providing evidence, the regulation and supervision of “Guidelines” and other documents regulating assistance should be further strengthened, and platform users’ access to evidence from online platform should be widened.
Search should strictly comply with the requirements of due process. The scope of search should be restrained, and excessive interference with human rights should be prevented. In judicial practice, it happens that police seize evidence beyond the scope of search warrant, or beyond the search purpose. Currently, the criminal procedure law is relatively too general in regulating excessive search and evidence obtained thereunder.Such legislation is not only inconsistent with the spirit of rule of law, but also infringes on the individual’s constitutional rights, such as the right against home invasion, the right to property and the right to human dignity.Meanwhile, excessive search also doesn’t comply with the requirement of “comprehensively promoting the rule of law, with the fundamental purpose of protecting the rights and interests of the people in accordance with the law”. In this regard, a more comprehensive system should be established to restrict the purpose and object of search, a mechanism of “suspending doubtful evidence" should be established. Excessive search and evidence obtained thereunder should be subject to judicial review.
At present, the research on justifiable defense system has formed a relatively mature identification standard system of "five elements theory" in the field of criminal law, but the justifiable defense still needs to be actively handled in the field of criminal procedure law. At the level of justifiable defense, there are the difficulties of the inconsistent setting of the distribution of proof responsibility and the proof standard, the proof level of justifiable defense, the damage result orientation of justifiable defense, and the rigid self-directed proof mode of the court at the trial stage. In combination with the theory of “dreistufige Deliktsaufbau” a guilty charge against the prosecution should be constructed. The defense should first exercise the right to provide evidence, put forward relevant evidence of justifiable defense to promote the formation of contention, and then the prosecution should bear the responsibility of justifiable defense and meet a proof system beyond the standard of reasonable doubt. By implementing the system of trial substantive and witness testimony in court, the examination and identification of "one-to-one" evidence should be strengthened, and the evidence types should be appropriately expanded to alleviate the dilemma of scarce evidence resources in justifiable defense cases. Finally, as regards the judge’s self-proof, it is suggested to be given sufficient discretion based on the coordinated application of the rules of experience and the traditional rules of evidence. The judges should follow the principle of in dubio pro reo, thus toachieve a just and reasonable judgement.
The meta-universe brings not only dual innovation of technology and society, but also new types of disputes to the society, which requires necessary innovations of the Civil Procedure Law to solve such disputes fairly and efficiently. NFT infringement cases have become the epitome of such disputes. There is a parallel situation between blockchain evidence and electronic evidence outside the chain. It is urgent for civil evidence law to clarify its technical characteristics and seek solutions to the problem of biased evidence. On the one hand, it is necessary to re-examine and rethink the evidence attribute and proof paradigm of blockchain evidence, and develop the judicial review rules of electronic evidence in China. On the other hand, we should realize that the classical burden of proof theory faces the dilemma of evidence bias, and explore its causes,influences and countermeasures. Among them, spoliation of evidence can be used as a theoretical tool to solve the problem of biased evidence, combined with the integration of network information platform evidence assistance system, which can reform the burden of proof system of NFT tort litigation and achieve equality of arms between the parties.
The probabilistic analysis of evidence mainly includes objective probability analysis, conditional probability analysis and fuzzy probability analysis. Probabilistic analysis of evidence involves a comprehensive application of multiple methods. Under the objective probability analysis, the more direct evidence, the easier it is to ascertain the facts of the case, the more circumstantial evidence, the harder it is to ascertain the facts of the case. When the probative value of a single piece of evidence is insufficient, the standard of proof requires additional evidence, which plays the role of “quality supplement” or “quantity supplement”. Conditional probability holds that the probative value of evidence is not isolated and will change as new evidence emerges.This method can mitigate some risk of error existing in objective probability analysis, but the insurmountable difficulties exist in the value assignment of probandum probabilities. Objective probability analysis and conditional probability analysis, to some extent, can explain the possibility of the existence of the facts to be proved, but they are unable to explain why judges believe that the facts exist. It is fuzzy probability analysis which solves the latter problem. It uses the concept of “membership” to convert “evidence is true” into “belief is true”. This method provides a probabilistic basis for a judge’s inner conviction.
There are many disputes in practice whether electronic notarial evidence has the priority of proof given by the notary law. The analysis of typical cases shows that there are obvious differences in the degree of recognition of the probative effect of different types of electronic notarial evidence in judicial practice. In essence, the issue of the evidential effect of electronic notarization evidence is whether the notarial institution can reach the "hands-on" standard and perform the certification function in handling electronic notarization business. According to the difference between the degree of experience and the effectiveness of proof, electronic notarization evidence can be classified as: the electronic realization of traditional notarization（Category I） and electronic data notarization（Category II）. According to practical experience and theoretical analysis, the first type of electronic notarization meets the "hands-on" standard and should have the priority of proof; The second type of electronic notarial evidence also has the priority of proof after meeting the "handson" standards such as procedural integrity. In judicial practice, the notary institution shall bear the initial burden of proof to prove the environmental cleanliness and procedural integrity of electronic data notarization,and the defense party may raise an effective defense on the ground that there is evidence to the contrary that the electronic data itself is false, or there is evidence to the contrary that the electronic data in the notarization process has been tampered with.
As the deepening cooperation in international criminal justice, cross-border criminal evidence has become an urgent judicial phenomenon that deserves being researched. The matter of cross-border criminal evidence features the segregation of the laws governing evidence collection and admissibility. Thus, compared to the paradigm of model comparison which is based on institutional differences, the theory of evidentiary privilege which focuses on common values produces a better explanatory. Evidentiary privilege features integration of evidence collection procedures and evidence admissibility, tolerance of substantial interpretations of rules’ differences, and an institutional right rather than an individual right. Evidentiary right reflects the convergence trend of criminal evidence law. Evidentiary right is rooted in the internal consistency between the rationalism and the rightism, and a product of the demand of international criminal justice cooperation and construction of international human rights standards. Taking evidentiary right theory as an explanatory framework can resolve disputes in laws under which the cross-border criminal evidence is reviewed and evaluated. Under this framework, providing full safeguards to the defendant’s evidentiary rights and reasonable explanations to the differences in rights protection models can enhance other states’ willingness in providing judicial assistance. Regarding the issue of cross-border criminal evidence and its derivatives, the theoretical community should promote comparative studies on criminal evidence under the theme of “cooperation”, and actively participate in the establishment of the discourse system on evidentiary right.
2022年11月5-6日,第二届全国证据科学博士生博士后学术论坛以线上线下结合的方式成功举办.本次论坛由证据科学教育部重点实验室(中国政法大学证据科学研究院)、"2011计划"司法文明协同创新中心主办,四川大学法学院、教育部证据科学课程虚拟教研室、《证据科学》杂志协办.来自清华大学、北京大学、中国人民大学、中国政法大学、四川大学、华东政法大学、西南政法大学、中南财经政法大学、武汉大学、吉林大学、浙江大学、山东大学、中山大学、东南大学、重庆大学、华东师范大学、南京师范大学、西南财经大学、西南民族大学、中国人民公安大学、北京交通大学、北京工业大学、浙江工商大学等高校的43位博士生和博士后作了主题报告.龙宗智教授、侯一平教授、李浩教授、闵春雷教授、张建伟教授等20位专家进行了论文点评,线下、线上共四百余人参加了本届论坛.
The revision of judicial interpretation fundamentally reconstructs the identification standard of new evidence in the civil trial supervision procedure. That is, whether the original judgment and ruling can be proved wrong is perceived as the identification standard of new evidence. However, the current judicial interpretation still lacks the specific norms of procuratorial organs on the examination and certification procedures rules for new evidence, which may lead to the improper application of new evidence by procuratorial organs.Therefore, it is necessary to sort out the types of new evidence formed by procuratorial organs and to clarify their characteristics. The review procedure of new evidence should be coherent with the existing system, thus to review the admissibility and probative force of new evidence effectively, to apply the standards of proof related to civil litigation appropriately, and to judge whether the new evidence can prove that the original judgment and ruling are wrong accurately. In addition, it is suggested to refine the responsibility of the procuratorial organ for the production and explanation of new evidence in the retrial trial. to clarify the facts identified by the procuratorial organ based on the new evidence as the basis of the retrial judgment, to increase the disciplinary power of the procuratorial organ for the parties to submit new evidence overdue, to improve the mechanism for the procuratorial organ to use new evidence in the civil trial supervision procedure, and to perform the functions and powers of procuratorial supervision properly.
"Forensic science" in common law countries has become an interdisciplinary subject involving law, medicine, physics, chemistry, psychology and other disciplines. There is no subject formally being called "forensic science" in China, but only an analogue called "judicial authentication". However, based on the state’s encouragement for the construction of cross-discipline and the reform of the trial-centered litigation system, the preliminary conditions for the establishment of the “forensic science” as the first level discipline under the interdisciplinary subject have been fulfilled. In the proceeding of "trial-centered" litigation, courts often need to complete a series of activities, such as determination of specialized issues, identification of expert materials, selection of expert witnesses, and evaluation, interpretation, acceptance or reappraisal of scientific evidence（expert opinions）. The activity itself has the characteristics of "applied law" and "scientific evidence examination" simultaneously, thus, judges, parties of both prosecution and the defense should have the competence thereof. However, in our specialties of law and public security technology, the cultivation of professional talents of law and evidence science is divided. E ach secondary discipline under the first-level science of public security technology obviously serves for criminal investigation, and there is a significant gap between the discipline construction, cultivation of professional talents and the "trial-centered" litigation. With the specialty of public security technology being exclusively responsible by police colleges, the construction of court science and talent training under the discipline of law, which is different from the subject of public security technology, presents a vacuum. Therefore, by combing the concept of "forensic science" from the cross-disciplinary perspective, the differences between similar disciplines and the need of the construction of the rule of law, it is of positive significance to build the discipline of "forensic science" with Chinese characteristics.
