语言证据与专家证言： 美国司法实践视域下的可采性研究及其启示

出现在司法实践中的语言证据所指向的是不同载体证据中涉及的语言问题,既可指内容,也可指形式。由于案件中的语言争点往往需要专业领域的分析,因此衍生出了语言类的专家证言。语言类专家意见的作出主体在我国司法语境下可归属于“有专门知识的人”的范畴。依据法律规定,结合我国司法实践的需求,我国“有专门知识的人”在司法实践中可以借鉴普通法法域专家证言适用的某些规定与标准。但正如美国司法实践中意见证据采纳规则所要求的那样,司法实践适用学理研究需要标准,标准的建立需要学界与司法界互相了解,并通过模拟试验的方式确定可适用范围与可采纳标准,进而推向司法实践。

Language Evidence and Expert Testimony: A Study of Admissibility in the Field of Judicial Practice in the United States and Its Implications

In the field of forensic linguistics, "linguistic evidence" is regarded as a type of evidence which is encoded in the form of language. Integrated within the rules of evidence in common law system, "linguistic evidence" is frequently interweaved with role or functions of linguists appearing in court: when the content or the form of language in a case is disputable , analyses and conclusions are usually provided by linguists. On one hand, in common law judicial practices, it is common that expert witness is employed by parties (plaintiff and defendant in civil lawsuits; prosecutor and defendant in criminal cases) of a case to settle technical or specialized disputes; on the other hand, a judge is not obliged to admit the expert testimony or to decide a case based on the expert testimony. For instance, in the United States, the rules of evidence require that expert testimony should rest on scientific or technical knowledge; therefore, it is controversial whether “expert testimony of linguistic evidence" is scientific or technical. On the contrary, in the People's Republic of China (hereinafter the P. R. C.), technical or specialized issues in judicial practices are in principle tackled by identification or examination reports rendered by judicial identifiers who are administrated by judicial authentication institutions. The institutions are set up after being accredited and registered by provincial judicial administrative authorities. Besides, categories of judicial identification and examination are refined by laws (except for handwriting, most "linguistic evidence" in theory does not fall into the categories). In 2012, the revisions of the Civil Procedure Law of the P. R. C. and the Criminal Procedure Law of the P. R. C. introduced a new role entitled "person with expertise" (there are scholars who refer to "person with expertise" as "expert assistant" or directly refer to "the person" as "expert witness") into judicial practices: parties may lodge applications to the people's courts to allow "the person with expertise" to appear in court and render opinions ("expert opinions") on identification/examination reports or on specialized issues. Grounded on the background information, this empirical study explores civil and criminal cases tried by the federal courts of the United States (expert witnesses proffered analytical analyses on "linguistic evidence" in all cases) from four perspectives: firstly, the manifestations of "linguistic evidence"; secondly, persons who were considered qualified to proffer testimonies; thirdly, analytical methods adopted by the expert witnesses in the selected cases; fourthly, standards and bases adopted by the judges of the cases when they conducted their discretions on the expert testimonies of different "linguistic evidence". There are four steps in carrying out this study: firstly, civil and criminal cases were searched and collected from LexisNexis and Leagle by entering keywords, e.g. linguistic evidence, linguist, etc.; secondly, the cases were classified and counted (with the assistance of Excel) according to different causes of the cases, distinct forms of linguistic evidence and diverse analytical methods on which the expert testimonies rested; thirdly, under what circumstances would the testimonies be admited or excluded were observedwhether the testimonies were adopted or rejected?]; fourthly, discussions and conclusions on the previous observations were presented. Though there is a disparity in systems of laws and rules of evidence between the P. R. C. and the United States, comparatively mature judicial experience of the United States is still able to enlighten the future orientation of the quasi-counterpart ("person with expertise") in judicial practices of the P. R. C. given that in the P. R. C. the role of "person with expertise" is yet to be clarified, and cases whose parties proffered "the person with expertise" to appear in court and render opinions are still limited.