案件事实认定中法官的经验偏差防范研究

Study on Prevention of Empirical Bias of Judges in Case Fact-Finding

在司法审判中,案件事实的认定由法官运用经验常识进行证据推理得出。经验常识是法官案件事实认定的基础。但因其自带的盖然性特点,经验常识同时又是十分危险的。结合卡尼曼的双加工系统理论,法官在认定案件事实时会受到"经验—直觉"系统和"理性—分析"系统的双重影响,这导致法官可能会从证据中提炼出错误的案件信息,排除相关证据或采纳不相关的证据。同时,经验常识在证据的演绎推理和归纳推理中都可能被错误运用,直觉性经验甚至还会对案件事实认定造成隐性偏差。法官的经验偏差可能成为错案的导火索。建议通过类案检索、专业法官会议或审判委员会、人民陪审员参审等程序,不断扩大法官自身经验范围,必要时运用间接相关证据证明经验或者运用图示法明示经验的推理过程,还可以利用当事人或控辩双方的质证纠正法官的经验偏差,从而保障案件事实认定的准确性。

In judicial trial,the fact-finding of case is derived by the judge using experience and common-sense to make evidence reasoning.Experience and common-sense of judges are a foundation for fact-finding.However,because of its own probability characteristics,experience and commone-sense also very dangerous.Combined with Kahneman’s dual-processing system theory,the judge will be influenced by the"empirical-intuitive"system and the"rational-analytical"system in fact-finding.This may lead the judge to distill the wrong information from evidences,excluding relevant evidence or admiting irrelevant evidence.In addition,experience and common-sense can be misapplied in both deduction and induction of evidence,intutive experience even can cause implicit bias in fact-finding of case.These empirical biases of judges eventually might become one of triggers for wrongful convictions.It is recommended that the scope of judge’s own experience be expanded through such procedures as the case retrieval,the conference system of professional judges or the system of adjudication committee,or participation of people’s assessor in trials,using indirectly relevant evidence to prove experience or illustrating the reasoning process of experience by chart method when necessary,using cross-examination by the parties or between prosecution and defense to correct the empirical bias of judges,which guarantee the accuracy of case fact-finding.