我国刑事诉讼中意见证据规则适用的实证分析

Empirical analysis on applicability of opinion evidence rule in chinese criminal proceedings

实证研究表明,我国法官在刑事诉讼中运用意见证据时存在标准不统一的问题。其主要原因在于,刑事诉讼法针对意见证据采用的"原则+例外"的体例,使得例外的表述过于笼统。通过实证分析,并借鉴域外意见证据规则的规定,本文主张,只有建立在亲历感知基础上所作出的推断、评论或者猜测,才有可能被采纳为证据使用。因此,应当进一步完善我国现有的刑事意见证据规则。

According to the empirical study, Chinese judges don＇t apply unified standard to decide the admissibility of the opinion evidence in criminal proceedings. The main reason is that the exception rules, which are the major part of the ＂principle ＋ exceptions＂ legislative scheme that control the admissibility of the opinion evidence in criminal proceedings, are written in very general terms. Based on empirical analysis and the reference of foreign rules on opinion evidence, this article advocates that, only the inferences, comments or speculations, which are derived from the first-hand perception, are admissible. Therefore, further improvement is needed for our present rules on opinion evidence in criminal proceedings.