测谎在台湾地区为被告有利证明方法的检讨

A reflection on polygraph evidence used as evidence favorable to the defendant in Taiwan

台湾地区司法实务上使用测谎鉴定作为辅佐证据的情形相当普遍。法源主要依据台湾地区"刑事诉讼法"第161-1条:"被告得就被诉事实指出有利之证明方法。"此所指之证明方法没有绝对严格的限制,目的在发现真实、保障被告人权,故而台湾地区法院认可经被告同意施测之测谎结果具有证据能力。然而,测谎在台湾地区现已演进成"反客为主"的现象,刑事被告主动要求测谎,并且主张以测谎通过之结果作为被诉事实有利的证明;反之,未通过测谎的被告则上诉质疑测谎结果的可靠性,致使法院过去对于测谎结果多采肯定说之态度起了变化。相较于刑事案件,"民事诉讼法"第355条第1项明文:"文书,依其程序及意旨得认作公文书者,推定为真正。"致被告于民事庭审援引测谎鉴定报告的情形亦不遑多让。测谎成为被告另类脱罪、卸责的手段,对于台湾地区司法实务长期依赖测谎之使用,预料产生冲击与警惕之意义。实有重新检讨测谎作为证明方法之必要。

Polygraph test results are commonly used in Taiwan Residents courts. According to the Taiwan Residents Criminal Procedure Code §161-1, the defendant can introduce proof method favorable to him that exculpate him from the accused fact. The so-called proof method is not strictly limited. Such rule aims to promote the truth finding and the protection of the defendant＇s human right. Therefore, Taiwan Residents courts admit polygraph test results as long as defendants agree to be tested by polygraph. However, polygraph test results has evolved to the major subject in Taiwan Residents trials. The defendant would voluntarily take the polygraph test, and introduce the result of passing the test as favorable evidence in his defense. If the defendant fails the test, the defendant will make appeal to challenge the reliability of the test result. The new development has weakened the court＇s positive attitude about the admissibility of polygraph test results. As to the Civil Procedures §355-1, on the other hand, documents that are made in accordance with certain required procedure and its true intent are presumed to be authenticated. Such rule also leads to frequent use of polygraph test results in civil trials. Polygraph test results have become an unusual alternative to exculpate the defendants. Such phenomenon will cause expected impact and significant alert to Taiwan Residents courts＇ long-term reliance on polygraph test results. Thus, it＇s necessary to reappraise the qualification of polygraph as an evidential proof.