人工智能时代被告人质证权实现中的隐忧及其消解

On Difficulties of the Defender’s Confrontation Right and Its Resolution in the Age of Artificial Intelligence

人工智能在司法领域的运用,给审判场域和被告人诉讼权利保障带来许多变化。卢米斯案折射出算法"黑箱"可能成为弱人工智能时代被告人质证权实现的新障碍;审判场域迁移并未给证人等出庭作证带来明显改观,反而影响庭审的交叉询问;"新案卷笔录移送制度"加剧控辩双方的不平等,而"新法定证据主义"导致被告人权利限缩。要消解人工智能时代被告人质证权实现中的隐忧,被告人的质证范围应扩大至证据和数据,明确司法人工智能的适用界限,证明标准应当将主观性与客观性相融合,并且强化律师的"智慧辩护"。

The application of artificial intelligence in the judicial field has brought many changes to the trial scene and the defendant’s litigation rights. From the case of Loomis, we can see that algorithm “black box” may become a new obstacle to the realization of the defender’s confrontation right in the age of weak artificial intelligence. The transfer of trial scene does not bring obvious improvement to the attendance of witnesses. Instead, it obviously affects cross examination in court. “New record transfer system” will aggravate the imbalance between the prosecution and the defense. We should recognize the hidden worries brought by artificial intelligence, respect the inherent attributes and laws of justice, and realize the “relative transparency” of algorithm. The scope of confrontation right of the defendant should be expanded to two levels: evidence and data. The boundary of artificial intelligence in justice needs to be clarified. The standard of proof should combine subjectivity with objectivity. We should also strengthen the “intelligent defense” of lawyers.