论英美两国专家意见可采性与反传闻规则的复合关系

On the Compound Relationship between Admissibility of British and American experts’ opinions and Their Anti-Hearsay Rule

英美两国专家意见可采性与其反传闻规则之间存在着复合关系。该复合关系包含两大问题:一是如何在庭审中恰当处理'作为专家证言基础的不具证据可采性的传闻资料'?二是如何在庭审中正确处理'作为专家证言基础的具有证据可采性的传闻资料'?就第一个问题而言,传统观点认为:专家证人既不得考虑其专业同行或其前辈所观察到的事实,也不能引用这些人发展的学理,还不得考虑他人提供给法院的事实。其原因在于:这些事实并非该专家自身观察所得。由于现代科技快速发展,该规则的适用严格性已大为放松。现代证据法已将关注的焦点从作为专家证言基础的数据的可采性,转移到由专家在法庭外的操作实践所决定的可靠性上来。就第二个问题而言,传统证据法只允许在反询问中利用'作为专家证言基础的已发表论文'。而在现代英美民事审判的主询问及反询问中,法院开始允许将此类资料接纳为实质性证据了。

There is a compound relationship between the admissibility of British and American experts’opinions and their Anti-Hearsay Rule.This complex relationship involves two major issues:how to properly deal with'inadmissible hearsay material that is the basis of expert testimony'in a trial?Second,how to properly deal with'hearsay with admissibility of evidence as the basis of expert testimony'in a trial?As for the first question,the traditional view is that expert witnesses should neither consider the facts observed by their professional counterparts or their predecessors,nor cite the theories that developed by them,nor consider the facts provided to the court by others.The reason is that these facts are not from the expert’s personal observation.Due to the rapid development of modern science and technology,the application of this rule has been greatly relaxed.Modern evidence law has shifted its focus from the admissibility of data,which is the basis of expert testimony,to the reliability,which is determined by expert’s practice outside court.As for the second question,traditional evidence law only allows the use of'published papers as the basis of expert testimony'in cross-examination.In modern Anglo-American civil trials,the courts have begun to allow such material to be admitted as substantial evidence.