留学生法律论文优秀案例
论文作者:英语论文论文属性:短文 essay登出时间:2014-09-20编辑:zcm84984点击率:7277
论文字数:3443论文编号:org201409192211297397语种:英语 English地区:美国价格:免费论文
关键词:留学生法律论文优秀案例Law Essay《证据条例》
摘要:本文是一篇留学生法律论文优秀案例,证据,它是古代的普通法规则上需要特殊的知识和能力的一门学问。它是从拥有必要的专业知识的目击者那里得到的,这样的证人也被称为“专家”。
法庭上专家证人的使用和问题
证据,它是古代的普通法规则上需要特殊的知识和能力的一门学问。它是从拥有必要的专业知识的目击者那里得到的,这样的证人也被称为“专家”。[1]在法庭上使用专家证人是由曼斯菲尔德勋爵在Folkes和Chadd的诉讼中首先使用的[2],他提到“有科学常识的人所提供的意见也许会带有他们自己的科学知识。“虽然意见证据作为一般规则是不可接受的,但是这个例外得主要原因是专家的意见一般带有他的专长知识,而这例外在民事和刑事案件中都适用。在民事诉讼方面,这个例外的法律依据是《证据条例》(第8章)的58节(1)部分,指出专家的意见 “在一些相关的问题中,他有资格给出专家证据”下是允许的。然而,关于专家证人,存在一个潜在的利益冲突问题。[3]一方面,专家证人的最高义务是协助法院;另一方面,在这种相持的制度下,因为其服务他能获得其中一方的报酬,这也许会导致“多方角色”的出现,而这是以公正为代价的。[4]
Use And Problems Of Expert Witnesses In Court Law
essay
It is an ancient common law rule that on a subject requiring special knowledge and competence, evidence is admissible from witnesses who have acquired the necessary expertise on that matter, and such witnesses are known as “experts”. [1] The foundation of the use of expert witness in court was laid down by Lord Mansfield in Folkes v. Chadd [2] that “the opinion of scientific men upon proven facts may be given within their own
Science.” Although opinion evidence is inadmissible as a general rule, the main exception to this rule is the opinion of an expert on matters resting within his expertise, and this exception applies in both civil and criminal cases. Regarding the civil proceedings, the statutory recognition of the exception is reflected by section 58(1) of the Evidence Ordinance (Cap 8) that an expert’s opinion is admissible “on any relevant matter on which he is qualified to give expert evidence”. However, there is an issue of potential conflict of interest on the expert witness. [3] On one hand, an expert witness has a paramount duty to assist the court; on the other hand, he is remunerated for his services by one of the parties under the adversary system, which assumed a “more partisan role” for them at the expense of impartiality. [4]
This
essay aims to examine whether the aspiration of expert objectivity is realistic in our adversary system. In the next part, we shall discuss the problem of adversarial bias as well as the duties of expert witnesses. In part 3, the applicability of court appointed experts in Hong Kong will be examined with reference to the inquisitorial system. In part 4, we will explore the problems associated with the small population of potential experts in Hong Kong, followed by the court’s power in dealing with expert disagreements in part 5. Finally, a conclusion will be drawn in the last part of this paper.
The problems associated with expert witness
It is often said that the principal danger of adversary expertise is “motivational bias”. [5] As expert witnesses are employed by one of the parties to the litigation and they would purposely mould their views to fit their client’s proceedings. In fact, the problem of lack of objectivity in expert evidence is not a new phenomenon. As early as in Lord Abinger v. Ashton [6] , Sir George Jessel said: “Undoubtedly there is a natural bias to do something serviceable for those who employ you and adequately remunerate you,” and expert witness may even considered themselves as the “paid agents” of their employers. The problem of adversarial bias is also “widespread” in Hong Kong. [7] As identified in the Interim Report of the Working Party on Civil Justice Reform, a major problem concerning expert evidence is the partisanship and lack of independence among experts. [8] Thus, it is suggested by Professor Gary Edmond that partisanship may be “an unavoidable feature of knowledge production and expert
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