開場白
本文只是說書本的故事。
2015 年馬鞍山西沙路命案和 2018 年宿舍命案審結後，一些人問「你覺得他無罪嗎？」女問的，男思考如何回答。男問的，男想想如何辯論。
他/她們讀報後，認為知道真相，一些人認為法庭是找真相的地方。
書本怎麼樣說
Murphy on Evidence, 14th Edition, Richard Glover, Oxford University Press, pages 3 and 4：
1.2 THE NATURE OF THE JUDICIAL TRIAL
For legal purposes, the nature of evidence can best be understood by reference to the nature of the judicial trial. A trial is an inquiry into past events, the main purpose of which is to establish to an acceptable degree of probability those past events which it is claimed entitle the court to grant or deny some relief in accordance with law. From a scientific viewpoint, evidence may be defined as any material which would aid the court in establishing the probability of past events into which it must inquire.4 Historians, journalists, and others also seek to establish the probability of past events, but their inquiries are carried out under quite different circumstances from those under which a court works. The principal characteristics of a judicial trial, which distinguish that process from historical and other inquiries, are as follows:
- The parties define for the court what the issues to be inquired into are. Legal proceedings are commenced by a party. The court has no power to bring matters before itself, and must wait to be seised of a case by a party. The parties then further define the issues which the court is to resolve, and once the issues are defined, both the court and the parties must confine their investigation to them.5 This is, of course, quite different from the legal viewpoint, which considers also whether certain kinds of evidence should be excluded, notwithstanding their potential in helping to reconstruct the facts Procedurally, the issues are reflected in the statements of case or indictment. They are narrow and precisely defined, and may exclude much material which a historian would feel bound to consider in exploring the entire history of an event.
- Legal disputes must be resolved within a reasonable time and at reasonable expense. The outcome of a judicial trial determines the rights and obligations of the parties, and may result in loss of life or liberty, loss of financial resources, of parental rights over children, or of reputation. There is no possibility of a detached, academic inquiry. Time limits are an integral part of the trial process, and the parties’ preparation of the case must be accomplished within the time limits established.
- Trials are not objective inquiries into past events, but adversarial contests, in which parties, who have a vital interest in the outcome, not only decide what evidence they wish to present and prevent from being presented, but also present the evidence in as persuasive a manner as possible, a manner calculated to win them the sympathy and support of the court. Each party also seeks to persuade the court, by means of partisan, persuasive argument, to interpret the evidence in a light favourable to his case.
- A judicial trial is not a search to ascertain the ultimate truth of the past events inquired into, but to establish that a version of what occurred has an acceptable probability of being correct.6 It is in the nature of human experience that it is impossible to ascertain the truth of past events with absolute certainty. Nonetheless, a historian or a journalist is entitled to set his own standard of probability, which may correspond to truth as closely as he wishes. A court accepts predetermined standards of probability, which depend not on the facts of the individual case, but on the type of case under consideration. The highest standard of proof demanded by a common law court in any circumstances is proof beyond reasonable doubt. This is a high standard but falls well short of absolute certainty. This standard is demanded only of the prosecution on the issue of guilt in a criminal case; in all other cases, the standard is that of the balance of probability, i.e. that the event is more likely than not to have occurred as alleged. In relation to many secondary issues, an even lower standard is employed, namely, that there is some evidence capable of supporting the proponent’s version of the event (a prima facie case).
- To the extent that juries are employed as triers of fact, the above considerations are compounded. Juries consist of laymen and women who have no training in the evaluation of evidence, and who are more likely to be swayed by partisan persuasive argument than those with professional experience of evidence.
4 This is, of course, quite different from the legal viewpoint, which considers also whether certain kinds of evidence should be excluded, notwithstanding their potential in helping to reconstruct the facts.
5 Though since the coming into force of the Civil Procedure Rules 1998, the courts have begun to take a more proactive role in defining what issues it is necessary to decide. The Rules require a civil court to undertake the overall management of cases brought before it.
6 Notwithstanding statements sometimes found to the contrary, e.g. that contained in American Federal Rule of Evidence 102, which states that the purposes of the Rules of Evidence are that: “… the truth shall be ascertained and proceedings justly determined”. The second of these goals is worthy, if imprecise; the first is worthy, but ultimately unattainable.
收場白
「司法審判不是為了確定所調查的過去事件的最終真相，而是為了確定所發生的事情的一個具有可接受的正確概率的版本。」 ——- Richard Glover. (2012). Murphy on Evidence. Oxford University Press. Page 3.
「程序參加者如果完全缺乏立場上的對立性和競爭性，就會使討論變得遲鈍，從而影響決定的全面性、正確性。」——季衛東。《法治秩序的建搆》。北京、中國政法大學出版社。1999。第 26 頁。