试论证人出庭作证率之现状及对策

文章以我国刑事审判实践中证人出庭率低为剖析点，探讨了证人出庭作证率低的成因，并就如何提高证人出庭作证的频率和保障力度提出了具体的立法建议和完善措施。     

刑事诉讼中强制证人出庭作证之我见

本文作者根据多年检察系统工作经验,认为证人不出庭作证是我国司法审判的一大难题,强制证人出庭作证在我国能否行得通一直是学术界和司法界争论和研究的热点问题之一,曾经有多名专家学者对此提出:强制证人出庭作证.其实,强制证人出庭缺乏基本传统法律文化和社会现行状况支持,而且也不符合权利与义务相一致的原则和非法证据排除规则,同时也不符合法律对证据的要求.这些对于强制证人出庭作证来说是一个非常大的障碍.     

浅析行政诉讼中证人出庭现状

在行政诉讼中,证人一般情况不出庭作证,因此不利于法院公正及时的审理行政案件.本文通过对证人不出庭作证的现状分析,提出几点建议,目的在与完善行政诉讼中的证人出庭制度.     

论我国生态补偿制度的缺失及建构——以云南省为例

云南既是我国生物多样性十分丰富也是生态环境十分脆弱的地区,生态保护与发展经济的矛盾极为尖锐,如何科学有序地推进生态补偿制度建设,是云南当前必须解决的重大课题.由于目前生态补偿制度建设还存在科技支撑不够、政策法规滞后、缺乏长期性和稳定性、融资渠道单一等问题,必须加快立法进程,为生态补偿制度建设保驾护航;明确轻重缓急,有序推进生态补偿制度建设;充分发挥政府和市场的互补作用;创新生态补偿方式,提供长效的生态补偿机制.     

浅议强制证人出庭作证的必要性

随着我国民事审判制度改革的不断深入,强化庭审功能是一项重要内容,这就必然要求所有证据包括证人证言都应当在开庭时出示并经双方当事人质证.证人证言在一些案件中显得尤为重要,证人不出庭作证导致当事人无法质证,法官在庭上不能接触证人,最终影响司法公正.为改变证人不出庭作证的现状,有必要借鉴吸收其他国家和地区的立法经验,结合我国国情,作出相应的法律规定.     

国民政府对南京大屠杀案审判的社会影响论析

战后国民政府对南京大屠杀案的审判引起了社会的广泛关注,在检举战争罪犯、搜集证据、法庭审判以及判决执行等各个环节中都有社会的积极参与.通过媒体报道、公开审判以及专题电影的公映等传播方式,审判的社会影响范围得以扩大.通过当时的报刊以及法庭的相关记录,不难体认到民众认知的诸多面相以及审判在社会层面的实际影响.审判使受害者的个体创伤记忆得以申诉并在社会广泛传播,由此产生了早期关于侵华日军南京暴行的集体记忆.由于国共内战以及冷战的意识形态影响,解放后对南京大屠杀案审判的社会影响,特别是审判与有关南京大屠杀的早期集体记忆生成的关系被漠视或者被淡忘.     

自然资源行政保护行为刍议

在有关自然资源保护的诸种措施中,行政保护行为是最常用也是最有效的方式.自然资源行政保护行为相对于其他立法保护、司法保护以及其他社会保护而言,具有明显优势.在确认自然资源范围、厘清自然资源归属以及确立自然资源利用规则等方面有其独特的价值功能.     

试析我国劳动合同经济补偿金制度的不足及完善

劳动合同经济补偿金制度是我国劳动法中的特色规定,体现了我国对劳动者的倾斜保护原则.<劳动合同法>在<劳动法>的基础上,扩大了用人单位给予劳动者经济补偿的情形,增加了当劳动合同因期满发生终止时要支付经济补偿的规定,并取消对普通劳动者经济补偿的年限限制,但对高收入者仍有上限规定,新法的制定很明显加大了对劳动者倾斜保护的力度,但是作为一项制度,关于经济补偿金的规定仍存在很多不足,有待于继续探讨和研究.     

生态综合补偿试点方案

<正>为贯彻落实党中央、国务院的决策部署,进一步健全生态保护补偿机制,提高资金使用效益, 国家发展改革委近日特制定《生态综合补偿试点方案》。近年来,我国生态补偿资金渠道不断拓宽,资金规模有所增加,但仍存在资金来源单一、使用不够精准、激励作用不强等突出问题。为进一步完善生态保护补偿机制,按照《国务院办公厅关于健全生态保护补偿机制的意见》(国办发[2016]31 号)等有关文件要求和 2019 年中央经济工作会议的部署,开展生态综合补偿试点,     

湖南省流域生态补偿立法偏失及矫正

湖南省流域生态补偿立法实践在流域补偿适用范围和补偿目的定位上存在偏差,在对正外部性补偿和市场补偿机制两方面存在缺失。矫正流域生态补偿立法实践上存在的偏失,应该从理论上对流域生态补偿重新定位,从流域生态补偿概念界定、补偿目的限定、补偿价值指向和补偿激励功能4个方面予以纠正。     

Sexual abuse victimization and the child witness in Canada: Legal, ethical, and professional issues for psychologists.

The Canadian legal system has made a number of significant reforms in the last few decades regarding the rights of child witnesses and, in particular, the rights of those who have disclosed sexual abuse. This paper provides an overview of the law in Canada as it pertains to child sexual abuse victims and witnesses, and reflects on the role and responsibilities of psychologists who work with child witnesses. It reviews the effects of protection reforms and preparation programs on children who must testify, examines some of the current major issues in the research literature in the area of interviewing and assessing sexually abused children, and considers the role of the psychologists as expert witness in court. In addition, it discusses potential ethical dilemmas for psychologists who work with child witnesses, and proposes recommendations for research and clinical practice. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Can people detect eyewitness-identification accuracy within and across situations?

Thefts were staged 108 times for as many witnesses who were subsequently given a photo lineup for identifying the thief. The thefts were staged under conditions designed to yield low (33%), moderate (50%), or high (74%) proportions of correct identifications of the thief. Corroborating past research, the relationship between witnesses' identification accuracy and witnesses' confidence was negligible within conditions. There was no evidence that the confidence–accuracy relationship changed across conditions or that witness confidence changed across theft conditions. A representative sample of 48 witnesses (8 accurate-identification and 8 false-identification witnesses from each of the 3 theft conditions) was cross-examined. 96 undergraduates viewing the cross-examinations showed no ability to detect accurate- from false-identification witnesses within conditions as measured by Ss' belief of witnesses. Although Ss changed their rate of belief of witnesses as a function of the theft conditions (62, 66, and 77%, respectively), the rate at which Ss discounted witnesses' testimony was insufficient across conditions. Ss were especially overbelieving of witnesses when the rate of witness accuracy in that condition was low. (21 ref) (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Accuracy, confidence, and juror perceptions in eyewitness identification.

Undergraduates of both sexes individually witnessed the staged theft of a calculator. The 127 witnesses were then given the opportunity to identify the thief from a 6-person picture array; from this sample, 24 accurate-identification witnesses and 18 inaccurate-identification witnesses were cross-examined with either leading or nonleading questions. 201 undergraduates who served as jurors were unable to distinguish accurate from inaccurate witnesses across the 42 cross-examination sessions. However, jurors in the leading-questions conditions were significantly more likely to believe accurate than inaccurate witnesses, whereas the reverse effect held for nonleading questions. Jurors' attributions of witness confidence were unrelated to witness accuracy, even though these attributions accounted for 50% of the variance in jurors' decisions to believe witnesses. The poor accuracy/confidence relationship among witnesses is discussed in relation to the research on probability calibration. (11 ref) (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Effects of Administrator-Witness Contact on Eyewitness Identification Accuracy.

Concern that lineup administrators can influence eyewitness identifications has led researchers to suggest implementing double-blind testing, an idea that police resist. Using a typical eyewitness paradigm (video event followed by photographic identification test), the present study demonstrated that an alternative technique, minimizing the level of contact between lineup administrators and witnesses, could reduce false identifications without reducing hits. Specifically, witnesses were more likely to make decisions consistent with lineup administrator expectations when the level of contact between the administrator and the witness was high than when it was low. These results are explained within the experimenter expectancy framework. Implications for applied settings are discussed. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Mock Jurors' Perceptions of Child Witnesses: The Impact of Judicial Warning.

The present study examined the impact of a judicial warning, witness age, and the method of testimony presentation on mock jurors' perceptions of credibility of witnesses and accused, and on guilty verdicts. The participants were 435 undergraduate university students who listened to an audio-taped summary of a theft trial followed by abbreviated instructions to the jury. Witness age was 7, 10, or 23, the jury warning was either present or absent when witnesses were children, and the testimony by the prosecution eyewitness and accused were either presented or summarized. For the taped testimony conditions, the mock witnesses and the accused read a fact pattern describing the events in the case and were audiotaped as they answered a series of questions, which constituted direct and cross-examination. The testimony of the 7-year-old child, compared to the 10-year-old, was associated with lower cognitive competence and higher suggestibility, but also with higher accuracy of recall (lower mistaken recollection) and lower credibility of accused. The pattern of results for appraisal of the older child was more similar to that of an adult witness. The young adult was judged to be less trustworthy than children of either age. While the presence of a warning had no impact on guilty verdicts when a 7-year-old was a witness, there were fewer guilty verdicts when a witness was 10 years old. Participants also made fewer guilty verdicts when a young adult's testimony, compared to conditions involving child witnesses, was presented, but not when it was summarized. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Adversary pretrial procedures and testimonial evidence: Effects of lawyer's role and Machiavellianism.

Examined in 2 studies the relative fact-finding efficacy of 2 legal procedural systems: adversary and nonadversary. 206 undergraduates played the roles of lawyers or witnesses in a simulation of the pretrial processes. The witnesses saw a fight, were subsequently interviewed by an adversary or nonadversary lawyer, and testified 1 wk later about the incident. Results support the prediction that witnesses interviewed by adversary lawyers would bias their testimony in favor of the lawyer's client, although lawyer Machiavellianism served as an important moderating variable. The bias transmitted in oral testimony had an influence on the impressions of the factual evidence and responsibility judgments of naive adjudicators, indicating a 3rd-order (lawyer to witness to adjudicator) role-playing effect. (43 ref) (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Eyewitness identification: What can a psychologist tell a jury?

Examines the arguments in favor of experimental psychologists testifying as expert witnesses in cases involving eyewitnesses to inform the jury about problems with eyewitness testimony. Rationales for such use are (1) the assertion the jurors cannot discriminate between accurate and inaccurate witnesses, and (2) the assumption that jurors are too willing to believe eyewitness testimony. The present authors point out that known cases of erroneous conviction due to juror overbelief fail to establish that the frequency is unacceptably high. Other studies indicate that jurors are able to take into account at least some factors that influence witness testimony. Contrary to claims made recently by psychologists and lawyers, it is by no means clear that expert psychological testimony about eyewitnesses would improve jurors' ability to evaluate eyewitness testimony. In fact, it is even possible that this sort of expert testimony would have detrimental effects. A hypothetical example of a prosecutor examining a defense psychologist is presented. (34 ref) (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Source credibility and perceived expertness of testimony in a simulated child-custody case.

Used a 2?×?2?×?4?×?2 completely randomized, between-S factorial design in a simulated child custody hearing to evaluate the effects of the sex of the S, sex of the witness, experience level of the witness, and witness status (psychiatrist, clinical psychologist, social worker, neighbor) on perceived expertness. 192 male and 192 female undergraduates listened to an audiotape of simulated testimony in a child custody case and subsequently completed a semantic-differential questionnaire embedded with items to evaluate perceived expertise of a source. Ss were assigned to different groups based on the version of testimony heard. Results indicate that experience level and witness status significantly influenced Ss' evaluations of witness expertise. Female Ss rated all witnesses higher in expertness, and there was a trend that suggested female witnesses may be judged as more expert. Results are discussed in reference to implicit notions that people may have of mental health professionals involved in court proceedings and the possible ramifications of the involvement of such professionals in legal matters. (26 ref) (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Co-witness information can have immediate effects on eyewitness memory reports

When questioning a reluctant witness, investigators sometimes encourage the witness by providing information about what other witnesses have said. Three experiments were conducted to test the combined effects of such co-witness information and suggestive questioning on the accuracy of eyewitness memory reports. Experiment 1 was analogous to the experience of a witness who receives information from an interviewer or questioner about what other witnesses have already said, whereas Experiments 2 and 3 simulated the situation in which a witness receives information directly from a co-witness. In all three experiments, when participants received incorrect information about a co-witness's response, they were significantly more likely to give that incorrect response than if they received no co-witness information. This effect persevered in a delayed memory test 48 h after the initial questioning session in Experiment 3. Accuracy rates were lowest of all when incorrect co-witness information was paired with questioning that suggested an incorrect response. These results have implications not only for the immediate effects on the accuracy of witnesses' memory reports, but also for the impact that even one such inaccurate report can have on the manner in which a case is investigated by the police or other authorities.     

Child hearsay statutes: At once over-inclusive and under-inclusive.

Special child hearsay statutes allow for the admissibility of demonstrably reliable but otherwise inadmissible children's hearsay. These statutes were among other child witness innovations that proliferated in the 1980s and 1990s to redress the proof problems that arise in child sexual abuse prosecutions. The author argues that the special child hearsay statutes are at once over-inclusive and under-inclusive: over-inclusive in that child sexual abuse prosecutions typically include the testimony of the child witness and multiple hearsay witnesses; and under-inclusive in that they allow for the admissibility of children's hearsay in child abuse cases but may require the child declarant to be the child victim, excluding the hearsay statements of other child witnesses, and typically do not apply to the hearsay statements of children who witness crimes other than child abuse, like domestic violence. She proposes reforms to remedy these deficiencies in the special child hearsay statutes. (PsycINFO Database Record (c) 2010 APA, all rights reserved)