陈邦达

（华东政法大学中国法治战略研究中心，上海松江 201620）

【摘 要】 科学证据的审查判断向来是审判的难题。美国通过法庭聘请专家证人弥补法官的知识短板，履行多伯特案后法官肩负之科学证据守门人职责。这项制度在硅胶丰胸案中得以成功运用。广义上的法庭聘请专家包括“技术顾问”和《联邦证据规则》706 条“法庭聘请专家”，分别具有不同的法理依据、职能与适用程序。该制度能避免专家证人的党派性，帮助事实裁决者采纳科学证据，甚至促进诉讼和解。但由于与当事人主义理念不符、增加诉讼资源的投入、法庭聘请专家也未必中立，其实践运用有限。它对我国专家辅助人制度有所启示：在职权主义基础上引入专家证人对抗式要防止过犹不及，避免专家辅助人党派性弊端。即使法庭聘请专家辅助人，也难以保证中立。从根本上解决法官的知识短板，促进法学与司法鉴定教育的融入，培养复合型法官是必由之路。

【关键词】法庭聘请专家技术顾问专家辅助人鉴定意见可采性；专家证人

【中图分类号】D915.13

【文献标识码】A 【文章编号】1674-1226（2017）06-0698-11

Practice and implications of court-appointed experts witnesses in the united states. Chen Bangda. Center for rule of law strategic, East China University of Political Science and Law, 201620 Shanghai, China.

【Abstract】The examination and determination of scientific evidence has always been a difficult task for the fact finder during the trial process. In U.S., court-appointed expert witnesses are employed to cover the knowledge shortage of judges and to aid judges in fulfilling their duties as “gate keepers” of admissibility of scientific evidence since the Daubert decision. And such system was successfully applied in cases of silicone-gel-breast-implant products liability.The court-appointed experts in broad terms usually can be classified in two ways, either as the technical advisor or as the expert witness under Rule 706 of Federal Rules of Evidence, which bear different legal basis, functions and application rules. This system of court-appointed experts is designed to prevent partisanship of expert witness, assist fact finders in admitting complex scientific evidence, and even encourage parties to reach settlement. However, due to its incompatibility with the adversarial values, tendency to consume more judicial resources, and uncertainty in impartiality of court-appointed experts, the system has its own limitation in practice. We can learn from this system when constructing the expert assistant system in China. The partisanship of experts should be minimized when we add adversarial factors into the inquisitorial system. Even those experts appointed by court may not be able to keep neutral.The promising path to keep on educating judges, promoting the integration of knowledge of law and education of judicial appraisal, thus cultivating adjudicators who can understand both law and science.

【Key Words】 Court-appointed expert, Technical advisor, Expert assistant, Admissibility of expert opinion,Expert witness