文字之外：冤錯案件事實問題糾正機制分析

普通刑事案件的複雜性可以通過與歷史遺留性質問題的案件進行對比而得以展示。普通刑事案件發生冤錯，主要在於事實認定，而非法律適用。事實認定，是一種無法完全用文字進行表述的內心體驗。由於不同的經歷、教育背景、職業利益等原因，偵查人員和審判人員對被給定的同一個案件事實，具有不同體驗，往往形成認知分歧。案件複審，基本發生在原審生效多年後。原審親歷過現場，並與被告人和其他訴訟參與人有過直接、言辭方式的互動。複審只能依賴紙面閱讀。由於時空的轉換，原審和複審具有十年以上的視域跨度和認知差異，因此易形成事實判斷對立。對於事實問題的認知對立，集中展示在如何看待“真凶”的出現。相對於政治和制度大敘事，以認知能力提高為視角，對於冤錯案件事實問題判斷和糾正機制的建立，具有更為基礎的地位。

The complexity of ordinary criminal cases can be demonstrated by being compared with cases of historically- inherited nature. Wrongful charges in ordinary criminal cases is mainly due to problems in fact-finding, rather than the application of law. Fact-finding is an inner experience that can not be fully expressed in words. Due to different experiences, educational backgrounds, professional interests and so on, those who participate in investigation and trial have different experiences with the given facts of the same case, and often form cognitive differences. There trial of a case basically takes place many years after the original trial took effect. The original trial experienced the scene in person and had direct and verbal interactions with the defendant and other litigation participants. Review can only rely on paper readings. And due to social changes, there are often more than ten years of cognitive gap between the original trial and the retrial, which may easily give rise to opposition in factual judgments. The cognitive opposition on factual issues is concentrated on how to respond to the emergence of the ‘true culprit’. Compared with the political and institutional narrative, the perspective of cognitive ability improvement is more fundamental and critical for the establishing of a mechanism for judging and correcting factual problems in wrongful cases.