論刑事鑑定與最終爭點法則

On the Criminal Expert Witness and the Ultimate Issue Principle

依刑事訴訟法第198條：「鑑定人由審判長、受命法官或檢察官就下列之人選任一人或數人充之：一、就鑑定事項有特別知識經驗者。二、經政府機關委任有鑑定職務者。」規定，法院得以鑑定人協助了解證據或事實。惟關於鑑定適用之限制，現行法並未有所規範。美國法上之最終爭點法則於我國有無適用？應加探討，以免誤用導致事實認定錯誤，妨礙審判公正。

The court may employ the expert witness to realize evidence and the fact according to Article 198 of the ROC Criminal Procedure Code, providing that:“A presiding judge, commissioned judge, or public prosecutor may select one or more expert witnesses from the following: (1) A person who has special knowledge and experience concerning the matter which requires expert opinion; (2) A person who is commissioned by a public office to perform duties of an expert witness.”However, the current law does not limit the way to employ expert witness. Whether the ultimate issue rule derived from the Anglo-American system applies in the current system deserves further review so that any error in factfinding as well as criminal injustice would not result from misunderstanding of the rule.