司法詢問在兒童性侵害案件之應用──以美國法為借鏡

The Application Forensic Interview in Children Sex Abuse Cases: A Comparative Perspective

兒童司法詢問技術是一套以兒童發展為核心，擷取兒童證詞之技術。司法詢問員並非為特定一造服務，其目的在於發現真實，並減少審判因兒童證人記憶上的限制而陷入困境之機會。本文從司法詢問技術本質著手，認為司法詢問員應屬鑑定人或鑑定證人。司法詢問所得之陳述雖是傳聞證據，但與審判中之證詞相較，此傳聞陳述明顯具有較高的可信性，此項特質與法律上之傳聞法則以及對質詰問權原本之設計均有潛在的衝突之處。本文認為司法詢問技術有助於使性侵害案件兒童被害人審判外證言，構成傳聞法則與對質詰問權的雙重例外，透過案發後第一時間進行訪談，並讓被告與審檢辯三方提早參與，可滿足對質詰問權之要求，同時減少兒童被害人參與後續程序必要性，但此方案有賴司法詢問員之品質管控與提升。

The child forensic interview technique builds on the knowledge of child development. It has been scientifically proved to be a reliable and effective method for collecting child statements. A child forensic interviewer is a non-partisan third party. His or her goal is to discover the truth and prevent a trial from derailing due to the child’s memory limitations. This article will begin by introducing the forensic interview’s technical essence and will explain that forensic interviewers should be regarded as expert witnesses. These statements may well be regarded as hearsay, but comparatively speaking, these hearsay statements are usually far more reliable than statements made inside the courtroom. This article will explore the potential conflicts between forensic interviews and the laws of hearsay and confrontation. This article concludes that forensic interviews have the potential to qualify the out-of-court statements of child victims of sexual assault to become exceptions to hearsay and confrontation requirements. Through reliable forensic interviews held immediately after the crime occurs by forensic interviewer, forensic interviews could meet the legal protection of confrontation and reduce the necessity of children participating in the subsequent legal procedures. However, quality control of the implementation of such technique must be taken seriously.