鑑定新法評析──以機關鑑定之傳聞例外妥適性為核心

An Analysis of the New Criminal Forensic Law: Focusing on the Appropriateness of Hearsay Exceptions for Institutional Expert Examination

刑事鑑定制度與刑事訴訟發現真實之目的息息相關，然刑事鑑定報告欲成為裁判依據，應以具備可靠性為前提，只是，在我國早期之實務運作下，對鑑定報告之可靠性審查明顯不足，甚至將書面鑑定報告一律視為傳聞例外，嚴重侵害被告之對質詰問權。為改善此缺失，司法院於2019年提出刑事訴訟法修正草案因應，該法案最終於2023年修正通過。雖本次修正在大體方向上皆值贊同，然在機關鑑定領域創設三種傳聞例外，則存在重大爭議。就此，本文借鏡美國法，以傳聞法則與對質詰問權之關連性切入觀察，分析後認為，由於鑑定領域目前尚難貫徹全面強制認證制度，且偵查機關所屬鑑定人員亦難克服無意識下所形成之各類偏見，故尚無法以相關鑑定是由具法定職掌或經認證之鑑定機關所為，即證立成為傳聞例外之妥適性。因此，為有效保障被告之對質詰問權，本文建議採用限縮機關鑑定之傳聞例外適用時機，或全面刪除機關鑑定之傳聞例外兩種方式因應，此外，因採用後者可能相當程度影響鑑定能量，故應再採用限縮對質詰問權之行使對象，以及積極提升鑑定效能之配套措施。

The criminal forensic system is intrinsically intertwined with the factfinding function of criminal proceedings. Given that expert evidence often plays a decisive role in judicial determinations, a forensic expert report should serve as a basis for adjudication only when its reliability is sufficiently substantiated. In Taiwan’s prior judicial practice, however, courts conducted only perfunctory scrutiny of the reliability of expert reports. Written expert opinions were frequently admitted under hearsay exceptions without requiring the expert’s physical appearance in court. Such practices effectively allowed written reports to substitute for in-court testimony, thereby seriously impairing the defendant’s constitutional rights to confrontation and cross-examination and weakening the adversarial testing that is central to a fair trial. To remedy these systemic deficiencies, the Judicial Yuan proposed amendments to the Code of Criminal Procedure in 2019, which were ultimately enacted in 2023. Although the overall direction of the reform—shifting toward a more rigorous examination of expert evidence—is laudable, the amendment created three specific hearsay exceptions concerning institutional expert examinations, triggering substantial controversy within the legal community. Drawing on U.S. evidentiary doctrines and examining the complex interplay between the hearsay rule and the right to confrontation, this article argues that establishing broad, categorical hearsay exceptions for institutional expert reports is fundamentally problematic. The core of the issue lies in the unwarranted presumption of reliability. Given that a comprehensive mandatory accreditation regime has not yet been fully implemented in the forensic domain, and that experts affiliated with investigative authorities may remain susceptible to various forms of unconscious bias, the mere fact that an examination is conducted by an institution with statutory duties does not, per se, justify exempting the resulting written report from the hearsay rule. Such an approach risks permitting reliability to be presumed solely on the basis of institutional status, rather than being tested through rigorous judicial scrutiny. Accordingly, to effectively safeguard the defendant’s right to confrontation, this article proposes either narrowing the applicability of hearsay exceptions for institutional expert reports or, preferably, abolishing such exceptions altogether. Considering that the latter approach may substantially strain forensic capacity, this article further suggests complementary measures. These include limiting the scope of personnel required for in-court appearance and proactively enhancing forensic efficiency, so as to balance procedural fairness with the practical operational needs of institutional forensic examinations.