New Methods of Identification in the Courts’ Practice
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Abstract
The paper deals with a topic of new invented methods of identification which gradually might become so called scientific evidence. After a short historical review containing some facts concerning implementing to criminal procedure opinions of expert witnesses of forensic medicine, fingerprinting and DNA examination there has been presented American standards of admissibility of scientific (as well as non-scientific) evidence: Frye, Daubert and Kumho.
Although they have arisen in the system of common law, there is no reason to underestimate their significance in the countries of civil law. A short analyze of German’s, Holland’s as well as Polish jurisprudence shows undoubtedly, the courts need some criteria to decide whether the new method used by the expert witness is admissible/non-admissible and reliable and if so, then how. There can be hovewer distinguished at least three groups of legal systems – the ‘conservative’ (the new methods are actually unadmissible; some civil law countries), the ‘liberal’ (which admits new methods, sometimes under certain conditions; mainly common law countries) and the ‘dumb’ one (there is neither legal regulation nor jurisprudence concerning the topic; the other part of civil law countries).
The main part of the paper has been devoted to an analyze of Polish jurisprudence trying to create a commonly accepted definition of scientific evidence which could be adopted into practice. For last 10 years there have been two attempts of that by the occasion of implementing osmology/odorology/dog-scentidentification as well as the DNA examination. The last one seems to be particularly worth emphasizing. The Polish Supreme Court has established conditions of acceptance a new method which read as follows:
1) the method has to be practised in an distinguished, attested laboratory or in the one of the university’s chair;
2) the method should be based on a scientific theory and until it is eventually confirmed, the concrete examination has to be always repeated by an independent lab;
3) results should be – if possible – given in figures.
Although they have arisen in the system of common law, there is no reason to underestimate their significance in the countries of civil law. A short analyze of German’s, Holland’s as well as Polish jurisprudence shows undoubtedly, the courts need some criteria to decide whether the new method used by the expert witness is admissible/non-admissible and reliable and if so, then how. There can be hovewer distinguished at least three groups of legal systems – the ‘conservative’ (the new methods are actually unadmissible; some civil law countries), the ‘liberal’ (which admits new methods, sometimes under certain conditions; mainly common law countries) and the ‘dumb’ one (there is neither legal regulation nor jurisprudence concerning the topic; the other part of civil law countries).
The main part of the paper has been devoted to an analyze of Polish jurisprudence trying to create a commonly accepted definition of scientific evidence which could be adopted into practice. For last 10 years there have been two attempts of that by the occasion of implementing osmology/odorology/dog-scentidentification as well as the DNA examination. The last one seems to be particularly worth emphasizing. The Polish Supreme Court has established conditions of acceptance a new method which read as follows:
1) the method has to be practised in an distinguished, attested laboratory or in the one of the university’s chair;
2) the method should be based on a scientific theory and until it is eventually confirmed, the concrete examination has to be always repeated by an independent lab;
3) results should be – if possible – given in figures.
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
