精神醫療鑑定與刑事審判－以現行鑑定制度的缺失為中心

Psychiatry assessment and criminal judiciary proceedings-focus on the defects of current assessment system

湯文章(Wen-Chang Tang)

《真理財經法學》 17期 (2016/09) Pp. 37+39-94

摘要

精神疾患的種類複雜而多樣，被告如因罹患精神疾患而不能、欠缺或顯著減低辨識能力或控制能力，則影響其責任能力、訴訟能力及證言能力。近期社會上發生多起重大殺人事件，被告或其辯護人多以精神障礙作抗辯，益顯現精神疾患在審判程序中的重要性。然現行刑事審判程序對於鑑定之規定，僅寥寥數個法條，並無完整規範，致使現行審判實務上有關鑑定之爭議問題叢生。其中有關司法精神鑑定人的資格，法無明文，目前實務雖都委由精神科專科醫師為之，但精神專科醫師之培訓著重在疾病之診斷或治療而非鑑定，並非精神專科醫師都能輕易完成精神鑑定工作。另在鑑定人選任部分，僅有法院或檢察機關能委請鑑定，但對於鑑定人之選任卻無一致標準，易淪為法院或檢察機關的恣意，尤其為擔保鑑定人客觀中立，消極的給予被告拒卻鑑定人權利，並不足夠，應積極的賦予被告有聲請送鑑定之權利。至少允許被告辯護人偕同專家在鑑定時到場。在鑑定方法及標準流程部分，並無一致的標準，原本委請精神專科醫師鑑定者，應限於被告精神障礙或其他心智缺陷等「生理原因」，至於被告是否因此等「生理原因」致不能、欠缺或顯著減低辨識能力或控制能力等「心理結果」則有賴法官，依鑑定所得資料綜合判斷之。惟實務運作結果，卻係兩者均係精神專科醫師鑑定。此外，鑑定報告鮮少揭露所使用之鑑定方法及標準，有關被告辨識能力或控制能力是否有不能、欠缺或顯著減低等「心理結果」，鑑定報告都依據「刑責能力判斷準則」來作判斷，但該準則是否與外國立法例上有關馬克諾頓法則（M'Naghten rule）、Durham rule（product rule）等原則相當，亦不得而知。就現行司法實務，精神分裂症患者較有可能被認定為精神礙障者，至於精神官能症、反社會性人格違常者、多重人格障礙者，均較難被認定為精神障礙者。被告是否有精神障礙或其他心智缺陷等「生理原因」，既已委請鑑定人鑑定，除非鑑定結果違反經驗法則、論理法則，或法官的心證是從鑑定以外的事實所形成，否則法官對心證的形成即受到限制，不能為不同的評價。由於醫學具有不確定性，且健康與疾病的過程具有流動性。精神鑑定通常要由鑑定人對被告進行會談，但隨著治療或時間經過，被告的精神狀態會有所改變，在會談內容無法重現的及對於鑑定報告進行檢證的情形下，精神鑑定與作為鑑定證據所使用之鑑定方法要符合普遍接受原則、科學有效原則及可驗證絕對原則並不相侔，故其證據能力及證明仍有被質疑的空間。凡此問題均亟待解決，才能增進精神鑑定證據使用的公信力。

關鍵字

精神鑑定 ； 精神疾患 ； 鑑定人 ； 諾頓法則（M'Naghten rule） ； Durham rule（product rule）

並列摘要

The kinds of mental disorders were complicated and various. If the defendant was diagnosed with psychiatric disorders so as to be unable, less able, or even obviously reduced in the ability of judgement or control, the capacity for criminal responsibility, litigation, and testimony were all under the influence. In recent years, there were many serious and sensational murder cases in the society, and most of the defendants took mental disturbance as defense, which manifested the importance of psychiatric disorders in judiciary proceedings. However, there were few articles about expert examination in current criminal judiciary proceedings, and the incompleteness resulted in controversial problems in real practice. For the qualifications of expert witness of forensic psychiatry assessment, there was no law concerned with it. In real practice, forensic psychiatry assessment was carried out by psychiatrists, but even psychiatrists could not finish it without difficulties, for they were trained for diagnosing or curing diseases, instead of expert examinations. As for the retention of expert witness, only the court or public prosecutor's office was entitled to entrust for expert examinations, which had no consistent standards in fact. Thus, the retention of expert witness was very likely to be manipulated by the court or public prosecutor's office willfully and unscrupulously. Especially, giving defendants the right to reject an expert examination was a negative and insufficient act; instead, endowing defendants with the right to apply for an expert examination was a positive act to guarantee the objective and neutral of the expert witness. The defender of the defendant, at least, should be allowed to accompany with the expert during the examination. As for the methods and SOP of the expert examination, there were no standards, neither. Originally, the reason for entrusting an expert examination with psychiatrists should be limited to ＂physical reasons＂, such as mental disturbance or defects. In other words, it was the comprehensive judgments only made by the judge whether the ＂mental consequences＂ like unable, less able, or even obviously reduced in the ability of judgement or control were directly caused by the ＂physical reasons＂. Yet, the physical reasons and the cause and effect between physical reasons and mental consequences were both examined by psychiatrists in real practice. Besides, the methods and standards of an expert examination were merely revealed in the examination report. ＂Mental consequences＂ concerned with whether the defendant was unable, less able, or even obviously reduced in the ability of judgement or control were all judged by guideline of criminal responsibility, but whether this guideline was equal to foreign legislative examples like M'Naghten rule and Durham rule (product rule) was still unknown. In real practice, people who had schizophrenia were probably deemed as mental disturbance whereas people who had neurotic disorders, antisocial personality disorder, and multiple personality disorder were all hard to be deemed as mental disturbance. Given that it had entrusted expert witness for expert examination to judge whether the defendant had ＂physical reasons＂ like mental disturbance or defects, the judge was restricted to the examination report and was unable to make an opposite evaluation of evidence through inner conviction unless the examination report went against rule with experience, rule of logic, or the judge formed evaluation of evidence through inner conviction with facts except the expert examination. Due to the uncertainty of Medicine and the fluidity of the process of healthy and illness, psychiatry assessment usually went with talks between expert witness and the defendant. However, the psychiatric status of the defendant changed as therapies or time went by. Under the circumstances that the talks were unrepeatable and the examination report had to be verified, a psychiatry assessment and the examined methods for being used as an evaluated evidence should be in accordance with the rule of general acceptance, the rule of scientific effectiveness, and the rule of absolute verifiability. Therefore, there was room for questioning the admissibility and the credibility of evidence. Only by solving these problems could the trust effect on the usage of the evidence of psychiatry assessment get improved.

並列關鍵字

Psychiatry assessment ； Mental disorders ； Expert witness ； M'Naghten rule ； Durham rule (Product rule)