Hm, it's different here.
Here, the Minister of Justice either directly, or indirectly via the chief of the regional court (based on where given person's permanent address is), nominates a person as a forensic expert, for a particular field (or fields). It is a title. Such person receives a license issued by the state, i.e. a permission entitling him/her to provide expert statements to both state and commercial sector. So here it's perfectly valid to say "I am a forensic expert" and it's kind of honor. It's a profession. From the business point of view, being a forensic expert is considered as a kind of self-employment (towards taxes etc.).
The Ministry of Justice runs the register of forensic experts (accessible freely via the Internet), so everyone can search it and lookup an expert from the forensic field and regional area he needs.
So here, no one who is not officially "a forensic expert" can walk into the courtroom and testify as a forensic expert.
We have about 50 basic forensic fields, which are further divided into about 150 subfields (in total).
So the organization is quite precise here, as specified by the respective law ("the law about forensic experts and court translators") and subsequent implementary regulations.
What is not that precise are the conditions which must be met to actually nominate a forensic expert, the personal/knowledge/experience requirements to such a person, and (unfortunately) neither an exact methodology for the actual forensic expert's work (something like is this Daubert standard of yours; we have just a few rather vague rules).
So, you are saying that in U.S. being a forensic expert is an ad-hoc thing? Like, today I am a baker, tomorrow I am determined as an expert within a particular case, and the day after tomorrow I am again a baker?
Based on what the court decides who is going to be determined? I guess the court must somehow measure the eligibility. Is this reviewing process happening for every case again and again?
Here you are reviewed just once, as a result of that you are nominated (licensed) and put into the list, and then when a police investigator or a court or a civil subject needs someone, they just pickup one from the list.
So just to make it clear - here if you are nominated you are a forensic expert for life. Until you yourself suggest your removal from the list, or until you commit some really bad stuff.
It's like a driving license. Driving license here is also for life, you don't go every x years to retest (in U.S. you do periodical retests, right?). Which is wrong, no doubt.
Well, isn't it expectable and logical that both sides will try their best (within the law)? That's probably the same around all the world.
(By the way, how many forensic experts in the computer forensics field are in the U.S.?)
There are differences in onus of proof which may be most obvious for France where the allegation has to be disproved (Napoleonic Code) and accepted as true unless proven otherwise (reverse onus of proof from most other jurisdictions).
Well, remember that the US justice system is deliberately designed to be adversarial, i.e., each side uses every possible legal method to undermine the case presented by the other side.
Rather pessimistic sir!
Quite the contrary. It is a very sophisticated system that puts power in the hands of your peers (the jury), rather than a judge or executive. In addition, it requires a reasonable burden of proof and a preponderance of the evidence. The adversarial nature ensures that each side is fully represented.
Considering the alternative is beating each other over the head with clubs to resolve disputes,
Bad analogy (or good, historically). The alternative, which exists in many parts of the world, is that the defense exists merely to acceed to the claims of the prosecution/plaintiff and not to put on a case of its own or question the case made by the plaintiff. And, as a matter of fact, many people accept that the adversarial system of justice arose from trial by combat (in which a weaker party was allowed to retain the services of a stronger party to fight on their behalf).
I think the Civil Procedure laws are actually quite good and provide each side ample opportunity to present their side to an impartial mediator. I am not naive enough to say that the system is perfect, but it is people who make it adversarial by abusing and taking advantage of the latitude given.
Not at all. It is adversarial by design. Please research adversarial justice to see what is meant by the term. It is not disparaging to call our system adversarial.
I had mistakenly taken what you had said to be negative or derogatory towards the system as a whole. I focused on "undermine" without context of the whole statement. It is very adversarial which is good as it creates a level playing field where each sides' weaknesses and strengths have to be vetted to the trier of fact in public.
Adversary is defined as one who contends or resists. An adversarial system means that each side in a dispute, being an individual or the state, has the right to put forward their position to an impartial (one would hope) arbiter.
Adversarial doesn't by any means imply that both sides are by definition intractable. It is very common that plea bargains are agreed to in order to obtain a reasonable resolution of a case based on the desired or perceived best case put forward by each party.
As we learned in law school, the adversarial system is fine unless there is a substantial difference in ability to have access to the same quality of representation. My lecturer called it the "deep pockets principle" and there is a substantial statistical correlation between financial capacity and which side wins. Have a read of the NAS report on Strengthening Forensic Science in the US and their issues with equal access to resources for defendants. I'm not necessarily endorsing their suggestions on how to address it, but it's an interesting read.
I'm not saying that in practice a "Civil Law" system produces a better result in practice, my experience has been in two common law countries, but as a forensic practitioner, I can respect a system where the first responsibility of all lawyers is to the truth, rather than to any particular person or the state.
I'm not saying that in practice a "Civil Law" system produces a better result in practice, my experience has been in two common law countries, but as a forensic practitioner, I can respect a system where the first responsibility of all lawyers is to the truth, rather than to any particular person or the state.
Since you were in law school you are also aware that the legal system is more than about truth; it is about the fair application of the law to all individuals. The Miranda decision has allowed many guilty persons to go free, but what it reflects is that the rights of the individual triumph even the interests of the state. That is how it should be.
Truth is often subjective in civil cases. Consider ex-Presidential candidate John Edwards who made his fortune as a plaintiff's lawyer working on the link between "birth defects" and malpractice. In many cases, his clients won at the expense of the truth, but this was a reflection of the fact that the ultimate authority for intepretation of the law rests with the public, not the judiciary nor law enforcement.
This was a conscious decision on the part of the framers of the Constitution. It may lead to individual injustice as well as to society bearing the brunt for fate of the unfortunate. But the justice system is not about arriving at an objective truth, though that is to be hoped for in many cases, but a subjective truth, namely, what society believes to be just.
I'm not saying that in practice a "Civil Law" system produces a better result in practice, my experience has been in two common law countries, but as a forensic practitioner, I can respect a system where the first responsibility of all lawyers is to the truth, rather than to any particular person or the state.
Are you trying to say that lawyers in civil law system are more seeking the truth and less fighting against the opposite side? I wouldn't say that lawyers here are attacking me any less than lawyers in U.S. are attacking you.
That's why I put my "in practice" comment. Because although the intent may be different, the practice doesn't necessarily follow. In my experience, many different legal systems tend to borrow from the good (and sometimes bad) aspects of other legal systems, so it wouldn't surprise me that lawyers in civil law systems are acting more adversarial than the system would seem to imply at a philosophical level.