El Estándar Daubert y la valoración pericial en el sistema penal con tendencia acusatorial en Colombia

Abstract

In the understanding that science is the best method to prove the facts debated in any judicial procedure, its practical theoretical importance grows and continuously transforms, starting for the present work from the set of certain or probable rational knowledge that they obtain in a methodical way and can be verified. through the contrast with reality and whose results and contents favor the construction of laws and theories developed in a rational and experimental way, generally speaking of hard sciences and soft sciences without neglecting the experimental ones, in the case of science Hard these require a standard of reliability that is applied to all sciences of explanation and natural sciences, use the same method among themselves, are governed by the same paradigm, nomological hempeliano, as well as reach a high degree of formalization and predictive power and become experimental, empirical and quantifiable , while the soft sciences require several reliability standards, normally one for each science where they use unique and diverse methods and each one is governed by its own paradigm that is not the nomological one itself, that is, they are in the process of development. and formalization of their theories, laws and predictions, normally they are not quantifiable, more qualifiable and subjective, however, experimental sciences arise from the combination of hard and soft sciences, giving rise to aspects with quantifiable trends that are not properly predictable and with little degree. of formalization of theories and laws to maintain a process of development and materialization. Thus, things in judicial matters supported in science exist technical, expert and expert evidence that must enjoy special quality, reliability and veracity both in its studies, review and conclusions, which must necessarily be supported by technical and scientific methods; The issue addressed here is due to a drastic change from 1993 in the United States of America, where the Supreme Court of Justice adopts a series of criteria and recommendations to assess and evaluate the scientificity, reliability and validity of these tests, in what is known as the "daubert" case, all of the above weighed in popperian epistemology that was extended to all techniques and sciences in the year 2000 with the khuone case, from which the federal rules of evidence became a situation that was imported and received through legislative act 03 of 2002 and law 906 of 2004, especially in Article 422 and through this Article 420 and 273 of the regulation in question and with them it is intended to face the reality that Colombia lives against the problems of scientific validity of the evidence used to decide on the facts of the case in criminal matters, in the case of an adversarial issue with an accusatory tendency and n or continue ignoring, superficial or inefficient to this type of controls in the head of the administrators of justice who pronounce themselves regarding them considering them to be true and reliable, it is thus that we have prosecutors and judges who continue to support their actions, using, accepting and valuing information or data that are presented as technical or scientific and that in reality lack it, this lack of interest or knowledge leads them to wrong and even disastrous decisions when it comes to pronouncing. For the present investigation, the descriptive legal method was applied, supported by a random sampling of real cases accompanied by doctrinal and jurisprudential content that reveals the reality in terms of technical-scientific evidentiary assessment and that contradicts the constitutional and legal precepts that must govern in the social and democratic state of Colombian law, which allows appealing by way of the third cause of article 181 of the Code of Criminal Procedure, that is, due to the manifest ignorance of the rules of production and appreciation of the evidence on which has based the sentence.