물적증거의 가치에 대한 비판적 고찰 – 수사절차 개혁논의와 관련하여 -

Abstract

The kind of an argument that the investigative process should focus on collecting objective and neutral physical evidence, instead of collecting testimonial evidence, seems to be considered as a norm of the investigative reform. The recent governmental efforts on the reforms of investigative procedures reflect particularly on the improvement of the methods and procedures of the police interrogation. On the other hand, efforts to improve the investigative process of collecting physical evidence are rarely seen, probably because of the widespread belief on the objectivity, neutrality, and accuracy of physical evidence. However, since physical evidence is gathered, analyzed, submitted, and evaluated by human beings, it is difficult to regard that physical evidence is necessarily objective and neutral. And the aspect of circumstantial evidence in physical evidence necessarily involves a subjective inference. If the various cognitive biases in the criminal procedure affect the subjective aspects of physical evidence, objectivity, neutrality and accuracy of physical evidence will also be affected. This paper examines the problems that may arise in the process of collecting, analyzing and submitting physical evidence by reviewing real cases. In many areas, a shift in the way of understanding physical evidence is required. First, it must be recognized that the excessive dichotomy between physical evidence and testimonial evidence would not help grasp physical evidence used in criminal proceedings. It is also necessary to understand the effects of human’s cognitive bias on physical evidence in devising the investigative process reform. Finally, considering the strong weight of forensic evidence, more attention should be paid to the process of forensic evidence. As the reliance on physical evidence increases in the investigation, the process and method of using physical evidence should be equally elaborated.