전자진술서의 증거능력(개정 형사소송법 제313조)

Abstract

In line with the revision of the Criminal Procedure Act (amended by Act No. 14179, May 29, 2016), Article 313 provides that the authenticity of a written statement, as well as a digital statement stored in a computer disk or other data storage medium similar thereto, shall only be proved by the person who prepared such statement or the stater at a preparatory hearing or during a trial (parag. 1); and that, albeit the person who prepared such written or digital statement denies its authenticity at a preparatory hearing or during a trial, admissibility shall be acknowledged if authenticity can be proven using objective methods such as digital forensics or expert opinions (parag. 2). Such a revision drastically reformed the rules of evidence. The “person who prepared a written or digital statement” under the aforesaid Article 313 means the stater, defendant, or third party; therefore, admissibility should be acknowledged if he/she proves the authenticity of such statement (main text of parag. 1) or if authenticity is proved by objective methods (such as digital forensics) and the defendant and the defense counsel is given the opportunity to examine the person who prepared such statement (proviso of parag. 2). Digital forensics is a specialized field of forensic science involving the search, recovery, and analysis of materials stored in digital devices. It would be ideal for a digital forensics expert to be academically qualified, well-versed in technology, and have extensive experience and training, but determining admissibility (which is the stage prior to determining the evidentiary power) of a digital statement does not require high level of analytical skill. The expert only needs to analyze the digital evidence based on the generally-accepted practice for proving authenticity as prescribed by Article 313(2). The authenticity of a digital statement is perfunctorily acknowledgeable if able to find the person to verify the statement contents, i.e., either the person who prepared such statement or the stater at a preparatory hearing and during trial, or by the testimony and report of a digital forensics expert. As can be seen, the purport of the revised Article lies in the presumption of substantive authenticity of a digital statement through objective means(e.g., digital forensics), albeit the stater denies its authenticity at a preparatory hearing or during a trial. Any digital statement, including particular circumstances implying reliability of the statement, prepared by either a defendant or a third party should be authenticated via objective means, as noted above, to be deemed admissible in court. Even if a court does not consider the particular circumstances implying reliability as a separate requirement for acknowledging admissibility, the court, if deemed that there exist reason to deny such particular circumstances, may have to reject the admissibility of a digital statement on the ground that the digital forensics result is not reliable and authenticity cannot thus be proven.