The Korean Hearsay Rule and the Protocol
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Later in the course of the democratic reformation of the justice system, the Judiciary, supported by the civil rights groups and a majority of the legislators, tried to limit prosecutorial and police power. More precisely, they opposed the “dossier-building” practice in the pre-trial stage that the prosecutor dominates. Thus they decided to control it. The best way would be to deny protocols’ admissibility and to encourage the parties to offer more live testimonies. The rule against hearsay basically guarantees this paradigm shift. The amendment also opened the way for calling those who heard the suspects’ statements’. But trial judges prefer to read protocols in office in preparation for trials. The videotape is not even in the list of substantial evidence. Certainly, the protocols containing PIS have lost their authoritative voice. They must have been prepared properly, be reliable, genuine, correct, and made in a particularly reliable situation. Furthermore, the testifier must be available for cross-examination from a defense counsel. All these requirements make the prosecution increasingly more dependent on protocols made with suspect parties’ admissions. The most popular evidence still seems to be a protocol with party admission. Videotapes are prepared for supporting its admissibility not for substantial evidence. In the Korean criminal process, this sort of protocol itself flows as if it is something that reveals the truth. Roughly speaking, the Korean criminal process is similar to that of the French one of which Professor Langbein has given an interesting description.
Abstract
Later in the course of the democratic reformation of the justice system, the Judiciary, supported by the civil rights groups and a majority of the legislators, tried to limit prosecutorial and police power. More precisely, they opposed the “dossier-building” practice in the pre-trial stage that the prosecutor dominates. Thus they decided to control it. The best way would be to deny protocols’ admissibility and to encourage the parties to offer more live testimonies. The rule against hearsay basically guarantees this paradigm shift. The amendment also opened the way for calling those who heard the suspects’ statements’. But trial judges prefer to read protocols in office in preparation for trials. The videotape is not even in the list of substantial evidence. Certainly, the protocols containing PIS have lost their authoritative voice. They must have been prepared properly, be reliable, genuine, correct, and made in a particularly reliable situation. Furthermore, the testifier must be available for cross-examination from a defense counsel. All these requirements make the prosecution increasingly more dependent on protocols made with suspect parties’ admissions. The most popular evidence still seems to be a protocol with party admission. Videotapes are prepared for supporting its admissibility not for substantial evidence. In the Korean criminal process, this sort of protocol itself flows as if it is something that reveals the truth. Roughly speaking, the Korean criminal process is similar to that of the French one of which Professor Langbein has given an interesting description.
참고문헌 (16)
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