진술거부권 고지 없이 얻은 진술에 기초한 2차적 증거의 증거능력

Abstract

While it is true that the exclusion of the “fruits of the poisonous tree” doctrine has been extended through the purged taint exception,inevitable discovery exception, and the independent source exception, the Supreme Court of the United States supported the doctrine largely unchallenged. However, recently the Supreme Court held that the doctrine does not apply when secondary evidence was obtained without Miranda warning, acknowledging its admissibility. In interpreting the Section 308-2 of our Criminal Procedure law, it is debatable if it’s admissible or not when a testimony was obtained as secondary evidence, without Miranda warning. About this debate our Supreme Court did not take the same opinion as the U.S. Supreme Court,in 2008도11437; the right to silence is not mere a procedural privilege -it is an integral and essential part of basic human rights guaranteed by the Constitutional law - therefore secondary evidences cannot be “always admissible”; however if the testimony is voluntary enough even without Miranda warning the evidence can be exceptionally admissible. This is remarkable in that it provided quite specific guidelines with the admissibility of secondary evidences.