미국법상 성격증거배제법칙과 그 예외로서의 강간피해자보호법 도입 가능성에 대한 소고
A Study on the Introduction of Character Evidence Rules & Rape Shield Laws in Korea
0
조회
0
다운로드
14
인용
0
참고문헌
초록
Abstract
The definition and concept of character evidence is almost non-existent in Korea. While it might be true that character evidence itself is hard to be defined considering what has happened in the U.S. when it comes to the discussion of character evidence, it can be grossly unfair for the both parties involved in criminal trials if such evidence is freely used unchecked by any rules. Bad character evidence might be relevant to prove a person is guilty if such a person charged with a crime had a history of committing similar crimes or bad acts. That is, there is danger that bad character evidence can be used as propensity evidence. However, if such notion and practice are freely accepted without any careful consideration on that there might be a fraction of possibility that an innocent would be found guilty because he has prior history of committing similar crime in the past, the right to fair trial would get lost. For that reason, so called character evidence rule should be introduced to get rid of any probability that the innocent will be wrongly convicted. And the exception to character evidence rules should be narrowly tailored not to let anyone use the loophole. In the same vain, the same logic should be applied when the accused being charged with sex crimes attempts to use the prior sexual history of the victims. That is why the necessity of rape shield law needs to be realized. Rape shield law should function to protect the victims from vigorous trial by the accused to use any evidence to impeach the credibility of the victim. Both character evidence rules and rape shield laws need to be introduced in Korea, and those rules need to function as a great tool to protect the right to fair trial for both parties.
참고문헌 (18)
- 이재상, "신형사소송법" (2008), 박영사
- 조서재판과 공판중심주의, "고시계", 2005, ~
- 조국, "강간피해 고소여성의 성관계 이력의 증거사용 제한 ― 미국 “강간방지법”을 중심으로", 저스티스, 69, pp.178~191 (2002), 한국법학원
- Katharine K. Baker, "Once a Rapist? Motivational Evidence and Relevancy in Rape Law", HARV. L. REV, 110, pp.563~ (1997)
- Vivian Berger, "Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom", COLUM. L. REV, 77, pp.1~ (1977)
- Harriett R. Galvin, "Rape Victims in the State and Federal Courts: A Proposals for the Second Decade", MINN. L. REV, 70, pp.763~
- Daniel Lowery, "The Sixth Amendment, the Preclusionary Sanction, and Rape Shield Laws: Michigan v. Lucas", U. Cin. L. Rev, 61, pp.297~ (1992)
- Richard I. Haddad, "Shield or Sieve? People v. Bryant and the Rape Shield Law in High-Profile Cases", Colum. J. L. & Soc. Probs, 39, pp.185~ (2007)
- Mark Kelman, "Thinking about Sexual Consent", Stan. L. Rev, 58, pp.935~ (2005)
- Jessica D. Khan, "He Said, She Said: Why Pennsylvania Should Adopt Federal Rules of Evidence 413 and 414", Vill. L. Rev, 52, pp.641~ (2007)
- Tom Lininger, "Bearing the Cross", Fordham L. Rev, 74, pp.1353~ (2005)
- Kavin S. Portlock, "Status on Trial: the Racial Ramifications of Admitting Prostitution Evidence under State Rape Shield Legislation", Colum. L. Rev, 101, pp.1404~ (2007)
- Myrna S. Raeder, "Perspective on Proposed Federal Rules of Evidence 413-415:American Association of Criminal Justice Section Report to the House of Delegates", Fordham Urb. L. J, 22, pp.343~ (1995)
- Charles H. Rose III, "Caging the Beast: Formulating Effective Evidentiary Rules to Deal with Sexual Offenders", Am. J. Crim. L, 34, pp.1~ (2006)
- Charles H. Rose III, "Should the Tail Wag the Dog?: the Potential Effects of Recidivism Data on Character Evidence Rules", N. M. L. REV, 36, pp.341~ (2006)
- Josephine Ross, ""He Looks Guilty": Reforming Good Character Evidence to Undercut the Prsumption of Guilt", U. PITT. L. REV, 65, pp.227~ (2004)
- Peter Tillers, "What is Wrong with Character Evidence?", HASTINGS L. J, 49, pp.781~ (1998)
- David Torrance, "Evidence of Character in Civil and Criminal Proceedings", YALE L. J, 12, pp.352~ (1903)