공소제기 후 작성된 ‘증인예정자 진술조서’의 증거능력

Abstract

In the case at issue, the accused was acquitted on all counts at the first trial and the prosecutor appealed against the decision. In the meantime, a person, who was supposed to testimony as a witness on a trial date (hereafter “witness-to-be”), was called for to attend law enforcement interrogation. The key issue arouse in this case is whether the extrajudicial witness-to-be statement is admissible as evidence. The Court rules that this statement shall not be admissible unless the accused gives its consent to the admissibility of the statement notwithstanding that the witness-to-be verifies the authenticity of the statement and the accused has a chance to confront the witness-to-be at court. If the accused does not give its consent to the admissibility of the statement, the exceptions to the rule against hearsay shall not apply. The Theory of Relative Illegality suggested in this paper explains why and how the Court reached the conclusion. The rationales for the decision are: the adversary criminal justice system, the principle of court-oriented trials, the principle of immediacy, and the right to a fair trial. The case at issue has extended the scope of the established precedent on reversal of testimony and its admissibility to any statement of persons other than the accused recorded by law enforcement officers outside courts. This case has taken a major step forward in light of the adversary criminal justice system and the principle of court-oriented trials. Furthermore, the Court confirmed that evidence acquired through illegitimate law enforcement practice against the principle of court-oriented trials shall not be admissible.