특신상태의 의의와 판단기준

Abstract

In the domain of hearsay evidence, "special guarantees of trustworthiness" now occupy a position as a weight requirement by the revision of the Code of Criminal Procedure, 2007, and the Supreme Court through the judgment of the recent in order to recognize the admissibility of evidence was required to determine the more stringent requirements of special guarantees of trustworthiness. Despite a major certification requirements for admissibility of hearsay evidence, special guarantees of trustworthiness have not been discussed much in the field of the law of evidence so far, but it was going to appear as important themes because of the Supreme Court and the Code of Criminal Procedure of these amendments, and you should have a lively discussion of this special guarantees of trustworthiness. The court has taken the position that should be judged individually according to case specific about the presence or absence of special guarantees of trustworthiness, but it has applied inconsistent criteria or misunderstand the meaning of special guarantees of trustworthiness case-by-case so far. I think that the presence or absence of special guarantees of trustworthiness is necessary to be distinguished clearly with a matter of probative value, and that it is necessary to be judged by the course of statement or the external situation of statement than the credibility of the statement or circle the contents of the original statement as much as possible for avoiding confusion with the problem of determining probative value. And special guarantees of trustworthiness should be distinguished also voluntariness of the statements, and it must be considerated whether the statement was originally carried out in the presence of law enforcement agencies or not, in addition to whether the statement was done to attend the court or not.