피고인 아닌 자가 다른 사건에서 피고인으로서 한 진술을 기재한 공판조서의 증거능력

Abstract

In case where a person who is not the defendant in the current case testified, for the case he or her was the defendant, statements unfavorable to the defendant in the current case and where protocol recorded such statements is submitted as evidence, admissibility of the protocol becomes an issue. Protocol is a type of testimony documents and authenticity of the document is deemed to be automatically proven by the fact that protocol contains statements offered in court trials. In this way, it is understood that protocols satisfy admissibility required by Criminal Procedure Act Article 313. In addition, it has been generally accepted that protocols of other cases have higher level of voluntariness and circumstantial guarantees of trustworthiness than those of general testimony documents under Criminal Procedure Act Article 313. In this reason, denying admissibility of all protocols of other cases that have testimony of a person who is not the defendant in the current case and testified as a defendant in the other case does not fit into Korean Criminal Procedure system. However, in case where there is an accomplice, the accomplice is highly likely to make false statement to shift his responsibility to the defendant. Statement by a person who is not an accomplice even lacks swearing procedure. Especially, it is problematic that , in both cases, against statements by an accomplice and by a person who is not an accomplice, criminal defendant’s right to cross-examine is not guaranteed. Such right to cross-examine is core of ‘Right to a fair trial’and the fundamental procedural right that contributes to finding of substantively true facts. Therefore, judges should be very cautious when weighing credibility of statements against which cross examination was not conducted especially when such testimony on protocol could be an important evidence that could determine conviction and when the defendant disputes against such statement. Furthermore, improvement of related criminal justice system through legislation is needed for fundamental resolution of this issue. I would recommend legislation that admits testimony of a person who is not a defendant in the current case only when the person cannot attend the court trial session or when the person testified otherwise as an witness. Through such legislation with clear standard, Korean criminal justice system could eliminate situations where people’s right to a fair trial would be infringed. Such reform would be meaningful because it aggressively protects right to cross-examine through providing a defendant with opportunity to cross-examine witnesses.