국민참여재판에 있어서 관련성 없는 증거의 배제법리- 미국 연방증거규칙상의 논의를 중심으로 -

Abstract

There is a number of things that are to be legally and systematically corrected when we examine the procedures of criminal cases, particularly the procedures of ruling on evidence and trial management in civic participation trial based on the relevance theory of the US Federal Rules of Evidence (FRE). First, according to the precedents in Korea, the criterion to determine whether applied evidence is to be excluded depends on whether the evidence is necessary in the judgment of the case. However, if the subject of deciding the ‘necessity’ of evidence is a judge and we follow the position of precedent that the judgment comes from the discretion of the judge, the person concerned would not easily be convinced by ruling on evidence of the judge. Therefore, accepting and applying relevance idea that is objective, faithful and persuasive as the standard of ruling on evidence are appropriate rather than accepting and applying necessity idea that is vague and authoritative. Second, Korean law allows objection on the court’s ruling on evidence only when such ruling on evidence violates legislation, and it is almost impossible to change ruling on evidence which is once determined as an objection raised by violation of legislation can rarely be brought as long as we understand ruling on evidence as a part of the right of command on suit of a judge. If that is the case, there must be a way to claim ruling on evidence even in an appellate trial, but there is a problem that a proper review cannot be conducted as the reason of exclusion of evidence is unknown in the appellate trial as the reason of determination of exclusion of evidence is orally notified without recording in existing practices. Thus, legal and systematic modification is needed and we should let the procedures of objection and appeal stipulated in FRE be a good lesson. Third, it is clear that unrelated evidence or the one without evidential ability must be excluded during pretrial arrangement in advance to prevent wrong decision of a juror who does summary judgment in participation trial due to prejudice or stereotype. However, a judge who performs pretrial arrangement cannot be free from prejudice or stereotype on the accused as he or she is completely exposed to the evidence which must be excluded for ruling on evidence. Therefore, if a judge who performs pretrial arrangement explains a number of things and state’s his or her views in accordance with the stipulation of participation law, the judge’s prejudice or stereotype will be moved to the jury. To prevent the happening of such situation, the judge who performs pretrial arrangement and the one who performs trial proceedings must be separated. Fourth, in Korean civic participation trial, a jury is involved not only in fact-finding but also examination of an offense. The evidence necessary for fact-finding is strictly limited to block the intervention of prejudice or stereotype whereas character evidence can be used as the one for examination of an offense. If a juror can present evidence for both act-finding and examination of an offense at a time as the juror is involved in both act-finding and examination of an offense, there is no way to prevent prejudice or stereotype of a juror. Therefore, division of procedures for fact-finding and examination of an offense should be institutionalized in civic participation trial that the evidence excluded in the trial for fact-finding can be presented in the trial for examination of an offense, if the accused is convicted. The writer mentioned details of relevance theory stipulated in FRE in this paper, but it is not intended for legalization in Korea but examination of whether the ‘necessity’ which is the standard of ruling on evidence is applied without details in the point of judge’s view by checking the particulars. If what FRE-related rules intends to show is deeply read and applied to our trial system on setting of the standard of faithful and detailed ruling on evidence, it will contribute appropriate fact-finding without prejudice of a juror and highly reduce time and economic burden of suit procedures.