위법수집증거 배제법칙과 그 적용예외에 관한 고찰 -미국의 판례를 중심으로-

Abstract

Although the general common law practice is to admit evidence despite its illegal origins, U.S. courts have recognized or developed exclusionary rules regarding evidence gained in violation of the accused’s rights such as privacy right or due process of law. The exclusionary rule was originally formed from the court of Weeks v. U.S. in 1914 and the fruit of poisonous tree doctrine was formed from the court of Nardone v. U.S. in 1939. The purpose of an exclusionary rule is to deter unlawful conduct by the police and prosecution, to protect individual rights, and to preserve judicial integrity and dignity, and public confidence in the system of justice. Nevertheless, the exclusionary rule is considered to be prudential rather than constitutionally mandated and, thus, it applies only if its deterrence benefits outweigh the substantial social costs inherent in precluding the consideration of reliable, probative evidence. In the meaning of foregoing, these days several exceptions of the exclusionary rule have been accepted. As for Article 308-2 of Criminal Procedure Act in Korea, which is a provision newly stipulated in 2007 and much room for argument regarding its application, thus, this paper treats mainly the exclusionary rule and also standing to claim the rule, especially the exceptions of the rule for the purpose of referring to U.S. case law for reducing unnecessary confusion in Korea. Key Words: Exclusionary Rule for Evidence Wrongfully Obtained, Due Process of Law, Fruit of Poisonous Tree Doctrine, Standing to Claim the Exclusionary Rule, Exceptions of the Exclusionary Rule, Article 308-2 of Criminal Procedure Act