미국법 상 전문법칙의 최근 동향 : 공판중심주의의 문제

Abstract

The rule against hearsay in the United States is the rule which is deeply embedded in the American criminal justice system. Allegedly it has been crystalized in the late 17th century after having witnessed the lamentable death of Sir Walter Raleigh. And then it has served for protecting the procedural rights of the criminal defendant in the Federal and States' courts, such as the right of confrontation. However, it is also natural that the exceptions to the rule have been gradually adopted by the trial courts because, sometimes, there was sufficient reason to not exclude the out-of-court statement by the witness if it had the indicia of reliability, which was what the court of Roberts announced. Thus, Korean readers also believe that the indicia of reliability is basically the criteria used in deciding whether the proposed statements of the witness should be admitted or not for the assertion of fact in the criminal trial. In 2004, the Crawford denied the admissibility of the reliable evidence and said that the reliability should be tested in the specific manner: cross- examination. We might say that the Crawford has opposed to the finding of the Roberts and revitalized the importance of the cross-examination, which has been called as “the legal engine for finding the truth” by Wigmore. Afterwards in supporting the position of the Crawford, the Davis also tries to emphasize the meaning of the Confrontation more loudly. This paper explains about the history of the rule against hearsay to the Korean readers and, in doing that, tries to give general guidelines in reading the Article 314 of the Korean Criminal Procedure Act which is basically a copy of the rule 803 of the FRE.