증거물 보관의 연속성(Chain of Custody) 원칙과 증거법적 함의
Implication of Evidence Law in the Chain of Custody of Real Evidence
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This article discusses evidential issues on the principle of chain of custody in Korean criminal trials. The principle of chain of custody is that real evidence must be authenticated at trial its identity and condition precedent to its admissibility. Currently, Korean criminal courts continue to make an issue of chain of custody in especially forensic-evidence related trials. Thus, it is expected that chain of custody issues will continue to increase, as forensic evidence plays more vital roles in criminal trials. However, it is hard to find legal literature on this issue in Korea. In criminal trials, real evidence found in crime scene normally leads to conviction if the evidence is relevant to the fact to be proved and is not in violation of any other criminal procedural rules. And evidence is relevant if it is logically conducive to proving or disproving facts at issue. Real evidence which is logically relevant, however, is not relevant until the real evidence is authenticated at trial. Thus, authentication of real evidence is conditional on relevance of evidence. This paper: 1) develops evidential foundation of the principle of chain of custody in Korean criminal evidence law, and, 2) recommends some reform measures for the Citizen Participation Trial in Korea. Part II introduces evidence rules of chain of custody in the United States and Part Ⅲ analyzes a few cases of chain of custody in Korean criminal trials, discusses whether the approach of the Supreme Court is proper for jury trial that Korea launched as a pilot project in 2008, and recommends some reform measures such as the proof standard of chain of custody. Part IV concludes that further discussion must be developed on chain of custody issues, for instance, in a pre-trial stage or in an investigation field.
Abstract
This article discusses evidential issues on the principle of chain of custody in Korean criminal trials. The principle of chain of custody is that real evidence must be authenticated at trial its identity and condition precedent to its admissibility. Currently, Korean criminal courts continue to make an issue of chain of custody in especially forensic-evidence related trials. Thus, it is expected that chain of custody issues will continue to increase, as forensic evidence plays more vital roles in criminal trials. However, it is hard to find legal literature on this issue in Korea. In criminal trials, real evidence found in crime scene normally leads to conviction if the evidence is relevant to the fact to be proved and is not in violation of any other criminal procedural rules. And evidence is relevant if it is logically conducive to proving or disproving facts at issue. Real evidence which is logically relevant, however, is not relevant until the real evidence is authenticated at trial. Thus, authentication of real evidence is conditional on relevance of evidence. This paper: 1) develops evidential foundation of the principle of chain of custody in Korean criminal evidence law, and, 2) recommends some reform measures for the Citizen Participation Trial in Korea. Part II introduces evidence rules of chain of custody in the United States and Part Ⅲ analyzes a few cases of chain of custody in Korean criminal trials, discusses whether the approach of the Supreme Court is proper for jury trial that Korea launched as a pilot project in 2008, and recommends some reform measures such as the proof standard of chain of custody. Part IV concludes that further discussion must be developed on chain of custody issues, for instance, in a pre-trial stage or in an investigation field.
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