미국의 체포․수색․압수제도의 이해 - 위법수집증거배제법칙과 명확성 원칙의 관점에서 -
Understanding the Principles of Search and Seizure of the United States from the Perspective of Exclusionary & Bright-line Rules
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This study illuminates the dialectic development of due process and crime control functions in search and seizure of the United States, mostly by focusing on exclusionary and bright-line rules which have been established by the U. S. Supreme Court since 1960s. It would be redundant to say that search and seizure in crime investigation is essential for effectively acquiring evidence and securing defendants for trial. Search and seizure, however, seriously violates individual's privacy, liberty, and property. For this reason several jurisdictions around the world, especially the United States, have developed mandatory exclusionary rules to exclude evidence obtained unlawfully or unreasonably. In 2007, Korea newly inserted Article 308-2, the exclusionary rule that is similar to the United States, into the Korean Criminal Procedure Act. With no precedent exclusionary principles, however, it is expected that confusion is inevitable, for the time being, for Korean courts as they provide investigative authorities with specific guidelines on when and how much evidence acquired outside of due process must be excluded. This paper: 1) explains how the exclusionary and bright-line rules have formed the search and seizure system of the United States, and, 2) recommends that those two rules be used as the foundation for the Korean exclusionary rule. Part II provides two comparative perspectives of this study. Part Ⅲ specifically explains how the U. S. Supreme Court has neutralized the strong effect of exclusionary rules by, in part, tightly interpreting the reasonable expectancy of privacy but broadening the definition of probable cause, which are pre-conditions of lawful search and seizure. Part Ⅳ argues that the U. S. Supreme Court utilized the theory of a bright-line rule to reduce the exclusionary rule making search and seizure principles of the United States much more crime-control oriented. Part V. concludes that these two rules should be studied in greater depth for the Korean exclusionary rules to be well balanced.
Abstract
This study illuminates the dialectic development of due process and crime control functions in search and seizure of the United States, mostly by focusing on exclusionary and bright-line rules which have been established by the U. S. Supreme Court since 1960s. It would be redundant to say that search and seizure in crime investigation is essential for effectively acquiring evidence and securing defendants for trial. Search and seizure, however, seriously violates individual's privacy, liberty, and property. For this reason several jurisdictions around the world, especially the United States, have developed mandatory exclusionary rules to exclude evidence obtained unlawfully or unreasonably. In 2007, Korea newly inserted Article 308-2, the exclusionary rule that is similar to the United States, into the Korean Criminal Procedure Act. With no precedent exclusionary principles, however, it is expected that confusion is inevitable, for the time being, for Korean courts as they provide investigative authorities with specific guidelines on when and how much evidence acquired outside of due process must be excluded. This paper: 1) explains how the exclusionary and bright-line rules have formed the search and seizure system of the United States, and, 2) recommends that those two rules be used as the foundation for the Korean exclusionary rule. Part II provides two comparative perspectives of this study. Part Ⅲ specifically explains how the U. S. Supreme Court has neutralized the strong effect of exclusionary rules by, in part, tightly interpreting the reasonable expectancy of privacy but broadening the definition of probable cause, which are pre-conditions of lawful search and seizure. Part Ⅳ argues that the U. S. Supreme Court utilized the theory of a bright-line rule to reduce the exclusionary rule making search and seizure principles of the United States much more crime-control oriented. Part V. concludes that these two rules should be studied in greater depth for the Korean exclusionary rules to be well balanced.
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