녹음증거의 진술 내용이 기재된 서면의 증거능력

Abstract

Article 313-1 of the revised criminal procedure law regulates information acquired from words, photographs, images that are saved on compact discs or other similar information storage medium as statement. Nonetheless, precedents prior to the revision that resulted in the aforementioned rule allowed recorded evidence, such as cassette tape recordings, to have admissibility of evidence. Given that the rule above appears to only include digital data storage device, and exclude recorded information, the applicability of recorded evidence (i.e. analog cassette tape recording) as statement becomes unclear and problematic. No reasons can be argued for the exclusion of digitalized recorded evidence as statement. However, analog forms of recorded evidence cannot be considered to be a part of the rule above, due to the evidence’s lack of digital format. Currently, recorded evidence can be recognized as statement only through precedents. Meanwhile, the admissibility of evidence for verification report, investigation report, and transcript that is transcribed from illegally obtained tapes and disputed transcripts by the defendant becomes questionable. In the case of illegally obtained recorded evidence, the transcript of the evidence loses the admissibility of evidence. Nonetheless, legal scholars may debate on the admissibility of evidence for the part of questioning that is based on recorded evidence illegally obtained by prosecutors or judicial police officers, wherein protocol of statement or protocol of examination of a suspects confirms the illegality. Further, practical principle does not apply for such questioning. However, answers that simply omit the debated questioning cannot be admitted as evidence, because both questioning and answering constitute the significance of a report only when consider comprehensively. No one can deny that the criminal investigations which conduct examination in order to verify the illegally acquired evidence against a witness, suspect or a person testifying do in fact hinder investigative agencies’ finding of substantial truth. However, if admissibility of evidence gets recognized for these cases, evidence that in theory lack admissibility of evidence, and even the illegally acquired evidence, can have the admissibility of evidence. Hence, this paper argues that the relevant part of protocol must be deleted and should not be read in court evidence investigation proceedings.