법정에서 검사의 위법한 신문방법에 대한 제재 - 유도신문 및 탄핵증거 제시를 중심으로

Abstract

The courtroom is a place where fierce battles between prosecutors and defense attorneys take place. In order for the court’s authority to properly stand, the parties’ attack and defense methods in court must be fair. However, when the prosecution summons its own witnesses and conducts main questioning, there are cases where guided questioning is conducted even though it does not fall under the grounds of exception stipulated in the criminal procedure rules. It is fortunate if the defense attorney checks the witness’s examination details and points them out in advance and corrects them appropriately, or if the judge restricts this. However, there are cases where this is not the case, and testimony based on the prosecutor’s guided questioning should be considered as a violation of the rules of criminal procedure and therefore inadmissible as evidence. Meanwhile, the defendant is free to deny the facts of the indictment in court. What he has denied or acknowledged from the investigative agency varies depending on each individual’s circumstances. In particular, there are cases where there is no lawyer at the investigation stage, or even if there is a lawyer, the investigative agency takes the desired position out of fear of punishment rather than revealing the substantive truth at the investigation stage. If the defendant confesses or is close to it at the investigative agency but then denies the indictment in court, the prosecutor uses the defendant’s interrogation as a method of proof. However, the problem is that when the prosecutor interrogates the defendant, he or she first presents the suspect interrogation report, which is not admissible as evidence, to the defendant. While there is no particular sanction from the court, the presentation of suspect interrogation records by prosecutors as described above is gradually becoming a practice. This can be said to violate the purpose of the essence of impeachment evidence being to contest the probative power of the defendant’s statement, and the legal principles regarding the method of impeachment or the timing of submission of impeachment evidence, which are premised on the defendant’s statement being preceded by its nature. In this way, the testimony of a witness or a defendant resulting from the prosecutor’s illegal interrogation method should be denied admissibility as illegal evidence. The probative power of testimony excluding that part must be reduced or the degree of impeachment must also be reduced. In order to improve these illegal practical practices of the prosecution, first, a new legal principle that will have a significant impact on the level of proof by ultimately making the prosecutor responsible for incorrect proof methods must be developed. Second, the court should no longer ignore the arrogant prosecutor’s method of proof. Judges need to actively intervene in prosecutors’ illegal interrogation methods. Third, by revising the criminal procedure rules, a clear provision is made to prohibit prosecutors from presenting suspect interrogation records when interrogating defendants. Sanctions against the prosecution’s illegal interrogation methods as described above will serve as a stepping stone to take one step further toward realizing trial-centeredness.