진술거부권 불고지의 진술로 획득한 2차적 증거의 증거능력: 미국과 우리 법상 독수과실론에 관한 대법원 판례들의 비교분석

Abstract

The U.S. Supreme Court has developed ‘the fruit of poisonous tree doctrine’ derived from exclusionary rule of illegal evidence since Silverthorne Lumber v. U.S. in 1920. On the other hand, privilege against self-incrimination statement under the Fifth Amendment [1791] is originated from church law maxim 'nemo tenetur prodere seipsum'. Confession without notice of right to silence has been deemed as inadmissabile with little assessment of the voluntariness of the statement since Miranda v. Arizona decision was issuv. Although the fruit of poisonous tree doctrine was urged to be applied to secondary evidence obtained through the statement without notice of right to silence, the Supreme Court issued decisions holding that the doctrine is inapplicable to the evidence, either statement or non-statement, obtained through statement without Miranda warning This thesis analyzes Tucker v. Michigan holding that testimony of the witness is admissible who is revealed to investigator(s) through a suspect's confession without Miranda warning. It researches Elstad v. U.S. holding that secondary voluntary statement of a suspect with Miranda warning is admissible in spite of inadmissability of the first voluntary statement without the warning, and Seifert v. U.S. with the contrary result as regards so called two-staged investigatory skills consisting of first-question, confession, Miranda-warning, and re-confession. Finally, it introduces Patane v. U.S. accepting the physical evidence obtained by a suspect's unwarned statement. Recently, Korea's Criminal Procedure Act(CPA) adopted a provision (sec.308-2) proclaiming that evidence gathered through illegal procedure is inadmissible at all in criminal procedure. With respect to the provision, the Supreme Court of South Korea, in 2007, issued a decision that evidence obtained through illegal seizure and its derivative secondary evidence are inadmissible due to violation of due process. In 2009, the Court issued another decision holding that secondary statement and witness' testimony obtained through the first voluntary statement without notice of right to silence are admissible in spite of the fruit of poisonous tree doctrine when causal link between the first statement and secondary one is broken down. The 2009 decision presupposed that exclusionary rule under sec.308-2 is a main legal foundation for excluding the first statement without notice of right to silence. Such rationale for abandoning statement without notice of right to silence is distinguished from the U.S. federal court interpretation that privilege against self-incrimination under the Fifth Const. Am., not exclusionary rule under the Fourth or Sixth Am., is a legal foundation for excluding statement without Miranda warning. In the U.S. the fruit of poisonous tree doctrine has not been adopted to expand its application to secondary evidence derived from statement without Miranda warning due to different legal foundations. When launching a new legal doctrine of the fruit of poisonous tree doctrine, more legal reasonings will reduce practitioners' confusion under balance between prevention of illegal investigation and pursuit of locating truth in each case. Korea needs to pay attention to the U.S. historical experiences from strict application of the doctrine through public's decreasing trust in criminal justice system and consequential loss of evidence due to releasing perpetrators under the strict application to adoption of several exceptions of the doctrine. It should be noted that the U.S. federal courts have related legal reasonings for exclusion of secondary evidence obtained without Miranda warning not to the fruit of poisonous tree doctrine but to the Fifth Am. and procedural safeguard for the Fifth Am.