특신상태에 대한 비판적 고찰

Abstract

Theories and precedents that support the credibility granted by circumstances theory are flawed in many aspects. The most fundamental reason is that the Federal Rules of Evidence(FRE) considers both the circumstantial guarantee of trustworthiness and necesssity of the use of such evidence as non-hearsay or exceptions of hearsay rule. Therefore, if statements are non-hearsay or exception of hearsay rule, then it gains admissibility. Each individual statement’s probative power can be judged by the juror or judge. However, Korean law grants admissibility to certain types of statements when it was produced under especially trustworthy situation, thus making the distinction between admissibility and probative power confusing as the trustworthiness of statements is contemplated during the judgement on especially trustworthy situations. Furthermore, hearsay before investigating agents are usually stated under investigating agents’ regular and typical investigative procedures. Thus statements from these occasions cannot be considered to have been conducted under especially trustworthy situations. The trustworthiness of hearsay obtained from non-investigative agencies may or may not be assured by the situation in which the hearsay was obtained. However, some theories and precedents do not seem to care much about circumstantial guarantee of trustworthiness. If hearsay by non-investigative agencies can be granted admissibility only when circumstantial guarantee of trustworthiness exists as written in the Federal Rules of Evidence, then the unfair conclusion that most hearsay cannot be used as evidence is reached. The supreme court judges what can be passed as especially trustworthy situations by considering 1) the process of the obtaining the statements and documentation, 2) the relationship between the declarant and the accused 3) whether the content of statements is detailed and not contradictory 4) the situation during the statement or after the document has been made 5) the adequacy and lawfulness of investigation methods by the investigative agency 6) whether the district attorney has pleading or proof of especially trustworthy situation. Precedents judge what is an especially trustworthy situation by considering not only the external collateral situations, which is material to especially trustworthy situation, when the statement was made but also other factors. To develop reasonable logics on especially trustworthy situation theory and resolve the confusions on it, reestablishment of understanding on hearsay rule, court-oriented trial and unmittelbarkeit principle is required.