형사재판에 있어서 녹음된 진술의 증거능력

Abstract

In discussing admissibility regarding a recording tape or a recorded file, it is not necessary to distinguish a statement recording from an on-site recording but the distinction, to some degree, helps to explain and understand this issue. The statement recording refers to a person’s statement account of a past event and the statement’s authenticity shall be proved under the law of evidence. On-site recording means a recording of one’s talk or sound at a crime scene and the fact that this talk or sound existed, per se, shall be proved. The Supreme Court does not use the terms of statement recording or on-site recording but decides admissibility regarding the recorded statements according to the above-mentioned criteria. In case of a statement recording, it is reasonable to decide its admissibility according to a recording person in consideration of the Articles 311~313 of the Criminal Procedure Act. However, it is consistent under the criminal procedural system to deny independent admissibility about video recordings in which investigation agencies record the statements of suspects or witnesses during the investigation even if the video recordings are satisfied with the requirements under the Article 312 of the Act. On-site recordings are evidence of non-testimony. Because on-site recordings can be easily manipulated, they should be admissible only when they are recorded according to the legitimate procedures and methods under the Article 312, Paragraph 6 of the Act and their authentication is proved by the statement of recording persons. The Supreme Court determined at 2014DO10978 (Judgment 1) that the recorded statement of the defendant’s incitement to insurrection is not hearsay evidence, and admitted the evidence in spite of its authentication. However, the Court considered at 2012DO7461 (Judgment 2) and 2007DO10804 (Judgment 3) that defendants’ intimidating remarks or mentions regarding bribery are same as “the documents describing the defendants’ statements.” Furthermore, the Court pointed out that the authentication of on-site recordings shall be proved by the statements of the recording persons in accordance with the Article 313, Paragraph 1 of the Act in order to use the recorded remarks as evidence and that the defendants’ remarks shall be made under the particularly reliable circumstances. Therefore, the Court admitted evidence with regard to the recordings of Judgements 2 and 3. The Court’s judgement 1 seems to be reasonable. In the case, the Court ruled that the recording does not fall under hearsay evidence in that it was submitted as circumstantial evidence irrelevant to the statement’s authenticity, for example, whether the recording contains the defendant’s incitement to insurrection and this judgement seems to be reasonable. Even if the recording was submitted in order to demonstrate the facts required to be proved, the defendant’s talks cannot be hearsay evidence on the grounds that the talks are not external delivery of experience but expression of his will and consciousness of insurrection and, accordingly, there is no room for error in perception, memory or expression during experience. Therefore, the judgment of the Supreme Court admitting evidence of this recording, despite the fact that the recording’s authentication is not proved by the recording person, is considered as valid. However, the defendant’s intimidating remarks in the judgement 2 are not a delivery of his experience, but rather an expression of his own thought or will and, thus, the remarks, by itself, can prove the fact about his intimidation. In the Judgement 3, the defendant’s remarks presuming acceptance of bribes cannot directly prove the fact about acceptance of bribes but are sufficient to be circumstantial evidence with regard to the fact about acceptance of bribes. Therefore, the defendants’ remarks in these two cases, unlike the remarks in the judgement 1, cannot be considered as hearsay evidence. However, the Court’s judgements 2 and 3 are not reasonable in that the recordings concerned are determined as hearsay evidence. Even if the recordings of Judgments 2 and 3 are regarded as hearsay evidence, the judgements are not valid on the ground that there are authentication of the recording persons without defendants’ authentication.