공범의 수사상 진술의 증거능력을 인정하기 위한 대면권과 전문법칙과의 관계

다국어 초록 (Multilingual Abstract)

The criminal procedure commonly provide for the joinder of defendants, whereby two or more persons may together be prosecuted in a single trial. Assume a case in which defendants A and B have been lawfully joined for trial, but at that trial the prosecution intends to offer against A a confession by him stating, in effect, that he and B committed the crime. That right of an accused in a criminal case to confront the accomplice against him would be violated if A, by his confession, was a accomplice against B but could not be cross-examined. So to speak, where the powerfully incriminating judicial statements of a co-accused, who stands accused side-by-side with the defendant, are deliberately spread before the judge in a joint trial. In connection with the hearsay rule in Korea, Article 312 ①, ② of the revised-Criminal Procedure(CCA) provides for the Admissibility of the
Protocal containing interrogation of a suspect by a public prosecutor. But It is uncertainly that Article 312 ①, ② of the revised-Criminal Procedure(CCA) provides for the Admissibility of the Co-defendant󰡑out of court statement. Because the defendants may be charged together or separately, even if they are alleged to have participated in the same act or transaction. So in America, whether the Co-defendant admits or denies having made the statement, it has been questioned whether the opportunity for cross-examination sufficiently deals with the incriminated Co-defendant󰡑dilemma. Indeed, the cross-examination of one defendant by another may sometimes involve such conflict and antagonism between them that a severance will thereby be necessary. In
light of this, trial courts should more explicitly and vigorously inquire on a case-by-case basis whether there are unacceptable risks. But In my opinion, I think that the Admissibility of the Co-defendant󰡑out of court
statement should be allowed as Article 312 ①, ② of the revised-Criminal Procedure(CCA), not Article 312 ④ of the revised-Criminal Procedure(CCA). Because it seems to me that “interlocking” bears a positively inverse relationship to devastation. A co-accused' confession will be relatively harmless if the incriminating story it tells is different from that which the accused himself is alleged to have told, but enormously damaging if it confirms, in all essential respects, the accused' alleged confession. But, the Sixth Amendment of the Constitution of the United States provides: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses against him to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. So, The Confrontation
Clause is applied to “witnesses” against the accused–in other words, those who “bear testimony.” The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement. But the Roberts test allows a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability. It thus replaces the constitutionally prescribed method of assessing reliability with a wholly foreign one. In this respect, it is very different from exceptions to the Confrontation Clause that make no claim to be a surrogate means of assessing reliability. For example, the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability.